| Page Range | 90675-90947 | |
| FR Document |
| Page and Subject | |
|---|---|
| 81 FR 90871 - Sunshine Act Meeting; National Science Board | |
| 81 FR 90853 - Sunshine Act Meeting | |
| 81 FR 90820 - Agency Information Collection Activities; Comment Request; Application and Employment Certification for Public Service Loan Forgiveness | |
| 81 FR 90864 - Notice of Closure: Target Shooting Public Safety Closure on the Lake Mountains in Utah County, UT | |
| 81 FR 90723 - National Forest System Land Management Planning | |
| 81 FR 90862 - Supplemental Programmatic Environmental Assessment (SPEA) for the Proposed Establishment and Operations of the Office of Biometric Identity Management and the Homeland Advanced Biometric Technology (HART) | |
| 81 FR 90750 - Revised Inspection of Records and Related Fees | |
| 81 FR 90787 - Endangered and Threatened Species; Take of Anadromous Fish | |
| 81 FR 90783 - Endangered and Threatened Species; Take of Anadromous Fish | |
| 81 FR 90784 - Endangered and Threatened Species; Take of Anadromous Fish | |
| 81 FR 90754 - Partial Approval, Partial Disapproval of California Air Plan Revisions, Antelope Valley Air Quality Management District | |
| 81 FR 90842 - Pesticide Product Registrations; Receipt of Applications for New Uses | |
| 81 FR 90843 - Chemical Data Reporting; Requirements for Inorganic Byproduct Chemical Substances; Notice of Intent To Negotiate | |
| 81 FR 90840 - TSCA Reporting and Recordkeeping Requirements; Standards for Small Manufacturers and Processors | |
| 81 FR 90836 - Pesticide Emergency Exemptions; Agency Decisions and State and Federal Agency Crisis Declarations | |
| 81 FR 90848 - Cross-Media Electronic Reporting: Authorized Program Revision Approval, State of Oregon | |
| 81 FR 90782 - Draft 2016 Marine Mammal Stock Assessment Reports; Correction | |
| 81 FR 90851 - Information Collection Being Submitted for Review and Approval to the Office of Management and Budget | |
| 81 FR 90849 - Information Collections Being Submitted for Review and Approval to the Office of Management and Budget | |
| 81 FR 90789 - Defense Acquisition University Board of Visitors; Notice of Federal Advisory Committee Meeting | |
| 81 FR 90865 - Notice of Availability of the Draft Resource Management Plan Amendment/Draft Environmental Impact Statement for Recreational Target Shooting in the Sonoran Desert National Monument, AZ | |
| 81 FR 90833 - Combined Notice of Filings #1 | |
| 81 FR 90789 - 36(b)(1) Arms Sales Notification | |
| 81 FR 90785 - Endangered and Threatened Species; Recovery Plans | |
| 81 FR 90773 - Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment Assistance | |
| 81 FR 90794 - 36(b)(1) Arms Sales Notification | |
| 81 FR 90903 - Modification of Iran, North Korea, and Syria Nonproliferation Act Measures Against a Russian Entity | |
| 81 FR 90867 - Raw-In-Shell Pistachios From Iran; Scheduling of a Full Five-Year Review | |
| 81 FR 90875 - Combined License Application for Turkey Point Nuclear Plant, Units 6 and 7 | |
| 81 FR 90871 - South Carolina Electric & Gas Company and South Carolina Public Service Authority; Virgil C. Summer Nuclear Station, Units 2 and 3; Passive Core Cooling System Condensate Return | |
| 81 FR 90775 - Pasta From Turkey: Final Results of Countervailing Duty Administrative Review; 2014 | |
| 81 FR 90776 - Large Residential Washers From the People's Republic of China: Final Determination of Sales at Less Than Fair Value and Final Negative Determination of Critical Circumstances | |
| 81 FR 90863 - Endangered Species; Receipt of Applications for Permit | |
| 81 FR 90780 - Certain Carbon and Alloy Steel Cut-to-Length Plate From France: Correction to the Amended Preliminary Determination of Sales at Less Than Fair Value | |
| 81 FR 90774 - Certain Frozen Warmwater Shrimp From India: Notice of Final Results of Antidumping Duty Changed Circumstances Review | |
| 81 FR 90855 - Use of Electronic Informed Consent-Questions and Answers; Guidance for Institutional Review Boards, Investigators, and Sponsors; Availability | |
| 81 FR 90854 - Reporting of Pregnancy Success Rates From Assisted Reproductive Technology (ART) Programs; Clarifications and Modifications | |
| 81 FR 90792 - 36(b)(1) Arms Sales Notification | |
| 81 FR 90903 - Petition for Waiver of Compliance | |
| 81 FR 90904 - Petition for Waiver of Compliance | |
| 81 FR 90921 - Sanctions Actions Pursuant to Executive Order 13413 | |
| 81 FR 90751 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 2016 Commercial Accountability Measure and Closure for South Atlantic Gray Triggerfish; July through December Season | |
| 81 FR 90921 - Submission for OMB Review; Comment Request | |
| 81 FR 90854 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
| 81 FR 90852 - Open Commission Meeting, Thursday, December 15, 2016 | |
| 81 FR 90870 - United States Assumption of Concurrent Federal Criminal Jurisdiction; Hoopa Valley Tribe | |
| 81 FR 90867 - Proposed Information Collection; National Park Service Office of Public Health Disease Reporting and Surveillance System | |
| 81 FR 90836 - City of Pasadena, California; Notice of Filing | |
| 81 FR 90834 - Combined Notice of Filings | |
| 81 FR 90834 - Combined Notice of Filings #1 | |
| 81 FR 90835 - Combined Notice of Filings #1 | |
| 81 FR 90780 - Endangered and Threatened Species; Recovery Plan for Oregon Coast Coho Salmon ESU | |
| 81 FR 90773 - General Conference Committee of the National Poultry Improvement Plan; Intent To Reestablish | |
| 81 FR 90861 - Approval of Intertek USA, Inc., as a Commercial Gauger | |
| 81 FR 90860 - Approval of Intertek USA, Inc., as a Commercial Gauger | |
| 81 FR 90859 - Accreditation and Approval of Intertek USA, Inc., as a Commercial Gauger and Laboratory | |
| 81 FR 90860 - Accreditation and Approval of Amspec Services, LLC, as a Commercial Gauger and Laboratory | |
| 81 FR 90860 - Accreditation of Sea, LTD., as a Commercial Laboratory | |
| 81 FR 90773 - Eastern Washington Cascades Provincial Advisory Committee | |
| 81 FR 90857 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Medical Devices; Third-Party Review Under the Food and Drug Administration Modernization Act | |
| 81 FR 90870 - Notice of Permit Applications Received Under the Antarctic Conservation Act of 1978 | |
| 81 FR 90866 - Notice of Public Meeting for the San Juan Islands National Monument Advisory Committee | |
| 81 FR 90869 - Agency Information Collection Activities; Proposed eCollection eComments Requested; COPS Application Package | |
| 81 FR 90808 - Agency Information Collection Activities; Comment Request; Grant Application Form for Project Objectives and Performance Measures Information | |
| 81 FR 90784 - Notice of Availability of Draft Scientific Assessment for Public Comment | |
| 81 FR 90871 - Astronomy and Astrophysics Advisory Committee Meeting Notice | |
| 81 FR 90797 - Agency Information Collection Activities; Comment Request; Teacher Verification Form for Title II Scholarship Recipients | |
| 81 FR 90922 - Agency Information Collection Activity (Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD) (VA Form 21-0781) and Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD) Secondary to Personal Assault (VA Form 21-0781a)) | |
| 81 FR 90895 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change to Rule 21.5 of Bats BZX Exchange, Inc. To Extend Through June 30, 2017, the Penny Pilot Program in Options Classes in Certain Issues | |
| 81 FR 90774 - Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment Assistance | |
| 81 FR 90869 - Certain Air Mattress Bed Systems and Components Thereof Commission Determination Not to Review Two Initial Determinations Terminating the Investigation Based Upon a Consent Order Stipulation and Proposed Consent Order, a Settlement Agreement, and a Withdrawal of the Complaint; Issuance of a Consent Order; Termination of the Investigation | |
| 81 FR 90788 - Gulf of Mexico Fishery Management Council; Public Meeting | |
| 81 FR 90905 - Funding Opportunity | |
| 81 FR 90797 - Applications for New Awards; Education Innovation and Research Program-Expansion Grants | |
| 81 FR 90809 - Applications for New Awards; Education Innovation and Research Program-Early-Phase Grants | |
| 81 FR 90821 - Applications for New Awards; Education Innovation and Research Program-Mid-Phase Grants | |
| 81 FR 90781 - Marine Mammals; File No. 20455 | |
| 81 FR 90896 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing of Amendment No. 1 and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Amendment No. 1, Relating To Opening and Closing Rotations Under the HOSS System | |
| 81 FR 90876 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Amendment No. 3, and Order Granting Accelerated Approval of Proposed Rule Change, as Modified by Amendment No. 3, Relating to the Listing and Trading of Shares of the Long Dollar Gold Trust Under NYSE Arca Equities Rule 8.201 | |
| 81 FR 90891 - Self-Regulatory Organizations; ICE Clear Europe Limited; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to the Clearing Rules Regarding German CDS Clearing Members | |
| 81 FR 90893 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Section 902.04 of the NYSE Listed Company Manual | |
| 81 FR 90889 - Self-Regulatory Organizations; CBOE Futures Exchange, LLC; Notice of Filing of a Proposed Rule Change Regarding Attempted Fraudulent Acts | |
| 81 FR 90753 - Group Registration of Contributions to Periodicals | |
| 81 FR 90753 - Supplementary Registration | |
| 81 FR 90858 - National Institute of Biomedical Imaging and Bioengineering; Notice of Closed Meeting | |
| 81 FR 90858 - National Institute of Biomedical Imaging and Bioengineering; Notice of Meeting | |
| 81 FR 90858 - National Human Genome Research Institute; Notice of Closed Meeting | |
| 81 FR 90858 - Center for Scientific Review; Notice of Closed Meeting | |
| 81 FR 90753 - Group Registration of Photographs | |
| 81 FR 90835 - Energy Resources USA, Inc.; Notice of Preliminary Permit Application Accepted for Filing and Soliciting Comments and Motions To Intervene | |
| 81 FR 90712 - Addition of Certain Persons to the Entity List | |
| 81 FR 90772 - Submission for OMB Review; Comment Request | |
| 81 FR 90758 - Approval and Promulgation of Air Quality Implementation Plans; Maine, New Hampshire, Rhode Island and Vermont; Interstate Transport of Fine Particle and Ozone Air Pollution | |
| 81 FR 90722 - United States Navy Restricted Area, SUPSHIP USN, Gulf Coast, Pascagoula, Mississippi | |
| 81 FR 90699 - Loan Guarantees for Projects That Employ Innovative Technologies | |
| 81 FR 90715 - Freedom of Information Act Policies and Procedures | |
| 81 FR 90926 - World Trade Center Health Program; Amendments to Definitions, Appeals, and Other Requirements | |
| 81 FR 90840 - Notice of Proposed Administrative Settlement Pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act | |
| 81 FR 90675 - Enhancing Retailer Standards in the Supplemental Nutrition Assistance Program (SNAP) | |
| 81 FR 90739 - Maritime Radio Equipment and Related Matters | |
| 81 FR 90762 - Endangered and Threatened Wildlife and Plants; Removing the Black-Capped Vireo From the Federal List of Endangered and Threatened Wildlife |
Animal and Plant Health Inspection Service
Food and Nutrition Service
Forest Service
Economic Development Administration
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Engineers Corps
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Food and Drug Administration
National Institutes of Health
U.S. Customs and Border Protection
Fish and Wildlife Service
Land Management Bureau
National Park Service
Copyright Office, Library of Congress
Federal Railroad Administration
Community Development Financial Institutions Fund
Foreign Assets Control Office
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Food and Nutrition Service (FNS), U.S. Department of Agriculture (USDA or the Department).
Final rule.
The Food and Nutrition Service (FNS or the Agency) is updating Supplemental Nutrition Assistance Program (SNAP or the Program) regulations pertaining to the eligibility criteria for retail food stores to participate in the Program by finalizing a proposed rule that was published on February 17, 2016. The Agricultural Act of 2014 (the 2014 Farm Bill) amended the Food and Nutrition Act of 2008 (the Act) to increase the requirement that certain SNAP authorized retail food stores have available on a continuous basis at least three varieties of items in each of four staple food categories, to a mandatory minimum of seven varieties. The 2014 Farm Bill also amended the Act to increase, for certain SNAP authorized retail food stores, the minimum number of staple food categories in which perishable foods are required from two to three. This final rule codifies these mandatory requirements.
In addition, FNS is codifying several other discretionary changes to the existing eligibility criteria. The first is to address depth of stock by establishing a minimum of three stocking units per staple food variety. The rule also amends the definitions of “staple food,” “retail food store,” and “ineligible firms”, and defines the term “firm” as discussed in the
Vicky Robinson, Chief, Retailer Management and Issuance Branch (RMIB), Retailer Policy and Management Division (RPMD), Food and Nutrition Service (FNS), U.S. Department of Agriculture (USDA), 3101 Park Center Drive, Alexandria, Virginia 22302. Ms. Robinson can also be reached by telephone at (703) 305-2476 or by email at
In this final rule, FNS is amending SNAP regulations at 7 CFR parts 271 and 278 to clarify and enhance current regulations governing the eligibility of firms to participate in SNAP. This rulemaking also codifies mandatory provisions of the 2014 Farm Bill, as well as other provisions to strengthen current regulations and conform to statutory intent. These changes will improve SNAP households' access to a variety of healthy food options and they reflect the Agency's ongoing commitments to provide vital nutrition assistance to the most vulnerable Americans, protect taxpayer dollars, and build on aggressive efforts to ensure Program integrity. The final rule allows FNS to ensure that firms authorized to participate in SNAP as retail food stores are consistent with and further the purposes of the Program. This final rule reinforces the statutory intent of SNAP—that participants are able to use their benefits to purchase nutritious foods intended for home preparation and consumption. In the interests of preserving SNAP households' food access, minimizing the burden on participating retail food stores and reflective of the many comments received in response to the proposed rule, this final rule has been substantially modified from its proposed form, including to reduce burden on retailers participating in the program and to help retain their participation in the program.
The proposed rule generated a great deal of interest and concern among a diverse array of Program stakeholders. In consideration of these comments FNS has clarified, modified, or excised several provisions contained in the proposed rule. In summary:
The proposed language excluding multiple ingredient food items from being counted towards any staple food category has been removed from the final rule.
The proposed language has been clarified to specify that “accessory food items” are not defined by consumption between meals or package size and that foods with an accessory food main ingredient (
The proposed language defining “retail food store” as a firm with at least 85 percent of its total food sales in items not cooked or heated on-site before or after purchase has been removed from the final rule. However, related to this proposed provision, language was added to existing regulations on “ineligible firms” to specify that a firm is ineligible for SNAP authorization if at least 50 percent of its total gross sales come from the sale of hot and/or cold prepared foods, including foods cooked or heated on-site, before or after purchase.
The proposed language regarding co-located businesses was clarified and narrowed to specify that multiple businesses that operate under one roof will only be considered a single firm for purposes of determining SNAP retailer eligibility if the businesses have common ownership, sale of similar food, and shared inventory.
The proposed depth of stock requirement was halved, from six to three stocking units per staple food variety. Additionally, language was added to specify that a firm may not be denied or withdrawn based on certain stocking shortfalls at the time of the Agency inspection if that firm can produce documentation proving that, no more than 21 days prior to the Agency inspection, the firm had ordered and/or received the required stock.
Per statute, no changes were made to this provision, which increased the number of varieties required per staple food category from three to seven and increased the number of staple food categories required to contain at least one perishable variety from two to three.
No changes were made to this provision which defines the term “firm”.
Language was added to this provision to specify that “need for access” factors would not be limited to those enumerated in the regulatory language, that “need for access” would only be considered for applicant firms that fail to meet certain authorization requirements, and that the consideration of “need for access” would be part of the existing SNAP authorization process under 7 CFR 278.1(a).
Language was added to the definition of “staple food” to include in the meat, poultry, or fish staple food category three types of plant-based protein sources (beans, peas, and nuts/seeds) as well as plant-based meat analogues (
Language was added to this provision to specify that the public disclosure of firms subject to term sanctions would last for the term of the sanction.
The following provisions of this final rule will be implemented on the effective date of this final rule: The definition of “firm” provision (
The following provisions of this final rule will be implemented for all retailers 120 days after the effective date of this final rule: The co-located firms provision (
The stocking provisions of this final rule will be implemented for all new applicant firms and all firms eligible for reinstatement 120 days after the effective date of this final rule and 365 days after the effective date of this final rule for all currently authorized firms. The stocking provisions of this final rule include: The accessory food items provision (
As it is used in this document the phrase “existing policy” refers to Agency policy in place as of December 15, 2016. Changes to existing policy included in the final rule will be implemented on or after the effective date of the final rule, January 17, 2017, as described above in this section.
Many Program stakeholders specifically requested that FNS provide retailers with detailed guidance and training materials on the rule to ensure that all retailers fully understand all of the provisions of the final rule. In addition to the clarifications and lists of examples provided in the preamble of the final rule, FNS will answer retailer inquiries and provide retailers with additional notice, guidance, and training materials during the aforementioned implementation period per 7 CFR 278.1(t). This will include extensive outreach to ensure that the retailer community is provided with sufficient technical assistance to ensure that all firms are adequately informed regarding these changes to SNAP rules.
On August 20, 2013, FNS published a notice entitled, “Request for Information: Supplemental Nutrition Assistance Program (SNAP) Enhancing Retail Food Store Eligibility” in the
On February 17, 2016, the Agency published a Notice of Proposed Rulemaking (NPRM) rule in the
The proposed rule included statutory changes to the breadth of stock (seven varieties in each of the four staple food categories and at least one variety of perishable foods in at least three staple food categories) required of certain SNAP retailers which were mandated by the 2014 Farm Bill. Additionally, the rule proposed discretionary changes such as provisions to address depth of stock, amend the definition of “staple food”, amend the definition of “retail food store”, and reaffirm the Agency's authority to disclose to the public certain information about retailers who have violated SNAP rules.
The 91-day public comment period ended on May 18, 2016. FNS received 1,284 public comments, including one comment not considered as it was submitted untimely, and reviewed all 1,283 timely public comments when drafting this final rule. Of these 1,283 comments, 23 were considered duplicative or non-germane, 738 or about 58% of all comments were template or form letters, and 522 or about 41% of all comments were unique submissions. Comments were considered duplicative only if the actual submission and submitter were identical to those of a previously received comment (
Of the 1,260 germane and non-duplicative comments considered by FNS, most of the comments received came from retail food store representatives, owners, managers, or employees (901 or about 72% of total public comments). This total was largely comprised of retailer template comments which either repeated boilerplate language verbatim or with minor modifications and/or personalizations. The retailer template comments (henceforth Template A) submitted by the employees and owners of one chain of firms (a national take-and-bake pizzeria chain which claims over 1,300 locations nationally, about 800 of which are currently authorized to participate in SNAP) accounted for more than one quarter of all public comments received and more than one third of all retailer comments received (333 Template A comments, about 26% of total public comments, or about 37% of all retailer comments). The retailer template comments (henceforth Template B) submitted by the employees and owners of another chain of firms (a regional chain of convenience stores which claims over 600 locations, about 550 of which are SNAP authorized firms) accounted for about a seventh of all public comments received and about a fifth of all retailer comments received (183 Template B comments, about 15% of total public comments, or about 20% of all retailer comments). The comments submitted by the owners, operators, or representatives of convenience stores using the template (henceforth Template C) provided by an international convenience store trade association, which professes to represent more than 1,500 supplier company members and 2,100 retailer company members with over 50,000 convenience store locations nationally, accounted for about a ninth of all comments received and about a sixth of all retailer comments received (143 Template C comments, about 11% of total public comments, or about 16% of all retailer comments). Other retailer comment templates accounted for about 3% of total public comments received and about 5% of all retailer comments received (42 other retailer template comments). In total, retailer template comments (701 total retailer template comments) constitute about 78% of all retailer comments (901 total retailer comments) and about 56% of all total comments (1,260 total germane and non-duplicative public comments). The remaining 200 retailer comments were unique submissions (about 16% of total public comments, or about 22% of all retailer comments).
The remaining approximately 28% of comments received included feedback from the following entities: 259 private citizens, 29 industry trade associations, 28 medical practitioners/organizations, 21 advocacy or food access organizations, and 22 governmental entities.
Of the 1,260 germane and non-duplicative public comments received, overall opinions on the rule were mixed. A majority of public comments (about 54% of all germane and non-duplicative public comments) neither wholly opposed, nor wholly supported the rule as proposed. This number includes comments that suggested improvements or modifications to the proposed provisions. About 40% of public comments specifically opposed at least one provision of the proposed rule while not voicing support for any specific provision of the proposed rule or offering any improvements or modifications to the proposed provisions. About 5% of public comments specifically supported at least one provision of the proposed rule while not opposing any specific provision of the proposed rule or offering any improvements or modifications to the proposed provisions. Finally, less than 1% of public comments were considered out of scope (
This discretionary provision proposed to amend language, at 7 CFR 271.2 and 7 CFR 278.1(b), to exclude multiple ingredient food items from being
About one quarter of the total 1,260 germane and non-duplicative public comments were Template A comments submitted by the owners and employees of a take-and-bake pizzeria chain. This chain relies exclusively on cold pizza, a multiple ingredient food item, for their SNAP eligibility under Criterion B (this criterion requires firms to have 50 percent of total gross retail sales in staple food sales). Template A comments expressed opposition to this provision on the grounds that it would categorically eliminate them from the Program and that multiple ingredient foods such as pizza may be healthy and affordable options for low income Americans. Other retailer template comments, such as Templates B and C from convenience store owners and employees, also opposed this provision on similar grounds.
Many of the retailers opposing the multiple ingredient food items provision were from the convenience store industry. Such commenters pointed out that the exclusion of these products from eligibility towards SNAP Criterion A (under this final rule, Criterion A would require firms to stock on a continuous basis seven varieties in each of the four staple food categories and at least one variety of perishable foods in at least three staple food categories) would substantially increase the difficulty of retailer compliance with concurrent proposed enhancements in the required depth and breadth of stock, given the limited space in convenience stores. For example, one comment, jointly submitted by the international convenience store trade association noted above and a petroleum marketers trade association which professes to represent about half of the chain petroleum retailers nationally, stated that, “Today, in over 99,000 convenience stores, 75 percent of the items in stock are multiple ingredient items, including mixed fruit cups, frozen vegetable meat medley dinners, or canned soups. To comply with the proposal, these small format retailers would have to completely overhaul their food offerings—and remove items they now sell—to remain eligible to participate in SNAP. This will be quite costly and, for many, will make it too costly to continue participating in SNAP.”
Several retailer commenters also pointed out that, although this change was intended to clear up confusion, it would create more confusion among retailers than under current regulations. As noted by one commenter, an international chain of convenience stores which claims over 50,000 convenience store members in 17 countries including over 7,000 SNAP authorized firms, “The `main ingredient' for most items is easily determined from the principal display panel and/or the FDA-mandated ingredients list.”
Currently, per 7 CFR 271.2 and 7 CFR 278.1(b)(ii)(C), multiple ingredient food items are assigned to the staple food category of their main ingredient as determined by FNS. The final rule titled “Food Stamp Program: Revisions to the Retail Food Store Definition and Program Authorization Guidance”, published in the
Long-standing FNS policy, therefore, holds that a multiple ingredient food will be assigned to the staple food category of its first listed ingredient on this label. Under this existing policy, for example, a product such as canned ravioli, with tomato puree as its listed main ingredient, is considered a variety (
In general, a majority of industry groups opposed the proposed multiple ingredient provision. In addition to the concerns about higher costs for certain types of retailers and greater retailer confusion, industry groups opposed to this provision were also concerned about the effect of the provision on SNAP households, which industry groups claim rely heavily on multiple ingredient food items as part of their nutritional intake. For example, the international convenience store trade association and the petroleum marketers' trade association jointly stated that, “multiple ingredient items are often the main sources of nutrition intake for families in the United States”. Likewise, other industry groups, such as those representing the manufacturers and distributors of canned and frozen food products, pointed out that multiple ingredient food items, such as “frozen pizza rolls” or “canned soup”, can be major sources of important nutritional intake for SNAP households and all Americans.
In addition, about two thirds of advocacy groups opposed this provision. Opposed advocacy group commenters were primarily concerned about the importance of multiple ingredient food items in lower-income Americans' diets, especially for those unable to prepare meals at home due to barriers such as time constraints and/or a lack of adequate kitchen facilities. Additionally, some advocacy groups pointed out that some multiple ingredient food items may have high nutritional value. One national, anti-poverty organization stated that:
USDA has recognized before how essential convenient, multiple ingredient foods are to food purchasing and preparation among SNAP participants. The Thrifty Food Plan is the government market basket upon which SNAP benefit amounts are based. In an effort to be more realistic about the time available for food preparation in the home, USDA incorporated more convenience foods in the
Governmental entities were divided on this provision while medical entities largely supported it. Overall, medical organizations supported this provision on the grounds that it would compel retailers to stock healthier food options and help steer SNAP households away from calorie-dense and nutrient-poor multiple ingredient food items, while also stressing the need for Agency clarification and guidance of this proposed provision prior to implementation. A representative of one such organization, a national, non-profit, medical association which claims 64,000 pediatrician, pediatric medical subspecialist, and pediatric surgical specialist members, noted that “multiple ingredient foods available in small retail outlets, like pizza and other mixed dish frozen and boxed entrees like casseroles and macaroni and cheese, tend to be higher in sodium, saturated fats, and sugar” and, as a result, supported this provision adding that “nutritional profile should be considered in determining how to define a staple food” and that “FNS [should] provide clear and comprehensive guidance, at the time the rule is finalized, that includes a list of specific foods that would qualify as staple foods”.
State and local governmental commenters were divided on this provision. One mayor of a city of 600,000 containing over 1,000 SNAP authorized firms supported the provision, stating, “Currently, the staple food category determination for foods with multiple ingredients is very subjective. We support the proposed changes to the definition of `staple food' in order to bring clarity to a very complex regulatory process. This is [a] strong policy that will increase the availability of staple foods in all [of the city's] neighborhoods”. Other governmental commenters such as the deputy mayor from another city with a population over 600,000 that contains nearly 500 SNAP authorized firms opposed this provision, stating, “Disqualifying all prepared foods for SNAP eligibility is risky as these are shelf-stable staples in small stores and can serve as primary foodstuffs for SNAP families.”
While FNS does agree with the commenters that argued that this provision would likely increase healthy options for SNAP participants, the Agency believes that other provisions in this final rule also help increase healthy options for SNAP participants. The proposed rule would have increased the required depth and breadth of staple food stock while simultaneously expanding the list of accessory foods excluded from the definition of “staple foods” and excluding multiple ingredient food items from the definition of “staple foods”. According to some comments received, taken together, these four provisions would constitute an unreasonably burdensome stocking requirement for small format retailers. The Agency shares these concerns and, for these reasons, the proposed multiple ingredient food items provision has been stricken from this final rule. Multiple ingredient food items will, therefore, continue to be assigned to the staple food category of their main listed ingredient per current regulations at 7 CFR 271.2.
This discretionary provision proposed to amend the definition of “staple food” so as to modify the regulatory definition of “accessory food items”, to exclude certain items from being counted in any staple food category, in keeping with statutory intent. The proposed provision would have expanded the list of accessory foods to include: “Foods that are generally consumed between meals and/or are generally considered snacks or desserts such as, but not limited to, chips, dips, crackers, cupcakes, cookies, popcorn, pastries, and candy, or food items that complement or supplement meals, such as, but not limited, to coffee, tea, cocoa, carbonated and uncarbonated drinks, condiments, spices, salt and sugar”.
This proposed provision was specifically addressed by a low number of public commenters. Of the total 1,260 germane and non-duplicative public comments received, 65 comments, or approximately 5% of all public comments, specifically addressed this provision. Of the 65 comments that specifically addressed this provision, about half supported it, about a quarter opposed it, and about a quarter were mixed. Less than 1% of total retailer commenters specifically opposed this provision. Industry trade groups and governmental entities that commented on this provision were generally divided and/or expressed mixed opinions. Medical groups, private citizens, and advocacy organizations that commented on this provision were generally supportive. FNS has retained this provision in the final rule with some modifications and clarifications.
Trade group comments, such as a comment jointly submitted by the international convenience store trade association and the trade petroleum marketers' trade association, contended that this provision would incur costs not captured in the Agency's proposed Regulatory Impact Analysis (RIA) and Regulatory Flexibility Analysis (RFA), as accessory food items with higher profit margins, such as potato chips, would need to be replaced with staple food items with lower profit margins, such as fruits and vegetables. This “opportunity cost” is a significant contributing factor toward compliance cost estimates, such as the estimate submitted by these trade groups in their joint comment, which exceed the Agency's estimates in the proposed RIA and RFA. The Agency appreciates these comments and has incorporated “opportunity costs” into the cost estimates which appear in the final RIA and RFA. This subject is examined in further detail the final rule's RIA and RFA.
This provision was largely supported by advocacy, medical, and local governmental commenters. One State university's nutrition research institute commented that it “. . . strongly supports . . . [the expansion] of the definition of accessory foods to include chips, desserts, and other snack foods, such that these items are not counted as staple foods.” Another international, nutrition-focused, non-profit organization professing to represent over 1,000 nutrition professionals stated that, “We support the proposed changes to the definition of `accessory foods' that would not qualify as staple foods to include snack foods and dessert items such as chips, dips, cookies, cakes and pastries that are typically consumed between meals.” A city health department commissioner, representing a city with a population of about 400,000 containing about 450 SNAP authorized firms noted that, “We
The large, international chain of convenience stores stated that it “. . . does not object to the exclusion of accessory food items from the definition of `Staple Food' ” and another national food retailer trade association which professes to represent nearly 40,000 retail food stores and 25,000 pharmacies stated it, “. . . supports this change conceptually, but notes that retailers will need flexibility and considerable guidance from the agency on the revised definition”. Finally, a national trade association for the travel plaza and truck stop industry which professes to represent about 200 corporate members and over 1,200 locations, acknowledges the validity of this provision, but like those that had opposed the provision, cautioned that this could inadvertently eliminate stores “that market healthy snack food items such as fruit cups, vegetable-and-dip to go packs, and the like” and argued that this provision should be “well tailored [to] prevent retailers that sell predominantly accessory foods from qualifying to redeem SNAP benefits”.
Some commenters, however, do not believe that this proposed provision went far enough in excluding unhealthy foods from being counted as staple food items for the purposes of SNAP authorization. One health commissioner from a city of over 8.5 million containing over 10,000 SNAP authorized firms stated that, “We recommend the USDA avoid defining accessory food items and concentrate efforts in establishing a comprehensive list of staple food items that may be used to determine eligibility to participate in SNAP.”
In their opposition to this provision the comment jointly submitted by the international convenience store trade association and the petroleum marketers' trade association noted that “[this] provision will drastically limit the number of items that can be counted towards stocking requirements, effectively knocking out nutrient-dense products including healthy `to go' packs such as apple slices and cheese . . .”. Other trade group commenters also pointed out that this provision should be considered carefully to avoid eliminating from consideration healthy snacks like dried fruit and yogurt cups, stating that such healthy snack foods are integral to the diet of the increasing number of Americans who eat on the go.
As explained in the preamble to the proposed rule, the statutory language defining “accessory food items” was explicitly not intended to limit this class of food items to the eight items specifically enumerated in the Section 3(q)(2) of the Act which reads, “ `Staple foods' do not include accessory food items,
In response to commenters who expressed concern about needing flexibility and additional guidance on this provision, FNS has made some clarification changes to the final rule, has provided a longer list of examples below in Section IV, and will issue additional Agency guidance on this subject following promulgation of this final rule including training materials intended for retail food store owners as needed per 7 CFR 278.1(t). FNS has removed the language “generally consumed between meals” in order to address concerns that this language is vague or overly broad. Likewise, the listed example of “dips” has been removed as such terminology could be construed to include potential staple foods such as guacamole, hummus, and salsa as noted earlier by commenters. Primarily this provision will expand the definition of “accessory food items” to include snack and dessert foods, as well as specified food items that complement or supplement meals. These foods are typically deficient in important nutrients and are high in sodium, saturated fats, and/or sugar. FNS believes that this approach to excluding typically salty and sugary snack and dessert foods from counting towards retailer eligibility is a logical extension of the statute and is consistent with the USDA 2015-2020 Dietary Guidelines for Americans, which recommend limiting calories from added sugars and saturated fats and to reduce sodium. For administrative purposes FNS cannot consider the nutritional contents of individual products, such as different brands of potato chips, on a case by case basis. FNS, therefore, must generalize to a certain extent. As a result FNS has identified a list of accessory foods that generally meet the criteria above. It will help to ensure that SNAP clients will have access to a range of healthy food products intended for home preparation and consumption when they shop with their benefits. This final rule, however, will not change which products are eligible for purchase with SNAP benefits.
The list of accessory foods in the final rule now reads: “Accessory food items include foods that are generally considered snacks or desserts such as, but not limited to, chips, ice cream, crackers, cupcakes, cookies, popcorn, pastries, and candy, and food items that complement or supplement meals such as, but not limited to, coffee, tea, cocoa, carbonated and uncarbonated drinks, condiments, spices, salt, and sugar.”
In response to commenters' concerns regarding the effect of this proposed provision on small portion size products, FNS notes that existing regulations at 7 CFR 278.1(b)(1)(ii)(C) specifically state that the “package size” of a product shall not be a determinant of variety. Both an apple and a single-serving package of apple slices would count as the same variety of a staple food item (
However, in response to the confusion expressed by many commenters regarding packaging size, clarifying language explicitly stating that items shall not be classified as accessory food items exclusively based on packaging size has been added in 7 CFR 271.2: “Items shall not be classified as accessory food exclusively based on packaging size . . .” Small-portion packages of staple food items such as apple slices, grapefruit cups, carrot sticks, cheese slices, celery sticks, yogurt cups, bags of nuts, and hummus will continue to be counted as staple food items in their respective staple food categories.
As described above, some commenters recommended that FNS avoid defining accessory food items and establish a comprehensive list of staple food items and that the Agency further exclude unhealthy food items from being classified as staple foods items. While FNS appreciates the goals of such suggestions, creating a comprehensive list of all staple food items is outside of the intended scope of the Agency's rulemaking action. Per research conducted by the USDA's Economic Research Service (ERS), about 20,000 new food products are introduced into the retail marketplace annually. Therefore, the Agency does not believe it is practical to make an exhaustive list of acceptable staple varieties. However, to address concerns about excluding unhealthy foods items from being classified as staple food items, FNS will be amending the final rule to change existing policy, which has limited “accessory food items” to include only the eight products explicitly enumerated in regulations at 7 CFR 271.2. Under existing policy a chocolate hazelnut spread (with the first three listed ingredients of sugar, oil, and hazelnuts, in that order) can currently be considered a staple variety in the vegetables or fruits staple food category (
Because the existing regulations and standing policy on accessory foods has resulted in potato chips being counted as a variety in the vegetables or fruits staple food category (
This discretionary provision proposed to redefine “retail food store” so as to consider firms that had more than 15% of their total food sales coming from the sale of food items that were cooked or heated on-site, before or after purchase, to be restaurants and to exclude such restaurants from the Program. Existing regulations at 7 CFR 278.1(b)(1)(iv) currently consider firms that have more than 50% of their total gross retail sales coming from items that are hot and/or cold prepared foods not intended for home preparation and consumption to be restaurants and exclude such restaurants from the Program. The purpose of the proposed provision was to supplement this existing regulation and exclude from the Program firms that have circumvented Congressional intent and achieved SNAP authorization by selling food cold and offering to cook or heat it on the premises after sale. This proposed provision received a high number of adverse comments and based on the strength of the arguments in these comments, FNS has stricken this provision as proposed from the final rule, instead opting to modify existing regulations at 7 CFR 278.1(b)(1)(iv) to close this loophole. The final rule now provides that firms that are considered to be restaurants, that is, firms that have more than 50 percent of their total gross retail sales in (1) foods cooked or heated on-site by the retailer, before or after purchase; and (2) hot and/or cold prepared foods not intended for home preparation and consumption, including prepared foods that are consumed on the premises or sold for carryout, shall not qualify for participation as retail food stores under Criterion A or B.
For example, a firm has $100,000 in total gross retail sales consisting of $60,000 (60%) in nonfood sales and $40,000 (40%) in food sales. The proposed provision would have considered only the food sales for the purposes of the threshold. Under the proposed provision, therefore, this example firm would be considered a restaurant if more than $6,000 (15% of $40,000) of its sales came from the sale of food items that are were cooked or heated on-site, before or after purchase. The final provision, however, considers total gross retail sales rather than only total food sales. Under this final provision, therefore, this example firm could never be considered a restaurant because more than 50% of the firm's total gross retail sales come from nonfood sales. Under this final provision a firm with $100,000 in total gross retail sales could only be considered a restaurant and excluded from the Program if more than $50,000 of its sales came from the sale of foods cooked or heated on-site, before or after purchase, and the sale of hot and/or cold prepared foods not intended for home preparation and consumption.
It should be noted that existing policy, the proposed rule, and the final rule do not impact the restaurants authorized by SNAP State Agencies to participate in the Restaurant Meals Program (RMP). The RMP is a State-option program active in only a handful of States that allows eligible homeless, disabled, and/or elderly SNAP recipients to use their SNAP benefits at
Of the total 1,260 germane and non-duplicative public comments received, 513 comments, or about 41% of all public comments, specifically addressed this provision. About 48% of total retailer commenters specifically opposed this provision. Medical groups and governmental entities that commented on this provision were generally divided and/or expressed mixed opinions. Industry trade groups, advocacy groups, and private citizens that commented on this provision were generally opposed.
Commenters identifying as retailers and trade associations generally pointed out that a standard convenience store typically has less than 85% of their total food sales coming from the sale of food items that are not cooked or heated on-site before or after purchase. Such commenters indicated that the average convenience store's hot and/or cold prepared foods sales, including sales of foods that are cooked or heated on-site before or after purchase, are closer to 40% of such firms' total food sales, well beyond the 15% threshold for such hot and/or cold prepared foods sales, including sales of foods that are cooked or heated on-site before or after purchase. Commenters opposing this provision stated that this fact would cause the entire convenience store industry to be categorically ineligible for SNAP authorization.
Many advocacy groups also expressed opposition to this provision, noting that this provision could have a deleterious impact on food access for SNAP households. One national, anti-hunger advocacy group noted that, “We remain concerned about access for low-income consumers, particularly in food desert areas, and for all shoppers with mobility issues, such as those who are elderly, have disabilities, and/or lack affordable transportation. We caution the Department against setting a threshold that would cause stores to drop out of SNAP and lessen food access, particularly for these particular SNAP consumers.”
Some retailers also noted that determining and documenting what SNAP household customers did with cold food after purchase would be impractical, especially for a firm with an accessible microwave or other heating element. As noted in comments from the international chain of convenience stores:
SNAP authorized firms that primarily sell cold food and then offer to cook that food on the premises for customers also specifically opposed this provision. The owner of a SNAP authorized firm that sells primarily prepared meat products commented, “Unfortunately, I am concerned that the FNS proposed rule would jeopardize my future participation in SNAP. . . Currently, the business has more than 15% of the total food sales from items that are `cooked or heated on site before or after purchase.' ” An owner of a SNAP authorized firm that primarily sells pizza, stated opposition to this provision and noted that, “All of our customers are required to pay $1 more than our posted take-n-bake prices on our menus regardless of method of payment to bake their take-n-bake pizza for them. For SNAP cardholders, the products MUST still be unbaked at the point we swipe their card. [sic]”
Supporters of this provision, namely medical groups and State and local governmental entities, argue that removing restaurants from the Program will benefit SNAP households by eliminating a cost-ineffective source of calorie-dense and nutrient-poor food. One health commission director, representing a city of 600,000 with about 200 SNAP authorized firms, commented, “We support the effort to uphold the original intent of SNAP to purchase food items intended for home preparation and consumption . . . The proposed rule adds an additional requirement that at least 85 percent of an entity's total food sales must be for items that are not cooked or heated onsite before or after purchase. These enhancements will help ensure that SNAP retailers offer and sell a variety of foods consistent with the language defining a `retail food store' ”. This position was also echoed by two national advocacy associations, one an organization which claims 37 million members that advocates on behalf of persons over 50, and one that is a non-profit, health advocacy organization.
Several industry groups expressed support for the concept of excluding restaurants as well, but noted that the threshold set by the Agency was not set appropriately in the proposed rule. As noted by the international convenience store chain, “Without question, [our] stores are not `restaurants.' Our stores do not have tables or chairs at which our customers can eat and we do not employ servers. Our customers generally leave the store immediately after completing their purchases. None of our stores charge the higher sales tax on restaurant meals found in many jurisdictions. And heated items do not constitute more than 50% of the food items sold in any of our stores.” A national, independent grocery trade association which claims 1,200 members indicated support for this provision's intent while noting that they “strongly urge the Agency to lower the proposed threshold.” Two State retailer associations, one which claims to represent nearly 400 food retailers, wholesalers, and suppliers and one which claims to represent over 800 corporate members operating more than 3,200 retail food stores, also shared this view. Another national trade association federation of 47 State and regional trade associations which claims to represent approximately 8,000 independent petroleum marketers' nationwide quoted the suggestion of one of their members that the threshold be set at “25% of sites' total gross sales instead of 15% of total food sales.”
Other commenters noted that existing regulations at 7 CFR 278.1(b)(1)(iv) already prohibit the authorization of restaurants with 50% of their gross sales in prepared foods intended for home consumption and saw this proposed provision as redundant and excessive. As the international chain of convenience stores commented, “FNS's current regulation regarding retailer eligibility provides a clear, common sense distinction between retail food stores (which have less than 50% of total sales in hot or cold prepared, ready-to-eat foods for immediate consumption) and restaurants (which have more than 50% of total sales in hot or cold prepared, ready-to-eat foods for immediate consumption).”
As stated in the proposed rule, the Agency's intent in proposing this provision was to eliminate restaurants which circumvented Congressional intent and achieved SNAP authorization by selling food cold and offering to cook or heat it on the premises after the sale.
FNS reviewed and considered industry data in response to the concerns from commenters that the 85-15% threshold would have the unintended effect of precluding small-format retail stores with marginal sales in foods cooked or heated on-site, before or after purchase. According to the National Association of Convenience Stores (NACS) State of the Industry (SOI) 2015 Annual Report (
Based on this data, it appears that excluding firms with more than 15% of their food sales in foods cooked or heated on-site before or after purchase would render the average convenience store ineligible to participate in the Program. Furthermore, given that hot and/or cold prepared foods, including foods cooked or heated on-site before or after purchase, constitutes approximately 6.63% of total gross sales, this data indicates that a convenience store with more than 50% of its total gross sales issuing from the sale of hot and/or cold prepared foods is very far outside of industry norms as such sales figures would represent a nearly eightfold greater sales amount in hot and/or cold prepared foods over the average convenience store.
In light of the comments and data, FNS recognizes that this provision, if implemented as proposed, would likely have sweeping and unintended consequences for smaller format firms. The Agency never intended for this provision to categorically preclude convenience stores and other small retail food stores with marginal sales in foods cooked or heated on-site, before or after purchase, from SNAP participation. The stated purpose of this provision was to realign SNAP regulations with statutory intent and exclude restaurants from SNAP.
Therefore, the Agency is narrowing the scope of this provision in the final rule and is instead amending existing regulations at 7 CFR 278.1(b)(1)(iv) to specifically exclude from SNAP participation firms with more than 50 percent of their total gross sales in (1) foods cooked or heated on-site by the retailer before or after purchase; and (2) hot and/or cold prepared foods not intended for home preparation or consumption, including prepared foods that are consumed on the premises or sold for carryout. Conforming edits were also made to 7 CFR 271.2 to the definition of “retail food store.” This change to existing regulations will close the existing loophole and align SNAP regulations with Congressional intent to exclude hot food and restaurants from SNAP, while achieving the Agency's stated objectives and addressing concerns that the proposed provision might adversely affect SNAP-authorized firms, such as convenience stores, that do not operate as restaurants.
This provision was never intended to exclude from the Program firms that offer both microwaveable products (
This discretionary provision proposed to redefine the term “retail food store” such that multiple co-located businesses sharing certain commonalities would be treated as one firm for the purposes of the Program. As proposed, these commonalities included the sale of similar foods, single management structure, shared space, logistics, bank accounts, employees, and/or inventory. In the proposed rule, FNS specifically sought comments pertaining to any unintended adverse effects of this proposed change and based on the comments that were received this provision was modified to specify that co-located businesses will be treated as one firm by FNS only if they share all of the three following attributes: (1) Ownership; (2) sale of similar or same food products; and (3) shared inventory.
This proposed provision received a moderate number of comments. Of the total 1,260 germane and non-duplicative public comments received, 228 comments, or approximately 18% of all public comments, specifically addressed this provision. About 22% of total retailer commenters specifically opposed this provision. Medical groups that commented on this provision were generally divided and/or expressed mixed opinions while private citizens that commented on this provision were generally supportive. Industry trade groups and advocacy groups that commented on this provision were generally opposed. Support for or opposition to this provision was almost universally concomitant with support for or opposition to the 85-15% prepared foods threshold provision.
Commenters opposing this provision point out that, in conjunction with the 85-15% prepared foods threshold provision, this provision would eliminate from the Program any convenience store co-branded and co-located with a fast food business. The idea of unifying multiple businesses operating “under one roof” for purposes of SNAP authorization was criticized by trade groups and retailers who stated that convenience stores and other small format retail food stores operating in shopping malls, travel plazas, strip malls, truck stops, and other shared structures could face elimination from the Program due to their proximity to a totally unaffiliated fast food restaurant. For example, the national truck stop retailer trade association commented, “As a practical matter, this rule would result in scenarios where [our] members' convenience stores would be ineligible to participate in SNAP simply because they operate adjacent to a separate restaurant. This is arbitrary and contrary to the Program's objectives.” Overall opposed commenters noted that this provision was overly broad and could result in the unfair treatment of numerous discrete businesses.
The Agency proposed this provision to close a loophole that allows firms to obtain SNAP authorization in contravention of clear statutory intent to exclude restaurants from the Program. For example, a firm applying for SNAP authorization purports to operate two businesses within one building. The first business sells hot pizza, is considered a restaurant by FNS, and is, therefore, ineligible for SNAP authorization. The second business sells only cold pizza and is, therefore, eligible for SNAP authorization under Criterion B. Both businesses sell the same product, are managed and owned by the same individuals, employ the same personnel, operate in the same space, draw from the same inventory, and handle their finances through the same accounting mechanisms. The only difference between the two businesses in this example is that the former does not accept SNAP EBT cards as a form of payment at its designated cash register, while the latter does. Firms obtaining SNAP authorization through such a superficial bifurcation of their businesses are clearly circumventing regulatory and statutory intent to exclude restaurants from the Program in order to sell their food, in this example, pizzas. This provision was proposed in order to close this loophole.
It was never the Agency's intent to treat multiple businesses as one firm because such businesses simply share a roof and an owner. The Agency's intent in the proposed provision was not to consider multiple businesses operating within one truck stop or strip mall as a single firm even if they shared some commonalities, such as management and personnel, so long as they were not also engaged in other common practices as well, such as selling similar or the same products drawn from the same inventory. In the commenter's example, therefore, the presence of a fast food restaurant at a travel plaza would not be likely to have any bearing on the SNAP authorization status of a convenience store located in the same travel plaza.
FNS appreciates the comments from stakeholders and other members of the public that highlight the vagueness and possible unintended effects of the proposed provision. In response to these comments, FNS has clarified and narrowed this provision in the final rule. As it is written in the final rule at 7 CFR 271.2, co-located businesses will be treated as one firm by FNS only if they share all of the three following attributes: (1) Ownership; (2) sale of similar or same food products; and (3) shared inventory. This revision clarifies the vagueness in the proposed language and limits the provision's potential effects in keeping with its intent. This provision will be implemented for all retailers 120 days after the effective date of this final rule.
This discretionary provision proposed to address depth of stock by establishing a minimum of six stocking units per staple food variety which certain SNAP authorized firms must offer for sale and normally display in a public area on a continuous basis. This provision received a high number of adverse comments as proposed. Based on the strength of the arguments made in these comments, in the final rule this depth of stock requirement has been halved to a minimum of three stocking units per staple food variety. When combined with the increases in the number of varieties required per staple food category per the breadth of stock provision of the rule, the proposed depth of stock provision would have required a minimum stock for certain SNAP authorized retailers of 168 items, while under the final rule this depth of stock provision requires 84 items.
Of the total 1,260 germane and non-duplicative public comments received, 490 comments, or approximately 39% of all public comments, specifically addressed this provision. About 91% of commenters that addressed this proposed provision opposed it. About 47% of total retailer commenters specifically opposed this provision. Medical groups that commented on this provision were generally supportive while government entities, private citizens, and advocacy organizations that commented on this provision were generally divided and/or expressed mixed opinions.
Most retailers and industry groups opposed this provision on the grounds that the volume of products required by the proposed depth and breadth of stock provisions (
Under existing regulations at 7 CFR 278.1(a), FNS may require an applicant firm to submit to an inspection, or store visit, as a part of the SNAP authorization process. FNS understands that firms may sell out of certain products or experience temporary disruptions to their supply chain and that such occurrences may result in stocking shortfalls at the time of an Agency store visit. If a firm has insufficient food stocked on hand at the time of this store visit, this does not necessarily preclude the firm from receiving SNAP authorization. Under
In order to address the concerns and confusion of the commenters, the final rule retains and clarifies the language at 7 CFR 278.1(b)(1)(ii)(A) that affords firms the opportunity to submit supporting documentation in the case of certain stocking shortfalls at the time of an Agency store visit. Additionally, the final rule specifies that such supporting documentation must be dated within 21 days of the store visit. This timeframe of 21 calendar days, or three weeks, reflects the need for retailers to stock perishable staple foods on a continuous basis. Existing SNAP regulations at 7 CFR 278.1(b)(1)(ii)(B) define “perishable foods” as items that “will spoil or suffer significant deterioration in quality within 2-3 weeks.” This language in 7 CFR 278.1(b)(1)(ii)(A) should not be construed as allowing retailers to submit receipts or invoices to FNS instead of having sufficient stock on hand; the purpose of this language is to acknowledge the realities of the retail marketplace and provide stores that stock sufficient food on a continuous basis some degree of flexibility. The Agency has amended language in this provision at 7 CFR 278.1(b)(1)(ii)(A) to provide that, “Documentation to determine if a firm stocks a sufficient amount of required staple foods to offer them for sale on a continuous basis may be required in cases where it is not clear that the requirement has been met. Such documentation can be achieved through verifying information, when requested by FNS, such as invoices and receipts in order to prove that the firm had purchased and stocked a sufficient amount of required staple foods up to 21 calendar days prior to the date of the store visit.”
Under this final rule firms that are SNAP authorized under Criterion A must offer for sale and display in a public area (
Some commenters stated that the failure to meet the stocking requirements of this provision at the time of a store visit would result in substantial costs to firms due to the thousands of dollars in fines FNS would levy against such firms as penalties for failing to meet stocking requirements. Under existing regulations, a firm that fails to meet current stocking requirements is denied SNAP authorization or withdrawn from the Program. Once denied or withdrawn, such a firm must wait six months to reapply for SNAP authorization. FNS does not levy fines against retailers who are denied or withdrawn from the Program on the basis of failing to meet the stocking requirements as no statute or regulations currently authorizes FNS to levy fines against retailers for such a failure. Neither the proposed rule, nor the final rule change this fact. This matter is further examined in the final rule's RFA and RIA. A civil penalty (
Another objection raised to this provision pertained to food waste. Some commenters posited that the increase in the number of staple food categories in which perishable food items are required (a statutorily mandated increase from two to three staple food categories) coupled with this depth of stock requirement would result in spoilage, waste, and exorbitant costs to retailers. As noted by a representative of a convenience store distributor company that professes to service over 1,000 retail food stores in six States, “For many non-perishable items, if [convenience stores] do not sell to the consumer by their expiration date, we can send those products back to the manufacturer who will provide certain types of refunds or will replace product. This practice only applies to select nonperishables and DOES NOT [sic] apply to most products stipulated under the revised FNS rules for SNAP. Perishable items are NEVER [sic] refunded by the manufacturer after the expiration date, so the cost of spoilage on those products is borne completely by the retailer.” Under the proposed rule this depth of stock provision would require a minimum of 18 perishable food items, while in the final rule this depth of stock provision requires a minimum of nine perishable food items where “perishable” is defined by existing regulations at 7 CFR 278.1(b)(1)(ii)(B) to include frozen, fresh, refrigerated, and unrefrigerated food products “that will spoil or suffer significant deterioration in quality within 2-3 weeks” such as loaves of bread and potatoes.
Another common objection raised to this provision pertained to space and stocking logistics. Some commenters argued that, in conjunction with the breadth of stock provision, this depth of stock provision would require stocking a quantity of food items that simply exceed the available shelf space at most small format retail food stores. Some commenters also posited that the quantity of perishable food items required by this rule would force small-format firms to purchase additional refrigerator or freezer units for storage. The regional chain of convenience stores which claims over 600 locations, about 550 of which are SNAP
As discussed in the RIA and RFA, estimates of the final rule's impacts on retailers are based on an analysis of a nationally representative sample of 1,392 SNAP authorized small-format firms using data gathered by FNS during store inspections, or store visits. Based on this analysis FNS estimates that the average small-format SNAP authorized firm already stocks over 70% of the stock needed to meet the requirements of this final rule and the average small-format SNAP authorized firm will only need to stock an additional 24 items. Moreover, this analysis indicated that over 98% of small-format SNAP authorized firms currently stock at least nine perishable staple food items and, therefore, that the overwhelming majority of small-format SNAP authorized firms will not need to stock any additional perishable items to meet the requirements in this final rule.
Moreover, as discussed in the RFA, the Agency has analyzed examples of stocking units of qualifying staple food varieties to determine the shelf space that will be occupied by the 84 required items. The Agency estimates that the 84 items required under the final rule would occupy approximately 7,500 cubic inches. These 84 items would occupy about 5.6 square feet of non-refrigerated shelf space. Assuming stores choose to display these non-refrigerated items in a standard manner (
Since the average small-format SNAP authorized firm already stocks most of the items required under this final rule, FNS contends that this provision, and all of the stocking provisions as a whole, will have a negligible impact on retailers from a spatial and logistical perspective. FNS does not anticipate that requiring firms to utilize a fraction of a shelf to stock an additional 24 items will necessitate any major changes to the planograms or general merchandising strategies of the average small-format retailer.
Certain industry groups, such as that national food retail trade association, had questions regarding the definition of “stocking unit” and requested further clarification. Per commenters' requests, a list of examples has been added in Section IV of this document which provides a more complete illustrative, but not exhaustive, examination of what constitutes a stocking unit, and what does not constitute a stocking unit for the purposes of this depth of stock provision.
State and local government entities as well as medical and advocacy groups largely supported this provision, arguing that it would ensure the availability of staple food items on the shelves of SNAP authorized firms. One State public health official, representing a State with a population of 38.8 million that includes over 25,500 SNAP authorized firms, noted that this provision would help by “increasing the likelihood that these foods will be available to SNAP participants on an ongoing basis” and a city health department representing 8.5 million people and over 10,000 SNAP authorized firms, noted that, in concert with other provisions, this provision would increase “the overall diversity of foods stocked on a continuous basis”.
On the other hand, several retailer and industry group commenters stated that the proposed number of required stocking units was simply too great for small format retailers and recommended scaling back the number of stocking units required. The petroleum marketers' trade association federation recommended that, “[to] help the small retailer the depth of stock should be cut to three items of each of the seven varieties in each staple group”. Another State grocer association, which professes to represent about 400 retailer members, recommended that “[reconsideration] of six different units of any food item in a store at any given time should also be made, dropping that requirement to a lower number.”
The proposed rule would have increased the required depth and breadth of staple food stock while simultaneously expanding the list of accessory foods excluded from the definition of “staple foods” and excluding multiple ingredient food items from the definition of “staple foods.” According to some comments received, taken together, these four provisions would constitute an unreasonably burdensome stocking requirement for small format retailers. The Agency acknowledges commenters' concerns about the overall impact of the various provisions in this final rule on small format retailers. However, the Agency also agrees with the comments from some State/local governmental entities and medical groups that having a depth of stock requirement would increase the likelihood of healthy staple food options being available to SNAP recipients. Therefore, FNS is addressing depth of stock by establishing a depth of stock provision, but amending the provision at 7 CFR 278.1(b)(1)(ii)(A) by reducing the required number of stocking units from the proposed six units to three units for each staple food variety in this final rule. Conforming edits were also made to 7 CFR 271.2 to the definition of “retail food store”. As a result of this change the costs and burdens associated with compliance, perishable spoilage, and shelf space have all been significantly reduced, as reflected in the RIA and RFA. This provision will be implemented for all new applicant firms and all firms eligible for reinstatement 120 days after the effective date of this final rule and 365 days after the effective date of this final rule for all currently authorized firms.
As explained in the preamble to the proposed rule, the 2014 Farm Bill amended the Act to increase the number of staple food varieties required per staple food category from three to seven and to increase the staple food categories required to contain at least one perishable variety from two to three. The proposed rule sought to codify these mandatory requirements from the 2014 Farm Bill. This proposed breadth of stock provision received a moderate number of largely supportive or mixed comments. Of the total 1,260 germane and non-duplicative public comments received, 482 comments, or approximately 38% of total public comments, specifically addressed the increase from three to seven varieties and 288 comments, or about 23% of total public comments, specifically
Some governmental, medical, and advocate commenters believed that this provision did not go far enough to ensure that SNAP authorized firms stocked sufficient nutritious food options. Such commenters noted that the SNAP four staple food categories have not kept pace with changes to the USDA's nutritional recommendations, now represented by MyPlate. Such commenters suggested that the vegetables or fruits staple food category should be split into two separate staple food categories—the fruit staple food category and the vegetable staple food category. Such commenters went on to argue that seven varieties should be required for both of these staple food categories (for a total requirement of 14 fruit and vegetable staple food varieties). However, the current four staple food categories are statutorily-mandated in Section 3(q)(1) of the Act and the suggestion of breaking the four staple food categories into five categories would exceed the Agency's statutory authority.
There were other commenters who stated that they expected that retailers would have difficulty reaching seven different varieties in the meat, poultry, or fish and the dairy products staple food categories. As one city mayor, representing a city of 600,000 residents containing 1,000 SNAP authorized firms, pointed out, “It is difficult to list off seven common varieties of dairy that all types of stores will be able to carry. With the majority of dairy products being perishable, retailers cited lack of cooling infrastructure and cold storage, and difficulty in procuring and selling at an affordable cost as barriers to stock seven varieties of dairy.”
FNS acknowledges the difficulties in reaching seven varieties in certain staple food categories. FNS has amended the final rule to address this concern, along with other comments specifically regarding acceptable varieties in the four staple food categories, as explained in the section on “Definition of `Staple Food'—Acceptable Varieties in the Four Staple Food Categories.” However, because the Act requires that stores authorized under Criterion A stock seven varieties in each of the four staple food categories and at least one variety of perishables in three of those staple food categories; this breadth of stock requirement remains unchanged in the final rule. Conforming edits were also made to 7 CFR 271.2 to the definition of “retail food store” and 7 CFR 278.1(b)(1)(ii)(A) to reflect the new breadth of stock requirement. This provision will be implemented for all new applicant firms and all firms eligible for reinstatement 120 days after the effective date of this final rule and 365 days after the effective date of this final rule for all currently authorized firms.
This discretionary provision proposed to define “firm” so as to clarify that it also includes retailers, entities, and stores. Only one comment, a joint comment submitted by the international convenience store trade association and the petroleum marketers' trade association, specifically addressed this provision. No other retailer commenters specifically opposed this provision.
The one comment that addressed this provision opposed it, stating that “[to] conflate `store' with `firm' may have far-reaching ramifications in terms of licensing, enforcement and other policies” and further added that “[conflating] all of these terms will only introduce confusion and lead to unintended results”. The purpose of this provision is to clarify and unify terms that are currently used interchangeably throughout current SNAP regulations. Therefore, the provision at 7 CFR 271.2 remains unchanged in the final rule. This provision will be implemented on the effective date of this final rule.
In the proposed rule FNS proposed to amend 7 CFR 278.1(b) to allow the Agency to consider “need for access” when a retailer does not meet all of the requirements for SNAP authorization. FNS does not anticipate that large grocery stores and supermarkets will struggle to meet the stocking requirements of this final rule and FNS only expects to consider “need for access” for small format retailers. The purpose of this provision, therefore, is to provide a mechanism to safeguard food access for SNAP recipients especially when an isolated or underserved community relies heavily on small format retail food stores for its grocery shopping needs.
FNS understands that small businesses, such as independent convenience stores, play a vital role in the life of all Americans. These small businesses enrich both urban and rural communities by providing economic prosperity, employment opportunities, and sustainable growth. Very often small format retail food stores are the only venue available in isolated or underserved areas. When drafting this final rule FNS carefully considered the comments from the U.S. Small Business Association Office of Advocacy, as well as the comments submitted by retailers, trade associations, and other commenting entities. Concerns expressed regarding proposed provisions were incorporated into this final rule to minimize potential adverse impacts on small businesses. In addition to these changes, this need for access provision additionally accommodates small businesses and serves as a hedge against potential loss of food access.
With respect to this need for access provision the preamble to the proposed rule stated that “FNS will consider factors such as distance from the nearest SNAP authorized retailer, transportation options to other SNAP authorized retailer locations, the gap between a store's stock and SNAP required stock for authorized eligibility, and whether the store furthers the purpose of the Program.”
In the proposed rule, FNS specifically requested comments from the public to help FNS refine the factors used to determine whether a retailer is located in an area with significantly limited access to food. This provision received few comments. Of the total 1,260 germane and non-duplicative public comments received, 48 comments, or about 4% of total public comments, specifically addressed this provision. About 71% of comments that specifically addressed this provision suggested modifications or alterations to the proposed factors to be considered under this provision. This provision has been retained with modifications based largely on feedback received in the final rule. Few retailer commenters specifically opposed this provision and all other commenter types were considered mixed.
Some retailers opposed this provision on the grounds that the implementation of this provision would result in inequitable treatment of firms. The regional convenience store chain that commented noted that, “FNS should not be positioning itself to pick winners and losers in the competitive marketplace.”
As explained in the proposed rule, the 2014 Farm Bill amended Section 9(a) of the Act to allow FNS to consider whether an applicant retailer is located in an area with significantly limited access to food when determining the qualifications of that applicant. The Manager's Statement accompanying the 2014 Farm Bill indicated that the intent of Congress was to encourage the Secretary “to give broad consideration to the impacts of additional requirements . . . on food access in food deserts or other areas with limited food access.” H. Conf. Rep. 113-333, at 434 (Jan. 27, 2014). As such, this rule is simply implementing a statutory provision that accommodates areas with significantly limited access to food and retailers in such areas for whom the new stocking standards may be a challenge to meet. FNS specifically requested feedback from the public regarding the proposed change during the comment period. FNS has reviewed all comments and will be refining the provision in the final rule as described below. The Agency also intends to provide Program stakeholders with additional guidance on this provision.
Some retailers and industry trade groups also opposed this provision on the grounds that the proposed provision would create additional delays and administrative burdens for applying firms. The proposed process would allow FNS to waive certain retailer eligibility requirements in instances where applying firms served communities with low food access, as determined by FNS. This provision was always intended to function internally to the Agency and in tandem with the existing SNAP authorization process. FNS does not expect to need any additional information from applicant retailers to assist in the Agency determination. Instead, FNS will rely on information that the Agency currently receives as part of the retailer SNAP authorization process and publicly available information about the area in which the store is located, such as data in the U.S. Census Bureau's American Community Survey (ACS). Therefore, FNS does not anticipate any additional burdens, costs, or delays for retailers that would be created by this provision.
FNS, however, acknowledges the confusion of commenters regarding how this provision would work in practice and how it would affect the timeline for applicant firms' authorization to participate in the Program. As a result, the Agency has clarified the language of this provision in the final rule to specify in 7 CFR 278.1(b)(6) that, “Such considerations will be conducted during the application process as described in 7 CFR 278.1(a).” This means that an applicant firm will still receive an authorization determination within 45 days of Agency receipt of a firm's completed application for authorization. During this period need for access will be considered if applicable.
The international convenience store trade association also opposed this provision on grounds of fairness, stating that “If, for example, only one store in a food desert was SNAP authorized, then it could charge whatever it wanted to a captive consumer base.” Under the existing SNAP equal treatment provisions at 7 CFR 278.2(b) and 7 CFR 274.7(f), it is prohibited for firms to treat SNAP households differently than any other customers; therefore, retailers are prohibited from charging SNAP customers different prices than non-SNAP customers for the same products. Such predatory retail price gouging practices targeting SNAP customers would, therefore, already be prohibited under existing SNAP regulations.
Some medical and advocacy groups opposed this provision, or the frequent application of this provision, on the grounds that it would allow firms to avoid compliance and deprive communities that depend on small food retail stores as the most convenient and accessible option for purchasing food of a sufficient variety of healthy food options.
However, most retailer, industry, advocacy, governmental, and medical entities that referenced this provision did not support or oppose the provision, but instead suggested additional factors for FNS to consider. Factors suggested for consideration by commenters, beyond those put forward by the Agency in the proposed rule, included, but were not limited to, car ownership rates, public transportation availability, density of SNAP households, regional food availability, regional food prices, and underserved ethnic communities. In order to ensure that the Agency is able to consider some of these suggested factors, and any other factors needed to determine food access, the language of this provision in the final rule at 7 CFR 278.1(b)(6) provides that the factors listed are not exhaustive.
Additionally, the final rule limits the applicability of this provision to applicant firms that fail to meet both Criterion A (
The need for access provision in the final rule also clarifies the factors that will be considered by the Agency will pertain to either: (1) Area food access; or (2) firm specific information. Finally, the proposed rule put forward the Agency's intent to implement this need for access provision 60 days after publication of this final rule. As stated earlier, this provision is intended to accommodate small retailers in low food access areas for whom the new stocking standards may be a challenge to meet, therefore this provision will be implemented in tandem with the new stocking standards. This need for access provision, therefore, will be implemented for all new applicant firms and all firms eligible for reinstatement 120 days after the effective date of this final rule and 365 days after the effective date of this final rule for all currently authorized firms.
This language of this provision in the final rule reads as set forth in § 278.1(b)(6) in the regulatory text of this rule. The final rule provides that FNS will consider whether the applicant firm is located in an area with significantly limited access to food when the applicant firm fails to meet Criterion A per 7 CFR 278.1(b)(1)(ii) or Criterion B per 7 CFR 278.1(b)(1)(iii) so long as the applicant firm meets all other SNAP authorization requirements. The final rule further provides that, in determining whether an applicant is located in such an area, FNS will consider access factors such as, but not limited to, the distance from the applicant firm to the nearest currently SNAP authorized firm and the availability of transportation in the vicinity of the applicant firm; and that in determining whether an applicant should be authorized in the Program despite failure to meet Criterion A and Criterion B, FNS will also consider firm factors such as, but not limited to, the extent of the applicant firm's
This discretionary provision proposed to clarify and amend the definition of “variety” as it pertains to staple food varieties in the four staple food categories. This provision received an overall mixed response. Of the total 1,260 germane and non-duplicative public comments received, 168 comments, or approximately 13% of all public comments, specifically addressed this provision. About 16% of total retailer commenters specifically opposed this provision. Industry groups largely opposed this provision and other commenter types, such as advocacy, medical, and governmental entities, were generally divided and/or expressed mixed opinions.
Some commenters opposed to this provision stated that this provision did not represent a clarification of existing policy, but rather a radical change in the definition of “variety,” especially with respect to the definition of “variety” for the meat, poultry, or fish staple food category. A joint comment submitted by the international convenience store trade association and the petroleum marketers' trade association, for example, stated that “FNS has also proposed to `clarify' the term `variety.' But, the proposed rule advances not a clarification but a redefinition”. The national trade association for the travel plaza and truck stop industry echoed this criticism, asserting that FNS policy currently treats multiple formats of turkey and pork as discrete varieties and that the proposed rule would change this supposed standing definition of “variety”:
For example, under the Proposed regulatory text, ham and salami would both qualify as one `variety' of item—`pork'—for purposes of satisfying the seven-variety staple food threshold. Similarly, turkey burgers, sliced turkey, and ground turkey would all qualify as one variety—`turkey' rather than different [sic] three different `varieties' in the meat, poultry, and fish category. The Proposal's preamble does not attempt to justify
Under existing SNAP regulations at 7 CFR 278.1(b)(1)(ii)(C) multiple formats of the same base product are not construed as constituting multiple varieties for the purpose of Criterion A eligibility. Canned chicken, frozen chicken, and fresh chicken, for example, are currently considered one variety (chicken) under existing SNAP regulations and policies. That this provision counts multiple formats of one variety (
Variety has been traditionally defined by the Agency based on the essential composition of the food product (
Some advocacy and local or State government commenters suggested including plant-based proteins in the meat, poultry, or fish staple food category and plant-based dairy alternatives in the dairy products staple food category. One county health department, representing a county with a population over 750,000 and containing over 700 SNAP authorized firms argued that, “Additional staple food items that should be considered include eggs and plant-based protein sources such as canned or frozen legumes, unsalted nuts and seeds, and soy products (
In common language usage a “dairy product” is understood to mean an edible food product produced from the milk of a mammal, most commonly cow's milk. Some traditional varieties of
FNS acknowledges the difficulty in reaching seven varieties in this staple food category. Given this reality, as well as the needs of lactose-intolerant consumers, the final rule will consider plant-based dairy products to be varieties in the dairy products staple food category based on their main ingredient (
Additionally, FNS acknowledges the importance of plant-based sources of protein and the potential difficulties in reaching seven varieties in the meat, poultry, or fish staple food category. The final rule, therefore, will modify existing Agency policy to include three varieties of plant-based protein sources (
Plant-based meat substitutes or analogues, marketed as vegetarian or vegan alternatives to meat, will also be counted as varieties in the meat, poultry, or fish staple food. Varieties of such meat analogues may include, but are not limited to, mycoprotein-based meat analogues, soy-based meat analogues (
Even with the addition of these plant-based varieties into the meat, poultry, or fish staple food category it will be necessary for most firms to stock animal-based varieties to meet the breadth of stock requirement for the meat, poultry, or fish staple food category. For example, if a firm stocked five of the aforementioned plant-based varieties (
These changes better align SNAP regulations with the nutritional guidance of USDA's MyPlate, help to ease the burden of compliance on retail food stores, and serve to increase the availability of healthy food options for low-income Americans.
Some governmental, medical, and advocate commenters believed that additional restrictions should be placed on these required varieties to ensure that a certain number of healthy options were available. For example, two city health departments, one noted earlier as representing a city of 8.5 million, and another representing a city of over 1.5 million containing over 2,300 SNAP authorized firms, argued that, within each staple food category, certain kinds of healthy varieties should be mandated by FNS. Examples of such healthy varieties included low-fat dairy, lean meat, fresh vegetables, and whole grain breads. While FNS does agree with the commenters that argued that such changes would likely increase healthful
Other commenters suggested that variety shortfalls in one or more staple food categories should be allowed to be covered with additional varieties of fruits or vegetables (
Some commenters who supported the proposed provision pointed out that a lax definition of “variety” would allow stores to skirt variety requirements by stocking seven different formats of one or two kinds of products with the same main ingredient. If a lax definition of “variety” were implemented, for example, the variety requirement for the vegetables or fruits staple food category could be satisfied by frozen French fries, powdered mashed potatoes, frozen hash browns, potato chips, canned cream of potato soup, frozen tater tots, and potatoes. FNS concurs with these concerns and will not be altering the proposed definition of “variety” to allow for different formats of products with the same main ingredient to count as different varieties.
Under both current Agency regulations and the final rule, “variety” is generally defined by product kind or main ingredient for the meat, poultry, or fish and vegetables or fruits staple food categories. This means that chicken, pork, and beef each represent discrete varieties for the former category and that apple, banana, and lettuce each represent discrete varieties for the latter category. Products like Empire apples and McIntosh apples may have different names and slightly different appearances, but they are generally recognized as the same kind of product. For this reason both Empire apples and McIntosh would be not each be considered a discrete variety, but rather the discrete variety is the product kind itself—apples. Likewise although apples, 100% apple juice, and applesauce are different products, they would not each be considered a discrete variety for the purposes of SNAP Criterion A because they share the same main ingredient (
Numerous commenters requested additional Agency guidance on what constituted a variety for each of the four staple food categories. In response, a list of examples in Section IV is included in the preamble of the final rule; this list provides 20 examples of varieties in each of the four staple food categories and is intended to be illustrative, not exhaustive. Additionally, the examples listed in the proposed rule have been amended in the final rule to illustrate the intended flexibility for retailers. The changes made to the examples of varieties in the meat, poultry, or fish and the dairy products staple food categories reflect the inclusion of plant-based alternatives. “Plant-based” milk has been, for example, removed as a listed example and replaced with almond milk to reflect the inclusion of multiple varieties of plant-based milks (
After review of all comments on this provision, this final rule has largely retained the long-standing Agency definition of “variety” and, as described above, modifies the definition of “variety” to allow retailers more flexibility in meeting the breadth of stock provision in the dairy, bread and cereals, and meat, poultry, and fish staple food categories. This provision will be implemented for all new applicant firms and all firms eligible for reinstatement 120 days after the effective date of this final rule and 365 days after the effective date of this final rule for all currently authorized firms.
This discretionary provision proposed to reaffirm the Agency's authority and intent to publicly disclose the store and owner name for firms sanctioned for SNAP violations. This provision received few comments most of which were supportive. Of the total 1,260 germane and non-duplicative public comments received, 14 comments, or about 1% of total public comments, specifically addressed this provision. About 71% of comments that specifically addressed this provision were supportive while approximately 14% opposed this provision and approximately 14% were generally divided and/or expressed mixed opinions. No retailer commenters specifically opposed this provision, industry trade groups that commented specifically on this provision generally opposed this provision and all other commenter types that commented on this provision were generally supportive.
Three retailer associations (
One State welfare fraud investigator association commented, “We believe the proposed rule changes (increasing the minimum number of categories in which perishable goods are required, amending the depth of stock, redefining `Retail Food Store' to exclude restaurants, and, particularly, disclosing information about retailers who have violated SNAP rules) would serve to deter fraud.” A city health department representing the large city of 8.5 million and over 10,000 SNAP authorized firms also stated that this provision will “increase integrity efforts against fraud, waste, and abuse in SNAP”.
FNS closely monitors retailers to ensure that they comply with Program rules and regulations. FNS may warn or sanction retailers found violating Program rules. Sanctions can include time-limited or permanent Program disqualification as well as civil penalties. This provision is an essential tool in Agency efforts to combat and deter Program fraud and abuse. For example, the names of retail stores and owners whom have been charged, indicted, or convicted for SNAP retailer fraud by federal, state or local authorities are already disclosed publicly through news releases and other means. This provision reaffirms FNS' authority and intent to disclose the store and owner name for firms sanctioned for SNAP violations. In response to the suggestion that encourages the Agency to remove or amend the public notice when a store is sold so the new owners are not harmed by this disclosure, FNS believes that the public disclosure of both the retail store name and the owner who had been sanctioned would mitigate the potential harm to a new store owner.
FNS, however, acknowledges the concerns of these commenters. As a result, FNS has clarified and narrowed this provision in the final rule. Specifically, the final rule stipulates that information regarding firms sanctioned for SNAP violations will be disclosed by FNS only for the duration of the sanction. Firms sanctioned for lesser offenses (
The final rule codifies a statutory provision to increase the required number of staple food varieties in each of the four staple food categories from three to seven and to increase the required number of staple food categories containing at least one perishable foods variety from two to three, where “perishable foods” are defined as items which are either frozen, fresh, unrefrigerated, or refrigerated staple food items that will spoil or suffer significant deterioration in quality within three weeks. The final rule also codifies a discretionary provision which clarifies and modifies the definition of acceptable “variety” in each of the four staple food categories.
Included below are lists of acceptable varieties in the four staple food categories. Also included is an examination of what constitutes a stocking unit for the purposes of the depth of stock provision. Finally, included is a list of food items which are and are not considered accessory food items. The lists of examples that follow are intended to be illustrative and provide guidance on the final rule. What follows is not to be construed as an exhaustive list of staple food varieties, stocking units, or accessory food items.
In the meat, poultry, or fish staple food category “variety” is generally defined by product kind or main ingredient. This means that chicken, pork, and beef each represent discrete varieties. For multiple ingredient food products the first ingredient determines variety such that a frozen microwaveable meal with beef listed as the first ingredient would constitute a variety in the meat, poultry, or fish staple food category (
This list of examples serves to provide guidance on acceptable varieties in the meat, poultry, or fish staple food category. The meat, poultry, or fish staple food category now includes varieties of meat analogues (
What follows is an illustrative, but not exhaustive, list of 20 acceptable varieties in this staple food category. Included parenthetically with each variety are two different examples of food items which would usually fall within that variety. The examples of multiple ingredient food items in this list would be acceptable only if the listed main ingredient would be
In the vegetables or fruits staple food category “variety” is generally defined by product kind or main ingredient. This means that apples, bananas, and lettuce each represent discrete varieties. For multiple ingredient food products the first ingredient determines variety such that a can of ravioli with tomato sauce listed as the first ingredient would constitute a variety in the vegetables or fruits staple food category (
What follows is an illustrative, but not exhaustive, list of 20 acceptable varieties in this staple food category. Included parenthetically with each variety are two different examples of food items which would usually fall within that variety. The multiple ingredient food item examples in this list would be acceptable only if the main ingredient is in the vegetables or fruits staple category. Perishable foods are indicated by the presence of an asterisk (*).
In common language usage a “dairy product” is understood to mean an edible food product produced from the milk of a mammal, most commonly cow's milk. Some traditional varieties of dairy include milk, butter, yogurt, and cheese. There are a small number of unique varieties of commonplace dairy products, most of which share the same main ingredient (
Most bread or cereals food items sold and consumed in America primarily derive from one of the following four grains: Wheat, corn, rice, and/or oats. Based on the limited types of common grains and the new breadth of stock requirements, therefore, it is impractical to define “variety” for the purposes of this staple food category based exclusively on the product kind or exclusively on the main ingredient, as is the standard for two of the other staple food categories.
What follows is an illustrative, but not exhaustive, list of 20 acceptable varieties in this staple food category. Included parenthetically with each variety are two different examples of food items which would usually fall within that variety. The multi-ingredient food examples in this list would be acceptable only if the main ingredient is in the bread or cereal staple category. Perishable foods are indicated by the presence of an asterisk (*).
As an example, a firm could meet the requirements for the bread or cereals staple food category by stocking three loaves of bread, three bags of rice, three boxes of spaghetti, three bags of pitas, three bags of tortillas, three bags of flour and three packages of cornmeal.
The proposed rule put forward a discretionary provision requiring six stocking units per qualifying staple food variety. The final rule halves that proposed requirement and codifies a discretionary provision that requires three stocking units per qualifying staple food variety. This list of examples serves to define “stocking unit” for the purposes of this provision. If a food item would not usually be sold individually, then it does not individually constitute a stocking unit. Such food items are usually sold in bunches, boxes, bags, or packages with a number of other identical items (
If a food item is usually or often sold singly, then that single unit may constitute one stocking unit. What follows is an illustrative, but not exhaustive, list of such products and their standard stocking unit sizes:
If a food item (
If FNS determines that a bunch, box, bag, or package usually sold as a unit has been subdivided into unreasonably small units in order to meet this depth of stock provision, FNS will not consider such food items to constitute a stocking unit for the purposes of this depth of stock provision.
The final rule codifies a discretionary provision which clarifies the definition of “staple food”. This provision realigns the definition of “accessory food items” with statutory intent, defining “accessory food items” to include snacks, desserts, and foods that complement or supplement meals.
While any food or food product intended for home consumption is generally considered to be eligible for purchase with SNAP benefits, only staple food products are counted toward a retail food store's eligibility to participate in SNAP. Staple foods are generally considered to be basic items of food that make up a significant portion of an individual's diet and are usually prepared at home and consumed as a major component of a meal. Some examples include tomatoes, ground beef, milk, or rice. Accessory food items, on the other hand, are generally considered to be food items consumed as snacks or desserts as well as food items that complement or supplement meals, such as most beverages and spices.
A product is often considered an accessory food item if it is usually consumed on its own, usually as a snack or dessert, without being cooked or prepared (
Commercially processed foods and prepared mixtures with multiple ingredients are usually assigned to the staple food category of their main ingredient on their “Nutrition Facts” label per current regulations and policy. For example, a frozen pizza with enriched white wheat flour listed as its main ingredient would be considered a staple food variety in the bread or cereals staple food category. If the main ingredient of a multiple ingredient food item is an accessory food item (
All food products identified as accessory food items in Agency guidance materials shall not be considered staple foods for the purposes of determining the eligibility of any firm. Any food products with main ingredients identified as accessory food items in Agency guidance shall also be considered accessory food items and shall not be considered staple foods for the purposes of determining the eligibility of any firm. Any other food product that is not identified as an accessory food item in Agency guidance materials shall be considered a staple food in the category of its main ingredient. Agency guidance that explicitly identifies types of accessory food items will be updated as necessary per 7 CFR 278.1(t). If a retail food store owner is unsure as to whether a food item is or is not an accessory food item, they may look online for guidance through the USDA FNS's Ask the Expert system at:
What follows is a list of accessory food items; any product not listed below or in future Agency guidance will be considered a staple food, as explained above, provided that its main ingredient is considered a variety in the staple food category.
Some mixed packaged food products may consist of more than one discrete element, such as salted crackers and soft cream cheese packaged together. In this example, the salted crackers are considered an accessory food while the soft cream cheese is considered a staple food. If the accessory food item is the main component of the mixed packaged food product, per the ingredients list on the Nutrition Facts label, then such a product is considered an accessory food item. If the staple food item is the main component of the mixed packaged food product, per the ingredients list on the Nutrition Facts label, then such a product is considered a staple food item.
The definition of “accessory food items”, however, is not based on packaging size or style, nor does it include food items identified in any of the four staple food categories. What follows is an illustrative, but not exhaustive, list of staple food items NOT considered accessory food items; any product not listed below will be considered a staple food in the staple food category of its main ingredient as explained previously.
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both cost and benefits, of reducing cost, of harmonizing rules, and of promoting flexibility. Finally, Executive Order 13272 and the Small Business Jobs Act of 2010 require agencies engaged in rulemaking actions to respond directly to written comments submitted by the Small Business Administration (SBA) Office of Advocacy.
The SBA Office of Advocacy submitted a comment in response to the proposed rule. This comment identified shortcomings in FNS's Regulatory Impact Analysis (RIA) and Regulatory Flexibility Analysis (RFA) and also conveyed the concerns of small business stakeholders regarding the RIA, RFA, and certain provisions of the rule as proposed. The SBA commented that the RIA and RFA lacked analytical rigor and transparency, and further maintained that the costs, benefits, and other impacts of the proposed rule were not sufficiently quantified in the RIA and RFA. Specifically, the SBA stated that the Agency's “conclusion that the rule's impact on small authorized SNAP retailers will amount to $140 is underestimated.” Furthermore, the SBA indicated that FNS failed to consider alternatives adequately when drafting the proposed rule, especially with respect to a narrower rulemaking action that codified only the statutory breadth of stock provision. In response to these and other concerns FNS has carefully reexamined the proposed RIA and RFA. The final versions of these documents reflect substantial modifications made in order to incorporate the feedback of the SBA as well as industry trade associations. These changes address concerns regarding the consideration of alternatives and the calculation of the cost impact, among others.
Additionally, in its comment the SBA suggested that “FNS should commit to publishing small business compliance guides as this rule becomes finalized as it will help small businesses adapt to the new requirements.” As stated previously in this final rule's section titled “Retailer Guidance for Implementation of Final Rule,” many Program stakeholders specifically requested that FNS provide retailers with detailed guidance and training materials on the rule to ensure that all retailers fully understand all of the provisions of the final rule. In addition to the clarifications and lists of examples provided in the preamble of the final rule, FNS will answer retailer inquiries and provide retailers with additional notice, guidance, and training materials during the aforementioned implementation period per 7 CFR 278.1(t). This will include extensive outreach to ensure that the retailer community is provided with sufficient technical assistance to ensure that all firms are adequately informed regarding these changes to SNAP rules. The SBA also suggested that FNS should consider “granting increased compliance time for a percentage of small retailers.” As stated previously in this final rule's section titled
This final rule has been determined to be significant and was reviewed by the Office of Management and Budget (OMB). The Regulatory Impact Analysis (RIA) for this rulemaking was published as part of the docket in Supporting Documents on
Firms that do not stock sufficient staple food items to meet the new stocking requirements will have the opportunity to modify their staple food stock in order to be eligible to continue participating in SNAP. In the course of store reviews, FNS has observed that stores that are determined to not be eligible typically expand their food offerings to participate in SNAP.
It should be noted that most of the provisions in this final rule have been modified significantly from their proposed language. This final rule, for example, requires less stock than the proposed rule (
This final rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612). Pursuant to that review, FNS believes that the rulemaking does not present a substantial economic impact to a considerable number of small businesses; although the number of stores impacted is large, we estimate that the cost to those small businesses for stocking additional stock would be nominal, on average about $245 in the first year and $620 over five years. FNS has prepared a final Regulatory Flexibility Analysis (RFA) to respond to public comments received in reference to the proposed RFA and to reflect revisions to the rule. The complete RFA for this final rule was published as part of the docket in Supporting Documents on
This final rule will impact nearly 200,000 small grocery stores and convenience stores by requiring that these stores make changes to their stock in order to comply with the new minimum stocking requirement mandated in this rule. FNS estimates that for the vast majority of stores the changes needed will be minimal and represent a negligible share of a store's total gross sales. The average small store will need to add an estimated 24 items to their existing stock to meet the new minimum requirement in this rule. Costs would be greatest in the first year, as stores make one-time changes to their stock. In future years, costs will be primarily opportunity costs associated with stocking items with lower profit margins and administrative costs associated with reading guidance to ensure compliance with the requirements. The average cost to a SNAP-authorized retailer is estimated at about $245 in the first year and $620 over five years.
Title II of the Unfunded Mandate Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments, and the private sector. Under Section 202 of the UMRA, the Agency generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, or Tribal governments in the aggregate, or to the private sector, of $146 million or more (when adjusted for 2015 inflation; GDP deflator source: Table 1.1.9 at
Executive Order 12372 requires Federal agencies to engage in intergovernmental consultation with State and local officials when involved in Federal financial assistance programs and direct Federal development. SNAP is listed in the Catalog of Federal Domestic Assistance under No. 10.551. For the reasons set forth in the Final Rule codified in 7 CFR part 3015, Subpart V and related Notice (48 FR 29115, June 24, 1983), this Program is excluded from the scope of Executive Order 12372.
Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have Federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agencies' considerations in terms of the three categories called for under Section 6(b)(2)(B) of the Executive Order 13132.
FNS has determined that this rulemaking does not have Federalism implications. This rule does not impose substantial or direct compliance costs on State and local governments. Therefore, under Section 6(b) of the Executive Order, a Federalism summary impact statement is not required.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is intended to have preemptive effects with respect to any State or local laws, regulations, or policies which conflict with its provisions or which would otherwise impede its full implementation. This rule is not intended to have retroactive effects unless so specified in the Dates paragraph of the final rule. Prior to any judicial challenge to the provisions of the final rule or the application of its provisions, all applicable administrative procedures must be exhausted.
This rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on policies that have tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
Currently, FNS provides regularly scheduled quarterly information sessions as a venue for collaborative conversations with Tribal officials or their designees. Reports from these information sessions are part of the USDA annual reporting on Tribal consultation and collaboration.
During the open comment period FNS received a letter from an Indian Tribal Organization (ITO). On September 28, 2016, the Food and Nutrition Service met with the Tribal Organization and 8 Tribes represented by this Organization to further discuss comments contained in this letter. FNS identified one (1) actionable comment,
The 2014 Farm Bill authorized additional consideration where an applicant retailer is located in an area with significantly limited access to food when determining the qualifications of that applicant. This flexibility of the rule was clarified during the meeting on September 28, to provide a deeper understanding of the agency's underlying rationale in implementing this program in this manner.
If a Tribe requests consultation, the Food and Nutrition Service will work with the Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions, and modifications identified herein are not expressly mandated by Congress.
FNS has reviewed this final rule in accordance with Departmental Regulations 4300-4, “Civil Rights Impact Analysis” (CRIA) and 1512-1, “Regulatory Decision Making Requirements” to identify and address any major civil rights impacts the final rule might have on minorities, women, and persons with disabilities. This final rule enhances current regulations and codifies statutory requirements and, after a careful review of the final rule's intent and provisions, FNS has determined that this final rule will not have an adverse impact on any retail food store owners or SNAP recipients belonging to protected classes. The complete CRIA for this final rule was published as part of the docket in Supporting Documents on
The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR part 1320) requires that the Office of Management and Budget (OMB) approve all collections of information by a Federal agency from the public before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. There is no new information collection burden associated with this final rule.
FNS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to government information and services, and for other purposes. FNS intends to provide Program stakeholders with guidance and technical assistance materials related to this final rule utilizing online media. The Agency also intends to use online media to publicly disclose information regarding firms sanctioned for Program violations.
Food stamps, Grant programs—Social programs, Reporting and recordkeeping requirements.
Claims, Disqualification, Financial institutions, Fines and penalties, Food stamps, Retail food stores, Wholesale food concerns.
Accordingly, for reasons set forth in the preamble, 7 CFR parts 271 and 278 are amended as follows:
7 U.S.C. 2011-2036.
The addition and revisions read as follows:
(i) A retail food store that is authorized to accept or redeem SNAP benefits;
(ii) A retail food store that is not authorized to accept or redeem SNAP benefits; or
(iii) An entity that does not meet the definition of a retail food store.
(2) For purposes of the regulations in this subchapter and SNAP policies, the terms firm, entity, retailer, and store are used interchangeably.
(1) An establishment or house-to-house trade route that sells food for home preparation and consumption normally displayed in a public area, and either offers for sale qualifying staple food items on a continuous basis, evidenced by having no fewer than seven different varieties of food items in each of the four staple food categories with a minimum depth of stock of three stocking units for each qualifying staple variety, including at least one variety of perishable foods in at least three such categories, (Criterion A) as set forth in § 278.1(b)(1) of this chapter, or has more than 50 percent of its total gross retail sales in staple foods (Criterion B) as set forth in § 278.1(b)(1) of this chapter as determined by visual inspection, marketing structure, business licenses, accessibility of food items offered for sale, purchase and sales records, counting of stockkeeping units, or other accounting recordkeeping methods that are customary or reasonable in the retail food industry as set forth in § 278.1(b)(1) of this chapter. Entities that have more than 50 percent of their total gross retail sales in: Food cooked or heated on-site by the retailer before or after purchase; and hot and/or cold prepared foods not intended for home preparation and consumption, including prepared foods that are consumed on the premises or sold for carry-out are not eligible for SNAP participation as retail food stores under § 278.1(b)(1) of this chapter. Establishments that include separate businesses that operate under one roof and share the following commonalities: Ownership, sale of similar foods, and shared inventory, are considered to be a single firm when determining eligibility to participate in SNAP as retail food stores.
The additions and revisions read as follows:
(b) * * *
(1) * * *
(ii) * * *
(A) Offer for sale and normally display in a public area, qualifying staple food items on a continuous basis, evidenced by having, on any given day of operation, no fewer than seven different varieties of food items in each of the four staple food categories with a minimum depth of stock of three stocking units for each qualifying staple variety and at least one variety of perishable foods in at least three staple food categories. Documentation to determine if a firm stocks a sufficient amount of required staple foods to offer them for sale on a continuous basis may be required in cases where it is not clear that the firm has made reasonable stocking efforts to meet the stocking requirement. Such documentation can be achieved through verifying information, when requested by FNS, such as invoices and receipts in order to prove that the firm had ordered and/or received a sufficient amount of required staple foods up to 21 calendar days prior to the date of the store visit. Failure to provide verifying information related to stock when requested may result in denial or withdrawal of authorization. Failure to cooperate with store visits shall result in the denial or withdrawal of authorization.
(C) Offer a variety of staple foods which means different types of foods within each staple food category. For example: Apples, cabbage, tomatoes, bananas, pumpkins, broccoli, and grapes in the vegetables or fruits category; or cow milk, almond milk, soy yogurt, soft cheese, butter, sour cream, and cow milk yogurt in the dairy products category; or rice, bagels, pitas, bread, pasta, oatmeal, and whole wheat flour in the bread or cereals category; or chicken, beans, nuts, beef, pork, eggs, and tuna in the meat, poultry, or fish category. Variety of foods is not to be interpreted as different brands, nutrient values (
(iv) * * * In addition, firms that are considered to be restaurants, that is, firms that have more than 50 percent of their total gross sales in foods cooked or heated on-site by the retailer before or after purchase; and hot and/or cold prepared foods not intended for home preparation or consumption, including prepared foods that are consumed on the premises or sold for carryout, shall not qualify for participation as retail food stores under Criterion A orB. * * *
(6)
(q) * * *
(5)
Loan Programs Office, Department of Energy.
Final rule.
The Department of Energy (DOE or the Department) publishes a final rule to amend the existing regulations for the loan guarantee program authorized by Title XVII of the Energy Policy Act of 2005 (Title XVII or the Act). Section 1703 of Title XVII (section 1703) authorizes the Secretary of Energy (Secretary) to make loan guarantees for projects that avoid, reduce, or sequester air pollutants or anthropogenic emissions of greenhouse gases. Such projects must also employ new or significantly improved technologies as compared to commercial technologies in service in the United States at the time the guarantee is issued. The two principal goals of section 1703 are to encourage commercial use in the United States of new or significantly improved energy-related technologies and to achieve substantial environmental benefits. Section 1703 also identifies ten categories of technologies and projects that are potentially eligible for loan guarantees. Commercial use of these technologies is expected to help sustain and promote economic growth, produce a more stable and secure energy supply and economy for the United States, and improve the environment.
As a result of experience gained implementing the loan guarantee program authorized by section 1703, and information received from program participants, including applicants, borrowers, sponsors, and lenders, as well as various energy industry groups, DOE finalizes amendments to the existing regulations to provide increased clarity and transparency, reduce paperwork, and provide a more workable interpretation of certain statutory provisions in light of DOE's experience with operation of the Title XVII program.
This rule is effective on January 17, 2017.
Mark S. Westergard, Assistant Chief Counsel Regulatory Affairs, Loan Programs Office, United States Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585-0121, (202) 287-5621, email:
This final rule amends the regulations implementing the loan guarantee program authorized by Title XVII of the Energy Policy Act of 2005 (42 U.S.C. 16511-16514) (referred to as Title XVII). Section 1703 of Title XVII (section 1703) authorizes the Secretary of Energy (Secretary) to make loan guarantees for projects that: (1) Avoid, reduce, or sequester air pollutants or anthropogenic emissions of greenhouse gases; and (2) employ new or significantly improved technologies as compared to commercial technologies in service in the United States at the time the guarantee is issued. (42 U.S.C 16513(a)).
Section 1702 of Title XVII (section 1702) authorizes the Secretary, after consultation with the Secretary of the Treasury, to enter into loan guarantees on such terms and conditions as he or she determines to be appropriate, in accordance with the provisions of section 1702. Section 1702 also directs the Secretary to include in loan guarantees “such detailed terms and conditions as the Secretary determines appropriate to (i) protect the interests of the United States in the case of a default; and (ii) have available all the patents and technology necessary for any person selected, including the Secretary, to complete and operate the project.” (42 U.S.C. 16512(g)(2)(c)).
On October 3, 2016, the Department published a proposed rule and request for comment on amendments to the regulations for the Title XVII loan guarantee program. (81 FR 67924) The proposed rule also provides additional background on DOE's experience in implementing the loan guarantee program and the history of its implementing regulations. In this final rule, DOE adopts the changes set forth in the proposed rule, except where DOE made changes in consideration of comments received on the proposal. In Section II of this final rule, DOE summarizes the comments received, and provides its responses to those comments and a discussion of the changes made to the proposal in this final rule.
In this final rule, DOE adopts the proposed rule changes that clarify the circumstances under which potential applicants may communicate with DOE prior to submitting an application. DOE expects that the changes will increase transparency and result in more applications by qualified applicants with respect to potential eligible projects.
The final rule eliminates the pre-application process and codifies procedures that divide the application into two parts.
The final rule revises the definition of Eligible Project to explicitly state that a project may be located at two or more locations in the United States if the project is comprised of installations or facilities employing a single New or Significantly Improved Technology that is deployed pursuant to an integrated and comprehensive business plan.
The final rule provides for the use of Risk-Based Charges. Use of Risk-Based Charges is permitted pursuant to the grant of authority to the Secretary in Section 1702(a) to determine the terms and conditions of the Title XVII loan guarantee program.
The final rule increases clarity and transparency. For example: Definitions have been clarified, shortened where possible, and added; specific references to the Cargo Preference Act and the Davis Bacon Act have been added; an introductory section on how the rule is to be interpreted has been added; and various provisions of the existing rule have been re-organized to more-appropriate places in the rule.
DOE received comments on the proposed rule, which are summarized in Section II of this final rule. DOE also provides its responses and explains any changes to the proposal made in response to the comments received. (For additional background on DOE's experience in implementing the loan guarantee program and the history of its implementing regulations, please see the proposed rule.)
One commenter also pointed out that the Title XVII loan guarantee program currently charges two fees to compensate DOE for the credit risk it assumes. First, the program charges a “Credit-Based Interest Rate Spread” based on the credit rating of the Applicant's project. Second, the program charges a “Credit Subsidy Fee” to directly compensate the United States for the specific credit risk of the applicant's project. The commenter requested clarification that the reference to a “Risk-based charge” means the “Credit Based Interest Rate Spread”, and that the program is not intending to impose a new fee and increase the interest rate spreads beyond the current spreads.
The commenter also requested that DOE modify § 609.8 to allow for commercial co-lenders to provide structured loan facilities that would have the same amortization schedule as the guaranteed portion of the facility but with a shorter loan tenor and a related refinancing requirement at maturity of the structured loan facility.
The commenter's request for a shorter loan tenor in connection with certain commercial loan products is similar to a comment DOE received in response to a proposed rule to amend the Title XVII regulations published in 2009. (74 FR 39569, Aug. 7, 2009) In the final rule, published on December 4, 2009, DOE made adjustments, retained by the proposed rulemaking and subject to the same conditions set forth in the current rule, to permit shorter or faster amortization schedules for project-related financing or other credit arrangements not guaranteed by DOE. See 74 FR 63544, 63546, Section II.C. Shorter Amortization of Non-Guaranteed Obligations. DOE has reviewed the issue in response to the comment and has determined that the provisions established in the 2009 rule address the concern while at the same time protecting the interests of the United States. For that reason, DOE has determined that no change in the existing language of the final rule is warranted.
This final rule has been determined to be a significant regulatory action under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993). Accordingly, this action was subject to review under that Executive Order by the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB).
DOE has determined that this final rule is covered under the Categorical Exclusion found in DOE's National Environmental Policy Act regulations at paragraph A.5 of appendix A to subpart D, 10 CFR part 1021, which applies to rulemaking that amends an existing rule or regulation which does not change the environmental effect of the rule or regulation being amended.
The Regulatory Flexibility Act (5 U.S.C. 601
DOE is not obligated to prepare a regulatory flexibility analysis for this rulemaking because there is not a requirement to publish a general notice of proposed rulemaking for rules related to loans under the Administrative Procedure Act (5 U.S.C. 553(a)(2)).
Information collection requirements for the DOE regulations at 10 CFR part 609 have been submitted for approval to OMB pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Public reporting burden for the revised requirements in this final rule is estimated to average 130 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. All responses are expected to be collected electronically.
Notwithstanding any other provision of law, a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The Unfunded Mandates Reform Act of 1995 (Act) (Pub. L. 104-4) generally requires Federal agencies to examine closely the impacts of regulatory actions on State, local, and tribal governments. The term “Federal mandate” is defined in the Act to mean a Federal intergovernmental mandate or a Federal private sector mandate. Although the final rule would impose certain requirements on non-Federal governmental and private sector applicants for loan guarantees, the Act's definitions of the terms “Federal intergovernmental mandate” and “Federal private sector mandate” exclude among other things, any provision in legislation, statute, or regulation that is a condition of Federal assistance or a duty arising from participation in a voluntary program. The final rule would establish requirements that persons voluntarily seeking loan guarantees for projects that would use certain new and improved energy technologies must satisfy as a condition of a Federal loan guarantee. Thus, the final rule falls under the exceptions in the definitions of “Federal intergovernmental mandate” and “Federal private sector mandate” for requirements that are a condition of Federal assistance or a duty arising from participation in a voluntary program. The Act does not apply to this rulemaking.
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule that may affect family well-being. The final rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. DOE has examined this final rule and has determined that it would not preempt State law and 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. No further action is required by Executive Order 13132.
With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, the final rule meets the relevant standards of Executive Order 12988.
The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB.
OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed this final rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001) requires Federal agencies to prepare and submit to the OMB, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that
The Department has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 18, 1988), that this rule would not result in any takings which might require compensation under the Fifth Amendment to the United States Constitution.
As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this rule prior to its effective date. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(2).
The Secretary of Energy has approved publication of this final rule.
Administrative practice and procedure, Energy, Loan programs, and Reporting and recordkeeping requirements.
For the reasons stated in the preamble, DOE revises part 609 of chapter II of title 10 of the Code of Federal Regulations as set forth below:
42 U.S.C. 7254, 16511-16514.
(a) This part sets forth the policies and procedures that DOE uses for receiving, evaluating, and approving applications for loan guarantees to support Eligible Projects under section 1703 of the Energy Policy Act of 2005 (Act).
(b) This part applies to all Applications, Conditional Commitments, and Loan Guarantee Agreements.
(c) Part 1024 of chapter X of title 10 of the Code of Federal Regulations shall not apply to actions taken under this part.
(a)
(1) The evaluation of an Application for a loan guarantee;
(2) The negotiation and offer of a Term Sheet;
(3) The negotiation of a Loan Guarantee Agreement and related documents, including the issuance of a Guarantee; and
(4) The servicing and monitoring of a Loan Guarantee Agreement, including during the construction, startup, commissioning, shakedown, and operational phases of an Eligible Project.
(1) Payments by the Government to cover defaults and delinquencies, interest subsidies, or other payments; less
(2) Payments to the Government including origination and other fees, penalties, and recoveries; including the effects of changes in loan or debt terms resulting from the exercise by the Borrower, Eligible Lender or other Holder of an option included in the Loan Guarantee Agreement.
(1) Any Person formed for the purpose of, or engaged in the business of, lending money that, as determined by DOE in each case, is:
(i) Not debarred or suspended from participation in a Federal government contract or participation in a non-procurement activity (under a set of uniform regulations implemented for numerous agencies, such as DOE, at 2 CFR part 180);
(ii) Not delinquent on any Federal debt or loan;
(iii) Legally authorized and empowered to enter into loan guarantee transactions authorized by the Act and these regulations;
(iv) Able to demonstrate experience in originating and servicing loans for commercial projects similar in size and scope to the Eligible Project, or able to procure such experience through contracts acceptable to DOE; and
(v) Able to demonstrate experience as the lead lender or underwriter by presenting evidence of its participation in large commercial projects or energy-related projects or other relevant experience, or able to procure such experience through contracts acceptable to DOE; or
(2) The Federal Financing Bank.
(1) Is located in the United States at one location, except that the project may be located at two or more locations in the United States if the project is comprised of installations or facilities employing a single New or Significantly Improved Technology that is deployed pursuant to an integrated and comprehensive business plan. An Eligible Project in more than one location is a single Eligible Project;
(2) Deploys a New or Significantly Improved Technology; and
(3) Satisfies all applicable requirements of section 1703 of the Act, the applicable Solicitation, and this part.
(1) Only recently been developed, discovered, or learned; or
(2) Involves or constitutes one or more meaningful and important improvements in productivity or value, in comparison to Commercial Technologies in use in the United States at the time the Term Sheet is issued.
(1) The word “discretion” when used with reference to DOE, including the Secretary, means “sole discretion.”
(2) Defined terms in the singular shall include the plural and vice versa, and the masculine, feminine or neuter gender shall include all genders.
(3) The word “or” is not exclusive.
(4) References to laws by name or popular name are references to the version of such law appearing in the United States Code and include any amendment, supplement or modification of such law, and all regulations, rulings, and other laws promulgated thereunder.
(5) References to information or documents required or allowed to be submitted to DOE mean information or documents that are marked as provided in 10 CFR 600.15(b). A document or information that is not marked as provided in 10 CFR 600.15(b) will not be considered as having been submitted to or received by DOE.
(6) A reference to a Person includes such Person's successors and permitted assigns.
(7) The words “include,” “includes” and “including” are not limiting and mean include, includes and including “without limitation” and “without limitation by specification.”
(8) The words “hereof,” “herein” and “hereunder” and words of similar import refer this part as a whole and not to any particular provision of this part.
(a) DOE may invite the submission of Applications for loan guarantees for Eligible Projects pursuant to a Solicitation.
(b) Each Solicitation must include, at a minimum, the following information:
(1) The dollar amount of loan guarantee authority potentially being made available by DOE in that Solicitation;
(2) The place and deadline for submission of Applications;
(3) The name and address of the DOE representative whom a potential Applicant may contact to receive further information and a copy of the Solicitation;
(4) The form, format, and page limits applicable to the Application;
(5) The amount of the Application Fee and any other fees that will be required;
(6) The programmatic, technical, financial and other factors that DOE will use to evaluate response submissions, and their relative weightings in that evaluation; and
(7) Such other information as DOE may deem appropriate.
(c) Using procedures as may be announced by DOE a potential Applicant may request a meeting with DOE to discuss its potential Application. At its discretion, DOE may meet with a potential Applicant, either in person or electronically, to discuss its potential Application. DOE may provide a potential Applicant with a preliminary response regarding whether its proposed Application may constitute an Eligible Project. DOE's responses to questions from potential Applicants and DOE's statements to potential Applicants are pre-decisional and preliminary in nature. Any such responses and statements are subject in their entirety to any final action by DOE with respect to an Application submitted in accordance with § 609.4.
(a) In response to a Solicitation, an Applicant must meet all requirements and provide all information specified in this part and the Solicitation in the manner and on or before the date specified therein. DOE may direct that Applications be submitted in more than one part; provided, that the parts of such Application, taken as a whole, satisfy the requirements of § 609.4(c) and this part. In such event, subsequent parts of an Application may be filed only after DOE invites an Applicant to make an additional submission. The initial part of an Application may be used by DOE to determine the likelihood that the project proposed by an Applicant will be an Eligible Project, and to evaluate such project's readiness to proceed. If there have been any material amendments, modifications or additions made to the information previously submitted by an Applicant, the Applicant shall provide a detailed description thereof, including any changes in the proposed project's financing structure or other terms, promptly upon request by DOE. Where DOE has directed that an Application be submitted in parts, DOE may provide for payment of the Application Fee in parts.
(b) An Applicant may submit only one Application for one proposed project using a particular technology. An Applicant may not submit an Application or Applications for multiple Eligible Projects using the same technology. An Applicant may submit Applications for multiple proposed projects using different technologies. For purposes of this paragraph (b), the term Applicant shall include the Project Sponsor and any subsidiaries or affiliates of the Project Sponsor.
(c) An Application must include, at a minimum, the following information and materials:
(1) A completed Application form signed by an individual with full authority to bind the Applicant, including the commitments and representations made in each part of the Application;
(2) The applicable Application Fee;
(3) A description of how and to what measurable extent the proposed project avoids, reduces, or sequesters air pollutants and/or anthropogenic emissions of greenhouse gases, including how to measure and verify those effects;
(4) A description of the nature and scope of the proposed project, including:
(i) Key project milestones;
(ii) Location or locations of the proposed project;
(iii) Identification and commercial feasibility of the New or Significantly Improved Technology to be deployed;
(iv) How the Applicant intends to deploy such New or Significantly Improved Technology in the proposed project; and
(v) How the Applicant intends to assure, to the extent possible, the further commercial availability of the New or Significantly Improved Technology in the United States.
(5) An explanation of how the proposed project qualifies as a project within the category or categories of projects referred to in the Solicitation;
(6) A detailed estimate of the total Project Costs together with a description of the methodology and assumptions used;
(7) A detailed description of the engineering and design contractor(s), construction contractor(s), and equipment supplier(s);
(8) The construction schedules for the proposed project, including major activity and cost milestones;
(9) A description of the material terms and conditions of the development and construction contracts to include the performance guarantees, performance bonds, liquidated damages provisions, and equipment warranties;
(10) A detailed description of the operations and maintenance provider(s), the plant operating plan, estimated staffing requirements, parts inventory, major maintenance schedule, estimated annual downtime, and performance guarantees and related liquidated damage provisions, if any;
(11) A description of the management plan of operations to be employed in carrying out the proposed project, and information concerning the management experience of each officer or key person associated with the proposed project;
(12) A detailed description of the proposed project decommissioning, deconstruction, and disposal plan, and the anticipated costs associated therewith;
(13) An analysis of the market for any product (including but not limited to electricity and chemicals) to be produced by, or services to be provided by, the proposed project, including relevant economics justifying the analysis, and copies of
(i) Any contracts for the sale of such products or the provision of such services, or
(ii) Any other assurance of the revenues to be generated from sale of such products or provision of such services;
(14) A detailed description of the overall financial plan for the proposed project, including all sources and uses of funding, equity and debt, and the liability of parties associated with the proposed project over the term of the Loan Guarantee Agreement;
(15) A copy of all material agreements, whether entered into or proposed, relevant to the investment, design, engineering, financing, construction, startup commissioning, shakedown, operations and maintenance of the proposed project;
(16) A copy of the financial closing checklist for the equity and debt to the extent available;
(17) The Applicant's business plan on which the proposed project is based and Applicant's financial model with respect to the proposed project for the proposed term of the Guaranteed Obligations, including, as applicable,
(18) Financial statements for the three immediately preceding fiscal years of the Applicant (or such shorter period as the Applicant has been in existence) that have been audited by an independent certified public accounting firm, including all associated certifications, notes and letters to management, as well as interim financial statements and notes for the current fiscal year for the Applicant and all other Persons the credit of which is material to the success of the transactions described in the Application;
(19) A copy of all legal opinions, and other material reports, analyses, and reviews related to the proposed project that have been delivered prior to submission of any part of the Application;
(20) An independent engineering report prepared by an engineer with experience in the industry and familiarity with similar projects. The report should address the proposed project's siting and permitting arrangements, engineering and design, contractual requirements, environmental compliance, testing, commissioning and operations, and maintenance;
(21) A credit history of the Applicant and each Project Sponsor;
(22) A preliminary credit assessment for the proposed project without a loan guarantee from a nationally recognized rating agency for projects where the estimated total Project Costs exceed $25 million. For proposed projects where the total estimated Project Costs are $25 million or less and where conditions justify, in the sole discretion of the Secretary, DOE may require such an assessment;
(23) A list showing the status of and estimated completion date of Applicant's required applications for federal, state, and local permits, authorizations or approvals to site, construct, and operate the proposed project;
(24) A report containing an analysis of the potential environmental impacts of the proposed project that will enable DOE to—
(i) Assess whether the proposed project will comply with all applicable environmental requirements; and
(ii) Undertake and complete any necessary reviews under the National Environmental Policy Act of 1969;
(25) A listing and description of the assets of or to be utilized for the benefit of the proposed project, and of any other asset that will serve as collateral pledged in respect of the Guaranteed Obligations, including appropriate data as to the value of such assets and the useful life of any physical assets. With respect to real property assets listed, an appraisal that is consistent with the “Uniform Standards of Professional Appraisal Practice,” promulgated by the Appraisal Standards Board of the Appraisal Foundation, and performed by licensed or certified appraisers, is required;
(26) An analysis demonstrating that, at the time of the Application, there is a reasonable prospect that Borrower will be able to repay the Guaranteed Obligations (including interest) according to their terms, and a complete description of the operational and financial assumptions and methodologies on which this demonstration is based; and
(27) If proposed project assets or facilities are or will be jointly owned by the Applicant and one or more other Persons, each of which owns an undivided ownership interest in such proposed project assets or facilities, a description of the Applicant's rights and obligations in respect of its undivided ownership interest in such proposed project assets or facilities.
(d) During the Application evaluation process pursuant to § 609.5, DOE may request additional information, potentially including a preliminary credit rating or credit assessment, with respect to the proposed project.
(e) DOE will not consider any part of any Application or the Application as a whole complete unless the Application Fee (or the required portion of the Application Fee related to a particular part of the Application) has been paid. An Application Fee paid in connection with one Application is not transferable to another Application. Except in the discretion of DOE, no portion of the Application Fee is refundable;
(f) DOE has no obligation to evaluate an Application that is not complete, and may proceed with such evaluation, or a partial evaluation, only in its discretion.
(g) Unless an Applicant requests an extension and such an extension is granted by DOE in its discretion, an Application may be rejected if it is not complete within four years from the date of submission (or date of submission of the first part thereof, in the case of Applications made in more than one part).
(h) Upon making a determination to engage independent consultants or outside counsel with respect to an Application, DOE will proceed to evaluate and process such Application only following execution by an Applicant or Project Sponsor, as appropriate, of an agreement satisfactory
(a) In reviewing completed Applications, and in prioritizing and selecting those as to which a Term Sheet should be offered, DOE will apply the criteria set forth in the Act, any applicable Solicitation, and this part. Applications will be considered in a competitive process,
(1) The proposed project is not an Eligible Project;
(2) The applicable technology is not ready to be deployed commercially in the United States, cannot yield a commercially viable product or service in the use proposed in the Application, does not have the potential to be deployed in other commercial projects in the United States, or is not or will not be available for further commercial use in the United States;
(3) The Person proposed to issue the loan or purchase other debt obligations constituting the Guaranteed Obligations is not an Eligible Lender;
(4) The proposed project is for demonstration, research, or development;
(5) Significant Equity for the proposed project will not be provided by the date of issuance of the Guaranteed Obligations, or such later time as DOE in its discretion may determine; or
(6) The proposed project does not present a reasonable prospect of repayment of the Guaranteed Obligations.
(b) If an Application has not been denied pursuant to § 609.5(a), DOE will evaluate the proposed Project based on the criteria set forth in the Act, any applicable Solicitation and the following:
(1) To what measurable extent the proposed project avoids, reduces, or sequesters air pollutants or anthropogenic emissions of greenhouses gases, or contributes to the avoidance, reduction or sequestration of air pollutants or anthropogenic emissions of greenhouse gases;
(2) To what extent the technology to be deployed in the proposed project—
(i) Is ready to be deployed commercially in the United States, can be replicated, yields a commercially viable product or service in the use proposed in the proposed project, has potential to be deployed in other commercial projects in the United States, and is or will be available for further commercial use in the United States; and
(ii) Constitutes an important improvement in technology, as compared to available Commercial Technologies, used to avoid, reduce or sequester air pollutants or anthropogenic emissions of greenhouse gases;
(3) To what extent the Applicant has a plan to advance or assist in the advancement of that technology into the commercial marketplace in the United States;
(4) The extent to which the level of proposed support in the Application is consistent with a reasonable prospect of repayment of the Guaranteed Obligations by considering, among other factors:
(i) The extent to which the requested amount of the loan guarantee, the requested amount of Guaranteed Obligations and, if applicable, the expected amount of any other financing or credit arrangements, are reasonable relative to the nature and scope of the proposed project;
(ii) The total amount and nature of the Project Costs and the extent to which Project Costs are to be funded by Guaranteed Obligations; and
(iii) The feasibility of the proposed project and likelihood that it will produce sufficient revenues to service its debt obligations over the life of the loan guarantee and assure timely repayment of Guaranteed Obligations;
(5) The likelihood that the proposed project will be ready for full commercial operations in the time frame stated in the Application;
(6) The amount of Equity committed and to be committed to the proposed project by the Borrower, the Project Sponsor, and other Persons;
(7) Whether there is sufficient evidence that the Borrower will diligently implement the proposed project, including initiating and completing the proposed project in a timely manner;
(8) Whether and to what extent the Applicant will rely upon other Federal and non-Federal Government assistance such as grants, tax credits, or other loan guarantees to support the financing, construction, and operation of the proposed project and how such assistance will impact the proposed project;
(9) The levels of safeguards provided to the Federal Government in the event of default through collateral, warranties, and other assurance of repayment described in the Application, including the nature of any anticipated intercreditor arrangements;
(10) The Applicant's, or the relevant contractor's, capacity and expertise to operate the proposed project successfully, based on factors such as financial soundness, management organization, and the nature and extent of corporate and individual experience;
(11) The ability of the proposed Borrower to ensure that the proposed project will comply with all applicable laws and regulations, including all applicable environmental statutes and regulations;
(12) The levels of market, regulatory, legal, financial, technological, and other risks associated with the proposed project and their appropriateness for a loan guarantee provided by DOE;
(13) Whether the Application contains sufficient information, including a detailed description of the nature and scope of the proposed project and the nature, scope, and risk coverage of the loan guarantee sought to enable DOE to perform a thorough assessment of the proposed project; and
(14) Such other criteria that DOE deems relevant in evaluating the merits of an Application.
(c) After DOE completes its review and evaluation of a proposed project pursuant to § 609.5(b) and this part, DOE will notify the Applicant in writing of its determination whether to proceed with due diligence and negotiation of a Term Sheet in accordance with § 609.6. DOE will proceed only if it determines that the proposed project is highly qualified and suitable for a Guarantee. Upon written confirmation from the Applicant that it desires to proceed, DOE and the Applicant will commence negotiations.
(d) A determination by DOE not to proceed with a proposed project following evaluation pursuant to § 609.5(b) shall be final and non-appealable, but shall not prejudice the Applicant or other affected Persons from applying for a Guarantee in respect of a different proposed project pursuant to another, separate Application.
(a) DOE, after negotiation of a Term Sheet with an Applicant, may offer such Term Sheet to an Applicant or such other Person that is an affiliate of the Applicant and that is acceptable to DOE. DOE's offer of a Term Sheet shall be in writing and signed by the Contracting Officer. DOE's negotiation of a Term Sheet imposes no obligation on the Secretary to offer a Term Sheet to the Applicant.
(b) DOE shall terminate its negotiations of a Term Sheet if it has not offered a Term Sheet in respect of an
(c) If and when the offeree specified in a Term Sheet satisfies all terms and conditions for acceptance of the Term Sheet, including written acceptance thereof and payment of all fees specified in § 609.11(f) and therein to be paid at or prior to acceptance of the Term Sheet, the Term Sheet shall become a Conditional Commitment. Each Conditional Commitment shall include an expiration date no more than two years from the date it is issued, unless extended in writing in the discretion of the Contracting Officer. When and if all of the terms and conditions specified in the Conditional Commitment have been met, DOE and the Applicant may enter into a Loan Guarantee Agreement.
(d) If, subsequent to execution of a Conditional Commitment, the financing arrangements of the Borrower, or in respect of an Eligible Project, change from those described in the Conditional Commitment, the Applicant shall promptly provide updated financing information in writing to DOE. All such updated information shall be deemed to be information submitted in connection with an Application and shall be subject to § 609.4(b). Based on such updated information, DOE may take one or more of the following actions:
(1) Determine that such changes are not material to the Borrower, the Eligible Project or DOE;
(2) Amend the Conditional Commitment accordingly;
(3) Postpone the expected closing date of the associated Loan Guarantee Agreement; or
(4) Terminate the Conditional Commitment.
(a) Subsequent to entering into a Conditional Commitment with an Applicant, DOE, after consultation with the Applicant, will set a closing date for execution of a Loan Guarantee Agreement.
(b) Prior to or on the closing date of a Loan Guarantee Agreement, DOE will ensure that:
(1) One of the following has occurred:
(i) An appropriation for the Credit Subsidy Cost has been made;
(ii) The Secretary has received from the Borrower payment in full for the Credit Subsidy Cost and deposited the payment into the Treasury; or
(iii) A combination of one or more appropriations under paragraph (b)(1)(i) of this section and one or more payments from the Borrower under paragraph (b)(1)(ii) of this section has been made that is equal to the Credit Subsidy Cost;
(2) Pursuant to section 1702(h) of the Act, DOE has received from the Applicant the remainder of the Facility Fee referred to in § 609.11(b);
(3) OMB has reviewed and approved DOE's calculation of the Credit Subsidy Cost of the Guarantee;
(4) The Department of the Treasury has been consulted as to the terms and conditions of the Loan Guarantee Agreement;
(5) The Loan Guarantee Agreement and related documents contain all terms and conditions DOE deems reasonable and necessary to protect the interest of the United States;
(6) Each holder of the Guaranteed Obligations is an Eligible Lender, and the servicer of the Guaranteed Obligations meets the servicing performance requirements of § 609.9(b);
(7) DOE has determined the principal amount of the Guaranteed Obligations expected to be issued in respect of the Eligible Project, as estimated at the time of issuance, will not exceed 80 percent of the Project Costs of the Eligible Project;
(8) All conditions precedent specified in the Conditional Commitment are either satisfied or waived by the Contracting Officer and all other applicable contractual, statutory, and regulatory requirements have been satisfied or waived by the Contracting Officer. If the counterparty to the Conditional Commitment has not satisfied all such terms and conditions on or prior to the closing date of the Loan Guarantee Agreement, the Secretary may, in his discretion, set a new closing date, or terminate the Conditional Commitment; and
(9) Where the total Project Costs for an Eligible Project are projected to exceed $25 million, the Applicant must provide a credit rating from a nationally recognized rating agency reflecting the revised Conditional Commitment for the project without a Federal guarantee. Where total Project Costs are projected to be $25 million or less, the Secretary may, on a case-by-case basis, require a credit rating. If a credit rating is required, an updated rating must be provided to the Secretary not later than 30 days prior to closing.
(a) Only a Loan Guarantee Agreement executed by the Contracting Officer can obligate DOE to issue a Guarantee in respect of Guaranteed Obligations.
(b) DOE is not bound by oral representations.
(c) Each Loan Guarantee Agreement shall contain the following requirements and conditions, and shall not be executed until the Contracting Officer determines that the following requirements and conditions are satisfied:
(1) The Federal Financing Bank shall be the only Eligible Lender in transactions where DOE guarantees 100 percent (but not less than 100 percent) of the principal and interest of the Guaranteed Obligations issued under a Loan Guarantee Agreement.
(i) Where DOE guarantees more than 90 percent of the Guaranteed Obligation, the guaranteed portion cannot be separated from or “stripped” from the non-guaranteed portion of the Guaranteed Obligation if the loan is participated, syndicated or otherwise resold in the secondary market; and
(ii) Where DOE guarantees 90 percent or less of the Guaranteed Obligation, the guaranteed portion may be separated from or “stripped” from the non-guaranteed portion of the Guaranteed Obligation, if the loan is participated, syndicated or otherwise resold in the secondary debt market;
(2) The Borrower shall be obligated to make full repayment of the principal and interest on the Guaranteed Obligations and other debt of a Borrower over a period of up to the lesser of 30 years or 90 percent of the projected useful life of the Eligible Project's major physical assets, as calculated in accordance with U.S. generally accepted accounting principles and practices. The non-guaranteed portion (if any) of any Guaranteed Obligations must be repaid
(3) If any financing or credit arrangement of the Borrower or relating to the Eligible Project, other than the Guaranteed Obligations, has an amortization period shorter than that of the Guaranteed Obligations, DOE shall have determined that the resulting financing structure allocates to DOE a reasonably proportionate share of the default risk, in light of:
(i) DOE's share of the total debt financing of the Borrower,
(ii) Risk allocation among the credit providers to the Borrower, and
(iii) Internal and external credit enhancements.
(4) The loan guarantee does not finance, either directly or indirectly tax-exempt debt obligations, consistent with the requirements of section 149(b) of the Internal Revenue Code;
(5) The principal amount of the Guaranteed Obligations, when combined with funds from other sources
(6) There shall be a reasonable prospect of repayment by the Borrower of the principal of and interest on the Guaranteed Obligations and all of its other debt obligations;
(7) The Borrower shall pledge collateral or surety determined by DOE to be necessary to secure the repayment of the Guaranteed Obligations. Such collateral or security may include Eligible Project assets and assets not related to the Eligible Project;
(8) The Loan Guarantee Agreement and related documents shall include detailed terms and conditions that DOE deems necessary and appropriate to protect the interests of the United States in the case of default, including ensuring availability of all relevant intellectual property rights, technical data including software, and technology necessary for DOE or any Person selected by DOE, to complete, operate, convey, and dispose of the defaulted Borrower or the Eligible Project;
(9) The Guaranteed Obligations shall not be subordinate to other financing. Guaranteed Obligations are not subordinate to other financing if the lien on property securing the Guaranteed Obligations, together with liens that are
(10) There is satisfactory evidence that the Borrower will diligently pursue the Eligible Project and is willing, competent, and capable of performing its obligations under the Loan Guarantee Agreement and the loan documentation relating to its other debt obligations;
(11) The Borrower shall have paid all fees and expenses due to DOE or the U.S. Government, including such amount of the Credit Subsidy Cost as may be due and payable from the Borrower pursuant to the Conditional Commitment, upon execution of the Loan Guarantee Agreement;
(12) The Borrower, any Eligible Lender, and each other relevant party shall take, and be obligated to continue to take, those actions necessary to perfect and maintain liens on collateral in respect of the Guaranteed Obligations;
(13) DOE or its representatives shall have access to the offices of the Borrower and the Eligible Project site at all reasonable times in order to monitor the—
(i) Performance by the Borrower of its obligations under the Loan Guarantee Agreement; and
(ii) Performance of the Eligible Project;
(14) DOE and Borrower have reached an agreement regarding the information that will be made available to DOE and the information that will be made publicly available;
(15) The Borrower shall have filed applications for or obtained any required regulatory approvals for the Eligible Project and is in compliance, or promptly will be in compliance, where appropriate, with all Federal, state, and local regulatory requirements;
(16) The Borrower shall have no delinquent Federal debt;
(17) The Project Sponsors have made or will make a significant Equity investment in the Borrower or the Eligible Project, and will maintain control of the Borrower or the Eligible Project as agreed in the LGA; and
(18) The Loan Guarantee Agreement and related agreements shall include such other terms and conditions as DOE deems necessary or appropriate to protect the interests of the United States.
(d) The Loan Guarantee Agreement shall provide that, in the event of a default by the Borrower:
(1) Interest on the Guaranteed Obligations shall accrue at the rate stated in the Loan Guarantee Agreement or the Loan Agreement, until DOE makes full payment of the defaulted Guaranteed Obligations and, except when such Guaranteed Obligations are funded through the Federal Financing Bank, DOE shall not be required to pay any premium, default penalties, or prepayment penalties; and
(2) The holder of collateral pledged in respect of the Guaranteed Obligations shall be obligated to take such actions as DOE may reasonably require to provide for the care, preservation, protection, and maintenance of such collateral so as to enable the United States to achieve maximum recovery.
(e)(1) An Eligible Lender or other Holder may sell, assign or transfer a Guaranteed Obligation to another Eligible Lender that meets the requirements of § 609.9. Such latter Eligible Lender shall be required to assume all servicing, monitoring and reporting requirements as provided in the Loan Guarantee Agreement. Any transfer of the servicing, monitoring, and reporting functions shall be subject to the prior written approval of DOE.
(2) The Secretary, or the Secretary's designee or contractual agent, for the purpose of identifying Holders with the right to receive payment under the Guaranteed Obligations, shall include in the Loan Guarantee Agreement or related documents a procedure for tracking and identifying Holders of Guaranteed Obligations. Any contractual agent approved by the Secretary to perform this function may transfer or assign this responsibility only with the Secretary's prior written approval.
(f) Each Loan Guarantee Agreement shall require the Borrower to make representations and warranties, agree to covenants, and satisfy conditions precedent to closing and to each disbursement that, in each case, relate to its compliance with the Davis-Bacon Act and the Cargo Preference Act.
(g) The Applicant, the Borrower or the Project Sponsor must estimate, calculate, record, and provide to DOE any time DOE requests such information and at the times provided in the Loan Guarantee Agreement all costs incurred in the design, engineering, financing, construction, startup, commissioning and shakedown of the Eligible Project in accordance with generally accepted accounting principles and practices.
(a) When reviewing and evaluating a proposed Eligible Project, all Eligible Lenders (other than the Federal Financing Bank) shall at all times exercise the level of care and diligence that a reasonable and prudent lender would exercise when reviewing, evaluating and disbursing a loan made by it without a Federal guarantee.
(b) Loan servicing duties shall be performed by an Eligible Lender, DOE, or another qualified loan servicer approved by DOE. When performing its servicing duties, the loan servicer shall at all times exercise the level of care and diligence that a reasonable and prudent lender would exercise when servicing a loan made without a Federal guarantee, including:
(1) During the construction period, monitoring the satisfaction of all of the conditions precedent to all loan disbursements, as provided in the Loan Guarantee Agreement, Loan Agreement or related documents;
(2) During the operational phase, monitoring and servicing the Guaranteed Obligations and collection of the outstanding principal and accrued interest as well as undertaking to ensure that the collateral package
(3) Until the Guaranteed Obligation has been repaid, providing annual or more frequent financial and other reports on the status and condition of the Guaranteed Obligations and the Eligible Project, and promptly notifying DOE if it becomes aware of any problems or irregularities concerning the Eligible Project or the ability of the Borrower to make payment on the Guaranteed Obligations or its other debt obligations.
(a) Project Costs include:
(1) Costs of acquisition, lease, or rental of real property, including engineering fees, surveys, title insurance, recording fees, and legal fees incurred in connection with land acquisition, lease or rental, site improvements, site restoration, access roads, and fencing;
(2) Costs of engineering, architectural, legal and bond fees, and insurance paid in connection with construction of the facility;
(3) Costs of equipment purchases, including a reasonable reserve of spare parts to the extent required;
(4) Costs to provide facilities and services related to safety and environmental protection;
(5) Costs of financial, legal, and other professional services, including services necessary to obtain required licenses and permits and to prepare environmental reports and data;
(6) Costs of issuing Eligible Project debt, such as fees, transaction, and costs referred to in § 609.10(a)(5), and other customary charges imposed by Eligible Lenders;
(7) Costs of necessary and appropriate insurance and bonds of all types including letters of credit and any collateral required therefor;
(8) Costs of design, engineering, startup, commissioning and shakedown;
(9) Costs of obtaining licenses to intellectual property necessary to design, construct, and operate the Eligible Project;
(10) To the extent required by the Loan Guarantee Agreement and not intended or available for any cost referred to in § 609.10(b), costs of funding any reserve fund, including without limitation, a debt service reserve, a maintenance reserve, and a contingency reserve for cost overruns during construction; provided that proceeds of a Guaranteed Loan deposited to any reserve fund shall not be removed from such fund except to pay Project Costs, to pay principal of the Guaranteed Loan, or otherwise to be used as provided in the Loan Guarantee Agreement;
(11) Capitalized interest necessary to meet market requirements and other carrying costs during construction; and
(12) Other necessary and reasonable costs.
(b) Project Costs do not include:
(1) Fees and commissions charged to Borrower, including finder's fees, for obtaining Federal or other funds;
(2) Parent corporation or other affiliated entity's general and administrative expenses, and non-Eligible Project related parent corporation or affiliated entity assessments, including organizational expenses;
(3) Goodwill, franchise, trade, or brand name costs;
(4) Dividends and profit sharing to stockholders, employees, and officers;
(5) Research, development, and demonstration costs of readying an innovative technology for employment in a commercial project;
(6) Costs that are excessive or are not directly required to carry out the Eligible Project, as determined by DOE;
(7) Expenses incurred after startup, commissioning, and shakedown before the facility, or, in DOE's discretion, any portion of the facility, has been placed in service;
(8) Borrower-paid Credit Subsidy Costs, the Administrative Cost of Issuing a Loan Guarantee, and any other fee collected by DOE; and
(9) Operating costs.
(a) Unless explicitly authorized by statute, no funds obtained from the Federal Government, or from a loan or other instrument guaranteed by the Federal Government, may be used to pay for the Credit Subsidy Cost, the Application Fee, the Facility Fee, the Guarantee Fee, the maintenance fee and any other fees charged by or paid to DOE relating to the Act or any Guarantee thereunder.
(b) DOE may charge Applicants a non-refundable Facility Fee, with a portion being payable on or prior to the date on which the Applicant executes the Commitment Letter and the remainder being payable on or prior to the closing date for the Loan Guarantee Agreement.
(c) In order to encourage and supplement private lending activity DOE may collect from Borrowers for deposit in the United States Treasury a non-refundable Risk-Based Charge which, together with the interest rate on the Guaranteed Obligation that LPO determines to be appropriate, will take into account the prevailing rate of interest in the private sector for similar loans and risks. The Risk-Based Charge shall be paid at such times and in such manner as may be determined by DOE, but no less frequently than once each year, commencing with payment of a pro-rated payment on the date the Guarantee is issued. The amount of the Risk-Based Charge will be specified in the Loan Guarantee Agreement.
(d) DOE may collect a maintenance fee to cover DOE's administrative expenses, other than extraordinary expenses, incurred in servicing and monitoring a Loan Guarantee Agreement. The maintenance fee shall accrue from the date of execution of the Loan Guarantee Agreement through the date of payment in full of the related Guaranteed Obligations. If DOE determines to collect a maintenance fee, it shall be paid by the Borrower each year (or portion thereof) in advance in the amount specified in the applicable Loan Guarantee Agreement.
(e) In the event a Borrower or an Eligible Project experiences difficulty relating to technical, financial, or legal matters or other events (
(1) If such difficulty requires DOE to incur time or expenses beyond those customarily expended to monitor and administer performing loans, DOE may collect an extraordinary expenses fee from the Borrower that will reimburse DOE for such time and expenses, as determined by DOE; and
(2) For all fees and expenses of DOE's independent consultants and outside counsel, to the extent that such fees and expenses are elected to be paid by DOE notwithstanding the provisions of paragraphs (f) and (g) of this section.
(f) Each Applicant, Borrower or Project Sponsor, as applicable, shall be responsible for the payment of all fees and expenses charged by DOE's independent consultants and outside legal counsel in connection with an Application, Conditional Commitment or Loan Guarantee Agreement, as applicable. Upon making a determination to engage independent consultants or outside counsel with respect to an Application, DOE will proceed to evaluate and process such Application only following execution by an Applicant or Project Sponsor, as appropriate, of an agreement satisfactory to DOE to pay the fees and expenses charged by the independent consultants and outside legal counsel. Appropriate provisions regarding payment of such fees and expenses shall also be included in each Term Sheet and Loan Guaranty Agreement or, upon a determination by DOE, in other appropriate agreements.
(g) Notwithstanding payment by Applicant, Borrower or Project Sponsor, all services rendered by an independent consultant or outside legal counsel to DOE in connection with an Application, Conditional Commitment or Loan Guarantee Agreement shall be solely for the benefit of DOE (and such other creditors as DOE may agree in writing). DOE may require, in its discretion, the payment of an advance retainer to such independent consultants or outside legal counsel as security for the collection of the fees and expenses charged by the independent consultants and outside legal counsel. In the event an Applicant, Borrower or Project Sponsor fails to comply with the provisions of such payment agreement, DOE in its discretion, may stop work on or terminate an Application, a Conditional Commitment or a Loan Guarantee Agreement, or may take such other remedial measures in its discretion as it deems appropriate.
(h) DOE shall not be financially liable under any circumstances to any independent consultant or outside counsel for services rendered in connection with an Application, Conditional Commitment or Loan Guarantee Agreement except to the extent DOE has previously entered into an express written agreement to pay for such services.
The full faith and credit of the United States is pledged to the payment of principal and interest of Guaranteed Obligations pursuant to Guarantees issued in accordance with the Act and this Part. The issuance by DOE of a Guarantee shall be conclusive evidence that it has been properly obtained; that the underlying loan qualified for such Guarantee; and that, but for fraud or material misrepresentation by the Holder, such Guarantee shall be legal, valid, binding and enforceable against DOE in accordance with its terms.
(a) If a Borrower defaults in making a required payment of principal or interest on a Guaranteed Obligation and such default has not been cured within the applicable grace period, the Holder may make written demand for payment upon the Secretary in accordance with the terms of the applicable Guarantee. If a Borrower defaults in making a required payment of principal or interest on a Guaranteed Obligation and such default has not been cured within the applicable grace period, the Secretary shall notify the Attorney General.
(b) Subject to the terms of the applicable Guarantee, the Secretary shall make payment within 60 days after receipt of written demand for payment from the Holder, provided that the demand for payment complies in all respects with the terms of the applicable Guarantee. Interest shall accrue to the Holder at the rate stated in the promissory note evidencing the Guaranteed Obligation, without giving effect to the Borrower's default in making a required payment of principal or interest on the applicable Guarantee Obligation or any other default by the Borrower, until the Guaranteed Obligation has been fully paid by DOE. Payment by the Secretary on the applicable Guarantee does not change Borrower's obligations under the promissory note evidencing the Guaranteed Obligation, Loan Guarantee Agreement, Loan Agreement or related documents, including an obligation to pay default interest.
(c) Following payment by the Secretary pursuant to the applicable Guarantee, upon demand by DOE, the Holder shall transfer and assign to the Secretary (or his designee or agent) the promissory note evidencing the Guaranteed Obligation, all rights and interests of the Holder in the Guaranteed Obligation, and all rights and interests of the Holder in respect of the Guaranteed Obligation, except to the extent that the Secretary determines that such promissory note or any of such rights and interests shall not be transferred and assigned to the Secretary. Such transfer and assignment shall include, without limitation, all of the liens, security and collateral rights of the Holder (or his designee or agent) in respect of the Guaranteed Obligation.
(d) Following payment by the Secretary pursuant to a Guarantee or other default of a Guaranteed Obligation, the Secretary is authorized to protect and foreclose on the collateral, take action to recover costs incurred by, and all amounts owed to, the United States as a result of the defaulted Guarantee Obligation, and take such other action necessary or appropriate to protect the interests of the United States. In respect of any such authorized actions that involve a judicial proceeding or other judicial action, the Secretary shall act through the Attorney General. The foregoing provisions of this paragraph shall not relieve the Secretary from its obligations pursuant to any applicable Intercreditor Agreement. Nothing in this paragraph shall limit the Secretary from exercising any rights or remedies pursuant to the terms of the Loan Guarantee Agreement.
(e) The cash proceeds received as a result of any foreclosure on the collateral, or other action, shall be distributed in accordance with the Loan Guarantee Agreement (subject to any applicable Intercreditor Agreement).
(f) The Loan Guarantee Agreement shall provide that cash proceeds received by the Secretary (or his designee or agent) as a result of any foreclosure on the collateral or other action shall be applied in the following order of priority:
(1) Toward the pro rata payment of any costs and expenses (including unpaid fees, fees and expenses of counsel, contractors and agents, and liabilities and advances made or incurred) of the Secretary, the Attorney General, the Holder, a collateral agent or other responsible person of any of them (solely in their individual capacities as such and not on behalf of or for the benefit of their principals), incurred in connection with any authorized action following payment by the Secretary pursuant to a Guarantee or other default of a Guaranteed Obligation, or as otherwise permitted under the Loan Agreement or Loan Guarantee Agreement.
(2) To pay all accrued and unpaid fees due and payable to the Secretary, the Attorney General, the Holder, a collateral agent or other responsible person of any of them on a pro rata basis in respect of the Guaranteed Obligation;
(3) To pay all accrued and unpaid interest due and payable to the Secretary, the Attorney General, the Holder, a collateral agent or other responsible person of any of them on a pro rata basis in respect of the Guaranteed Obligation;
(4) To pay all unpaid principal of the Guaranteed Obligation;
(5) To pay all other obligations of the Borrower under the Loan Guarantee Agreement, the Loan Agreement and related documents that are remaining after giving effect to the preceding provisions and are then due and payable; and;
(6) To pay to the Borrower, or its successors and assigns, or as a court of competent jurisdiction may direct, any cash proceeds then remaining following the application of all payment described above.
(g) No action taken by the Holder or its agent or designee in respect of any collateral will affect the rights of any person, including the Secretary, having an interest in the Guaranteed Obligations or other debt obligations, to pursue, jointly or severally, legal action against the Borrower or other liable
(h) In the event that the Secretary considers it necessary or desirable to protect or further the interest of the United States in connection with exercise of rights as a lien holder or recovery of deficiencies due under the Guaranteed Obligation, the Secretary may take such action as he determines to be appropriate under the circumstances.
(i) Nothing in this part precludes, nor shall any provision of this part be construed to preclude, the Secretary from purchasing any collateral or Holder's or other Person's interest in the Eligible Project upon foreclosure of the collateral.
(j) Nothing in this part precludes, nor shall any provision of this part be construed to preclude, forbearance by any Holder with the consent of the Secretary for the benefit of the Borrower and the United States.
(k) The Holder and the Secretary may agree to a formal or informal plan of reorganization in respect of the Borrower, to include a restructuring of the Guaranteed Obligation and other applicable debt of the Borrower on such terms and conditions as the Secretary determines are in the best interest of the United States.
(a) If the Secretary exercises his right under the Loan Guarantee Agreement to require the holder of pledged collateral to take such actions as the Secretary (subject to any applicable Intercreditor Agreement) may reasonably require to provide for the care, preservation, protection, and maintenance of such collateral so as to enable the United States to achieve maximum recovery from the collateral, the Secretary shall, subject to compliance with the Antideficiency Act, 31 U.S.C. 1341
(b) In the event of a default, the Secretary may enter into such contracts as he determines are required or appropriate, taking into account the term of any applicable Intercreditor Agreement, to care for, preserve, protect or maintain collateral pledged in respect of Guaranteed Obligations. The cost of such contracts may be charged to the Borrower.
Each Loan Guarantee Agreement and related documents shall provide that:
(a) The Eligible Lender, or DOE in conjunction with the Federal Financing Bank where loans are funded by the Federal Financing Bank or other Holder or other party servicing the Guaranteed Obligations, as applicable, and the Borrower, shall keep such records concerning the Eligible Project as are necessary, including the Application, Term Sheet, Conditional Commitment, Loan Guarantee Agreement, Credit Agreement, mortgage, note, disbursement requests and supporting documentation, financial statements, audit reports of independent accounting firms, lists of all Eligible Project assets and non-Eligible Project assets pledged in respect of the Guaranteed Obligations, all off-take and other revenue producing agreements, documentation for all Eligible Project indebtedness, income tax returns, technology agreements, documentation for all permits and regulatory approvals and all other documents and records relating to the Borrower or the Eligible Project, as determined by the Secretary, to facilitate an effective audit and performance evaluation of the Eligible Project; and
(b) The Secretary and the Comptroller General, or their duly authorized representatives, shall have access, for the purpose of audit and examination, to any pertinent books, documents, papers and records of the Borrower, Eligible Lender or DOE or other Holder or other party servicing the Guaranteed Obligation, as applicable. Such inspection may be made during regular office hours of the Borrower, Eligible Lender or DOE or other Holder, or other party servicing the Eligible Project and the Guaranteed Obligations, as applicable, or at any other time mutually convenient.
(a) To the extent that the requirements under this part are not specified by the Act or other applicable statutes, DOE may authorize deviations from the requirements of this part upon:
(1) Either receipt from the Applicant, Borrower or Project Sponsor, as applicable, of—
(i) A written request that the Secretary deviate from one or more requirements; and
(ii) A supporting statement briefly describing one or more justifications for such deviation; or
(iii) A determination by the Secretary in his discretion to undertake a deviation;
(2) A finding by the Secretary that such deviation supports program objectives and the special circumstances stated in the request make such deviation clearly in the best interest of the Government; and
(3) If the waiver would constitute a substantial change in the financial terms of the Loan Guarantee Agreement and related documents, consultation by DOE with OMB and the Secretary of the Treasury.
(b) If a deviation under this section results in an increase in the applicable Credit Subsidy Cost, such increase shall be funded either by additional fees paid by or on behalf of the Borrower or, if an appropriation is available by means of an appropriations act. The Secretary has discretion to determine how the cost of a deviation is funded.
Bureau of Industry and Security, Commerce.
Final rule.
This final rule amends the Export Administration Regulations (EAR) by adding seven persons to the Entity List. The seven persons who are added to the Entity List have been determined by the U.S. Government to be acting contrary to the national security or foreign policy interests of the United States. These seven persons will be listed on the Entity List under the destination of Pakistan.
This rule is effective December 15, 2016.
Chair, End-User Review Committee, Office of the Assistant Secretary, Export Administration, Bureau of Industry and Security, Department of Commerce, Phone: (202) 482-5991, Email:
The Entity List (Supplement No. 4 to part 744) identifies entities and other
The ERC, composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, where appropriate, the Treasury, makes all decisions regarding additions to, removals from, or other modifications to the Entity List. The ERC makes all decisions to add an entry to the Entity List by majority vote and all decisions to remove or modify an entry by unanimous vote.
This rule implements the decision of the ERC to add seven persons to the Entity List. These seven persons are being added on the basis of § 744.11 (License requirements that apply to entities acting contrary to the national security or foreign policy interests of the United States) of the EAR. The seven entries added to the entity list consist of seven entries in Pakistan.
The ERC reviewed § 744.11(b) (Criteria for revising the Entity List) in making the determination to add these seven persons to the Entity List. Under that paragraph, persons and those acting on behalf of such persons may be added to the Entity List if there is reasonable cause to believe, based on specific and articulable facts, that they have been involved, are involved, or pose a significant risk of being or becoming involved in, activities that are contrary to the national security or foreign policy interests of the United States. Paragraphs (b)(1) through (5) of § 744.11 include an illustrative list of activities that could be contrary to the national security or foreign policy interests of the United States.
Pursuant to § 744.11(b) of the EAR, the ERC determined that seven persons, located in the destination of Pakistan, be added to the Entity List for actions contrary to the national security or foreign policy interests of the United States. The ERC determined that there is reasonable cause to believe, based on specific and articulable facts, that Ahad International; Engineering Solutions Pvt. Ltd.; National Engineering and Scientific Commission (NESCOM); three NESCOM subsidiaries: Air Weapons Complex (AWC), Maritime Technology Complex (MTC) and New Auto Engineering (NAE); and Universal Tooling Services, have been involved in actions contrary to the national security or foreign policy interests of the United States. These government, parastatal, and private entities in Pakistan are determined to be involved in activities that are contrary to the national security and/or foreign policy of the United States.
Pursuant to § 744.11(b) of the EAR, the ERC determined that the conduct of these seven persons raises sufficient concern that prior review of exports, reexports or transfers (in-country) of items subject to the EAR involving these persons, and the possible imposition of license conditions or license denials on shipments to the persons, will enhance BIS's ability to prevent violations of the EAR. Therefore, these seven persons are being added to the Entity List.
For the seven persons added to the Entity List, BIS imposes a license requirement for all items subject to the EAR and a license review policy of presumption of denial. The license requirements apply to any transaction in which items are to be exported, reexported, or transferred (in-country) to any of the persons or in which such persons act as purchaser, intermediate consignee, ultimate consignee, or end-user. In addition, no license exceptions are available for exports, reexports, or transfers (in-country) to the persons being added to the Entity List in this rule. The acronym “a.k.a.” (also known as) is used in entries on the Entity List to help exporters, reexporters and transferors better identify listed persons on the Entity List.
This final rule adds the following seven persons to the Entity List:
Shipments of items removed from eligibility for a License Exception or export or reexport without a license (NLR) as a result of this regulatory action that were en route aboard a carrier to a port of export or reexport, on December 15, 2016, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export or reexport without a license (NLR).
Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013) and as extended by the Notice of August 4, 2016, 81 FR 52587 (August 8, 2016), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222, as amended by Executive Order 13637.
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
2. Notwithstanding any other provision of law, no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of 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 in Executive Order 13132.
4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public comment and a delay in effective date are inapplicable to this rule because this regulation involves a military or foreign affairs function of the United States. (See 5 U.S.C. 553(a)(1)). BIS implements this rule to protect U.S. national security or foreign policy interests by preventing items from being exported, reexported, or transferred (in country) to the persons being added to the Entity List. If this rule were delayed to allow for notice and comment and a delay in effective date, the entities being added to the Entity List by this action would continue to be able to receive items without a license and to conduct activities contrary to the national security or foreign policy interests of the United States. In addition, publishing a proposed rule would give these parties notice of the U.S. Government's intention to place them on the Entity List and would create an incentive for these persons to either accelerate receiving items subject to the EAR to conduct activities that are contrary to the national security or foreign policy interests of the United States, and/or to take steps to set up additional aliases, change addresses, and other measures to try to limit the impact of the listing on the Entity List once a final rule was published. Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601
Exports, Reporting and recordkeeping requirements, Terrorism.
Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730 through 774) is amended as follows:
50 U.S.C. 4601
Office of the United States Trade Representative.
Final rule.
This rule amends the Office of the United States Trade Representative's (USTR) regulations under the Freedom of Information Act (FOIA). The final rule is a comprehensive update of the prior USTR implementing rule and describes in plain language how to make a FOIA request to USTR and how the FOIA Office processes requests for records. The FOIA rule appears in subpart B to part 2004.
The final rule will become effective December 15, 2016.
Janice Kaye, Monique Ricker or Melissa Keppel, Office of General Counsel, United States Trade Representative, Anacostia Naval Annex, Building 410/Door 123, 250 Murray Lane SW., Washington DC 20509,
On September 23, 2016, USTR published a proposed rule to revise its existing regulations under the FOIA.
USTR has considered the impact of the final rule and determined that it is not likely to have a significant economic impact on a substantial number of small business entities because it is applicable only to USTR's internal operations and legal obligations.
The final rule does not contain any information collection requirement that requires the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501
Administrative practice and procedure, Courts, Disclosure, Exemptions, Freedom of information, Government employees, Privacy, Records, Subpoenas, Testimony.
For the reasons stated in the preamble, the Office of the United States Trade Representative is amending chapter XX of title 15 of the Code of Federal Regulations as follows:
5 U.S.C. 552; 19 U.S.C. 2171(e)(3); Uniform Freedom of Information Act Fee Schedule and Guidelines, 52 FR 10012, Mar. 27, 1987.
(a) This subpart contains the rules we follow when processing requests for records under the FOIA, a Federal law that provides a right of access to certain records and information Federal agencies maintain and control. You should read this subpart in conjunction with the text of the FOIA and the Uniform Freedom of Information Act Fee Schedule and Guidelines published by the Office of Management and Budget (OMB Guidelines). Additionally, our FOIA Reference Guide, which is available on our Web site at
(b) To maximize the amount of information we can provide to you, we may process requests you make for records about yourself under both this subpart and subpart C to part 2004, our rules implementing the Privacy Act.
(c) We administer the FOIA with a presumption of openness.
You can access records that the FOIA requires us to make available for public inspection and copying in an electronic format through our Web site:
(a)
(2)
(3)
“I declare under penalty of perjury that the foregoing is true and correct. Executed on [date].”
(ii) If the other individual is deceased, you should submit proof of death such as a copy of a death certificate or an obituary. As an exercise of administrative discretion, we may require that you provide additional information if necessary in order to verify that a particular individual has consented to disclosure.
(b)
(2) If a request does not provide sufficient specific descriptive information for the FOIA Office reasonably to ascertain exactly which records you are requesting and to locate them, our response may be delayed. Please note that in response to a FOIA request, we are not required to create records, conduct research for you, analyze data, answer written questions, or parse your narrative to try and determine the specific records you are seeking. You can contact the FOIA Office before you submit your request for assistance in describing the records you are seeking. If we determine that your request does not reasonably describe the records sought, we will explain why we cannot process your request and ask for additional information. For example, we might ask you to clarify your request if you ask for all documents in a certain date range but do not include a specific subject matter, topic or personnel. We can help you reformulate or modify your request.
(c)
(d)
(a)
(1)
(2)
(b)
(c)
(i) The requested information has been designated in good faith by the submitter as information considered protected from disclosure under exemption 4 of the FOIA, 5 U.S.C. 552(b)(4); or
(ii) We have reason to believe that the requested information may be protected from disclosure exemption 4 of the FOIA, 5 U.S.C. 552(b)(4), but have not yet determined whether the information is protected from disclosure under that exemption or any other applicable FOIA exemption.
(2) Our notice either will describe the commercial information requested or include a copy of the requested records or portions of records containing the information. In cases involving a voluminous number of submitters, we may post or publish a notice in a place or manner reasonably likely to inform the submitters of the proposed disclosure without publicly disclosing the records, instead of sending individual notifications.
(3) We promptly will notify the submitter whenever a requester files a lawsuit seeking to compel the disclosure of the submitter's confidential commercial information.
(d)
(1) We determine that the information is exempt under the FOIA, and therefore will not be disclosed;
(2) The information has been lawfully published or has officially been made available to the public;
(3) Disclosure of the information is required by a statute other than the FOIA or by a regulation issued in accordance with the requirements of Executive Order 12600 of June 23, 1987,
(4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous. In such case, we will give the submitter written notice of any final decision to disclose the information and a reasonable time period within which to object to disclosure under paragraph (e) of this section.
(e)
(2) A submitter who does not respond within the time period specified in the notice will be considered to have no objection to disclosure of the information. We will not consider any information we receive after the date of any disclosure decision. Any information provided by the submitter under this section may itself be subject to disclosure under the FOIA.
(f)
(g)
(1) A statement of the reasons why we did not sustain each of the submitter's disclosure objections;
(2) A description of the information to be disclosed or copies of the records as we intend to release them; and
(3) A specified disclosure date, which will be a reasonable time after the notice.
(h)
(a)
(b)
(1)
(2)
(3)
(c)
(d)
(e)
(a)
(b)
(c)
(2)
(d)
(2)
(i) Failure to obtain the records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;
(ii) With respect to a request made by a person primarily engaged in disseminating information, there is an urgency to inform the public about the specific government activity that is the subject of the request or appeal that extends beyond the public's right to know about government activity generally;
(iii) An individual will suffer the loss of substantial due process rights; or
(iv) the subject is of widespread and exceptional media interest and the information sought involves possible questions about the government's integrity that affect public confidence.
(3)
(a)
(b)
(c)
(d)
(2)
(i) The name and title or position of the person responsible for the determination;
(ii) A brief statement of the reasons for the denial, including any FOIA exemption(s) we applied;
(iii) An estimate of the volume of any records or information we withheld, such as the number of pages or some other reasonable form of estimation, although such an estimate is not required if the volume is otherwise indicated by deletions marked on records that are disclosed in part or if providing an estimate would harm an interest protected by an applicable exemption;
(iv) Information about our FOIA Public Liaison and the mediation services provided by OGIS; and
(iv) Your right to appeal our decision under § 2004.8.
(3)
(a)
(2)
(b)
(2) We ordinarily will not adjudicate an appeal if the request becomes a matter of FOIA litigation.
(3) On receipt of any appeal involving classified information, the FOIA Appeals Committee must take appropriate action to ensure compliance with applicable classification rules.
(c)
(d)
(a)
(b)
(1)
(2)
(3)
(4)
We would presume that a request from a professor of economics for records relating to the economic effects of a trade agreement, written on letterhead of the university's department of economics, is a request from an educational institution.
We would not presume that a request from the same professor of economics seeking drug information from the Food and Drug Administration in furtherance of a murder mystery he is writing is a request from an educational institution, regardless of whether it was written on institutional stationery.
We would presume that a request from a student in furtherance of their coursework or other school-sponsored activities evidenced by a course syllabus or other reasonable documentation indicating the research purpose for the request would qualify as part of this fee category.
(5)
(6)
(7)
(8)
(c)
(1)
(ii) For each quarter hour spent by personnel searching for requested records, including electronic searches that do not require new programming, we will charge $76/hour, which is a blended hourly rate for all personnel in the FOIA Office, plus 16 percent of that rate to cover benefits.
(iii) We will charge the direct costs if it is necessary to create a new computer program to locate the requested records. We will notify you of the costs associated with creating such a program, and you must agree to pay the associated costs before we build the program.
(iv) If your request requires the retrieval of records stored at a Federal records center, we will charge additional costs in accordance with the Transactional Billing Rate Schedule established by the National Archives and Records Administration.
(2)
(3)
(d)
(2)
(e)
(f)
(1) We will not process your request until you either commit in writing to pay the actual or estimated total fee, or designate some amount of fees you are willing to pay. If you are a noncommercial use requester and we have not yet provided your statutory entitlements (
(2) If you agree to pay some designated amount of fees, but we estimate that the total fee will exceed that amount, we will toll processing when we notify you of the estimated fees in excess of the amount you had indicated a willingness to pay. When we receive your written commitment to pay the actual or estimated total fee, or designate an additional amount of fees you are willing to pay, we will restart the processing clock.
(3) If you decide to reformulate your request to reduce costs, you can contact USTR's FOIA Public Liaison at
(4) We will close your request if you do not respond in writing within thirty calendar days after the date we notify you of the fee estimate.
(g)
(2) If you previously failed to pay a properly charged FOIA fee to any Federal agency within thirty calendar days of the billing date, we may require proof that you paid the full amount due, plus any applicable interest on that prior request, and that you make an advance payment to us of the full amount of any anticipated fee before we begin to process a new request or continue to process a pending request or any pending appeal. If we have a reasonable basis to believe that you have misrepresented your identity in order to avoid paying outstanding fees, we may require you to provide proof of identity.
(3) If we require advance payment, we will not consider your request received and will not do any additional work until we receive the required payment. We will close your request if you do not pay the advance payment within thirty calendar days after the date of our fee determination.
(h)
(i) Shed light on the operations or activities of the government. The subject of the request must specifically concern identifiable operations or activities of the Federal government with a connection that is direct and clear, not remote or attenuated.
(ii) Likely contribute significantly to public understanding of those operations or activities. Disclosure of the requested records must be meaningfully informative about government operations or activities. The disclosure of information that already is in the public domain, in either the same or a substantially identical form, would not be meaningfully informative if nothing new would be added to the public's understanding. The disclosure must contribute to the understanding of a reasonably broad audience interested in the subject. We will consider your expertise in the subject area as well as your ability and intention to effectively convey information to the public.
(iii) Primarily advance your commercial interests. For example, we ordinarily presume that the public's interest is greater than the requester's commercial interest when we receive a request from a representative of the news media. We will not presume that disclosure to data brokers or others who merely compile and market government information for direct economic return primarily serves the public interest.
(2) We will grant a partial waiver when only some of the records to be released satisfy the requirements in this section.
(3) You should include your fee waiver or reduction request when you first submit your FOIA request to us. You can submit a fee waiver or reduction request at a later time so long as the underlying record request is pending or on administrative appeal. If you already committed to pay fees and subsequently request a waiver of those fees that we deny, you must pay any
U.S. Army Corps of Engineers, DoD.
Final rule.
The U.S. Army Corps of Engineers (Corps) is establishing a restricted area around the Huntington Ingalls Incorporated/Ingalls Shipbuilding and Dry Dock (HII) facility located in Pascagoula Mississippi, because of the sensitive nature of the on-going and potential future activities at that facility. The Supervisor of Shipbuilding, Conversion and Repair, Gulf Coast, located in Pascagoula, Mississippi is responsible for United States Navy shipbuilding activities at the HII facility, USA located in Pascagoula, Mississippi. The restricted area will be used for on-going construction when vessels are placed in the water. The restricted area is essential to protect persons and property from the dangers associated with the operation and safeguard the area from accidents, sabotage and other subversive acts.
Mr. David Olson, Headquarters, Operations and Regulatory Community of Practice, Washington, DC at 202-761-4922, or Mr. Philip Hegji, Corps of Engineers, Mobile District, Regulatory Division, at 251-690-3222 or by email at
Pursuant to its authorities in Section 7 of the Rivers and Harbors Act of 1917 (40 Stat 266; 33 U.S.C. 1) and Chapter XIX of the Army Appropriations Act of 1919 (40 Stat 892; 33 U.S.C. 3), the Corps of Engineers is establishing a restricted area around the Huntington Ingalls Incorporated/Ingalls Shipbuilding and Dry Dock (HII) facility located in Pascagoula Mississippi, due to the sensitive nature of the on-going and potential future activities at that facility.
The proposed rule was published in the August 18, 2014 issue of the
HII amended the restricted area to a smaller more easily avoided configuration.
This final rule is issued with respect to a military function of the Defense Department and the provisions of Executive Order 12866 do not apply.
This final rule has been reviewed under the Regulatory Flexibility Act (Pub. L. 96-354). The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities (
Due to the administrative nature of this action and because there is no intended change in the use of the area, the Corps determined that this amendment to the regulation will not have a significant impact to the quality of the human environment and, therefore, preparation of an environmental impact statement is not required. An environmental assessment was prepared after the public notice period closed and all comments received from the public were considered. The environmental assessment may be viewed at the District office listed at the end of the
This rule does not impose an enforceable duty among the private sector and, therefore, it is not a Federal private sector mandate and it is not subject to the requirements of either Section 202 or Section 205 of the Unfunded Mandates Act. We have also found under Section 203 of the Act, that small governments will not be significantly and uniquely affected by this rulemaking.
Danger zones, Marine safety, Navigation (water), Restricted areas, Waterways.
For the reasons set out in the preamble, the Corps amends 33 CFR part 334 as follows:
40 Stat. 266 (33 U.S.C. 1) and 40 Stat. 892 (33 U.S.C. 3).
(a)
(b)
(2) The restricted area is in effect twenty-four hours per day and seven days a week (24/7).
(3) Should warranted access into the restricted navigation area be needed, all entities are to contact the Supervisor of Shipbuilding, Conversion and Repair, USN, Gulf Coast, Pascagoula, Mississippi, or his/her authorized representative on Marine Communication Channel 16.
(c)
Forest Service, USDA.
Final rule.
The U.S. Department of Agriculture is amending regulations pertaining to the National Forest System Land Management Planning. This final rule amends the 2012 rule and is intended to clarify the Department's direction for plan amendments, including direction for amending land management plans developed under the 1982 rule.
This rule is effective January 17, 2017.
For more information, refer to the World Wide Web/Internet at:
Ecosystem Management Coordination staff's Assistant Director for Planning Andrea Bedell Loucks at 202-295-7968 or Planning Specialist Regis Terney at 202-205-1552.
The Forest Service proposed changing the existing land management planning rule to clarify the amendment process for land management plans. The proposed rule to amend the 2012 rule (hereafter referred to as the proposed rule) was published in the
The National Forest Management Act (NFMA) requires the Forest Service to develop land management plans to guide management of the 154 national forests, 20 grasslands, and 1 prairie that comprise the 193 million acre National Forest System (NFS). 16 U.S.C. 1604.
The NFMA required the Secretary of Agriculture to develop a planning rule “under the principles of the Multiple-Use Sustained-Yield Act of 1960, that set[s] out the process for the development and revision of the land management plans, and the guidelines and standards” (16 U.S.C. 1604(g)). Compliance with this requirement has had a long history, culminating in the current land management planning rule issued April 9, 2012 (77 FR 22160, codified at title 36, Code of Federal Regulations, part 219 (36 CFR part 219)) (hereinafter referred to as the 2012 rule).
In 1979, the U.S. Department of Agriculture (Department) issued the first regulations to comply with this statutory requirement. The 1979 regulations were superseded by the 1982 planning rule (hereinafter referred to as the 1982 rule).
Numerous efforts were made over the past three decades to improve on the 1982 rule. On November 9, 2000, the Department issued a new planning rule that superseded the 1982 rule (65 FR 67514). Shortly after the issuance of the 2000 rule, a review of the rule found that it would be unworkable and recommended that a new rule should be developed. The Department amended the 2000 rule so that the Forest Service could continue to use the 1982 rule provisions until a new rule was issued (67 FR 35431, May 20, 2002). Attempts to replace the 2000 rule, in 2005 and 2008, were set aside by the courts on procedural grounds, with the result that the 2000 rule remained in effect. In 2009, the Department reinstated the 2000 rule in the Code of Federal Regulations to eliminate any confusion over which rule was in effect (74 FR 67062, December 18, 2009; 36 CFR part 219, published at 36 CFR parts 200 to 299, revised as of July 1, 2010). In reinstating the 2000 rule in the CFR, the Department specifically provided for the continued use of the 1982 rule provisions, which the Forest Service used for all land management planning done under the 2000 rule. The 1982 rule procedures have therefore formed the basis of all existing Forest Service land management plans.
In 2012, after extensive public engagement, the Department issued a new planning rule to update the thirty-year old 1982 rule. The 2012 rule sets forth directions for developing, amending, revising, and monitoring land management plans (77 FR 21260, April 9, 2012). The 2012 rule is available online at
On February 6, 2015, the Forest Service issued National Forest System Land Management Planning Directives for the 2012 Planning Rule (planning directives; see 80 FR 6683). The planning directives are the Forest Service Handbook (FSH) 1909.12 and Forest Service Manual (FSM) Chapter 1920, which together establish procedures and responsibilities for carrying out the 2012 rule. The planning
After the issuance of the 2012 rule, the Secretary of Agriculture chartered a Federal Advisory Committee (Committee) to assist the Department and the Forest Service in implementing the new rule. The Committee has been rechartered twice. The Committee has consistently been made up of 21 diverse members who provide balanced and broad representation on behalf of the public; State, local, and tribal governments; the science community; environmental and conservation groups; dispersed and motorized recreation users; hunters and anglers; private landowners; mining, energy, grazing, timber, and other user groups; and other public interests. The Committee has convened regularly since 2012 to provide the Department and Forest Service with recommendations on implementation of the 2012 rule, including recommendations on the planning directives, assessments, and on lessons learned from the first forests to begin revisions and amendments under the 2012 rule. More information about the Committee's membership and work is available online at
There are 127 land management plans for the administrative units of the NFS, all developed using the 1982 rule procedures. Sixty-eight of the 127 land management plans are past due for revision: most were developed between 1983 and 1993 and should have been revised between 1998 and 2008, based on NFMA direction to revise plans at least once every 15 years (16 U.S.C. 1604(f)(5)). The repeated efforts to produce a new planning rule over the past decades contributed to the delay in plan revisions. An additional challenge was that instead of amending plans as conditions on the ground changed, responsible officials often waited to make changes all at once during a plan revision, resulting in a drawn-out, difficult, and costly revision process.
In promulgating the 2012 rule, the Department intended to create a more efficient and effective planning process. The planning framework set forth in the 2012 rule includes three phases: Assessment; plan development, amendment, or revision; and monitoring. The 2012 rule supports an integrated approach to the management of resources and uses, incorporates a landscape-scale context for management, and is intended to help the Forest Service adapt to changing conditions and improve management based on new information and monitoring.
The concept of adaptive management is an integral part of the 2012 rule. Recognizing that adaptive management requires a more responsive and iterative approach to modifying land management plans to reflect new information, the Department's intent when developing the 2012 rule was for the planning framework to encourage and support the more regular use of amendments to update plans between revisions. More frequent amendments should also make the revision process less cumbersome because plans will not become as out-of-date between revisions.
Plans may be amended at any time. The 2012 rule provides that a plan amendment is required to add, modify, or remove one or more plan components, or to change how or where one or more plan components apply to all or part of the plan area (including management areas or geographic areas).
The 2012 rule included a 3-year transition period during which responsible officials could use either the 2012 rule or the 1982 rule procedures to amend plans approved or revised under the 1982 rule procedures (36 CFR 219.17(b)(2)). The 3-year transition period expired on May 9, 2015, and all plan amendments now must be approved under the requirements of the 2012 rule.
In 2014, the Forest Service began to use the 2012 rule to amend a number of existing land management plans, all of which were developed using the 1982 rule procedures (2012 rule amendments to 1982 rule plans). Currently amendments to 43 Forest Service land management plans are pending. As the Forest Service gained some experience with the process for making 2012 rule amendments to 1982 rule plans and discussed with the Committee early lessons learned, the Committee recommended additional clarity on how to apply the 2012 rule's substantive requirements (requirements related to sustainability, plant and animal diversity, multiple uses and timber set forth within 36 CFR 219.8 through 219.11) when amending 1982 rule plans.
While the 2012 rule includes direction specific to amendments, and while there is evidence of the Department and Forest Service's intent in rule wording, preamble text, and planning directives, the 2012 rule did not explicitly direct how to apply the substantive requirements set forth in the 2012 rule when amending 1982 rule plans. Using the 2012 rule to amend 1982 rule plans can be a challenge because there are fundamental structural and content differences between the two rules. Because of the underlying differences, 1982 rule plans likely will not meet all of the substantive requirements of the 2012 rule. It is therefore important for the Department to clarify how responsible officials should apply the substantive requirements of the 2012 rule when amending 1982 rule plans in a way that reflects Departmental expectations.
While plans developed or revised under the 2012 rule will be expected to meet all of the 2012 rule's substantive requirements at the time those plans are approved, clarity in how to apply the 2012 rule to amend those plans in the future will also be important.
This final rule amending the 2012 rule (hereinafter referred to as the final rule) is intended to clarify the Department's direction for plan amendments, including direction for amending 1982 rule plans. These clarifications reflect NFMA requirements; the Department's intent and the plain wording of the 2012 rule, the preambles for the proposed and final 2012 rule, and the planning directives implementing the 2012 rule; feedback from the Committee; public comments; and Forest Service planning expertise.
Plans are changed in two distinctly different ways. The NFMA requires revisions “when conditions in a unit have significantly changed,” and “at least every 15 years” (16 U.S.C. 1604(f)(5)). As the 2012 rule states, “[a] plan revision creates a new plan for the entire plan area, whether the plan revision differs from the prior plan to a small or large extent” (36 CFR 219.7(a)). The process for a plan revision requires, among other things, preparation of an environmental impact statement (36 CFR 219.7(c)).
The NFMA also provides that “plans can be amended in any manner whatsoever” (16 U.S.C. 1604(f)(4)). As the Department explained in the preamble to the 2012 rule, “[p]lan amendments
The 2012 rule provides that, “[t]he responsible official has the discretion to determine whether and how to amend the plan.” (36 CFR 219.13(a)). The 2012 rule reinforces this discretion by providing that the rule “does not compel a change to any existing plan, except as required in § 219.12(c)(1)” (which establishes monitoring requirements). (36 CFR 219.17(c)).
Under the 2012 rule, “[p]lan amendments may be broad or narrow, depending on the need for change” (36 CFR 219.13(a)); and amendments “could range from project specific amendments or amendments of one plan component, to the amendment of multiple plan components.” (77 FR 21161, 21237, April 9, 2012). Unlike for a plan revision, the 2012 rule does not require an environmental impact statement for every amendment; such a requirement would be burdensome and unnecessary for amendments without significant environmental effect, and “would also inhibit the more frequent use of amendments as a tool for adaptive management to keep plans relevant, current and effective between plan revisions.” (Preamble to final rule, 77 FR 21161, 21239, April 9, 2012). Instead, the 2012 rule provides that “[t]he appropriate NEPA documentation for an amendment may be an environmental impact statement, an environmental assessment, or a categorical exclusion, depending upon the scope and scale of the amendment and its likely effects.” (36 CFR 219.13(b)(3)).
The 2012 rule gives responsible officials the discretion, within the framework of the 2012 rule's requirements, to tailor the scope and scale of an amendment to reflect the need to change the plan. No individual amendment is required to do the work of a revision. While the 2012 rule sets forth a series of substantive requirements for land management plans within §§ 219.8 through 219.11, not every section or requirement within those sections will be directly related to the scope and scale of a given amendment. Although the Department recognizes that resources and uses are connected, the Department does not expect an individual plan amendment to do the work of a revision to bring an underlying plan into compliance with all of the substantive requirements identified in §§ 219.8 through 219.11. The determination of which sections or requirements within those sections apply to an amendment will depend on the purpose and effects of the changes being proposed.
However, a plan amendment must be done “under the requirements of” the 2012 rule (36 CFR 219.17(b)(2)). Therefore the responsible official's discretion is not unbounded. An amendment cannot be tailored so that the amendment fails to meet directly related substantive requirements of the rule. Rather, the responsible official must determine which substantive requirements within §§ 219.8 through 219.11 of the 2012 rule are directly related to the plan direction being added, modified or removed by the amendment, and apply those requirements to the amendment.
As explained above, unlike a plan revision, a plan amendment does not create a new plan; it results in an amended plan, with the underlying plan retained except where changed by the amendment. Therefore, the amended plan will have plan direction changed by the amendment and plan direction that has not been changed. When amending a plan under the 2012 rule, a responsible official may choose not to change portions of the plan, even if those portions are inconsistent with a substantive requirement within §§ 219.8 through 219.11, when such portions are not directly related to the purpose or effects of the amendment. A unit may have important needs for change beyond those that form the basis of any individual amendment. However, the responsible official's ability to target the scope and scale of an amendment is important for adaptive management, and will be especially critical for responsible officials amending 1982 plans.
For example, the 2012 planning rule requires that the plan must include plan components to provide for scenic character, which is a term of art associated with the scenic management system that was developed in the mid-1990s. If the scope of an amendment to a 1982 plan includes changes to plan direction for the purpose of, or that would have an effect on, scenery management, then the responsible official must apply the 2012 rule requirement about scenic character to the changes being proposed. However, a responsible official is not otherwise required to review and modify a 1982 rule plan to meet the 2012 rule's requirement to provide for scenic character. This is true even if there is also a separate, additional need to change the plan to protect scenery. The responsible official would have to address the scenic character requirement throughout the plan area in a plan revision, but in an amendment, the responsible official has the discretion to more narrowly focus on a specific need for change.
The Department's intent that not every requirement within §§ 219.8 through 219.11 will apply to every amendment of 1982 rule plans is reflected in the following planning directives provision at FSH 1909.12, chapter 20, section 21.3:
Amendment of a plan developed and approved using the 1982 Rule process requires application of the 2012 rule requirements only to those changes to the plan made by the amendment. For example, the 2012 Rule's requirements to establish a riparian management zone (36 CFR 219.8(a)(3)) would apply only if the plan amendment focuses on riparian area guidance.
See also the Handbook's direction regarding documentation of a decision to approve an amendment of a 1982 rule plan: “[f]or plan amendments, the decision document must discuss
Similar recognition is included in the 2012 rule's requirements for project consistency for 1982 rule plans, at 36 CFR 219.17(c).
The distinction made in this provision between consistency within an amended plan with direction developed and approved pursuant to the 2012 rule and direction developed or revised under a prior rule reflects that portions of a 1982 rule plan may be changed by an amendment and other portions may remain unchanged until revision.
During the Department and Forest Service's conversations with the Committee about the Forest Service's early efforts to use the 2012 rule to amend 1982 rule plans, the Committee advised that some members of the public expressed confusion about how to apply the substantive requirements within §§ 219.8 through 219.11 when amending 1982 rule plans.
For example, some members of the public suggested that because resources and uses are connected and changes to any one resource or use will impact other resources and uses, the 2012 rule therefore requires that all of the substantive provisions in §§ 219.8 through 218.11 be applied to every amendment. Other members of the public suggested an opposite view: That the 2012 rule gives the responsible official discretion to selectively pick and choose which, if any, provisions of the rule to apply, thereby allowing the responsible official to avoid 2012 rule requirements or even propose
This final rule clarifies that neither of these interpretations is correct.
The Department recognizes that resources and uses are connected and interrelated. However, an interpretation that the 2012 rule prevents a responsible official from distinguishing among connected resources and requires the application of all of the 2012 rule's substantive requirements to every amendment would essentially turn every amendment into a revision. Such an interpretation would curtail the Forest Service's ability to use amendments incrementally to change a plan, and directly contradicts the Department's intent as expressed in the 2012 rule and supporting material that revisions and amendments serve different functions and that amendments be used to keep plans relevant, current and effective between plan revisions. The 2012 rule gives the responsible official the discretion to determine whether and how to amend a plan, including determining the scope and scale of an amendment based on a specific need to change the plan.
At the same time, the responsible official's discretion to tailor the scope and scale of an amendment is not unbounded; the 2012 rule does not give a responsible official the discretion to amend a plan in a manner contrary to the 2012 rule by selectively applying, or avoiding altogether, substantive requirements within §§ 219.8 through 219.11 that are directly related to the changes being proposed. Nor does the 2012 rule give responsible officials discretion to propose amendments “under the requirements” of the 2012 rule that actually are contrary to those requirements, or to use the amendment process to avoid both 1982 and 2012 rule requirements (§ 219.17(b)(2)).
This amendment to the 2012 rule clarifies that the responsible official is not required to apply every requirement of every substantive section (§§ 219.8 through 219.11) to every amendment. However, the responsible official is required to apply those substantive requirements that are directly related to the plan direction being added, modified, or removed by the amendment. The responsible official must determine which substantive requirements are directly related to the changes being proposed based on the purpose and effects of the amendment, using the best available scientific information, scoping, effects analysis, monitoring data, and other rationale to inform the determination. The responsible official must provide early notice to the public of which substantive requirements are likely to be directly related to the amendment, and must clearly document the rationale for the determination of which substantive requirements apply and how they were applied as part of the decision document.
This final rule ensures that the Forest Service can use the 2012 rule to amend 1982 rule plans without any individual amendment bearing the burden of bringing the underlying plan into compliance with all of the 2012 rule's substantive requirements, even if unchanged direction in the 1982 rule plan fails to address, meet or is contrary to 2012 rule requirements. Twenty-two forests are currently using the 2012 rule to revise their 1982 rule plans, but given Forest Service budget constraints and staff capacity, revision of all 127 of the Forest Service's 1982 rule plans will likely take more than 15 years. Because the 2012 rule allowed the continued use of the 1982 rule procedures to complete revisions that were underway at the time the 2012 rule was published (36 CFR 219.17(b)(3)), the most contemporary land management plan published using the 1982 rule procedures was approved in 2016, with a few more to come. The clarifications in this final rule will help ensure that the Forest Service can effectively use the 2012 rule to amend 1982 rule plans until they are revised.
Future amendments to plans developed or revised under the 2012 rule will likely be less complicated than using the 2012 rule to amend 1982 rule plans, because plans developed or revised under the 2012 rule are expected to meet all of the 2012 rule's substantive requirements at the time of approval. However, this final rule clarifies that responsible officials have the discretion to tailor the scope and scale of amendments to adaptively change plans whether an amendment is to a 1982 rule plan or, in the future, to a 2012 rule plan. The final rule also supports transparency and public participation by clarifying notification and documentation requirements for applying the 2012 rule's substantive requirements to amendments.
This amendment to the 2012 rule clarifies that:
• The responsible official has the discretion to determine whether and how to amend a plan, and the scope and scale of a plan amendment, based on a need to change the plan.
• The responsible official must use the best available scientific information to inform the amendment process.
• The responsible official must determine which substantive requirements within §§ 219.8 through 219.11 are directly related to plan direction being added, modified or removed by the amendment and apply those requirements to the amendment in a way that is commensurate with the scope and scale of the amendment.
• The responsible official is not required to apply any substantive requirement within §§ 219.8 through 219.11 that is not directly related to the amendment.
• The determination of which requirements are directly related to an amendment must be based on the purpose and effects (beneficial or adverse) of the changes being proposed, and informed by the best available scientific information, scoping, effects analysis, monitoring data or other rationale.
• The responsible official must include information in the initial notice for the amendment about which substantive requirements of §§ 219.8 through 219.11 are likely to be directly related to the amendment.
• The decision document for an amendment must include a rationale for the responsible official's determination of the scope and scale of the amendment, which requirements within §§ 219.8 through 219.11 are directly related, and how they were applied.
• If species of conservation concern (SCC) have not yet been identified for a plan area and scoping or NEPA analysis for a proposed amendment reveals substantial adverse impacts to a specific species, or the proposal would substantially lessen protections for a specific species, the responsible official must determine whether that species is a potential SCC. If so, the responsible official must apply the requirements of 2012 rule with respect to that species as if it were an SCC.
• An amendment that applies only to one project or activity is not considered a significant change in the plan for the purposes of the NFMA, but is still subject to NEPA requirements.
• The Department corrected a mistake made on July 27, 2012 when the Forest Service inadvertently removed a sentence about the maximum size limits for areas to be cut in one harvest operation in § 219.11(d)(4).
The following is a description of specific comments received on the
The Department received the following comments not specifically tied to a particular section of the October 12, 2016 proposed rule.
The Forest Service is fully committed to meeting its responsibilities for consultation, and appreciates the outreach from the respondent. The Forest Service had determined at the time of the proposal that consultation was not required for this amendment because there was extensive consultation associated with developing the 2012 rule, the proposed changes were simply clarifications of process for that rule, and there are no direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. However, the Forest Service Regional Office in Juneau did send a notice of the Proposed Planning Rule Amendment comment period to Alaska Native Corporations and tribes. The notice said that the Forest Service would meet with any Alaska Native Corporation or Tribe expressing an interest in discussing the proposed changes and how the amendment to the 2012 rule might benefit our collective work in forest management and restoration. The Forest Service will continue to be available to meet with any Alaska Native Corporation or Tribe when implementing the 2012 rule and these clarifications for amending plans under the 2012 rule.
In addition, the Forest Service Land Management Planning Handbook
The following section-by-section descriptions are provided to explain the approach taken in the final rule.
The final rule is unchanged from the proposed rule for this section. The Department added the words “for assessment; developing, amending, or revising a plan; and monitoring,” to the first sentence of § 219.3. This change was made to clarify that the best available scientific information is to be used to inform the plan amendment process, as well as all other parts of the planning framework (36 CFR 219.5). Specifically mentioning each part of the planning framework makes the wording of this section more consistent with other sections of the rule.
The final rule is unchanged from the proposed rule for these sections. The Department added the words “a plan developed or revised under this part” to the introductory text of §§ 219.8 through 219.11 to clarify that the combined set of requirements in each section apply only to entire plans developed or revised under the current planning rule. It was not the Department's intent to imply that an individual plan amendment must meet all of the requirements of §§ 219.8 through 219.11. This clarification distinguishes between new plans and plan revisions, which must comply with all of the requirements in §§ 219.8 through 219.11, and amendments, which do not.
The final rule is unchanged from the proposed rule for this section. The Department added the words “and to determine the scope and scale of any amendment” to the end of the third sentence of paragraph (a). This change clarifies that responsible official's discretion to determine whether and how to amend any plan includes the discretion to determine the scope and scale of any amendment. The Department received no comments on this revision.
The Department added the words “For every plan amendment,” to the introductory text of paragraph (b), so it is clear that the procedural and other requirements outlined in § 219.13(b) apply to all amendments. The proposed rule used similar wording “For all plan amendments,” but the Department changed “all” to “every” in the final rule for grammar's sake to conform the wording to the singular use of the word “amendment” in the paragraphs that followed. The Department also changed the caption of this paragraph from “Amendment process” to “Amendment requirements” to reflect the clarified text in paragraph (b)(5) and in §§ 219.8 through 219.11. The Department received no comments on this revision.
In the final rule, the Department changed the punctuation at the end of paragraph (b)(1) to a period, from a semicolon, to reflect similar punctuation at the end of the other paragraphs under paragraph (b). The Department made no other changes to paragraph (b)(1).
To respond to comments about the proposed rule, the Department added a requirement to include information in the initial notice for the amendment about which substantive requirements of are likely to be directly related to the amendment.
The final sentence of paragraph (b)(3) was modified to state that project specific amendments are not considered a significant change in the plan for the purposes of the NFMA. In addition a conforming change was also made to § 219.16(a)(2).
The Department made these changes so that an amendment that applies only to one project or activity is not considered a significant change in the plan for the purposes of the NFMA, in response to comments about the proposed rule. This change also clarifies
An amendment that applies only to one project or activity may still have significant environmental effects and require the preparation of an environmental impact statement. The Department added clarification in § 219.16(a)(2) to address minimum NEPA requirements for an amendment that applies only to one project or activity for which a draft EIS is prepared.
However, the Department disagrees with the respondent's assertion that if an amendment is significant for the purposes of the NFMA, a revision is automatically triggered. The 2012 rule supports and this final rule preserves the responsible official's discretion to determine the scope and scale of amendments, including amendments that may be broad or have a significant effect. The process and content requirements included in § 219.13 satisfy the NFMA requirements for a significant amendment.
A brief clarification here may be helpful. The 1982 rule had required the Forest Service to undertake the plan revision process (except for wilderness analysis) when “a proposed amendment would result in a significant change in such plan.” (36 CFR 219.10(f) (2000), (16 U.S.C. 1604(f)(4)). The Forest Service soon learned that the requirement of the 1982 rule to follow the same steps for a significant amendment as for a revision was excessively burdensome. In its 1991 Advanced Notice for proposed rulemaking to revise its land and resource planning regulations, the Forest Service's preliminary proposal would have limited the evaluation process for what it called a “major amendment” to “only . . . the changes being proposed and not the entire forest program.” (56 FR 6508, 6523, February 15, 1991)). Since that time, the Forest Service land management planning rules issued by the Department have distinguished the requirements for significant amendments and plan revisions.
The 2012 rule retained that distinction and did not carry forward the 1982 rule's requirement that the Forest Service undertake the plan revision process when a proposed amendment would result in a significant change to the plan. The NFMA does not require the Forest Service to carry out the entire process for revision for every significant amendment. Rather, as the 2012 rule provided and the clarifications in this amendment to the 2012 rule reinforce, the responsible official has the discretion to determine the scope and scale of an amendment, and the associated processes and requirements are tailored to the changes being proposed. In some cases, the nature of the proposed changes to the plan may require an analysis of the entire plan direction, so that the Forest Service must “[re]determine forest management systems, harvesting levels, and procedures” in light of the multiple uses for which the forest is administered; and reconsider and if appropriate, adjust the “planned timber sale program” and the proportion of probable methods of timber harvest.” 16 U.S.C. 1604 (e) and (f). However, other amendments, including amendments that require the preparation of an environmental impact statement, may not affect these matters, and would require less analysis. The direction in paragraph (b)(5) of this final rule would require the appropriate application of the 2012 rule's requirements in a way that satisfies the related NFMA requirements.
The reason the Department included the final sentence of paragraph (b)(3) in the 2012 rule was to avoid applying two different standards for determining significance between the requirements of NFMA and NEPA. In the end, all plans must “provide for multiple use and sustained yield of products and services” and all the other specific information required by the NFMA. (16 U.S.C. 1604 (e) and (f)). The 2012 rule requires in § 219.1(f) that plans meet all applicable laws and regulations; nothing in this amendment changes that requirement.
The Department's position is that the NFMA's requirements for significant amendments are satisfied by the requirements to prepare an environmental impact statement and to provide at least a 90 day comment period on the proposal and draft EIS, in addition to the other requirements for amendments included in § 219.13. The final rule retains these requirements.
The Department retained the proposed paragraph (b)(4) but slightly modified the wording for clarity. The Department removed the phrase “without altering the existing direction” and added the word “simply.”
The Department added paragraph (b)(4) as a clarification that each plan component added or changed by a plan amendment must conform to the applicable definition for desired conditions, objectives, standards, guidelines, and suitability of lands set forth in § 219.7(e). The planning directives in the Handbook (FSH 1909.12, ch. 20, sec. 21.3) already state this requirement: “All additions or modifications to the text of plan direction that are made by plan amendments using the 2012 rule must be written in the form of plan components as defined at 36 CFR 219.7(e).” This paragraph brings the requirement into the text of the 2012 rule to help consolidate procedural requirements for amendments.
The Department also included a narrow exception to the plan component formatting requirements of paragraph (b)(4) for amendments to 1982 rule plans. This exception would apply to an amendment or part thereof that would change (add to or reduce) a management or geographic area or other areas to which existing direction applies, but would not change the text of that plan direction. This exception would allow the responsible official to avoid rewriting the plan direction within that management or geographic area to conform to § 219.7(e), because
The Department modified and added wording to paragraph (b)(5) of this section to specify requirements for applying the substantive requirements within §§ 219.8 through 219.11 to a plan amendment. Elements of the direction provided in the final paragraph (b)(5) were found in paragraphs (b)(5) and (6) and (c)(1) and (2) of this section of the proposed rule. Proposed paragraphs (b)(6), (c)(1), and (c)(2) were removed from the final rule. While the direction in proposed rule paragraphs (c)(1) and (2) was limited to amendments of a plan developed or revised under a prior planning rule, the requirements of paragraph (b)(5) of the final rule apply to all amendments.
The Department modified the first sentence of paragraph (b)(5) for two reasons. First, this sentence now more clearly describes the required process for responsible officials to first
The Department added a sentence to paragraph (b)(5) to clarify that an amendment is not required to bring the amended plan into compliance with all of the substantive requirements of the rule. The Department made this change to apply this clarification to all amendments and to make the wording consistent with the rest of paragraph (b)(5). This sentence makes clear that amendments, unlike revisions, do not require the application of all substantive requirements within §§ 219.8 through 219.11.
The Department added paragraphs (b)(5)(i) and (ii) to provide further clarification on how the responsible official will determine that a specific substantive requirement within §§ 219.8 through 219.11 is directly related to the plan direction being added, modified, or removed by the amendment.
The Department added paragraph (b)(5)(i) to provide additional direction to the responsible official on how to determine whether or not a specific substantive requirement is directly related to the changes being proposed by an amendment. When a specific substantive requirement is associated with either the
The purpose of an amendment stems from the need to change the plan, which § 219.13(b)(1) requires that responsible official identify. The responsible official would determine which specific substantive requirements within §§ 219.8 through 219.11 are directly related to that purpose, and then would apply those requirements to the amendment. In addition to the purpose of an amendment, the responsible official must apply specific substantive requirements within §§ 219.8 through 219.11 based on the effects of the amendment. The effects of an amendment can be beneficial or adverse. Where the likely effects are beneficial, the intent of paragraph (b)(5)(i) is that the changes being proposed occur within the context and apply the direction of the directly related substantive requirement in a way that is commensurate with the scope and scale of the amendment.
The Department added paragraph (b)(5)(ii) to provide direction, in addition to the direction in paragraph (b)(5)(i), to the responsible official on when to determine that a substantive requirement is directly related to the amendment based on adverse effects.
The Department recognizes that an amendment may have adverse effects that are less than “substantial,” and that would not require the application of associated substantive requirements. However, if scoping or NEPA effects analysis for the amendment reveals substantial adverse effects, the responsible official must identify and apply the specific substantive requirement(s) within §§ 219.8 through 219.11 associated with those effects.
Paragraph (b)(5)(ii)(A) replaces paragraph (b)(6) of the proposed rule. The Department made this change in response to comments about proposed paragraph (b)(6). The Department's intent is that if a substantive requirement is directly related because of adverse effects (§ 219.13(b)(5)(ii)(A)), then the responsible official may decide to modify the proposal to avoid the adverse effects so that the specific substantive requirement is no longer directly related to the changes being proposed. Otherwise, the responsible official must apply the directly related substantive requirement to determine whether the proposal can proceed or whether additional changes to the plan are required as part of the amendment.
Paragraph (b)(5)(ii)(A) also clarifies that if the proposed amendment would substantially lessen protections for a specific resource or use, the responsible official must identify and apply the associated specific substantive requirement(s). The phrase “when the proposed amendment would substantially lessen protections for a specific resource or use” replaces the proposed rule paragraph (c)(2) of this section that stated: “If the proposed amendment would remove direction required by the prior planning regulation, the responsible official must apply the directly related requirements within §§ 219.8 through 219.11.” This requirement is intended to prevent the removal of protective direction in an underlying plan without the application of the relevant requirements of the 2012 rule.
The Department added paragraph (b)(5)(ii)(B) to help to expedite amendments, including project-specific amendments, which will not have significant environmental effects. The Department anticipates that, for amendments that can be prepared using a categorical exclusion (CE) or environmental assessment (EA) accompanied by a finding of no significant impact (FONSI), it is unlikely that the amendment will have substantial adverse effects that would require the responsible official to apply a substantive requirement that is not otherwise directly related to the changes being proposed. Therefore, under this paragraph, the responsible official may presume that an amendment prepared under a CE or EA will not have substantial adverse effects, barring evidence to the contrary.
The clarifications within paragraph (b)(5) will help the Department and public understand how to apply the substantive requirements within §§ 219.8 through 219.11 when amending plans.
The Department recognizes that resources and uses within the plan area are often connected to one another—nonetheless, the responsible official can distinguish between rule requirements directly related to the amendment and those that may be unrelated or for which
• Soil and water resources are interrelated, but the responsible official can determine that for a plan amendment that has the purpose of changing standards and guidelines to protect a water body, the water requirements of § 219.8 are directly related, while that section's requirements for soil are not unless the amendment would affect the soil resource.
• A plan amendment to modify recreation access under § 219.10 could be either directly related or unrelated to that section's requirement for the protection of cultural and historic resources, depending upon the nearness and potential effects of the proposed access to the cultural and historic resources in the plan area.
A determination that a substantive requirement is directly related to a proposed amendment does not mean that the amendment must be expanded so that the requirement is applied to the entire plan area, or that the amendment must address every aspect of that specific requirement; the application of the substantive requirement is intended to be commensurate with the scope and scale of the amendment. For example:
• The 2012 rule's requirements for riparian management in § 219.8 would be directly related to an amendment with the purpose of changing plan components in order to reduce sedimentation into a specific riparian area from a particular use, but the responsible official would not be required to apply those requirements to other riparian areas in the plan area. Further, if floodplain values would not be affected by the amendment, it would be beyond the scope of that amendment for the responsible official to be required to apply § 219.8 riparian management requirements to add plan components for the floodplain values of that riparian area.
• An amendment that changes plan components to support habitat for an at-risk species would require application of § 219.9 to those proposed changes, but would not require application of § 219.9 to the entire underlying plan. For example, if the need to change the plan is to identify lands as suitable for an energy corridor, and the proposed corridor would have substantial adverse effects on critical habitat for a threatened species, then the requirements of § 219.9(b) would be directly related to the amendment as applied to that particular species. The responsible official may therefore be required to add standards or guidelines to protect the critical habitat. However, the determination that § 219.9(b) is directly related to the amendment because of the potential impacts to one species would not trigger the application of § 219.9(b) to evaluate ecological conditions for all other species on the unit.
Paragraph (b) of the final rule applies to all amendments, whereas proposed paragraph (c) applied only to amendments to plans developed or revised under a prior planning regulation. The Department made this change because, although the clarification is most urgent and immediately relevant for amendments to 1982 rule plans, the Department anticipates that similar clarity and flexibility will be needed for amendments to future 2012 rule plans. While plans developed or revised under the 2012 rule must meet all of the substantive provisions of the 2012 rule at the time of approval, the Forest Service will still need the ability to adaptively change those plans in response to conditions that may be rapidly changing. For example, there could be major tree die-offs associated with drought or major fire events that occur a few years after a plan is revised using the 2012 rule, which could make the plan as a whole out of sync with one or more substantive requirements of the 2012 rule. The Forest Service would still need the ability to incrementally change that plan, without re-applying all of the substantive requirements regardless of the scope and scale of the amendment.
The underlying purpose of proposed paragraph (b)(6) was to ensure that a responsible official does not avoid the application of a substantive requirement otherwise not directly related to the amendment, when analysis shows that an amendment is likely to have substantial adverse effects associated with that substantive requirement. For example, paragraph (b)(6) was intended to avoid a scenario in which an amendment proposes to modify a plan to identify a corridor suitable for energy development, but avoids the application of § 219.9(b) despite the corridor's likely adverse effects on critical habitat necessary to contribute to the recovery of a threatened species.
The Department agrees with respondents that proposed paragraphs (b)(5) and (6) could be interpreted as creating two slightly different standards for applying the 2012 rule's substantive requirements in a way that might be confusing to implement. The Department also recognized that there could be confusion about how a responsible official would demonstrate compliance with proposed paragraph (b)(6). The Department therefore removed proposed paragraph (b)(6) and brought the intent of that paragraph into paragraph (b)(5). Instead of the direction to avoid effects contrary to a specific requirement, paragraph (b)(5) instead provides that a responsible official must determine that a substantive requirement
The Department's intent with this direction is that if a substantive requirement is directly related to a proposed amendment because of adverse effects, then the responsible official may modify the proposal to avoid the adverse effects so that the specific substantive requirement is no longer directly related to the changes being proposed. Otherwise, paragraph (b)(5) of this section requires that the responsible apply the directly related substantive requirement. For example, if an amendment would have substantial adverse effects to a historic site, the responsible official could modify the proposal so that the changes no longer have any adverse effect on that site, or apply the related substantive requirement (§ 219.10(b)(1)(ii)) to add to the amendment additional plan components that would provide for the protection of that historic site.
As another example, if a proposed amendment would create an energy corridor that would have substantial adverse effects on critical habitat necessary for the recovery of an endangered species, the responsible official could choose to modify the proposed corridor to avoid the critical habitat. Otherwise, the responsible official must apply § 219.9(b) to review whether the plan provides the ecological conditions necessary to contribute to the recovery of that species. If the plan components would be insufficient to provide such ecological conditions, then the responsible official would be required to develop additional, species-specific plan components, including standards or guidelines, to provide such ecological conditions in the plan area.
These changes should address the respondents' concerns, and are responsive to respondents' comments that this amendment to the 2012 rule must clearly preserve the Agency's flexibility to make timely amendments.
The respondent also supported a possible addition to proposed paragraph (c)(2) that was mentioned in the preamble to the proposed rule, which would allow the responsible official to choose to demonstrate that the amended plan remains consistent with the 1982 rule. The respondent suggested the following wording: “If the proposed amendment would remove direction required by the prior planning regulation, the responsible official must apply the directly related requirements within §§ 219.8 through 219.11 or ensure that the amended plan avoids effects that would be contrary to the prior planning regulations.”
In addition, the respondent questioned limiting the applicability of 2012 rule requirements to only the amendment as opposed to an amended plan, and questioned, as a practical matter, how one could determine that an amendment by itself meets substantive requirements without looking at the resulting plan in its entirety.
The Department decided against adding the suggested wording that would refer back to the 1982 rule for the reasons outlined in the preamble to the proposed rule, and because the Department believes the changes made
The final rule also continues to require the application of directly related substantive requirements to the changes being proposed by an amendment, and does not require evaluation of the amended plan. In some cases, applying a directly related substantive requirement will lead to the evaluation of plan components across the plan area—for example, to determine whether existing plan components, with the proposed changes, meet the 2012 rule's substantive requirement to provide the ecological conditions necessary for a potential species of conservation concern that would be substantially adversely affected by a proposed amendment. That evaluation, however, is still focused on the amendment itself.
The environmental analysis for an amendment is programmatic. It would include discussions of reasonably foreseeable direct, indirect, and cumulative effects and identify the spatial and temporal extent of the effects. The responsible official would apply the 2012 rule to make any necessary changes to the amendment based on the environmental analysis.
The Department also made changes to the requirements in paragraphs (b)(5) and (b)(6) that should make the amendment process easier. Those paragraphs still apply to all amendments, including amendments made under 36 CFR 219.15(c)(4) that only apply to a project or activity, but the Department believes the clarifications will make it easier to apply the modified requirements to project-specific amendments, particularly those that do not have significant effects. Specifically:
1. The Department clarified in paragraph (b)(5) that the application of directly related substantive requirements is intended to be commensurate with the scope and scale of the amendment. Specifically, the Department modified the words in the proposed rule “Ensure that the amendment meets” to “apply such requirements within the scope and scale of the amendment” in the final rule to make it easier to appropriately tailor the application of paragraph (b)(5). There may be aspects of a specific substantive requirement that would be required for revision, but would be beyond the scope or scale of the amendment. For example, the responsible official would not have to apply a directly related requirement to a geographic area not affected by the amendment. Furthermore, the responsible official may not have to apply every element within a directly related substantive requirement. For example, with respect to the 2012 rule's requirements for riparian areas in § 219.8(a)(3)(i), when a proposed amendment would have substantial adverse effects only with regard to sedimentation in a specific riparian area, the responsible official must apply the direction in § 219.8(a)(3)(i)(C) on deposits of sediment to that riparian area, but would not have to apply the direction in § 219.8(a)(3)(i)(G) on floodplain values to that riparian area.
While the responsible official is required to apply the directly related substantive requirements to the changes being proposed, the application of those requirements can be as narrow as the amendment. If a project-specific amendment would change only one plan component, or impact only one management area, the responsible official's application of the directly related substantive requirement would reflect the narrow scope and scale of that amendment, and would be based on its purpose and effects.
2. The Department clarified in paragraph (b)(5) that the responsible official is not required to apply any substantive requirements within §§ 219.8 through 219.11 that are not directly related to the amendment.
3. Paragraph (b)(5)(ii)(A) recognizes that an amendment may have adverse effects that are less than substantial, and that would not require the application of an otherwise unrelated substantive requirement within §§ 219.8 through 219.11 to the amendment. Evidence of substantial adverse effects would require the application of the associated substantive requirement, but less than substantial adverse effects would not.
4. The Department added paragraph (b)(5)(ii)(B) to make the process easier for many amendments, including project-specific amendments, by providing that when the environmental documentation for an amendment is a decision memo for a categorical exclusion or an environmental assessment accompanied by a finding of no significant impact, the responsible official may presume that the amendment will not have substantial adverse effects, barring evidence to the contrary.
5. The Department removed proposed paragraph (c)(3) and replaced it with paragraph (b)(6), clarifying the process for applying the species-specific requirements of § 219.9(b) when amending plans developed or revised under the prior planning regulation, and replying to respondents' concerns about the previous wording. See further discussion of this change in the section “Amend § 219.13 to add paragraph (b)(6)—Response to Comments” below.
The Department removed the wording of proposed paragraph (b)(6) that stated: “Ensure that the amendment avoids effects that would be contrary to a specific substantive requirement of this part identified within §§ 219.8 through 219.11.” The Department made corresponding changes to paragraph (b)(5). An explanation of why the Department moved and changed the wording from proposed paragraph (b)(6) is provided in the section “Amend § 219.13 to add paragraph (b)(5).”
The Department also removed proposed paragraph (c)(3) that stated: “If species of conservation concern (SCC) have not been identified for the plan area, the responsible official must use
The Department added new paragraph (b)(6) to clarify the process a responsible official should use when amending a plan developed or revised under a prior planning regulation, if the regional forester has not yet identified the species of conservation concern (SCC) for the plan area. It is possible that in some cases, the regional forester will have already identified SCC within the plan area before plan revision. Paragraph (b)(6) recognizes that possibility, and focuses on providing direction that applies when SCC have not yet been identified. (A similar process clarification is not needed for the other species identified in § 219.9(b)—threatened and endangered, proposed and candidate species—because those are federally listed rather than identified by the regional forester as part of the planning process.) If SCC have been identified, paragraph (b)(6) would not apply, and the responsible official would follow the direction in paragraph (b)(5).
If SCC have not yet been identified, paragraph (b)(6) requires that, when scoping or effects analysis reveals that a proposed amendment would have substantial adverse impacts to a specific species, or if the proposed amendment would substantially lessen protections for a specific species, the responsible official must determine whether or not that species is a potential SCC. The responsible official will make the determination using the definition provided in the 2012 rule (§ 219.9(c)). This paragraph is consistent with the approach already provided by the 2012 rule in § 219.6(b)(5), which requires the responsible official to “identify and evaluate existing information relevant to the plan area for . . . potential species of conservation concern present in the plan area,” when developing an assessment. See also Forest Service Planning Handbook 1909.12, Chapter 10, section 12.52, which provides guidance for identifying potential SCC.
If the responsible official determines that the species being evaluated is a potential SCC, paragraph (b)(6) requires the responsible official to apply § 219.9(b) with respect to that species as if the regional forester had identified it as an SCC.
By requiring that the responsible official apply the requirements of § 219.9(b) to a specific potential SCC that an amendment could substantially adversely impact, or if an amendment would substantially lessen protections found in the underlying plan for that species, paragraph (b)(6), along with paragraph (b)(5), carries forward the Department's original intent that the species-specific protections of the 2012 rule apply in the context of amendments. At the same time, this paragraph limits unintended process-related delays or barriers to amendments by making clear that amendments to plans developed under a prior planning regulation can proceed prior to the regional forester's identification of SCC for the plan area.
Instead, the Department replaced proposed paragraph (c)(3) with paragraph (b)(6). Paragraph (b)(6) makes clear that SCC do not need to be identified by the regional forester prior to amending a plan developed or revised under a prior planning regulation, or as part of an amendment. Rather, paragraph (b)(6) operates to provide direction and a mechanism for a responsible official to be able to apply the requirements of § 219.9(b) to a specific potential SCC, when that specific species would be adversely impacted by a proposed amendment. The process identified in this new wording relies on the existing definition of SCC in § 219.9(c), and provides guidance similar to that already included in § 219.6(b)(5), which requires that the responsible official identify potential SCC during the assessment phase (an assessment is required prior to plan development or revision, but is optional for an amendment). See also Forest Service Planning Handbook 1909.12, Chapter 10, section 12.52, which provides guidance for identifying potential SCC.
The final rule is unchanged from the proposed rule for this section. The Department changed the caption of paragraph (a) from “Decision document” to “Decision document approving a new plan, plan amendment, or revision.” The Department redesignated paragraph § 219.14(b) as § 219.14(d).
In addition, the Department removed paragraph (a)(2) which requires responsible officials to explain how plan direction meets the provisions of §§ 219.8 through 219.11. The Department replaced paragraph (a)(2) with two new paragraphs (b) and (c) and renumbered paragraphs (a)(3) through (a)(6).
The new paragraph (b) requires responsible officials to explain in a decision document for a new plan or plan revision how the plan direction meets the provisions of §§ 219.8 through 219.11.
The new paragraph (c) focuses on documentation for a plan amendment. The decision document must include a rationale for the responsible official's determination of the scope and scale of the amendment, which requirements within §§ 219.8 through 219.11 are directly related to that amendment, and how those requirements were applied.
To be in agreement with the change made to § 219.13(b)(3) that now includes an exception so that an amendment that applies only to one project or activity is not considered a significant change in the plan for the purposes of NFMA, a conforming change is needed in paragraph (a)(2) of § 219.16.
Therefore, in the final rule paragraph (a)(2) of § 219.16 specifies that a comment period of 90 days is not required for a proposed amendment that would apply only to one project or activity. However, for such amendments, normal NEPA requirements still apply. Therefore, the Department clarifies that the normal comment period is at least 45 days. See also Forest Service Handbook 1909.15, Chapter 20, section 24.1—Circulating and Filing a Draft Environmental Impact Statement.
The Department added a technical correction to fix a mistake made in a correcting amendment to the 2012 rule on July 27, 2012 (77 FR 44144, July 27, 2012). In that correcting amendment, the Forest Service inadvertently removed a sentence about the maximum size limits for areas to be cut in one harvest operation in § 219.11(d)(4). This change would simply restore to § 219.11 the sentence as published in the 2012 rule on April 9, 2012 (77 FR 21161). The Department received no comments on this correction.
In issuing the 2012 rule, the Department prepared both an Environmental Impact Statement (EIS) and a biological assessment to support its final decision. NOAA Fisheries and USFWS each issued a biological opinion pursuant to section 7(a)(2) of the Endangered Species Act. The biological opinions included conservation reviews pursuant to section 7(a)(l) Act (16 U.S.C. 1536(a)(1) and (2)). Copies of the biological assessment, its addendum, and the biological opinions are in the project record for the 2012 rule and can be viewed online at:
Because this final rule is to clarify the Department's original intent for plan amendment processes and requirements, and the amendment does not change the planning requirements for endangered or threatened species, the Department has concluded that this final rule does not require additional consultation under sections 7(a)(1) and 7(a)(2) of the Endangered Species Act.
This final rule has been analyzed under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. It has been determined that it does not constitute a significant energy action as defined in the Executive Order.
In issuing the 2012 planning rule, the Department prepared both an Environmental Impact Statement (EIS) and a biological assessment to support its final decision. The EIS is available online at
The Department has concluded that this final rule does not require additional documentation under the National Environmental Policy Act. Because this final rule is to clarify the Department's original intent for plan amendment processes and requirements, the range of effects included in the Department's prior NEPA analysis covers this final rule. Therefore, there is no need to supplement the National Forest System Land Management Planning Rule Final Programmatic Environmental Impact Statement of January 2012.
This final rule has been reviewed under Executive Order 13175 of November 6, 2000, Consultation and Coordination with Indian Tribal Governments. It has been determined that this final rule would not have Tribal implications as defined by Executive Order 13175, and therefore, advance consultation with Tribes is not required.
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this rule is not significant.
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 innovated, 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 final rule has also been considered in light of the Regulatory Flexibility Act, as amended (5 U.S.C. 601
The Forest Service has considered this final rule under the requirements of Executive Order 13132 on federalism. The Agency has determined that the final rule conforms with the federalism principles set out in this Executive Order; would not impose any compliance costs on the States; and would not have substantial direct effects on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, the Agency has determined that no
This final rule has been analyzed in accordance with the principles and criteria in Executive Order 12630. It has been determined that this final rule does not pose the risk of a taking of private property.
This final rule has been reviewed under Executive Order 12988 on civil justice reform. The Agency has not identified any State or local laws or regulations that are in conflict with this rule or that would impede full implementation of this rule. Nevertheless, in the event that such conflicts were to be identified, (1) all State and local laws and regulations that conflict with the final rule or that would impede its full implementation would be preempted; (2) no retroactive effect would be given to the final rule; and (3) it would not require administrative proceedings before parties may file suit in court challenging its provisions.
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), the Agency has assessed the effects of this final rule on State, local, and Tribal governments and the private sector. This final rule would not compel the expenditure of $100 million or more by any State, local, or Tribal government or anyone in the private sector. Therefore, a statement under section 202 of the Act is not required.
This final rule does not contain recordkeeping or reporting requirements or other information collection requirements as defined in 5 CFR part 1320.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501- 3520), the Forest Service requested and received approval of a new information collection requirement for subpart B as stated in 36 CFR 219.61 and assigned control number 0596-0158 as stated in the final rule approval (77 FR 21161, April 9, 2012). Subpart B specifies the information that objectors must give in an objection to a plan, plan amendment, or plan revision (36 CFR 219.54(c)).
However, recently the Agency learned that subpart B is not considered an information collection under the Paperwork Reduction Act of 1995. Subpart B is not an information collection because the notice indicating the availability of the plan, plan amendment, or plan revision, the appropriate final environmental documents, the draft plan decision document, and the beginning of the objection period is a general solicitation. No person is required to supply specific information pertaining to the respondent, other than that necessary for self-identification.
Administrative practice and procedure, Environmental impact statements, Indians, Intergovernmental relations, National forests, Reporting and recordkeeping requirements, Science and technology.
Therefore, for the reasons set forth in the preamble, the Department amends 36 CFR part 219 as follows:
5 U.S.C. 301; 16 U.S.C. 1604, 1613.
The responsible official shall use the best available scientific information to inform the planning process required by this subpart for assessment; developing, amending, or revising a plan; and monitoring. In doing so, the responsible official shall determine what information is the most accurate, reliable, and relevant to the issues being considered. The responsible official shall document how the best available scientific information was used to inform the assessment, the plan or amendment decision, and the monitoring program as required in §§ 219.6(a)(3) and 219.14(a)(3). Such documentation must: Identify what information was determined to be the best available scientific information, explain the basis for that determination, and explain how the information was applied to the issues considered.
A plan developed or revised under this part must provide for social, economic, and ecological sustainability within Forest Service authority and consistent with the inherent capability of the plan area, as follows:
This section adopts a complementary ecosystem and species-specific approach to maintaining the diversity of plant and animal communities and the persistence of native species in the plan area. Compliance with the ecosystem requirements of paragraph (a) of this section is intended to provide the ecological conditions to both maintain the diversity of plant and animal communities and support the persistence of most native species in the plan area. Compliance with the requirements of paragraph (b) of this section is intended to provide for additional ecological conditions not otherwise provided by compliance with paragraph (a) of this section for individual species as set forth in paragraph (b) of this section. A plan developed or revised under this part must provide for the diversity of plant and animal communities, within Forest Service authority and consistent with the inherent capability of the plan area, as follows:
While meeting the requirements of §§ 219.8 and 219.9, a plan developed or revised under this part must provide for ecosystem services and multiple uses, including outdoor recreation, range, timber, watershed, wildlife, and fish, within Forest Service authority and the inherent capability of the plan area as follows:
While meeting the requirements of §§ 219.8 through 219.10, a plan developed or revised under this part must include plan components, including standards or guidelines, and other plan content regarding timber management within Forest Service authority and the inherent capability of the plan area, as follows:
(d) * * *
(4) Where plan components will allow clearcutting, seed tree cutting, shelterwood cutting, or other cuts designed to regenerate an even-aged stand of timber, the plan must include standards limiting the maximum size for openings that may be cut in one harvest operation, according to geographic
(a)
(b)
(1) Base an amendment on a preliminary identification of the need to change the plan. The preliminary identification of the need to change the plan may be based on a new assessment; a monitoring report; or other documentation of new information, changed conditions, or changed circumstances. When a plan amendment is made together with, and only applies to, a project or activity decision, the analysis prepared for the project or activity may serve as the documentation for the preliminary identification of the need to change the plan.
(2) Provide opportunities for public participation as required in § 219.4 and public notification as required in § 219.16. The responsible official may combine processes and associated public notifications where appropriate, considering the scope and scale of the need to change the plan. The responsible official must include information in the initial notice for the amendment (§ 219.16(a)(1)) about which substantive requirements of §§ 219.8 through 219.11 are likely to be directly related to the amendment (§ 219.13(b)(5)).
(3) Amend the plan consistent with Forest Service NEPA procedures. The appropriate NEPA documentation for an amendment may be an environmental impact statement, an environmental assessment, or a categorical exclusion, depending upon the scope and scale of the amendment and its likely effects. Except for an amendment that applies only to one project or activity, a proposed amendment that may create a significant environmental effect and thus requires preparation of an environmental impact statement is considered a significant change in the plan for the purposes of the NFMA and therefore requires a 90-day comment period for the proposed plan and draft environmental impact statement (§ 219.16(a)(2)), in addition to meeting the requirements of this section.
(4) Follow the applicable format for plan components set out at § 219.7(e) for the plan direction added or modified by the amendment, except that where an amendment to a plan developed or revised under a prior planning regulation would simply modify the area to which existing direction applies, the responsible official may retain the existing formatting for that direction.
(5) Determine which specific substantive requirement(s) within §§ 219.8 through 219.11 are directly related to the plan direction being added, modified, or removed by the amendment and apply such requirement(s) within the scope and scale of the amendment. The responsible official is not required to apply any substantive requirements within §§ 219.8 through 219.11 that are not directly related to the amendment.
(i) The responsible official's determination must be based on the purpose for the amendment and the effects (beneficial or adverse) of the amendment, and informed by the best available scientific information, scoping, effects analysis, monitoring data or other rationale.
(ii) When basing the determination on adverse effects:
(A) The responsible official must determine that a specific substantive requirement is directly related to the amendment when scoping or NEPA effects analysis for the proposed amendment reveals substantial adverse effects associated with that requirement, or when the proposed amendment would substantially lessen protections for a specific resource or use.
(B) If the appropriate NEPA documentation for an amendment is a categorical exclusion or an environmental assessment accompanied by a finding of no significant impact (§ 219.13(b)(3)), there is a rebuttable presumption that the amendment will not have substantial adverse effects.
(6) For an amendment to a plan developed or revised under a prior planning regulation, if species of conservation concern (SCC) have not been identified for the plan area and if scoping or NEPA effects analysis for the proposed amendment reveals substantial adverse impacts to a specific species, or if the proposed amendment would substantially lessen protections for a specific species, the responsible official must determine whether such species is a potential SCC, and if so, apply section § 219.9(b) with respect to that species as if it were an SCC.
The revisions and additions read as follows:
(a)
(b)
(c)
(1) The scope and scale of the plan amendment; and
(2) Which specific requirements within §§ 219.8 through 219.11 apply to the amendment and how they were applied.
(a) * * *
(2) To invite comments on a proposed plan, plan amendment, or plan revision, and associated environmental analysis. For a new plan, plan amendment, or a plan revision for which a draft environmental impact statement (EIS) is prepared, the comment period is at least 90 days, except for an amendment that applies only to one project or activity. For an amendment that applies only to one project or activity for which a draft EIS is prepared, the comment period is at least 45 days unless a different time period is required by law or regulation or authorized pursuant to 40 CFR 1506.10(d). For an amendment for which a draft EIS is not prepared, the comment period is at least 30 days;
Federal Communications Commission.
Final rule.
In this document, the Federal Communications Commission (Commission or FCC) addresses a number of important issues regarding updating rules and requirements for technologies used to locate and rescue distressed ships and individuals in distress at sea or on land to provide better and more accurate data to rescue personnel. The Commission also addresses issues regarding radar equipment, the use of portable marine Very High Frequency (VHF) transmitters by persons on shore; permitting VHF digital small message service (VDSMS); and allowing assignment or transfer of control of ship station licenses. The Commission is amending its rules to permit the maritime community to make use of the most advanced and reliable communications technologies available for the alerting of search and rescue authorities when a vessel or individual is in distress, and to further the Commission's goal of ensuring that the spectrum allocated for emergency communications is used effectively and efficiently.
Effective January 17, 2017 except for the amendments to §§ 80.233, 80.1061, 95.1402 and 95.1403 which contain information collection requirements that are not effective until approved by the Office of Management and Budget. The FCC will publish a document in the
Federal Communications Commission, 445 12th Street SW., Washington, DC 20554. In addition to filing comments with the Office of the Secretary, a copy of any comments on the Paperwork Reduction Act information collection requirements contained herein should be submitted to Cathy Williams, Federal Communications Commission, 1-C823, 445 12th Street SW., Washington, DC 20554, or send an email to
James Shaffer,
This is a summary of the Federal Communications Commission's
1. The
2. The Report and Order incorporates by reference standards for certain marine and personal radio safety devices and a standard to provide VHF Digital Small Message Service (VDSMS) on certain marine VHF channels. For 406 MHz Emergency Position Indicating Radiobeacons (EPIRBs) the Radio Technical Commission for Maritime Services (RTCM) Standard 11000.3 provides the latest technical and testing procedures for EPRIBs and requires them to have an internal navigation device designed to provide position data upon activation. For 406 MHz Personal Locator Beacons (PLBs) the RTCM Standard 11010.2 provides updated technical requirements and adds test procedures for PLBs with integral GNSS receivers or internal navigation devices. For Satellite Emergency Notification Devices (SENDs) RTCM Standard 12800.0 provides minimum requirements for the functional and technical performance of SENDs to ensure reliability in emergency situations. For Maritime Survivor Locating Devices (MSLDs) RTCM Standard 11901.1 provides minimum functional and technical performance of MSLDs. For Automatic Identification System Search and Rescue Transmitters (AIS-SARTs) the International Maritime Organization (IMO) Resolution MSC.246(83) and the International Electrotechnical Commission (IEC) 61097-14 provide the minimum performance requirements and technical specifications for AIS-SARTs. Finally, for VHF digital small message services (VDSMS) RTCM Standard 12301.1 provides technical standard that enables transmission of short digital messages without interfering with other communications on the same channel. Copies of the RTCM documents are available and may be obtained from the Radio Technical Commission for
3. EPIRBs are carried on board ships to alert others of a distress situation, and to assist search and rescue (SAR) personnel in locating those in distress. Specifically, an EPIRB transmits a digital signal on 406.0-406.1 MHz (406 MHz) that is detected by the search and rescue satellite-aided tracking (SARSAT) system operated by the National Oceanic and Atmospheric Administration (NOAA). The digital signal provides distress alerting, homing assistance, country and identification code of the station in distress, and other pertinent information. Traditional EPIRBs rely on satellite Doppler shift to identify the distress location. Some EPIRBs, however, transmit their Global Navigation Satellite System (GNSS) coordinates, which enables SAR authorities to determine an accurate location significantly faster than satellite Doppler shift.
4. EPIRBs must comply with the Radio Technical Commission for Maritime Services (RTCM) EPIRB standard incorporated by reference in our rules. RTCM updated its EPIRB standard to require, among other conditions, an internal navigation device designed to provide position data upon activation. The Commission asked if the new RTCM EPIRB standard should be incorporated by reference in our rules, and sought comment on the appropriate timetable for phasing out certification, manufacture, sale and use of EPIRBs that do not comply with the new standard.
5. All commenters addressing the issue support revising Part 80 to incorporate by reference the revised RTCM EPIRB standard. We agree that such an action is in the public interest because better location availability reduces search time and therefore contributes to the success of emergency rescues. Moreover, most commenters state that the price difference between EPIRBs that broadcast position data and those that do not has diminished or even disappeared, so adopting this requirement will impose little or no additional cost on end-users who purchase EPIRBs that comply with the new standard. We amend our rules to incorporate by reference the revised RTCM EPIRB standard
6. With respect to the appropriate timeline for phasing out EPIRBs that do not comply with the new standard, commenters generally agree that the Commission should cease accepting applications for certification of non-compliant EPIRBs beginning one year after the effective date of the rules adopted herein. With minor variations, commenters support prohibiting the continued manufacture, importation, and sale of non-compliant EPIRBs three years after the effective date. We conclude that these time frames are reasonable, and amend our rules to set forth these deadlines. With respect to continued use of non-compliant EPIRBs, most commenters argue that there is no need to establish a date after which use of such EPIRBs will be prohibited because most boat owners replace their EPIRBs at the battery replacement date, which is typically five years after the EPIRB is sold, and one commenter proposes that use of non-compliant EPIRBs be prohibited six years after the rules become effective to allow owners to obtain the full five-year battery life of their current devices. We agree with the commenters that no deadline is required for vessels that voluntarily carry EPIRBs. We note that use by voluntary vessels of EPIRBs that do not comply with the new standard will continue to provide SAR personnel with the same quality of location information as they do currently. However, we adopt a six-year deadline for vessels that are required under our rules to carry EPIRBs, in order to ensure that these vessels provide better location availability during distress situations. We conclude that these transition periods fairly balance the interest in minimizing the compliance burden against the benefits of deploying new maritime safety features expeditiously.
7. Finally, we adopt our proposal to amend our rules to make plain that the use of prior-generation EPIRBs that operate only on 121.5/243 MHz and do not operate on 406 MHz is prohibited. Commenters support this proposal, which simply clarifies a prohibition that was adopted in 2002.
8. Like EPIRBs, PLBs send distress signals on 406 MHz that are detected by the COSPAS-SARSAT satellite system and relayed to SAR authorities, but PLBs can be used on land and are intended to meet the distress alerting needs of the general public. PLB use is licensed by rule under part 95 of the Commission's rules, which governs the Personal Radio Services (PRS).
9. PLBs must comply with the RTCM PLB standard incorporated by reference in our rules. RTCM revised its PLB standard to update various technical requirements and to add test procedures for PLBs with integral GNSS receivers or internal navigation devices. The Commission asked if the new RTCM PLB standard should be incorporated by reference in our rules and, if so, sought comment on the appropriate timetable for phasing out the certification, manufacture, sale and use of PLBs that do not comply with the new standard.
10. All commenters who address the question support revising part 95 to incorporate by reference the revised RTCM PLB standard. We agree that such an action is in the public interest because better location availability minimizes search time and therefore contributes to the success of emergency rescues. Moreover, commenters do not believe that compliance with the new
11. With respect to the appropriate timeline for phasing out PLBs that do not comply with the new standard, commenters agree that the Commission should cease accepting applications for certification of non-compliant PLBs beginning one year after the effective date of the rules adopted herein. With some minor variations, commenters support prohibiting the continued manufacture, importation, and sale of non-compliant PLBs three years after the effective date. We conclude that these time frames are reasonable, and amend our rules to set forth these deadlines. We agree with the majority of commenters that there is no need to establish a date after which use of non-compliant PLBs will be prohibited, because PLB use is voluntary and the continued use of PLBs that do not comply with the new standard will deliver the current quality of service to SAR personnel for distress alerting and locating capabilities. We conclude that these transition periods fairly balance the interest in minimizing the compliance burden against the benefits of deploying new safety features expeditiously.
12. The Commission also sought comment on whether, as recommended by the Secretariat of the International COSPAS-SARSAT Programme (COSPAS-SARSAT), to amend part 95 to limit the use of 406 MHz band by PLBs to “distress and safety
13. PLB owners must register their beacons with NOAA.
14. Although there is no established definition for the term “SENDs,” it is often used to refer to small transmitters that provide a means for individuals in remote areas to alert others of an emergency situation and to aid SAR personnel to locate those in distress. These devices differ from PLBs in that they operate on satellite networks other than the 406 MHz COSPAS-SARSAT system. The service provided is typically a subscription service that sends data to a satellite, and is then used to create a Web-based report that enables the tracking of persons.
15. RTCM, with participation from the mobile satellite industry, has developed minimum requirements for the functional and technical performance of SENDs to ensure that these devices will work with a high degree of reliability in emergency situations. The Commission sought comment on RTCM's proposal that the part 95 rules be amended to incorporate by reference its SEND standard, and to prohibit devices that do not meet that standard from being marketed as SENDs. The Commission noted, however, that such devices do not require authorization under part 95 because they already can operate pursuant to the part 25 mobile satellite service (MSS) rules, and tentatively concluded that incorporating what is effectively a voluntary standard is unnecessary and would not further the public interest.
16. Commenters are split regarding whether we should incorporate by reference RTCM's SEND standard into our rules. Most argue that it should be incorporated because users rely on satellite emergency notification services in emergency situations and expect devices to perform in a manner similar to PLBs (which, as discussed above,
17. We are adopting RTCM's proposal to the extent that we incorporate the RTCM SEND standard by reference under the part 25 MSS rules for devices that are marketed as SENDs. We address commenters' concerns about consumer expectations by amending part 25 to specify that the terms “SEND” and “Satellite Emergency Notification Device” may be used in marketing and sales only for devices that meet the requirements set forth in the RTCM SEND standard. We agree with Iridium that requiring all devices that are capable of transmitting an emergency distress alert to meet the RTCM SEND standard is overbroad.
18. MSLDs are intended for use by persons at risk of falling into the water such as mariners and workers on marine installations or docks, or by divers
19. RTCM has developed minimum requirements for the functional and technical performance of MSLDs. The Commission proposed to incorporate by reference RTCM's MSLD standard into the part 95 rules to allow certification and use of devices meeting the standard, and asked whether manufacturers should be required to coordinate their applications for equipment certification of MSLDs with the United States Coast Guard (Coast Guard). The Commission also sought comment on the appropriate timetable for phasing out manufacture, sale and use of devices intended to aid in the location of persons in the water that were approved by waiver but do not comply with RTCM's MSLD standard.
20. Commenters agree that RTCM's MSLD standard should be incorporated by reference in our rules. We agree that allowing for certification and use of MSLDs will enhance safety for individuals on or near the water by providing for earlier alerting and rescues that are both more rapid and effective and less costly, and we therefore incorporate the standard into part 95 as proposed.
21. Like EPIRBs, SARTs are carried on board ships and survival craft to alert others of a distress situation, and to assist SAR personnel in locating those in distress. Currently, the part 80 rules authorize only traditional SARTs, which act as active reflectors of 9.2-9.5 GHz (9 GHz) radar signals. Each time a 9 GHz SART detects a pulse from the radar of a searching vessel that is within approximately five nautical miles, the SART transmits a signal that is displayed on the screen of the radar that activated it.
22. An AIS-SART, as part of the AIS maritime navigation safety communications system, is used to locate a survival craft or distressed vessel by transmitting a unique identification code and GPS coordinates to all AIS-enabled devices within VHF radio range. The International Maritime Organization (IMO) has amended the GMDSS regulations to permit AIS-SARTs as an alternative to 9 GHz SARTs. In addition, the International Electrotechnical Commission (IEC) approved performance and technical specifications for AIS-SARTs. In the
23. We agree with the commenters that AIS-SARTs represent an important tool for improving maritime safety and have gained international acceptance, and therefore revise Part 80 to incorporate by reference the IMO and IEC standards for AIS-SARTs. We will require that AIS-SART equipment certification applications be coordinated with the Coast Guard, as is required for other AIS equipment. We agree with RTCM's suggestion to use the term “search and rescue locating devices” when referring to both traditional SARTs and AIS-SARTs, but we decline, as beyond the scope of this proceeding, its request that we amend the rules regarding the stowage of these devices on ships equipped with free-fall lifeboats.
24. Section 80.273 of the Commission's Rules contains the technical requirements for radar equipment installed on ships, and incorporates by reference relevant international standards for such equipment, including IEC 62388 for compulsory vessels and IEC 62252 for voluntary vessels. As proposed in the
25. Section 80.115(a)(2) of the Commission's Rules prohibits the use on shore of a portable marine VHF radio associated with a vessel. The GMDSS Task Force proposed that the rule be amended to allow persons on shore within three miles of the water to use portable marine VHF radios to communicate with the vessel that is subject to the ship station authorization. The Commission, however, noted that limitations on the use of maritime frequencies are intended to minimize interference to maritime communications (particularly distress and safety messages), and tentatively concluded that permitting the use of portable marine VHF radio transmitters on shore would not further the public interest. We questioned the practical enforceability of a three-mile rule, and asked whether shore parties' communications needs could be met by commercial mobile radio service (CMRS) or PRS options. The Commission also asked commenters supporting the proposal to discuss what limitations would be appropriate to
26. The GMDSS Task Force acknowledges that CMRS options likely will be preferred in areas with reliable coverage, and asserts that this makes it unlikely that use of low-powered portable marine VHF radio radios on land will interfere with maritime communications. It also argues that permitting such use will further the public interest by encouraging more boaters to a carry a VHF radio, which has safety benefits not available from CMRS or PRS options because marine VHF channels can be used to contact the Coast Guard and other nearby vessels in a distress situation, for bridge-to-bridge communications, and to receive maritime safety information broadcasts.
27. We agree with commenters that the public interest will be served by allowing the use of portable VHF radios ashore, so long as it is limited to enhancing the usefulness of marine VHF radios without negatively affecting maritime communications. Such limited onshore use will promote flexibility in the use of marine radio equipment in a manner that furthers maritime safety by encouraging more boaters to a carry a VHF radio. Specifically, as suggested by ACR, we will permit use of portable marine VHF radios only in areas adjacent to the water, such as docks and beaches. In addition, as suggested by RTCM, and consistent with our requirements for offshore use, onshore communications using such radios must relate to the operational and business needs of the associated vessel, and must be limited to the minimum practicable transmission time.
28. VDSMS is intended to provide short-distance digital messaging ship-to-ship, shore-to-ship and ship-to-shore. The International Telecommunication Union (ITU) has recognized the future need for worldwide systems to exchange data and email on maritime VHF channels and the availability of new digital data systems that provide this service efficiently and without harmful interference. In the United States, however, maritime communications generally are limited to particular emission designators in order to avoid interference between users; a full range of data transmissions is permitted only on VHF Public Coast frequencies and one channel in Alaska.
29. RTCM developed a technical standard for VDSMS that enables transmission of short digital messages without interfering with other communications on the same channel. The Commission proposed to amend part 80 to incorporate by reference the RTCM VDSMS standard in order to permit transmission of short data messages on VHF maritime private communications frequencies. It tentatively concluded that accommodating VDSMS in the Commission's rules would advance the Commission's goal of promoting flexibility and efficiency in the use of marine radio equipment in a manner that would further maritime safety.
30. RTCM, the only commenter addressing this issue, agrees that part 80 should be revised to incorporate by reference its VDSMS standard. It argues that adopting a single VDSMS standard will avoid use of a variety of different and potentially incompatible data protocols, and ensure VDSMS communications are not disrupted. We agree, and amend part 80 to incorporate by reference the RTCM VDSMS standard. We note that VDSMS will not be permitted on or adjacent to marine safety and security channels and other channels excluded under Appendix 18 of the ITU Radio Regulations.
31. Under section 1.948 of the Commission's rules, ship station licenses may not be assigned or transferred. Instead of efficiently assigning or transferring the license to another entity, ship station licensees must submit the ship station license to the Commission for cancellation; and the entity acquiring the vessel must instead apply for new ship licenses in its own name. In the
32. We believe that it would serve the public interest to permit the assignment and transfer of control of ship station licenses. Permitting the assignment and transfer of control of ship station licenses would be more administratively efficient than maintaining the current prohibition on applications to assign or transfer such licenses, and would reduce transactional costs for ship station licensees.
33. As proposed, we correct certain part 80 rules to change erroneous references to Title II of the Communications Act to refer to Title III, restore subparagraphs that were inadvertently deleted, and correct typographical errors. No commenter addressed these corrections.
34. This document contains new information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and
35. In this present document, we have we establish requirements for the certification of MSLDs, and AIS-SARTs devices. The rule would require,
The Commission will send a copy of this
36. As required by the Regulatory Flexibility Act (RFA), the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) of the rules adopted in this Report and Order.
37.
38.
39.
40.
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43.
44. Accordingly, IT IS ORDERED, pursuant to sections 4(i), 303(r), and 332(a)(2) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r), 332(a)(2), that parts 1, 25, 80, and 95 of the Commission's rules ARE AMENDED as set forth in the attached Appendix B, and such rule amendments SHALL BE EFFECTIVE thirty (30) days after publication of the rules amendments in the
Communications equipment, Radio.
Communications equipment, Incorporation by reference, Radio.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 1, 25, 80 and 95, as follows:
47 U.S.C. 151, 154(i), 155, 157, 225, 303(r), 309, 1403, 1404, 1451, and 1452.
(b) * * *
(5) Licenses, permits, and authorizations for stations in the Amateur, Commercial Operator and Personal Radio Services (except 218-219 MHz Service) may not be assigned or transferred, unless otherwise stated.
Interprets or applies 47 U.S.C. 154, 301, 302, 303, 307, 309, 310, 319, 332, 605, and 721, unless otherwise noted.
No device described by the marketer or seller using the terms “SEND” or “Satellite Emergency Notification Device” may be marketed or sold in the United States unless it complies with the requirements of RTCM 12800.0. RTCM 12800.0, “Satellite Emergency Notification Devices (SENDs),” dated August 1, 2011 is incorporated by reference in accordance with 5 U.S.C. 552(a), and 1 CFR part 51. Copies of the document are available and may be obtained from the Radio Technical Commission for Maritime Services, 1611 N. Kent Street, Suite 605, Arlington, Virginia 22209. The document is available for inspection at Commission headquarters at 445 12th Street SW., Washington, DC 20554. Copies may also be inspected 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:
Secs. 4, 303, 307(e), 309, and 332, 48 Stat. 1066, 1082, as amended; 47 U.S.C. 154, 303, 307(e), 309, and 332, unless otherwise noted. Interpret or apply 48 Stat. 1064-1068, 1081-1105, as amended; 47 U.S.C. 151-155, 301-609; 3 UST 3450, 3 UST 4726, 12 UST 2377.
The additions and revisions read as follows:
(f) * * *
(3) RTCM Standard 11020.1 (“RTCM 11020”), “RTCM Standard 11020.1, Ship Security Alert Systems (SSAS) Using the Cospas-Sarsat Satellite System,” October 9, 2009, IBR approved for § 80.277.
(4) RTCM Standard 12301.1 (“RTCM 12301”), “VHF-FM Digital Small Message Services,” July 10, 2009, IBR approved for § 80.364(a).
The additions and revisions read as follows:
(b) * * *
(28) IMO Resolution MSC.246(83), (“IMO Resolution MSC.246(83)”) “Adoption of Performance Standards for Survival Craft AIS Search and Rescue Transmitters (AIS-SART) for Use in Search and Rescue Operations,” IBR approved for § 80.233(a).
(d) * * *
(14) IEC 61097-14 (“IEC 61097-14”), Edition 1.0, 2010-02, “Global maritime distress and safety system (GMDSS)—Part 14: AIS search and rescue transmitter (AIS-SART)—Operational and performance requirements, methods of testing and required test results,” IBR approved for § 80.233(a).
(f) * * *
(2) RTCM Standard 11000.3 (“RTCM 11000”), “406 MHz Satellite Emergency Position Radiobeacons (EPIRBs),” June 12, 2012, IBR approved for § 80.1061(a) and (c).
(a) * * *
(1) * * *
Note to paragraph (a)(1): Nothing in this section prohibits Commission inspectors from inspecting ships. The mandatory inspection of U.S. vessels must be conducted by an FCC-licensed technician holding an FCC General Radiotelephone Operator License, GMDSS Radio Maintainer's License, Second Class Radiotelegraph Operator's Certificate, First Class Radiotelegraph Operator's Certificate, or Radiotelegraph Operator License in accordance with the following table:
(a) * * *
(1) It must only be operated on the safety and calling frequency 156.800 MHz or 156.525 MHz or on commercial or noncommercial VHF intership frequencies appropriate to the class of ship station with which it is associated.
(2) Except for safety purposes, it must only be used to communicate with the ship station with which it is associated or with associated ship units of the same ship station. Such associated ship units may be used from shore only adjacent to the waterway (such as on a dock or beach) where the ship is located. Communications from shore must relate to the operational and business needs of the ship including the transmission of safety information, and must be limited to the minimum practicable transmission time.
(3) It must be equipped to transmit on the frequency 156.800 MHz or 156.525 MHz and at least one appropriate intership frequency.
(4) Calling must occur on the frequency 156.800 MHz or 156.525 MHz unless calling and working on an intership frequency has been prearranged.
A
(b) Each cargo ship equipped with a radiotelegraph station in accordance with Part II of Title III of the Communications Act and which has a radiotelegraph auto alarm must carry a radio officer holding a First Class Radiotelegraph Operator's Certificate, Second Class Radiotelegraph Operator's Certificate, or Radiotelegraph Operator License who has had at least six months service as a radio officer on board U.S. ships. If the radiotelegraph station does not have an auto alarm, a second radio officer who holds a First Class Radiotelegraph Operator's Certificate, Second Class Radiotelegraph Operator's Certificate, or Radiotelegraph Operator License must be carried.
(b) * * *
(3) * * *
(i) Internal adjustments of the transmitter;
(ii) Use of controls normally inaccessible to the station operator;
(iii) Use of external devices or equipment modules made available only to service and maintenance personnel through a service company; and
(iv) Copying of a channel selection program directly from another transmitter (cloning) using devices and procedures made available only to service and maintenance personnel through a service company.
(c) Prior to submitting a certification application for a Class B AIS device, the following information must be submitted in duplicate to
(e) A certification application for an AIS device must contain a copy of the U.S. Coast Guard letter stating that the device satisfies all of the requirements specified in IEC 62287-1, a copy of the technical test data, and the instruction manual(s).
(a) Automatic Identification System Search and Rescue Transmitter (AIS-SART) equipment must meet the technical requirements of IEC 61097-14 and IMO Resolution MSC.246(83) (incorporated by reference,
(b) Prior to submitting a certification application for an AIS-SART device, the following information must be submitted in duplicate to the U.S. Coast Guard, 2703 Martin Luther King Jr. Ave. SE., Stop 7126, Washington, DC 20593-7126:
(1) The name of the manufacturer or grantee and the model number of the AIS-SART device; and
(2) Copies of the test report and test data obtained from the test facility showing that the device complies with the environmental and operational requirements identified in IEC 61097-14.
(c) After reviewing the information described in paragraph (b) of this section, the U.S. Coast Guard will issue a letter stating whether the AIS-SART device satisfies all of the requirements specified in IEC 61097-14.
(d) A certification application for an AIS-SART device must contain a copy of the U.S. Coast Guard letter stating that the device satisfies all of the requirements specified in IEC 61097-14, a copy of the technical test data, and the instruction manual(s).
(b) For any ship of 10,000 tons gross tonnage and upwards or that is otherwise required to be equipped with two radar systems, each of the two radar systems must be capable of operating independently and must comply with the specifications, standards and general requirements set forth on paragraph (a) of this section. One of the systems must provide a display with an effective diameter of not less than 320 millimeters (12.6 inches), (16-inch cathode ray tube). The other system must provide a display with an effective diameter of not less than 250 millimeters (9.8 inches), (12-inch cathode ray tube).
(a) * * *
(1) Equipment that complies with RTCM 11020 (incorporated by reference, § 80.7); or
The following sections describe the carrier frequencies and general uses of radiotelegraphy and data transmission with respect to the following:
(a) Distress, urgency, safety, call and reply.
(b) Working.
(c) Digital selective calling (DSC).
(d) Narrow-band direct-printing (NB-DP).
(e) Facsimile.
(f) VHF-FM digital small message services (VDSMS).
Frequencies in the 156-162 MHz band may be used for VHF digital small message services (VDSMS) complying with RTCM 12301 (incorporated by reference,
The bridge-to-bridge radiotelephone station will be inspected on vessels subject to regular inspections pursuant to the requirements of Parts II and III of Title III of the Communications Act, the Safety Convention or the Great Lakes Agreement at the time of the regular inspection. If after such inspection, the Commission determines that the Bridge-to-Bridge Act, the rules of the Commission and the station license are met, an endorsement will be made on the appropriate document. The validity of the endorsement will run concurrently with the period of the regular inspection. Each vessel must carry a certificate with a valid endorsement while subject to the Bridge-to-Bridge Act. All other bridge-to-bridge stations will be inspected from time to time. An inspection of the bridge-to-bridge station on a Great Lakes Agreement vessel must normally be made at the same time as the Great Lakes Agreement inspection is conducted by a technician holding one of the following: A General Radiotelephone Operator License, a GMDSS Radio Maintainer's License, a Radiotelegraph Operator License, a Second Class Radiotelegraph Operator's Certificate, or a First Class Radiotelegraph Operator's Certificate. Additionally, the technician must not be the vessel's owner, operator, master, or an employee of any of them. Ships subject to the Bridge-to-Bridge Act may, in lieu of an endorsed certificate, certify
The manufacture, importation, sale or use of Class A, Class B, Class S, or INMARSAT-E EPIRBs is prohibited. New Class A, Class B, Class S, or INMARSAT-E EPIRBs will no longer be certified by the Commission.
The additions and revisions read as follows:
(a) Notwithstanding the provisions in paragraph (b) of this section, 406.0-406.1 MHz EPIRBs must meet all the technical and performance standards contained in RTCM 11000 (incorporated by reference,
(c) Prior to submitting a certification application for a 406.0-406.1 MHz radiobeacon, the radiobeacon must be certified by a test facility recognized by one of the COSPAS-SARSAT Partners that the equipment satisfies the design characteristics associated with the measurement methods incorporated in RTCM Standard 11000 (incorporated by reference,
(1) After a 406.0-406.1 MHz EPIRB has been certified by the recognized test facilities the following information must be submitted in duplicate to
(i) The name of the manufacturer or grantee and model number of the EPIRB;
(ii) Copies of the certificate and test data obtained from the test facility recognized by a COSPAS/SARSAT Partner showing that the radiobeacon complies with the COSPAS-SARSAT design characteristics associated with the measurement methods incorporated in RTCM 11000;
(iii) Copies of the test report and test data obtained from the test facility recognized by the U.S. Coast Guard showing that the radiobeacon complies with the U.S. Coast Guard environmental and operational characteristics associated with the measurement methods described in Appendix A of the RTCM Recommended Standards; and
(iv) Instruction manuals associated with the radiobeacon, description of the test characteristics of the readiobeacon including assembly drawings, electrical schematics, description of parts list, specifications of materials and the manufacturer's quality assurance program.
(d) A certification application for a 406.0-406.1 MHz EPIRB must also contain a copy of the U.S. Coast Guard letter that states the radiobeacon satisfies all RTCM Recommended Standards, a copy of the technical test data, and the instruction manual(s).
(e) An identification code, recognized by the National Oceanic and Atmospheric Administration (NOAA), the United States Program Manager for the 406.0-406.1 MHz COSPAS/SARSAT satellite system, must be programmed in each EPIRB unit to establish a unique identification for each EPIRB station. With each marketable EPIRB unit, the manufacturer or grantee must include a postage pre-paid registration card printed with the EPIRB identification code addressed to: NOAA/SARSAT Beacon Registration, NSOF, E/SPO53, 1315 East West Hwy, Silver Spring, MD 20910-9684. The registration card must request the owner's name, address, telephone number, type of ship, alternate emergency contact and other information as required by NOAA. The registration card must also contain information regarding the availability to register the EPIRB at NOAA's online web-based registration database at:
(a) * * *
(3) A radar transponder capable of operating in the 9 GHz band or an AIS-SART, which must be stowed so that it is easily utilized (this device may be one of those required by § 80.1095(b) for a survival craft);
(b) At least one radar transponder or AIS-SART (collectively, “search and rescue locating devices”) must be carried on each side of every passenger ship and every cargo ship of 500 tons gross tonnage and upwards. At least one search and rescue locating device must be carried on every cargo ship of 300 tons gross tonnage and upwards but less than 500 tons gross tonnage. Such search and rescue locating devices must conform to performance standards as specified in § 80.233 for AIS-SARTs or § 80.1101 for radar transponders. The search and rescue locating devices must be stowed in such locations that they can be rapidly placed in any survival craft other than liferafts required on cargo ships in forward and aft areas (see Regulation III/26.1.4 of the SOLAS Convention). Alternatively, one search and rescue locating device must be stowed in each survival craft other than those required by Regulation III/26.1.4 of the SOLAS Convention. One of these search and rescue locating devices may be the search and rescue locating device required by § 80.1085(a)(3).
47 U.S.C. 154, 301, 302(a), 303, and 307(e).
The rules in this subpart are intended to provide individuals in the water or in remote areas a means to alert others of an emergency situation and to aid search and rescue personnel in locating those in distress.
The frequency band 406.0-406.1 MHz is an emergency and distress frequency band available for use by Personal Locator Beacons (PLBs). Personal Locator Beacons that transmit on the frequency band 406.0-406.1 MHz must use G1D emission. Use of these frequencies must be limited to transmission of distress and safety of life communications.
(a) All 406 MHz PLBs must meet all the technical and performance standards contained in RTCM 11010.2. RTMC 11010.2, “406 MHz Satellite Personal Locator Beacons (PLBs),” including Amendments 1 and 2, dated June 8, 2012 is incorporated by reference in accordance with 5 U.S.C. 552(a), and 1 CFR part 51. Copies of the document are available and may be obtained from the Radio Technical Commission for Maritime Services, 1611 N. Kent Street, Suite 605, Arlington, Virginia 22209. The document is available for inspection at Commission headquarters at 445 12th Street SW., Washington, DC 20554. Copies may also be inspected 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:
(b) Beginning January 17, 2018, all new applications for certification of 406 MHz PLBs must demonstrate compliance with the requirements of RTCM 11010. 406 MHz PLBs that do not meet the requirements of RTCM 11010 shall not be manufactured, imported, or sold in the United States beginning January 17, 2020.
(c) Before a 406 MHz PLB certification application is submitted to the Commission, the applicant must have obtained certification from a test facility recognized by one of the COSPAS/SARSAT Partners that the PLB satisfies the standards incorporated in RTCM 11010. Additionally, an independent test must certify that the PLB complies with the electrical and environmental standards associated with the RTCM Recommended Standards.
(d) The procedures of Notification by the equipment manufacturer and Certification from the designated Telecommunications Certification Body are contained in subpart J of part 2 of this chapter.
(e) An identification code, recognized by the National Oceanic and Atmospheric Administration (NOAA), the United States Program Manager for the 406 MHz COSPAS/SARSAT satellite system, must be programmed in each PLB unit to establish a unique identification for each PLB station. With each marketable PLB unit, the manufacturer or grantee must include a postage pre-paid registration card printed with the PLB identification code addressed to: NOAA/SARSAT Beacon Registration, NSOF, E/SPO53, 1315 East West Hwy, Silver Spring, MD 20910-9684. The registration card must request the owner's name, address, telephone number, alternate emergency contact and include the following statement: “WARNING” failure to register this PLB with NOAA could result in a monetary forfeiture order being issued to the owner.”
(f) To enhance protection of life and property, it is mandatory that each 406 MHz PLB be registered with NOAA and that information be kept up-to-date. In addition to the identification plate or label requirements contained in §§ 2.925 and 2.926 of this chapter, each 406 MHz PLB must be provided on the outside with a clearly discernable permanent plate or label containing the following statement: “The owner of this 406 MHz PLB must register the NOAA identification code contained on this label with the National Oceanographic and Atmospheric Administration (NOAA) whose address is: NOAA/SARSAT Beacon Registration, NSOF, E/SPO53, 1315 East West Hwy, Silver Spring, MD 20910-9684.” Owners shall advise NOAA in writing upon change of PLB ownership, or any other change in registration information. NOAA will provide registrants with proof of registration and change of registration postcards. In the alternative to registration by postcard, users may register 406 MHz PLBs online at
(a) Maritime Survivor Locating Devices (MSLDs) are devices intended to aid in the location of persons in the water. Use on land is not authorized.
(b) MSLDs must meet all the technical and performance standards contained in RTCM 11901.1. RTCM 11901.1, “Maritime Survivor Locating Devices (MSLD),” dated June 4, 2012 is incorporated by reference in accordance with 5 U.S.C. 552(a), and 1 CFR part 51. Copies of the document are available and may be obtained from the Radio Technical Commission for Maritime Services, 1611 N. Kent Street, Suite 605, Arlington, Virginia 22209. The document is available for inspection at Commission headquarters at 445 12th Street SW., Washington, DC 20554. Copies may also be inspected 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:
(c) No device may be marketed or sold in the United States as a “MSLD” or “Maritime Survivor Locating Device” unless it complies with the requirements of RTCM 11901. Previously approved devices intended to aid in the location of persons in the water that do not meet the requirements of this section shall not be manufactured, imported, or sold in the United States January 17, 2018.
(d) All MSLDs must:
(1) Transmit on at least one of the following frequencies: 121.5 MHz, 156.525 MHz, 156.750 MHz, 156.800 MHz, 156.850 MHz, 161.975 MHz, 162.025 MHz; or
(2) Include a function intended to send a distress message directly to the U.S. Coast Guard or any other search and rescue organization.
(e) Before an MSLD certification application is submitted, the applicant must obtain a test report from a test laboratory which shows that the MSLD complies with the electrical and environmental standards associated with RTCM 11901. The test laboratory must be accredited to ISO/IEC 17025 with a scope covering the applicable requirements and test procedures.
(1) After the MSLD has been certified by a test laboratory, the following
(i) The name of the manufacturer or grantee and model number of the MSLD;
(ii) Copies of the test report and test data showing that the MSLD complies with the electrical and environmental standards associated with RTCM 11901; and
(iii) Instruction manuals associated with the MSLD, description of the test characteristics of the MSLD including assembly drawings, electrical schematics, description of parts list, specifications of materials and the manufacturer's quality assurance program.
(2) After reviewing the information described in paragraph (e)(1) of this section, the U.S. Coast Guard will issue a letter stating whether the MSLD satisfies all RTCM Recommended Standards. In the case of an MSLD that includes a function intended to send a distress message directly to the U.S. Coast Guard or any other search and rescue organization, the letter will also state whether the U.S. Coast Guard endorses that function.
(f) A certification application for an MSLD must contain a copy of the U.S. Coast Guard letter stating that the device satisfies all RTCM Recommended Standards, a copy of the technical test data, and the instruction manual(s).
Surface Transportation Board.
Final rules.
The Surface Transportation Board (Board or STB) is revising its regulations governing “Inspection of Records” and “Fees” in accordance with changes to the Freedom of Information Act (FOIA) made by the FOIA Improvement Act of 2016 (FOIA Improvement Act). Pursuant to the FOIA Improvement Act, the Board is extending the deadline for administrative appeals, adding information on dispute resolution services, and amending the way fees are charged in certain circumstances.
These rules are effective on January 14, 2017.
Information or questions regarding these final rules should reference Docket No. EP 737 and be in writing addressed to: FOIA Officer, Office of the General Counsel, Surface Transportation Board, by mail at 395 E Street SW., Washington, DC 20423-0001, by facsimile at 202-245-0456, or by Email at
Sarah Fancher at (202) 245-0355. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.]
The Board is revising its regulations at 49 CFR 1001.3 and 1002.1(g) in accordance with the FOIA Improvement Act, Public Law 114-185 (2016), which provides additional protections for parties requesting records held by the executive branch of the U.S. Government. Among the changes to FOIA, the FOIA Improvement Act requires agencies to allow requesters a minimum of 90 days to file an administrative appeal and that agencies allow for dispute resolution services at various times throughout the FOIA process. The FOIA Improvement Act also updates how fees are assessed in certain circumstances.
In accordance with the FOIA Improvement Act, the Board is revising 1001.3 by: (1) Changing the appeal deadline from 30 days to 90 days; and (2) adding a provision (under a new subheading) informing parties that they may seek dispute resolution services from either the Board's FOIA Public Liaison or the Office of Government Information Services, National Archives and Records Administration. The Board is also revising 49 CFR 1002.1(g) by adding paragraphs (15), (16), (17), and (18) to include the new requirements mandated by the FOIA Improvement Act regarding fees. The final rules are set forth below.
Under the Administrative Procedure Act (APA), the public generally may participate in the promulgation of rules through a notice and comment period. 5 U.S.C. 553(b) & (c). However, an agency may publish regulations in final form when the agency, for good cause, finds that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553(b)(B).
The Board has determined that these amendments to its regulations relate to agency management, practice, and procedure, and make technical changes only as directed by statute, are not a matter of agency discretion, and provide additional protections to the public. Therefore, the Board finds that notice and public comment on these amendments are unnecessary.
The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601-612, generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Because the Board has determined that notice and comment are not required under the APA for this rulemaking, the requirements of the RFA do not apply.
Freedom of information, Government employees, Inspection of records.
Freedom of information, Fees for records.
1. The final rules set forth below are adopted. Notice of the rules adopted here will be published in the
2. The rules are effective on January 14, 2017.
By the Board, Chairman Elliott, Vice Chairman Miller, and Commissioner Begeman.
For the reasons set forth in the preamble, the Surface Transportation Board amends part 1001 and part 1002 of title 49, chapter X, of the Code of Federal Regulations as follows:
5 U.S.C. 552, 49 U.S.C. 1302, and 49 U.S.C. 1321.
(a)
(b)
(c)
(1) The Board's FOIA Public Liaison by Email at
(2) The Office of Government Information Services (OGIS) by mail to Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road—OGIS, College Park, Maryland, 20740-6001, by facsimile at (202) 741-5769, or by Email at
5 U.S.C. 552(a)(4)(A), (a)(6)(B), and 553; 31 U.S.C. 9701; and 49 U.S.C. 1321. Section 1002.1(g)(11) is also issued under 5 U.S.C. 5514 and 31 U.S.C. 3717.
(g) * * *
(15) No fees will be assessed if the FOIA Officer fails to comply with any time limit under the FOIA or these regulations, and has not timely notified the requester, in writing, that an unusual circumstance exists. If an unusual circumstance exists, and timely, written notice is given to the requester, the failure to meet the time limit may be excused an additional 10 working days before fees are automatically waived under this paragraph (g)(15).
(16) If the FOIA Officer determines that unusual circumstances apply and more than 5,000 pages are necessary to respond to a request, fees may be charged if timely, written notice to the requester is provided and discussed with the requester via mail, Email, or telephone (or if at least three good-faith attempts are made to do so) regarding how the requester could effectively limit the scope of the request.
(17) If a court has determined that exceptional circumstances exist, a failure to comply with time limits imposed by these regulations or FOIA shall be excused for the length of time provided by court order.
(18) Fees may not be avoided by filing multiple requests at the same time. When the FOIA Officer reasonably believes that a requester, alone or with others, is breaking down one request into a series of requests to avoid fees, the requests will be combined, and the requester or requesters will be charged accordingly.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS implements accountability measures for commercial gray triggerfish in the exclusive economic zone (EEZ) of the South Atlantic. NMFS projects commercial landings for gray triggerfish will reach the commercial annual catch limit (ACL) (commercial quota) for the period July through December by December 16, 2016. Therefore, NMFS is closing the commercial sector for gray triggerfish in the South Atlantic EEZ on December 16, 2016. This closure is necessary to protect the gray triggerfish resource.
This rule is effective 12:01 a.m., local time, December 16, 2016, until January 1, 2017.
Mary Vara, NMFS Southeast Regional Office, telephone: 727-824-5305, email:
The snapper-grouper fishery of the South Atlantic includes gray triggerfish and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.
The final rule implementing Amendment 29 to the FMP divided the commercial ACL (commercial quota) for gray triggerfish in the South Atlantic into two 6-month commercial fishing seasons and allocated 50 percent of the total commercial quota of 312,324 lb (141,668 kg), round weight, to each fishing season, January 1 through June 30, and July 1 through December 31 (80 FR 30947, June 1, 2015), as specified in 50 CFR 622.190(a)(8). As a result, the commercial quota is divided into two equal seasonal quotas of 156,162 lb (70,834 kg), round weight.
The commercial sector for gray triggerfish closed on April 2, 2016, as landing reports indicated the January through June commercial quota would be met by that date. However, as of May 5, 2016, only 83 percent of the commercial quota was caught, and NMFS subsequently reopened the January through June commercial fishing season on June 13, 2016. The 2016 July through December quota includes 16,016 lb (7265 kg), round weight, that was not harvested during the January through June fishing season. As set forth in 50 CFR 622.190(a)(8)(iii), the unused portion of the January through June quota was added to the July through December quota, for a seasonal quota of 172,178 lb (78,099 kg), round weight.
Under 50 CFR 622.193(q)(1)(i), NMFS is required to close the commercial sector for gray triggerfish when the commercial quota specified in § 622.190(a)(8)(i) or (ii) is reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. NMFS has determined that the commercial quota for South Atlantic gray triggerfish will be reached by December 16, 2016. Accordingly, the commercial sector for South Atlantic gray triggerfish is closed effective 12:01 a.m., local time, December 16, 2016, until the start of the next commercial fishing season on January 1, 2017.
The operator of a vessel with a valid commercial vessel permit for South Atlantic snapper-grouper having gray triggerfish onboard must have landed and bartered, traded, or sold such gray triggerfish prior to 12:01 a.m., local time, December 16, 2016. During the closure, the bag limit specified in 50 CFR 622.187(b)(8), and the possession limits specified in 50 CFR 622.187(c), apply to all harvest or possession of gray triggerfish in or from the South Atlantic EEZ. Also, during the closure, the sale or purchase of gray triggerfish taken from the South Atlantic EEZ is prohibited. The prohibition on the sale or purchase does not apply to gray triggerfish that were harvested, landed ashore, and sold prior to 12:01 a.m., local time, December 16, 2016, and were held in cold storage by a dealer or processor.
For a person onboard a vessel for which a Federal commercial or charter vessel/headboat permit for the South Atlantic snapper-grouper fishery has been issued, the bag and possession limits and sale and purchase prohibitions applicable after the commercial quota closure for gray triggerfish apply regardless of whether the fish are harvested in state or Federal waters, as specified in 50 CFR 622.193(q)(1)(i).
The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of gray triggerfish and the South Atlantic snapper-grouper fishery and is consistent with the Magnuson-Stevens Act and other applicable laws.
This action is taken under 50 CFR 622.193(q)(1)(i) and is exempt from review under Executive Order 12866.
These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.
This action responds to the best scientific information available. The NOAA Assistant Administrator for Fisheries (AA), finds that the need to immediately implement this action to close the commercial sector for gray triggerfish constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures are unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule implementing Amendment 29, which established the split commercial seasons with split quota for gray triggerfish, and the accountability measures have already been subject to notice and comment, and all that remains is to notify the public of the closure. Such procedures are contrary to the public interest because of the need to immediately implement this action to protect gray triggerfish since the capacity of the fishing fleet allows for rapid harvest of the commercial quota. Prior notice and opportunity for public comment would require time and could potentially result in a harvest well in excess of the established commercial quota.
For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).
16 U.S.C. 1801
U.S. Copyright Office, Library of Congress.
Extension of comment period.
The United States Copyright Office is extending the deadline for the submission of written comments in response to its December 1, 2016 Notice of Proposed Rulemaking regarding group registration of contributions to periodicals.
Written comments are now due no later than 11:59 p.m. Eastern Time on January 30, 2017.
The Copyright Office is using the regulations.gov system for the submission and posting of public comments in this proceeding. All comments are therefore to be submitted electronically through regulations.gov. Specific instructions for submitting comments are available on the Copyright Office Web site at
Robert J. Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practice, or Erik Bertin, Deputy Director of Registration Policy and Practice. Each can be reached by telephone at 202-707-8040.
The United States Copyright Office is proposing to amend the regulation governing the group registration option for contributions to periodicals to reflect certain upgrades that will soon be made to the electronic registration system. On December 1, 2016, the Office issued a Notice of Proposed Rulemaking seeking public input on that topic.
U.S. Copyright Office, Library of Congress.
Extension of comment period.
The United States Copyright Office is extending the deadline for the submission of written comments in response to its December 1, 2016 Notice of Proposed Rulemaking regarding group registration of photographs.
Written comments are now due no later than 11:59 p.m. Eastern Time on January 30, 2017.
The Copyright Office is using the
Robert J. Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practice, or Erik Bertin, Deputy Director of Registration Policy and Practice. Each can be reached by telephone at 202-707-8040.
The United States Copyright Office is proposing to update its regulations governing group registration options for photographers to encourage broader participation in the registration system, increase the efficiency of the registration process, and create a more robust record of the claim. On December 1, 2016, the Office issued a Notice of Proposed Rulemaking seeking public input on this proposal.
U.S. Copyright Office, Library of Congress.
Extension of comment period.
The United States Copyright Office is extending the deadline for the submission of written comments in response to its December 1, 2016 Notice of Proposed Rulemaking regarding supplementary registration.
Written comments are now due no later than 11:59 p.m. Eastern Time on January 30, 2017.
The Copyright Office is using the
Robert J. Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practice, or Erik Bertin, Deputy Director of Registration Policy and Practice. Each can be reached by telephone at 202-707-8040.
The United States Copyright Office is proposing to update the regulation governing supplementary registration to reflect certain technical upgrades that will soon be made to the electronic registration system. On December 1, 2016, the Office issued a Notice of Proposed Rulemaking seeking public input on that topic.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing a partial approval and partial disapproval of revisions to the Antelope Valley Air Quality Management District (AVAQMD or District) portion of the California State Implementation Plan (SIP). These revisions concern the District's demonstration regarding Reasonably Available Control Technology (RACT) requirements for the 1997 and 2008 8-hour ozone National Ambient Air Quality Standards (NAAQS). We are proposing action on local SIP revisions under the Clean Air Act (CAA or the Act). We are taking comments on this proposal and plan to follow with a final action.
Any comments must arrive by January 17, 2017.
Submit your comments, identified by Docket ID No. EPA-R09-OAR-2016-0524 at
Stanley Tong, EPA Region IX, (415) 947-4122,
Throughout this document, “we,” “us” and “our” refer to the EPA.
Table 1 lists the documents addressed by this proposal with the dates that they were adopted by the local air agency and submitted by the California Air Resources Board (CARB).
On July 31, 2007, the submittal for AVAQMD's 2006 RACT SIP Analysis for the 1997 8-hour ozone NAAQS was deemed by operation of law to meet the completeness criteria in Title 40 of the Code of Federal Regulations (CFR) part 51 Appendix V, which must be met before formal EPA review.
On March 9, 2016, the submittal for AVAQMD's 2015 RACT SIP Analysis for the 2008 8-hour ozone NAAQS was found to meet the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review.
There are no previous versions of these documents in the AVAQMD portion of the California SIP for the 1997 or 2008 8-hour ozone standard.
Volatile Organic Compounds (VOCs) and nitrogen oxides (NO
Section IV.G. of the preamble to the EPA's final rule to implement the 1997 8-hour ozone NAAQS (70 FR 71612, November 29, 2005) discusses RACT requirements. It states in part that where a RACT SIP is required, states implementing the 8-hour standard generally must assure that RACT is met either through a certification that previously required RACT controls represent RACT for 8-hour implementation purposes or through a new RACT determination. Section III.D of the preamble to the EPA's final rule to implement the 2008 ozone NAAQS (80 FR 12264, March 6, 2015) discusses similar requirements for RACT. The submitted documents provide AVAQMD's analyses of its compliance with the CAA section 182 RACT requirements for the 1997 and 2008 8-hour ozone NAAQS. The EPA's technical support documents (TSD) have more information about the District's submissions and the EPA's evaluations thereof.
SIP rules must be enforceable (see CAA section 110(a)(2)), must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)), and must not modify certain SIP control requirements in nonattainment areas without ensuring equivalent or greater emissions reductions (see CAA section 193). Generally, SIP rules must require RACT for each category of sources covered by a CTG document as well as each major source of VOCs or NO
Guidance and policy documents that we use to evaluate enforceability, rule stringency requirements and CAA section 182 RACT requirements for the applicable criteria pollutants include the following:
1. “Final Rule to Implement the 8-hour Ozone National Ambient Air Quality Standard—Phase 2” (70 FR 71612; November 29, 2005).
2. “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).
3. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook).
4. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).
5. “State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble; Clean Air Act Amendments of 1990 Implementation of Title I; Proposed Rule,” (the NO
6. Memorandum from William T. Harnett to Regional Air Division Directors, (May 18, 2006), “RACT Qs & As—Reasonably Available Control Technology (RACT) Questions and Answers”.
7. RACT SIPs, Letter dated March 9, 2006 from EPA Region IX (Andrew Steckel) to CARB (Kurt Karperos) describing Region IX's understanding of what constitutes a minimally acceptable RACT SIP.
8. RACT SIPs, Letter dated April 4, 2006 from EPA Region IX (Andrew Steckel) to CARB (Kurt Karperos) listing EPA's current CTGs, ACTs, and other documents which may help to establish RACT.
9. “Implementation of the 2008 National Ambient Air Quality Standards for Ozone: State Implementation Plan Requirements” (80 FR 12264; March 6, 2015).
With respect to major stationary sources, because the Antelope Valley ozone nonattainment area was classified as “moderate” nonattainment for the 1997 8-hour ozone NAAQS at the time that California submitted the 2006 RACT SIP to the EPA, the EPA evaluated this submission in accordance with the 100 ton per year (tpy) threshold for “major stationary sources” of VOC or NO
The AVAQMD's 2015 RACT SIP submittal contains the District's RACT evaluation for major stationary sources in accordance with the 25 tpy threshold for major stationary sources of VOC or NO
With respect to the 1997 8-hour ozone standard, AVAQMD's 2006 RACT SIP and its 2014 Supplemental Analysis
With respect to the 2008 8-hour ozone standard, AVAQMD's 2015 RACT SIP staff report states that “[t]he original
For each CTG source category, AVAQMD's 2015 RACT SIP identifies if it has a stationary source subject to the CTG. AVAQMD states that for some CTG source categories its rules meet RACT, while in other cases, the rules need to be updated to implement RACT. With respect to major non-CTG sources, the District identified five facilities that submitted applications for title V Federal Operating Permits. Four of these facilities were previously identified in the District's 2006 RACT SIP. One new facility, Wm Bolthouse Farms, is a major source of NO
We reviewed AVAQMD's 2006 RACT SIP, its 2014 Supplemental Analysis, and its 2015 RACT SIPs to determine if the District's rules implemented current RACT. We also reviewed CARB's emissions inventory database and did not uncover any additional major stationary sources that were missing in the District's analyses. The District's efforts to identify CTG sources and major sources appears to be thorough. Based on the EPA's review of the District's evaluations, we propose to conclude that with the exception of the following rules, all of the identified SIP rules implement RACT for the applicable CTG categories and for the major non-CTG stationary sources of VOC and NO
1. Rule 462, Organic Liquid Loading (6/9/95).
2. Rule 1110.2, Emissions from Stationary, Non-road & Portable Internal Combustion Engines (1/21/03).
3. Rule 1151, Motor Vehicle and Mobile Equipment Coating Operations (6/19/12).
4. Rule 1171, Solvent Cleaning Operations (11/17/98).
Where there are no existing sources covered by a particular CTG document, states may, in lieu of adopting RACT requirements for those sources, adopt negative declarations certifying that there are no such sources in the relevant nonattainment area. Tables 2 of AVAQMD's 2006 and 2015 RACT SIPs lists the District's negative declarations where it had no sources subject to the applicable CTG for the 1997 and 2008 8-hour ozone standards respectively. The District based its conclusion on a review of permit files, emissions inventory data, and a search of the internet and yellow pages. We summarized the District's negative declarations in Table 2 below.
Our review of AVAQMD's negative declarations indicate some CTGs missing from the District's analysis. The District should adopt negative declarations for the following CTGs for the 1997 8-hour ozone standard if it concludes it has no sources covered by the CTGs:
1. EPA-450/2-78-032, Control of Volatile Organic Emissions from Existing Stationary Sources—Volume VII: Factory Surface Coating of Flat Wood Paneling.
2. EPA-450/3-82-009, Control of Volatile Organic Compound Emissions from Large Petroleum Dry Cleaners.
3. EPA-450/2-77-008, Control of Volatile Organic Emissions from Existing Stationary Sources—Volume II: Surface Coating of Cans, Coils, Paper, Fabrics, Automobiles, and Light-Duty Trucks, can coating portion.
The District should also adopt negative declarations for the following CTGs for the 2008 8-hour ozone standard if it concludes it has no sources covered by these documents:
1. EPA-450/2-77-008, Can coating portion of Control of Volatile Organic Emissions from Existing Stationary Sources—Volume II: Surface Coating of Cans, Coils, Paper, Fabrics, Automobiles, and Light-Duty Trucks
2. EPA-450/2-77-026, Control of Hydrocarbons from Tank Truck Gasoline Loading Terminals.
3. EPA-450/7-77-032, Control of Volatile Organic Emissions from Existing Stationary Sources—Volume III: Surface Coating of Metal Furniture.
4. EPA-450/2-78-032, Control of Volatile Organic Emissions from Existing Stationary Sources—Volume VII: Factory Surface Coating of Flat Wood Paneling.
5. EPA-453/R-08-003, Drum coating portion of Control Techniques Guidelines for Miscellaneous Metal and Plastic Parts Coatings.
6. EPA 453/R-08-003, Pleasure craft coating portion of Control Techniques Guidelines for Miscellaneous Metal and Plastic Parts Coatings.
Our 2006 and 2015 RACT SIP TSDs provide a more detailed discussion of the EPA's rationale, including an overview of the District's analyses, which were made available for public comment during the District's rulemaking process.
Rule 462, Organic Liquid Loading, (amended 6/9/95) defines “facility vapor leak” as “measured at a distance of 2 centimeters from the source according to EPA Method 21.” This should be corrected to remove the 2 centimeter criteria to be consistent with EPA Method 21.
Rule 1110.2, Emissions from Stationary, Non-road & Portable Internal Combustion Engines, (amended 1/21/03) exempts engines “used directly and exclusively by the owner/operator for agricultural operations necessary for the growing of crops or raising of fowl or animals.” The District should update this rule to eliminate the exemption for agricultural engines or adopt a separate rule for agricultural engines.
Rule 1151, Motor Vehicle and Mobile Equipment Coating Operations (amended 6/19/12) does not cover the coating of new heavier duty vehicles. The District's RACT SIP states it has a new heavier duty vehicle manufacturing facility whose permitted coating operation exceeds the applicability threshold for the 2008 CTG for Automobile and Light Duty Truck Assembly Coatings.
Rule 1171, Solvent Cleaning Operations (amended 11/17/98) needs to incorporate work practices from the 2006 CTG for Industrial Cleaning Solvents.
The 2015 TSD describes recommendations if additional emission reductions are needed for the next time the local agency modifies its rules. The 2006 and 2015 TSDs also recommend adopting additional negative declarations if the District concludes it has no sources covered by those CTG categories.
As authorized in sections 110(k)(3) and 301(a) of the Act, and explained more fully in our TSDs, the EPA proposes to partially approve and partially disapprove the 2006 and 2015 RACT SIP submittals. We will accept comments from the public on this proposal until January 17, 2017.
If finalized, this partial disapproval would trigger the 2-year clock for the federal implementation plan (FIP) requirement under section 110(c).
In addition, final disapproval would trigger sanctions under CAA section 179 and 40 CFR 52.31 unless the EPA approves subsequent SIP revisions that correct the RACT SIP deficiencies within 18 months of the effective date of the final action.
Additional information about these statutes and Executive Orders can be
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.
This action does not impose an information collection burden under the PRA because this action does not impose additional requirements beyond those imposed by state law.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities beyond those imposed by state law.
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, will result from this action.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications, as specified in Executive Order 13175, because the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, and will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not impose additional requirements beyond those imposed by state law.
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the NTTAA directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. The EPA believes that this action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with the CAA.
The EPA lacks the discretionary authority to address environmental justice in this rulemaking.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve State Implementation Plan (SIP) submissions from the Maine Department of Environmental Protection (ME DEP), the New Hampshire Department of Environmental Services (NH DES), the Rhode Island Department of Environmental Management (RI DEM) and the Vermont Department of Environmental Conservation (VT DEC). These SIP submissions address provisions of the Clean Air Act that require each state to submit a SIP to address emissions that may adversely affect another state's air quality through interstate transport. The EPA is proposing that all four States have adequate provisions to prohibit in-state emissions activities from significantly contributing to nonattainment, or interfering with the maintenance, of the 1997 ozone National Ambient Air Quality Standards (NAAQS) in other states, and that Rhode Island and Vermont have adequate provisions to prohibit in-state emissions activities from significantly contributing to nonattainment, or interfering with maintenance, of the 1997 fine particulate matter (PM
Comments must be received on or before January 17, 2017.
Submit your comments, identified by docket identification number EPA-R01-OAR-2016-0552, at
Publicly available docket materials are available either electronically in
Richard P. Burkhart, Air Quality Planning Unit, Air Programs Branch (Mail Code OEP05-02), U.S. Environmental Protection Agency, Region 1, 5 Post Office Square, Suite 100, Boston, Massachusetts, 02109-3912; (617) 918-1664;
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
Organization of this document. The following outline is provided to aid in locating information in this preamble.
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying information (subject heading,
2. Follow directions—EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
4. Describe any assumptions and provide any technical information and/or data that you used.
5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
6. Provide specific examples to illustrate your concerns, and suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline identified.
EPA is proposing to approve SIP submissions from the ME DEP, the NH DES, the RI DEM and the VT DEC. The SIPs were submitted on the following dates: April 24, 2008 (ME); March 11, 2008 (NH); April 30, 2008 and November 6, 2009 (RI); and April 15, 2009 and May 21, 2010 (VT). These SIP submissions address the requirements of Clean Air Act (CAA) section 110(a)(2)(D)(i)(I) for the 1997 ozone and 1997 PM
On July 18, 1997, EPA established a new 8-hour NAAQS for ozone of 0.08 parts per million (ppm) (62 FR 38856). On March 12, 2008, EPA published a revision to the 8-hour ozone standard, lowering the level from 0.08 ppm to 0.075 ppm. In addition, on July 18, 1997, EPA also revised the NAAQS for particulate matter to add new annual and 24-hour standards for fine particles, using PM
The CAA requires states to submit, within three years after promulgation of a new or revised standard, SIPs meeting the applicable “infrastructure” elements of sections 110(a)(1) and (2). One of these applicable infrastructure elements, CAA section 110(a)(2)(D)(i), requires SIPs to contain “good neighbor” provisions to prohibit certain adverse air quality effects on neighboring states due to interstate transport of pollution. There are four sub-elements, or “prongs,” within CAA section 110(a)(2)(D)(i). This action addresses the first two sub-elements of the good neighbor provisions, at CAA section 110(a)(2)(D)(i)(I), often referred to as “prong one” and “prong two.” These sub-elements require that each SIP for a new or revised standard contain adequate provisions to prohibit any source or other type of emissions activity within the state from emitting air pollutants that will “contribute significantly to nonattainment” (prong 1) or “interfere with maintenance” (prong 2) of the applicable air quality standard in any other state.
We note that the EPA has addressed the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for the eastern portion of the United States in several past regulatory actions.
In addition, EPA issued guidance on August 15, 2006, relating to SIP submissions to meet the requirements of section 110(a)(2)(D)(i).
CAIR was subject to litigation and ultimately remanded to the EPA by the D.C. Circuit.
CAIR was subsequently replaced by CSAPR. Although the states do not cite CSAPR or the CSAPR Update in their SIP submissions (as these SIP submissions pre-date CSAPR), the CSAPR modeling is helpful to EPA in our review in that it bolsters the case these four states have given EPA in their SIP submissions showing that they do not cause or contribute significantly to downwind nonattainment or maintenance for either the 1997 ozone or 1997 PM
In the CSAPR rulemaking, the EPA used detailed air quality analyses to first identify downwind nonattainment and maintenance receptors, and to then determine whether an eastern state's contribution to downwind air quality problems was at or above specific thresholds. If a state's contribution did not exceed the specified air quality screening threshold, the state was not considered “linked” to identified downwind nonattainment and maintenance receptors and was therefore not considered to significantly contribute to nonattainment, or interfere with maintenance, of the standard in those downwind areas. If a state exceeded that threshold, the state's emissions were further evaluated, taking into account both air quality and cost considerations, to determine what, if any, emissions reductions might be necessary.
In CSAPR, the EPA proposed an air quality screening threshold of one percent of the applicable NAAQS and requested comment on whether one percent was appropriate.
In the final CSAPR, the EPA determined that one percent was a reasonable choice considering the combined downwind impact of multiple upwind states in the eastern United States, the health effects of low levels of fine particulate matter and ozone pollution, and the EPA's previous use of a one-percent threshold in CAIR. The EPA used a single “bright line” air quality threshold equal to one percent of the 1997 8-hour ozone standard, or 0.08 ppm.
For purposes of the 1997 ozone NAAQS, each of the four states included in this proposed action (Maine, New Hampshire, Rhode Island, and Vermont) have contributions below this significance threshold finalized in CSAPR. Specifically, the CSAPR modeling indicates that Maine's ozone contribution to any projected downwind nonattainment site is 0.00 ppb (parts per billion) and Maine's largest contribution to any projected downwind maintenance-only site is 0.08 ppb. The CSAPR modeling indicates that New Hampshire's largest ozone contribution to any projected downwind nonattainment site is 0.02 ppb and New Hampshire's largest ozone contribution to any projected downwind maintenance-only site is 0.07 ppb. The CSAPR modeling indicates that Rhode Island's largest ozone contribution to any projected downwind nonattainment site is 0.02 ppb and Rhode Island's largest contribution to any projected downwind maintenance-only site is 0.08 ppb. The CSAPR modeling indicates that Vermont's largest ozone contribution to any projected downwind nonattainment site is 0.01 ppb and
For the 1997 PM
In summary, in CSAPR, the EPA used an air quality analysis to determine whether an eastern state's contribution to downwind air quality problems was at or above specific thresholds. If a state's contribution did not exceed the specified air quality screening threshold, the state was not considered “linked” to identified downwind nonattainment and maintenance receptors and was therefore, not considered to significantly contribute to nonattainment, or interfere with maintenance, of the standards in those downwind areas.
Based on the findings made in the CSAPR rulemaking, and the information and analysis provided in all four states' SIP submissions, we are proposing to approve the interstate transport SIPs submitted by Rhode Island on April 30, 2008 and Vermont on April 15, 2009 as meeting the CAA section 110(a)(2)(D)(i)(I) requirements for the 1997 ozone and the 1997 PM
EPA is proposing to approve the SIP revisions submitted by the states on the following dates as meeting the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for the 1997 ozone NAAQS: April 24, 2008 (Maine); March 11, 2008 (New Hampshire); April 30, 2008 (Rhode Island); and April 15, 2009 (Vermont). In addition, EPA is proposing to approve the SIP revisions submitted by the states on the following dates as meeting the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for the 1997 PM
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under
• 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 Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Fish and Wildlife Service, Interior.
Proposed rule and 12-month petition finding; request for comments.
Under the authority of the Endangered Species Act of 1973, as amended (Act), we, the U.S. Fish and Wildlife Service (Service), propose to remove the black-capped vireo (
We will accept comments received or postmarked on or before February 13, 2017. Please note that if you are using the Federal eRulemaking Portal (see
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
Debra Bills, Field Supervisor, U.S. Fish and Wildlife Service, Arlington Ecological Services Field Office, 2005 NE Green Oaks Blvd., Suite 140, Arlington, TX 76006; telephone 817-277-1100; or facsimile 817-277-1129. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.
We want any final rule resulting from this proposal to be as accurate and effective as possible. Therefore, we invite tribal and governmental agencies, the scientific community, industry, and other interested parties to submit comments or recommendations concerning any aspect of this proposed rule. Comments should be as specific as possible.
To issue a final rule to implement this proposed action, we will take into consideration all comments and any additional information we receive. Such communications may lead to a final rule that differs from this proposal. All comments, including commenters' names and addresses, if provided to us, will become part of the supporting record.
We are specifically requesting comments on:
(1) New information on the historical and current status, range, distribution, and population size of the black-capped vireo, including the locations of any additional populations.
(2) New information on the known and potential threats to the black-capped vireo.
(3) New information regarding the life history, ecology, and habitat use of the black-capped vireo.
Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act (16 U.S.C. 1531
You may submit your comments and materials concerning the proposed rule by one of the methods listed in
We will post your entire comment—including your personal identifying information—on
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
Section 4(b)(5)(E) of the Act provides for one or more public hearings on this proposed rule, if requested. We must receive requests for public hearings, in writing, at the address shown in
In accordance with our policy, “Notice of Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities,” which was published on July 1, 1994 (59 FR 34270), we solicited the expert opinion of at least three appropriate independent specialists regarding scientific data and interpretations contained in the Species Status Assessment Report (SSA report) (Service 2016; available at
Section 4(b)(3)(B) of the Act requires that, for any petition to revise the Federal Lists of Endangered and Threatened Wildlife and Plants that contains substantial scientific or commercial information that reclassifying a species may be warranted, we make a finding within 12 months of the date of receipt of the petition (“12-month Finding). In this finding, we determine whether the petitioned action is: (1) Not warranted, (2) warranted, or (3) warranted, but immediate proposal of a regulation implementing the petitioned action is precluded by other pending proposals to determine whether species are endangered or threatened, and expeditious progress is being made to add or remove qualified species from the Federal Lists of Endangered and Threatened Wildlife and Plants. We must publish these 12-month findings in the
• Our 12-month warranted finding on a July 16, 2012, petition to reclassify the black-capped vireo from endangered to threatened (“downlist”);
• Our determination that the black-capped vireo no longer meets the definition of endangered or threatened under the Act; and
• Our proposed rule to remove the black-capped vireo from the Federal List of Endangered and Threatened Wildlife (“delist”) due to recovery.
The black-capped vireo was determined to be a candidate for listing under the Act on December 30, 1982 (47 FR 58454). On October 6, 1987, the species was listed as endangered, due to various threats including nest parasitism by brown-headed cowbirds and loss of habitat from urbanization, grazing, removal of vegetation for range improvement, and succession (52 FR 37420). Succession is a natural process of change in vegetation over time and black capped vireo habitat is lost when there are fewer wildfires maintaining the vegetation in an early successional stage. Critical habitat was not designated because there was no demonstrable benefit from the potential designation of critical habitat to the vireo and such designation was not considered prudent because additional harassment potentially affecting reproductive success could occur if critical habitat was designated (52 FR 37420). In addition, the habitat of the black-capped vireo occurs in scattered, small patches and occupied habitat would vary over time due to succession of vegetation, and would therefore be difficult to delineate and provide no benefit to recovery (52 FR 37420). A status review (“5-year review”) under section 4(c)(2)(A) of the Act was completed for the species on July 26, 2007. The 5-year review recommended that the species be reclassified (“downlisted”) from endangered to threatened given the increased numbers of known individuals and populations, the reduction in the magnitude of the threats since the time of listing, and the effects of conservation measures on the major threats to the species (USFWS 2007). On July 16, 2012, we received a petition dated July 11, 2012, from The Pacific Legal Foundation, Jim Chilton, the New Mexico Cattle Growers' Association, New Mexico Farm & Livestock Bureau, New Mexico Federal Lands Council, and Texas Farm Bureau requesting that the black-capped vireo be reclassified as threatened based on the analysis and recommendation contained in the 5-year review. The Service published a 90-day finding on September 9, 2013 (78 FR 55046) stating that the petition contained substantial scientific or commercial information indicating that the petitioned action may be warranted. On November 20, 2015, the Service received a complaint (New Mexico Cattle Growers' Association et al. v. United States Department of the Interior et al., No. 1:15-cv-01065-PJK-LF (D. N.M.)) for declaratory judgment and injunctive relief from the New Mexico Cattle Growers' Association, Jim Chilton, New Mexico Farm & Livestock Bureau, New Mexico Federal Lands Council, and Texas Farm Bureau to, among other things, compel the Service to make a 12-month finding on the species.
A thorough review of the taxonomy, life history, ecology, and overall
The black-capped vireo is a migratory songbird that breeds and nests in south central Oklahoma, Texas, and the northern states of Mexico (Coahuila, Nuevo León, Tamaulipas), and winters along Mexico's western coastal states. In general, black-capped vireo breeding habitat is categorized as shrublands and open woodlands.
The resource needs of the black-capped vireo are described not only for individuals and populations, but also for the species rangewide in the SSA report. Life-history needs are generally categorized as breeding, feeding and sheltering; for migratory species this may also include habitat for migration and wintering. Individual black-capped vireos need a suitable breeding habitat patch of at least 1.5 hectares (ha) (3.7 acres (ac)) of shrublands with between 35 and 55 percent shrub cover that consists largely of deciduous shrubs, often oaks in mesic areas, and with a low proportion of junipers. Within breeding habitat patches, shrubs mottes (groups of shrubs) with deciduous foliage from ground level to 3 meters (0 to 9.8 feet) in height are needed for nest concealment and foraging.
Populations of black-capped vireos are described based on the number of adult males the breeding habitat can support. Those sites (defined as geographical areas with suitable breeding habitat) capable of supporting at least 30 adult males are considered “manageable populations.” Those sites with suitable breeding habitat capable of supporting 100 or more adult males are considered “likely resilient populations,” that have the ability to withstand disturbances of varying magnitude and duration. Brown-headed cowbird (
Information on use of habitat during migration is sparse. In general, black-capped vireos require airspace for movement and woody vegetation for stopovers extending from the northernmost portion of the breeding grounds to the extent of the known wintering grounds.
The winter range of the black-capped vireo occurs entirely on the slopes of Mexico's Pacific coast. Arid and semi-arid scrub and secondary growth habitat, generally 0.6 to 3.0 m (2 to 10 ft) in height, is needed for feeding and sheltering.
Across its range, the black-capped vireo needs suitable breeding habitat to support manageable and likely resilient populations that are geographically distributed to allow gene flow and dispersal; low brown-headed cowbird parasitism rates to allow sufficient productivity; sufficient airspace and stopover sites (=areas) for migration; and wintering areas of arid and semi-arid scrub and secondary growth habitat along the Pacific slopes of western Mexico. During the breeding season, habitat requirements appear to be more specialized than during wintering and migration. Given the potential for black-capped vireos to use a wide range of habitat types during migration and wintering, much of the subsequent analysis is focused on breeding habitat.
There are no available rangewide population estimates of breeding black-capped vireos. However, reported occurrences (sightings) of black-capped vireos are available for comparing abundance and distribution across timeframes (but see section 4.1, “Assumptions,” in the SSA report; Service 2016 regarding inherent differences in survey effort and the differences between reported occurrences and population estimates). At the time of listing in 1987, there were approximately 350 reported black-capped vireo occurrences. From 2009 to 2014 there were 5,244 adult males reported, a 17.5 percent increase from data used for the last review period (2000 to 2005).
At the time of listing in 1987, approximately 350 individual birds were known from 4 Oklahoma counties, 21 Texas counties and 1 Mexican state. The consistency of survey effort has varied throughout the years; however, it represents the best information available to evaluate abundance and distribution rangewide. The known breeding distribution now occurs in 5 Oklahoma counties, 40 Texas counties, and 3 states in Mexico.
Information from 2009 to 2014 indicates there are 14 known populations with 100 males or more (defined as a likely resilient population) throughout the breeding range, 9 of which occur on managed lands (under Federal, State, or municipal ownership, or under conservation easement) in the United States. An additional 20 manageable populations (30 or more adult males, but fewer than 100), 10 of which occur on managed lands, are distributed throughout the range in the United States.
Information gathered from annual black-capped vireo monitoring at four publically-managed areas containing the largest known black-capped vireo populations represents some of the best data available on the species' population trends. These four regularly surveyed areas (Fort Hood Military Installation, Fort Sill Military Installation, Kerr Wildlife Management Area, and Wichita Mountains Wildlife Refuge) show stable or increasing population estimates since 2005. Data reported from 2000 to 2005 indicate these populations represented 64 percent of the known population. From 2009 to 2014 these four major populations accounted for 40 percent of the known rangewide breeding population, which occurs on approximately 27,930 ha (69,000 ac) of habitat. The difference in percentage suggests the black-capped vireo's distribution is more diverse and occurs more on private lands than known from the previous timeframe (2000-2005), indicating that additional unknown populations likely exist on private lands throughout the breeding range. The largest increase in known abundance is an additional large population documented in Val Verde County, Texas. Together, these five large populations were estimated to consist of 14,418 adult males in 2013-14.
The levels of gene flow between extant populations indicate adequate genetic diversity (Vazquez-Miranda et al. 2015, p. 9; Zink et al. 2010, entire) despite some variation in studies with respect to genetic diversity, gene flow, and population structuring (
Little is known about the habits of black-capped vireos during migration; however, most evidence suggests that there is a southerly, central Mexican migratory route following the Sierra Madre Oriental (Marshall et al. 1985, p. 4; Farquhar and Gonzalez 2005, entire).
Birds banded on the breeding grounds that return in following years suggest adequate availability of resources during wintering and migration. Survival rates (estimated from return rates) for black-capped vireos at Fort Hood are comparable to the rates of other passerines (Ricklefs 1973; Martin 1995; Kostecke and Cimprich 2008, p. 254).
Information on migration and wintering of black-capped vireos in Mexico is limited to a few studies that document the extent of the wintering range and estimate habitat areas. Winter habitat utilized is more general and diverse than that of the breeding grounds. While specific requirements of winter habitat are unknown, tropical dry forests (areas where arid and semi-arid winter habitats occur) exist in areas normally inaccessible to development. Habitat modelling has suggested wintering areas in Mexico occur across 103,000 to 141,000 square kilometers (km
The U.S. portion of the black-capped vireo's range is comprised of a diversity of landownerships, from private lands to several forms of public ownership. Various conservation actions and programs have been developed and implemented in an effort to recover the species. These conservation actions implemented on publically-managed and private lands throughout the species' current range have reversed black-capped vireo declines within several populations. Ongoing active management on publically-managed lands and those under conservation easements has resulted in 40 managed populations in Oklahoma and Texas, varying in size from a single adult male to an estimated 7,478 adult males. Of these, 9 are considered likely resilient populations and another 10 are considered manageable populations. Although information on breeding vireos in Mexico is limited, the vireo is afforded protected status (SEMARNAT 2015, p. 79), known threats appear to be of less magnitude than those in the United States, and densities of known populations have been documented up to six times as high as populations in the United States (Farquhar and Gonzalez 2005, p. 25; Wilkins et al. 2006, p. 28).
The contribution of prescribed fire and wildfire to the development of suitable breeding habitats in Oklahoma and the eastern portion of the species' Texas range is well documented (USFWS 1991, p. 22; Campbell 1995, p. 29; Grzybowski 1995, p. 5), although in the western portion of the species' breeding range in Texas and in Mexico, fire is not as essential in maintaining habitat suitability. The use of prescribed fire as a habitat management tool is increasing or remains constant across most of the United States (Melvin 2015, p. 10). More than 3,156 ha (7,800 ac) in Oklahoma and more than 48,562 ha (120,000 ac) in Texas have been burned annually (2004-2014) with prescribed fire, and much additional acreage is burned by unplanned wildfire (Oklahoma's annual average is approximately 63,940 ha (158,000 ac); Texas' annual average is approximately 322,939 ha (798,000 ac)) (NIFC 2014). Although the majority of these burns were on Federal lands outside of the black-capped vireo's range, there has been an overall increase in the use of prescribed fire as a cost effective tool for range and wildlife management.
Reduction of brood parasitism by brown-headed cowbirds through management programs increases black-capped vireo breeding success (Eckrich et al. 1999, pp. 153-154; Kostecke et al. 2005, p. 57; Wilkins et al. 2006, p. 84; Campomizzi et al. 2013, pp. 714-715). Brown-headed cowbird parasitism rates below 40 percent are vital to sustaining and expanding black-capped vireo populations. The continuation of brown-headed cowbird trapping on Federal and private properties and expansion of this practice to other properties would help reduce parasitism rates and improve black-capped vireo breeding success. In an effort to manage the brown-headed cowbird populations in Texas, the Texas Parks and Wildlife Department has implemented a cowbird trapping program, which provided participating landowners a training and certification process.
Section 10 of the Act provides a regulatory mechanism to permit the incidental take of federally-listed fish and wildlife species by private interests and non-Federal government agencies during otherwise lawful activities. Take, as defined by the Act, means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Incidental take is defined by the Act as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. Section 10(a)(2)(A) of the Act requires an applicant for an incidental take permit to submit a “conservation plan” that specifies, among other things, the impacts that are likely to result from the taking and the measures the permit applicant will undertake to minimize and mitigate such impacts. Conservation plans under the Act have come to be known as “habitat conservation plans” (HCPs). There have been eight approved HCPs addressing the “incidental take” of black-capped vireos for project-related impacts during the 29 years the species has been listed, all of which are in Texas. In total, approximately 7,843.2 ha (19,381 ac) of black-capped vireo habitat may be impacted, either directly or indirectly, resulting from activities authorized through HCPs. To mitigate black-capped vireo habitat loss, the permittees must preserve and provide funding for approximately 8,239.4 ha (20,360 ac) of habitat restoration and management for off-site black-capped vireo habitats as conservation actions under these HCPs.
Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of endangered and threatened species unless we determine that such a plan will not promote the conservation of the species. Recovery plans identify site-specific management actions that will achieve recovery of the species and objective, measurable criteria that set a trigger for review of the species' status. Methods for monitoring recovery progress may also be included in recovery plans.
Recovery plans are not regulatory documents; instead they are intended to establish goals for long-term conservation of listed species and define criteria that are designed to indicate when the threats facing a species have been removed or reduced to such an extent that the species may no longer
The black-capped vireo recovery plan was approved by the Service on September 30, 1991 (USFWS 1991). The prospect of complete recovery of the species was indeterminable at that time, and therefore, an interim objective of reclassification from endangered to threatened status was used to develop recovery criteria (USFWS 1991, p. 36). The recovery plan includes the following reclassification criteria:
(1) All existing populations are protected and maintained.
(2) At least one viable breeding population exists in each of the following six locations: Oklahoma, Mexico, and four of six Texas regions.
(3) Sufficient and sustainable area and habitat on the winter range exist to support the breeding populations outlined in (1) and (2).
(4) All of the above have been maintained for at least 5 consecutive years and available data indicate that they will continue to be maintained.
When the recovery plan was approved in 1991, a viable population was estimated, using population viability analysis, to be at least 500 pairs of breeding black-capped vireos. The recovery plan was intended to protect and enhance the populations known at that time, while evaluating the possibility of recovery and developing the necessary delisting criteria if recovery is found to be feasible. The rangewide population was unknown, but the Oklahoma population was thought to be fewer than 300 individual birds. During the 2007 5-year review of the status of the species, it was determined that the 1991 recovery plan was outdated and did not reflect the best available information on the biology of the species and its needs (USFWS 2007, p. 5). Therefore, rather than use the existing outdated recovery criteria, the Service assessed the species' viability, as summarized in the SSA report (Service 2016; available at
Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for listing species, reclassifying species, or removing species from listed status. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. A species may be reclassified or delisted on the same basis. Consideration of these factors was incorporated in the SSA report (Service 2016; available at
When the black-capped vireo was listed in 1987, the known threats influencing its status were the loss of suitable breeding habitat (Factor A) and parasitism by brown-headed cowbirds (Factor E). These continue to be the primary factors affecting the species' viability. The loss of breeding habitat in the United States has been linked to changes in vegetation due to fire suppression (vegetational succession), grazing and browsing from livestock and native and nonnative ungulates, and the conversion of breeding habitat to other land uses. In addition, we considered the effects of climate change on available breeding and wintering habitat and other potential habitat impacts in the winter range in order to assess the status of the species throughout its range.
Black-capped vireo breeding habitat most likely occurs on lands categorized in agricultural census data by landowners as “rangeland.” Therefore, trends in lands categorized as rangeland is a useful indirect measure for estimating the effects of land use changes on the black-capped vireo. There has been a general increasing trend since 1987 for occurrence of rangeland within the black-capped vireo's U.S. breeding range, based on available Agricultural Census data. That is, there has been an increase in the amount of lands reported as rangeland. Since 2002, Oklahoma has reported a 36 percent increase and Texas has reported a 4.4 percent increase in rangeland (USDA 2002a, 2002b, 2012a, and 2012b).
The prevalence of goats in Texas was specifically considered a threat to the black-capped vireo in 1987. Goat browsing can eliminate shrub foliage necessary for black-capped vireo nest concealment. Since that time, sheep and goats within the U.S. range of the vireo have dramatically decreased, largely attributed to the repeal of the National Wool Act of 1954 (7 U.S.C. 1781
Cattle, white-tailed deer, and nonnative ungulates are also known to impact black-capped vireo habitat by browsing and eliminating shrub foliage necessary for nest concealment; however, this impact is to a lesser extent than the impacts of goats (Graber 1961, p. 316; Shaw et al. 1989, p. 29; Guilfoyle 2002, p. 8; Wilkins et al. 2006, pp. 52-54). Cattle numbers reported by county have also decreased across the black-capped vireo's range from 1987 to 2012 by 37.2 percent (USDC 1987a, 1987b; USDA 2012a, 2012b). While livestock numbers have decreased, rangeland acres have increased. Wilcox et al. (2012) attribute this apparent discrepancy to reductions in stocking density. This overall decline in livestock density has been driven by changing land ownership and the increasing importance of wildlife conservation (Wilcox et al. 2012). White-tailed deer densities in the species' range in Texas have increased by 18.3 percent from 2005 to 2014 (TPWD 2015, p. 27), leading to increased deer browsing, but this increase is considerably less than the decreases in goats and cattle. In Mexico, a primary economic activity is livestock ranching within the breeding range (Morrison et al. 2014, p. 37), although trend data are not available. In some areas of Mexico, livestock appears to be at low densities (small scale) (Morrison et al. 2014, p. 37) and may be separated from breeding vireos by elevation and, therefore, may not be in direct contact with habitat (Farquhar and Gonzalez 2005, p. 30).
Vegetational succession, or the change in species composition over time, continues to affect the black-capped
Overall, the reduction in numbers of goats and cattle compensates for any increase in deer browsing and contributes to a net increase in available breeding habitat. Likewise, the increasing amounts of rangelands also contribute to increased available breeding habitat. In the eastern portion of the range, breeding habitat is considered early successional habitat and associated with disturbance such as fire. Because land managers in the eastern portion of the range are increasingly using fire as a management tool, available breeding habitat has likely increased in this portion of the range. In the western portion of the range, such disturbance is not necessary to maintain suitable habitat and much of the area is currently considered suitable breeding habitat.
Black-capped vireos are more general in habitat selection for wintering, and can use scrub, disturbed habitats, secondary growth habitats, and tropical dry forests as well as shrubs. Although threats to the species on its wintering grounds were not identified at the time of listing or during the 2007 5-year review, they were considered as part of the species status assessment process to determine whether winter habitat availability could be a limiting factor. Dry forests in Mexico are a conservation concern (Miles et al. 2006, p. 502) and have historically been modified for agricultural and other purposes (Powell 2013, p. 100). The majority of impacts to tropical dry forests (greater than 55 percent) occurred prior to the listing of the black-capped vireo (Powell 2013, pp. 101-102). Habitat loss still occurs (Powell 2013, pp. 101-102), but the extent of habitat specifically important to wintering vireos is unknown, but likely diverse, considering the variety of habitats used. Habitat models have suggested the winter range may be as large as 141,000 km
Brown-headed cowbirds are brood parasites; females remove an egg from a host species nest, lay their own egg to be raised by the adult hosts, and the result usually causes the death of the remaining host nestlings (Rothstein 2004, p. 375). Brood parasitism by brown-headed cowbirds has been documented to affect more than 90 percent of black-capped vireo nests in some Texas study areas (Grzybowski 1991, p. 4). Control of cowbirds through trapping has been shown to significantly reduce parasitism and increase population productivity of vireos (Eckrich et al. 1999, pp. 153-154; Kostecke et al. 2005, p. 28). An evaluation of Breeding Bird Survey data shows brown-headed cowbird detections have been decreasing in Texas and Oklahoma since 1967, specifically in ecoregions where black-capped vireos are known to occur (Sauer et al. 2014, entire).
Furthermore, available data suggests geographic differences in the impact cowbirds have on breeding vireos. Cowbird abundance and parasitism appears to be less prevalent on the western portion of the black-capped vireo's range and in Mexico (Bryan and Stuart 1990, p. 5; Farquhar and Maresh 1996, p. 2; Farquhar and Gonzalez 2005, p. 30; Smith et al. 2012, p. 281; Morrison et al. 2014, p. 18).
Although cowbird abundance appears to be declining and the effects of parasitism are reduced in portions of the vireo's range, cowbird control continues to be necessary to maintain the current number of black-capped vireo populations and individuals in the eastern portion of the range in Texas and in Oklahoma.
The effects of climate change are a concern in ecosystems that are sensitive to warming temperatures and decreased precipitation, such as arid and semi-arid habitats where the black-capped vireo resides. In Texas, climate change models generally predict a three to four degree Fahrenheit (1.6 to 2.2 °C) increase in temperature between 2010 and 2050 (Nielsen-Gammon 2011, p. 2.23; Banner et al. 2010, p. 8, Alder and Hostetler 2013, entire). Predictions on precipitation trends over Texas are not as clear (Nielsen-Gammon 2011, p. 2.28), but the models tend to suggest that Texas weather will become drier (Banner et al. 2010, p. 8, Alder and Hostetler 2013, entire).
Although the impact from the effects of climate change on shrubland habitat required by the black-capped vireo for breeding is uncertain, shrub encroachment into grasslands in North America, primarily due to fire suppression and livestock grazing, is well documented (Van Auken 2000, entire; Briggs et al. 2005, entire; Knapp et al. 2007, p. 616). Projected warming temperatures and dry conditions will likely influence future shrubland dominance (Van Auken 2000, p. 206). Evidence suggests that within the far west portion of the black-capped vireo's range, the effects of climate change and fire suppression would result in a shrubland-dominated landscape (White et al. 2011, p. 541). In this scenario, the availability of shrub habitat would be the least affected, and potentially more prevalent on the landscape which may increase the available amount of suitable breeding habitat.
We evaluated overall viability of the black-capped vireo in the SSA report (Service 2016; available at
In the SSA report, we forecast the persistence of known populations of black-capped vireos over the next 50 years. We chose 50 years to reflect specific climate change models that are relevant to the black-capped vireo and its habitat. The 50 year timeframe also reflects our ability to project land management decisions. We developed multiple future conditions scenarios for the known manageable and likely resilient populations based on both continued management (
We evaluated several studies with respect to representation in the black-capped vireo, mostly involving genetic diversity. Although there is discrepancy between studies, there is evidence that adequate gene flow for healthy genetic diversity exists across known breeding populations. Additionally, there is a diversity of habitat types utilized within both the breeding and wintering ranges. For these reasons, the black-capped vireo appears to have adequate representation both genetically and ecologically to allow for adaptability to environmental changes.
Resiliency, in terms of habitat capable of supporting greater than 100 adult males, for the eastern portion of the black-capped vireo's breeding range is dependent on vegetation and cowbird management. In the western portion of the range, populations are more resilient, because management is not required to maintain suitable breeding habitat and threats related to cowbirds are less severe. Since 2005, resiliency has increased in regularly monitored populations and under future scenarios the number of likely resilient populations either increases or remains close to current levels (Service 2016), therefore, we expect that trend in increasing resiliency to continue into the future.
Currently, we consider the black-capped vireo to be a conservation-reliant species meaning it is likely that conservation actions, in the form of habitat and cowbird management, are needed for persistence of breeding populations in a portion of its range. This is because many populations require management activities, especially in the eastern portion of the breeding range, to persist. In considering its management needs, the forecast of future conditions includes scenarios based on the needs of the species, stressors, identification of additional populations, and restoration efforts. Our forecasts that produce stable or increasing resiliency and redundancy reflect the differences in the current conditions of the species compared to the status assessment that was conducted 30 years ago, which led to the species' listing in 1987.
We consider active management of threats, where necessary, to be essential to the persistence of the species, as evidenced by the historical increases in the known population and distribution. Prescribed fire as a management tool is a cost effective way to restore prairies and shrublands, reduce impacts of invasive juniper, and often used to benefit game species (
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the black-capped vireo. Our analysis indicates the known threats at the time of listing, habitat loss (Factor A) through land use changes, livestock grazing, and vegetation succession, and brown-headed cowbird parasitism (Factor E), are reduced or adequately managed. Regardless of the listing status of the black-capped vireo, we expect prescribed fire and other management actions to continue in the eastern portion of the range because they represent actions that are necessary for landscape and rangeland management and are aligned with the conservation mission of many landowners where large populations of black-capped vireos currently exist (Factor D). Additionally, no new threats have been identified (Factors B and C). We find that the species has recovered so that it no longer meets the definition of endangered or threatened under the Act.
Since the black-capped vireo was listed, its known abundance and distribution have increased. Currently, we know of 20 manageable and 14 likely resilient populations (as those terms are defined in the SSA report) across the species' breeding range. We assessed the likelihood of persistence of these populations over the next 50 years. In the worst case scenario, the black-capped vireo would be expected to diminish, but still remain above the level reported from 2000 to 2005. The black-capped vireo appears to have adequate redundancy, representation, and resiliency to persist over the next 50 years.
The primary threats to the species continue to be habitat loss through land use conversion and vegetational succession, and brown-headed cowbird parasitism, although most threats have decreased in magnitude or are adequately managed, particularly through the use of prescribed fire for various habitat restoration purposes not directly related to black-capped vireo management. Nevertheless, under current management, these threats are mitigated such that vireo numbers are robust and increasing. The wintering area for the black-capped vireo occurs entirely in Mexico, but many of the existing habitat areas are buffered from degradation due to limited accessibility and rugged terrain, so we do not anticipate significant reductions in habitat quality or quantity even without specific management assurances.
Based on the analysis in the SSA report (Service 2016; available at
Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so throughout all or a significant portion of its range. Having determined that the black-capped vireo is not endangered or threatened throughout all of its range, we next consider whether there are any significant portions of its range in which the black-capped vireo is in danger of extinction or likely to become so. We published a final policy interpreting the phrase “significant portion of its range” (SPR) (79 FR 37578; July 1, 2014). The final policy states that: (1) If a species is found to be endangered or threatened throughout a significant portion of its range, the entire species is listed as endangered or threatened, respectively, and the Act's protections apply to all individuals of the species wherever found; (2) a portion of the range of a species is “significant” if the species is not currently endangered or threatened throughout all of its range, but the portion's' contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range; (3) the range of a species is considered to be the general geographical area within which that species can be found at the time the Service makes any particular status determination; and (4) if a vertebrate species is endangered or threatened throughout a significant portion of its range, and the population in that significant portion is a valid distinct population segment (DPS), we will list the DPS rather than the entire taxonomic species or subspecies.
The procedure for analyzing whether any portion is an SPR is similar, regardless of the type of status determination we are making. The first step in our analysis of the status of a species is to determine its status throughout all of its range. If we determine that the species is in danger of extinction, or likely to become endangered in the foreseeable future, throughout all of its range, we list the species as an endangered species or threatened species, and no SPR analysis will be required. If the species is neither in danger of extinction, nor likely to become so throughout all of its range, as we have found here, we next determine whether the species is in danger of extinction or likely to become so throughout a significant portion of its range. If it is, we will continue to list the species as an endangered species or threatened species, respectively; if it is not, we conclude that listing the species is no longer warranted.
When we conduct an SPR analysis, we first identify any portions of the species' range that warrant further consideration. The range of a species can theoretically be divided into portions in an infinite number of ways. However, there is no purpose in analyzing portions of the range that have no reasonable potential to be significant or in analyzing portions of the range in which there is no reasonable potential for the species to be endangered or threatened. To identify only those portions that warrant further consideration, we determine whether substantial information indicates that: (1) The portions may be “significant”; and (2) the species may be in danger of extinction there or likely to become so within the foreseeable future. Depending on the biology of the species, its range, and the threats it faces, it might be more efficient for us to address the significance question first or the status question first. Thus, if we determine that a portion of the range is not “significant,” we do not need to determine whether the species is endangered or threatened there; if we determine that the species is not endangered or threatened in a portion of its range, we do not need to determine if that portion is “significant.” In practice, a key part of the determination that a species is in danger of extinction in a significant portion of its range is whether the threats are geographically concentrated in some way. If the threats to the species are affecting it uniformly throughout its range, no portion is likely to have a greater risk of extinction, and thus would not warrant further consideration. Moreover, if any concentration of threats apply only to portions of the range that clearly do not meet the biologically based definition of “significant” (
We identified portions of the black-capped vireo's range that may be significant, and examined whether any threats are geographically concentrated in some way that would indicate that those portions of the range may be in danger of extinction, or likely to become so in the foreseeable future. Within the breeding range, distinctions can be made between Mexico, Texas, and Oklahoma, based on vegetation types and, in Mexico, based on observed higher densities of birds. Additionally, a distinction could be made between the eastern and western portion of the breeding range, based on the importance of the threats of cowbird parasitism and vegetational succession (both more impactful in the eastern range). As noted above, observed trends in these threats have been reduced or are adequately managed. While these geographic distinctions may be significant, information and analysis indicates that the species is unlikely to be in danger of extinction or to become so in the foreseeable future in these portions, given that the increases in reported rangeland statistics, decreases in cattle and goats, and ongoing management of cowbirds have occurred across the range, including within the eastern portion of the range. Therefore, these portions do not warrant further consideration to determine whether they are a significant portion of its range.
We also evaluated representation across the black-capped vireo's range to determine if certain areas were in danger of extinction, or likely to become so, due to isolation from the larger range. Several studies have addressed genetic diversity of the black-capped vireo, particularly due to its fairly restricted breeding range both historically and currently, and due to the ephemeral nature of its habitat in portions of its range and its patchy distribution in the breeding range. Evidence exists that population differentiation has occurred over the black-capped vireo's breeding range due to limited gene flow between breeding populations (Barr et al. 2008, entire). However, other studies have shown no differentiation of populations and that adequate gene flow exists (Vazquez-Miranda et al. 2015, p. 9; Zink et al. 2010, entire). Adult black-capped vireos show strong site fidelity to territories between breeding seasons, especially in larger populations (USFWS 1991, p. 19). Gene flow between populations is largely dependent on the proximity of populations, in order to facilitate dispersal of breeding birds. Dispersal distances for adults is generally 0.14 to 0.41 kilometers (km) (0.09 to 0.25 miles (mi)) (DeBoer and Kolozar 2001, entire); however, long dispersal distances have been recorded up to 12.8 km (8 mi) (USFWS 1991, p. 19). Natal dispersal, the movement from hatch site to breeding site, is known to be much greater, generally from 21 to 30 km (13 to 19 mi) (Grzybowski 1995, p. 18; Cimprich et al. 2009, p. 46). The longest
Our analysis indicates that there is no significant geographic portion of the range that is in danger of extinction or likely to become so in the foreseeable future. Therefore, based on the best scientific and commercial data available, no portion warrants further consideration to determine whether the species may be endangered or threatened in a significant portion of its range.
We have determined that none of the existing or potential stressors cause the black-capped vireo to be in danger of extinction throughout all or a significant portion of its range, nor is the species likely to become endangered within the foreseeable future throughout all or a significant portion of its range. We may delist a species according to 50 CFR 424.11(d) if the best available scientific and commercial data indicate that: (1) The species is extinct; (2) the species has recovered and is no longer endangered or threatened; or (3) the original scientific data used at the time the species was classified were in error. On the basis of our evaluation, we conclude that, due to recovery, the black-capped vireo is not an endangered or threatened species. We therefore propose to remove the black-capped vireo from the Federal List of Endangered and Threatened Wildlife at 50 CFR 17.11(h).
This proposal, if made final, would revise 50 CFR 17.11(h) to remove the black-capped vireo from the Federal List of Endangered and Threatened Wildlife. The prohibitions and conservation measures provided by the Act, particularly through sections 7 and 9, would no longer apply to this species. Federal agencies would no longer be required to consult with the Service under section 7 of the Act in the event that activities they authorize, fund, or carry out may affect the black-capped vireo. There is no critical habitat designated for this species; therefore, this proposed rule would not affect 50 CFR 17.95.
Removal of the black-capped vireo from the List of Endangered and Threatened Wildlife would not affect the protection given to all migratory bird species under the Migratory Bird Treaty Act (MBTA) of 1918 (16 U.S.C. 703-712). The take of all migratory birds, including the black-capped vireo, is governed by the MBTA. The MBTA makes it unlawful, at any time and by any means or in any manner, to pursue, hunt, take, capture, attempt to take or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or eggs of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof (16 U.S.C. 703(a)). The MBTA regulates the taking of migratory birds for educational, scientific, and recreational purposes. Section 704 of the MBTA states that the Secretary of the Interior (Secretary) is authorized and directed to determine when, and to what extent, if at all, and by what means, the take of migratory birds should be allowed, and to adopt suitable regulations permitting and governing the take. In adopting regulations, the Secretary is to consider such factors as distribution and abundance to ensure that any take is compatible with the protection of the species. Modification to black-capped vireo habitat would constitute a violation of the MBTA only to the extent it directly takes or kills a black-capped vireo (such as removing a nest with chicks present).
Section 4(g)(1) of the Act requires us, in cooperation with the States, to implement a monitoring program for not less than 5 years for all species that have been recovered and delisted. The purpose of this requirement is to develop a program that detects the failure of any delisted species to sustain itself without the protective measures provided by the Act. If, at any time during the monitoring period, data indicate that protective status under the Act should be reinstated, we can initiate listing procedures, including, if appropriate, emergency listing.
We will coordinate with other Federal agencies, State resource agencies, interested scientific organizations, and others as appropriate to develop and implement an effective post-delisting monitoring (PDM) plan for the black-capped vireo. We plan to publish a notice of availability of a draft PDM plan by June 30, 2017 and include the final PDM plan should this proposed delisting be finalized. The PDM plan will build upon current research and effective management practices that have improved the status of the species since listing. Ensuring continued implementation of proven management strategies, such as prescribed fire and cowbird control, that have been developed to sustain extant populations will be a fundamental goal for the PDM plan. The PDM plan will identify measurable management thresholds and responses for detecting and reacting to significant changes in the black-capped vireo's populations, distribution, and persistence. If declines are detected equaling or exceeding these thresholds, the Service, in combination with other PDM participants, will investigate causes of these declines, including considerations of habitat changes, substantial human persecution, stochastic events, or any other significant evidence. The investigation will be to determine if the black-capped vireo warrants expanded monitoring, additional research, additional habitat protection, or resumption of Federal protection under the Act.
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in
We have determined that environmental assessments and environmental impact statements, as
A complete list of all references cited in this proposed rule is available at
The primary authors of this proposed rule are staff members of the Service's Arlington, Texas, Ecological Services Field Office (see
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by January 17, 2017 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725—17th Street, NW., Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Animal and Plant Health Inspection Service, USDA.
Notice of intent.
We are giving notice that the Secretary of Agriculture intends to reestablish the General Conference Committee of the National Poultry Improvement Plan (Committee) for a 2-year period. The Secretary of Agriculture has determined that the Committee is necessary and in the public interest.
Dr. Denise L. Brinson, Senior Coordinator, National Poultry Improvement Plan, VS, APHIS, USDA, 1506 Klondike Road, Suite 101, Conyers, GA 30094; (770) 922-3496.
The purpose of the General Conference Committee of the National Poultry Improvement Plan (Committee) is to maintain and ensure industry involvement in Federal administration of matters pertaining to poultry health.
The Committee Chairperson and the Vice Chairperson shall be elected by the Committee from among its members. There are seven members on the Committee. The poultry industry elects the members of the Committee. The members represent six geographic areas with one member-at-large.
Forest Service, USDA.
Notice of meeting.
The Eastern Washington Cascades Provincial Advisory Committee (PAC) will meet in Wenatchee, Washington. The committee is authorized pursuant to the implementation of E-19 of the Record of Decision and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to provide advice and make recommendations to promote a better integration of forest management activities between Federal and non-Federal entities to ensure that such activities are complementary. PAC information can be found at the following Web site:
The meeting will be held on Wednesday, January 25, 2017, from 9:00 a.m. to 3:00 p.m.
All PAC meetings are subject to cancellation. For status of the meeting prior to attendance, please contact the person listed under
The meeting will be held at the Okanogan-Wenatchee National Forest (NF) Headquarters Office, 215 Melody Lane, Wenatchee, Washington.
Written comments may be submitted as described under
Robin DeMario, PAC Coordinator by phone at 509-664-9292, 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 update members on the:
1. Sustainable recreation strategy and how it ties in to district recreation planning and the Travel Management Plan;
2. Forest Plan Revision Science Synthesis;
3. Strategic prioritization of landscape restoration work on the forest; and
4. Collaborative Forest Landscape Restoration.
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 January 16, 2017, 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 Robin DeMario, PAC Coordinator, 215 Melody Lane, Wenatchee, Washington 98801; or by email to
Economic Development Administration, Department of Commerce.
Notice and opportunity for public comment.
Pursuant to Section 251 of the Trade Act 1974, as amended (19 U.S.C. 2341
Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance for Firms Division, Room 71030, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice.
Please follow the requirements set forth in EDA's regulations at 13 CFR 315.9 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms.
Economic Development Administration, Department of Commerce.
Notice and opportunity for public comment.
Pursuant to Section 251 of the Trade Act 1974, as amended (19 U.S.C. 2341
Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance for Firms Division, Room 71030, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice.
Please follow the requirements set forth in EDA's regulations at 13 CFR 315.9 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On October 31, 2016, the Department of Commerce (the Department) initiated, and published
Effective December 15, 2016.
E. Whitley Herndon, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: 202-482-6274.
On September 7, 2016, Avanti Frozen requested that the Department conduct an expedited changed circumstances review, pursuant to section 751(b) of the Tariff Act of 1930 (the Act), 19 CFR 351.216(b), and 19 CFR 351.221(c)(3), to confirm that Avanti Frozen is the successor-in-interest to Avanti Feeds for purposes of determining antidumping duty cash deposits and liabilities. In its submission, Avanti Frozen explained that Avanti Feeds underwent a business reorganization and transferred its shrimp business to its subsidiary company, Avanti Frozen.
On October 31, 2016, the Department initiated this changed circumstances review and published the notice of preliminary results, determining that Avanti Frozen is the successor-in-interest to Avanti Feeds.
The merchandise subject to the order is certain frozen warmwater shrimp.
For the reasons stated in the
We are issuing this determination and publishing these final results and notice in accordance with sections 751(b)(1) and 777(i)(1) and (2) of the Act, as amended, and 19 CFR 351.216 and 351.221(c)(3).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On August 10, 2016, the Department of Commerce (the Department) published the preliminary results of the administrative review of the countervailing duty order on pasta from Turkey. The period of review (POR) is January 1, 2014, through December 31, 2014. The review covers one producer/exporter of subject merchandise: Bessan Makarna Gida San. Ve Tic. A.Ş. (Bessan). We invited parties to comment on the
Effective December 15, 2016.
Aimee Phelan or Mark Kennedy, 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) 482-0697 or (202) 482-7883, respectively.
On August 10, 2016, the Department published the
The scope of the order consists of certain non-egg dry pasta in packages of five pounds (or 2.27 kilograms) or less,
Excluded from the scope of the order are refrigerated, frozen, or canned pastas, as well as all forms of egg pasta, with the exception of non-egg dry pasta containing up to two percent egg white.
The merchandise under review is currently classifiable under subheading 1902.19.20 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheading is provided for convenience and customs purposes, our written description of the scope of the order is dispositive.
Because the Department received no comments with respect to the
In accordance with 19 CFR 351.212(b)(2), the Department intends to issue assessment instructions to U.S. Customs and Boarder Protection (CBP) 15 days after the date of publication of these final results to liquidate shipments of subject merchandise produced by Bessan entered, or withdrawn from warehouse, for consumption on or after January 1, 2014 through December 31, 2014 at the percent rate, as listed above.
The Department also intends to instruct CBP to collect cash deposits of estimated CVDs in the amount shown above for shipments of subject merchandise by Bessan 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 collect cash deposits of estimated countervailing duties at the most recent company-specific or all-others rate applicable to the company. These cash deposit requirements, when imposed, shall remain in effect until further notice.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
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) determines that imports of large residential washers (LRWs) from the People's Republic of China (PRC) are being, or likely to be, sold in the United States at less than fair value (LTFV). The period of investigation (POI) is April 1, 2015, through September 30, 2015. The final weighted-average dumping margins for this investigation are listed in the “Final Determination Margins” section of this notice.
Effective December 15, 2016.
Brian Smith or Rebecca Trainor, AD/CVD Operations, Office VIII, respectively, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1766 or (202) 482-4007.
The Department published the
A summary of the events that occurred since the Department published the
The POI is April 1, 2015, through September 30, 2015.
The products covered by this investigation are LRWs. These products are properly classified under Harmonized Tariff Schedule of the United States (HTSUS) subheadings 8450.20.0040 and 8450.20.0080. Covered merchandise may also enter under the following HTSUS subheadings: 8450.11.0040, 8450.11.0080, 8450.90.2000, and 8450.90.6000. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise under investigation is dispositive. For a complete description of the scope of this investigation,
Since the
All issues raised in the case and rebuttal briefs that were submitted by parties in this investigation are addressed in the Issues and Decision Memorandum. A list of these issues is attached to this notice as Appendix II.
As provided in section 782(i) of the Tariff Act of 1930, as amended (the Act), in August and September 2016, we verified the sales and factors of production information submitted by the two mandatory respondents in this case: Nanjing LG-Panda Appliances Co., Ltd. (LG) and Suzhou Samsung Electronics Co., Ltd./Suzhou Samsung Electronics Co. Ltd—Export (collectively, Samsung). We used standard verification procedures, including an examination of relevant accounting and production records, and original source documents provided by both respondents.
Based on the Department's analysis of the comments received and findings at verification, we made certain changes to our dumping margin calculations. For a discussion of these changes,
In the
The Department determines, as provided in section 735 of the Act, that the following weighted-average dumping margins exist for the period April 1, 2015, through September 30, 2015:
In calculating rates for non-individually investigated respondents in the context of non-market economy cases, the Department looks to section 735(c)(5)(A)-(B) of the Act, which provides instructions for calculating the all-others rate in an investigation.
In this investigation, the Department examined all known exporters/producers of the subject merchandise. In addition, no other PRC exporters of the subject merchandise during the POI established entitlement to a separate rate.
In the
As noted above, the Department has found that critical circumstances do not longer exist with respect to imports of the subject merchandise from Samsung or the PRC-wide entity. Accordingly, for Samsung and the PRC-wide entity, in accordance with section 735(c)(3) of the Act, we will instruct Customs and Border Protection (CBP) to discontinue the suspension of liquidation, and to liquidate, without regard to antidumping duties, subject merchandise exported by Samsung and the PRC-wide entity and entered, or withdrawn from warehouse, on or after April 27, 2016, and before July 26, 2016.
In accordance with section 735(c)(1)(B) of the Act, we will instruct CBP to continue to suspend liquidation of all imports of the merchandise subject to the investigation from the respondents and the PRC-wide entity, that were entered or withdrawn from warehouse, for consumption on or after July 26, 2016, the date of publication of the
The Department will instruct CBP to require a cash deposit equal to the amount by which the normal value exceeds U.S. price as follows: (1) For the exporter/producer combinations listed in the table above, the cash deposit rate is the weighted-average dumping margin listed for that combination in the table; (2) for all combinations of PRC exporters/producers of merchandise under consideration not listed in the table above, the cash deposit rate is the weighted average dumping margin listed for the PRC-wide entity in the table above; and (3) for all non-PRC exporters of merchandise under consideration not listed in the table above, the cash deposit rate is the cash deposit rate applicable to the PRC exporter/producer combination that supplied that non-PRC exporter. The suspension of liquidation instructions will remain in effect until further notice.
We intend to disclose to parties in this proceeding the calculations performed for this final determination within five days of the date of public announcement of our final determination, in accordance with 19 CFR 351.224(b).
In accordance with section 735(d) of the Act, we will notify the ITC of our final affirmative determination of sales at LTFV. Because the final determination in this proceeding is affirmative, in accordance with section 735(b)(2) of the Act, the ITC will make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports of subject merchandise from the PRC no later than 45 days after our final determination. If the ITC determines that such injury does not exist, this proceeding will be terminated and all securities posted will be refunded or canceled. If the ITC determines that such injury does exist, the Department will issue an antidumping duty order directing CBP to assess, upon further instruction by the Department, antidumping duties on all imports of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation.
This notice will serve as a reminder to the parties subject to administrative protective order (APO) of their responsibility concerning the disposition of propriety information disclosed under APO in accordance with 19 CFR 351.305. Timely written notification of return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
We are issuing and publishing this determination in accordance with sections 735(d) and 777(i)(1) of the Act and 19 CFR 351.210(c).
The products covered by this investigation are all large residential washers and certain parts thereof from the People's Republic of China.
For purposes of this investigation, the term “large residential washers” denotes all automatic clothes washing machines, regardless of the orientation of the rotational axis, with a cabinet width (measured from its widest point) of at least 24.5 inches (62.23 cm) and no more than 32.0 inches (81.28 cm), except as noted below.
Also covered are certain parts used in large residential washers, namely: (1) All cabinets, or portions thereof, designed for use in large residential washers; (2) all assembled tubs
Excluded from the scope are stacked washer-dryers and commercial washers. The term “stacked washer-dryers” denotes distinct washing and drying machines that are built on a unitary frame and share a common console that controls both the washer and the dryer. The term “commercial washer” denotes an automatic clothes washing machine designed for the “pay per use” segment meeting either of the following two definitions:
(1)(a) It contains payment system electronics;
(2)(a) it contains payment system electronics; (b) the payment system electronics are enabled (whether or not the payment acceptance device has been installed at the time of importation) such that, in normal operation,
Also excluded from the scope are automatic clothes washing machines that meet all of the following conditions: (1) Have a vertical rotational axis; (2) are top loading;
Also excluded from the scope are automatic clothes washing machines that meet all of the following conditions: (1) Have a horizontal rotational axis; (2) are front loading;
Also excluded from the scope are automatic clothes washing machines that meet all of the following conditions: (1) Have a horizontal rotational axis; (2) are front loading; and (3) have cabinet width (measured from its widest point) of more than 28.5 inches (72.39 cm).
The products subject to this investigation are currently classifiable under subheadings 8450.20.0040 and 8450.20.0080 of the Harmonized Tariff Schedule of the United States (HTSUS). Products subject to this investigation may also enter under HTSUS subheadings 8450.11.0040, 8450.11.0080, 8450.90.2000, and 8450.90.6000. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise subject to this investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Brandon Custard or Terre Keaton Stefanova, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1823 or (202) 482-1280, respectively.
On December 2, 2016, the Department of Commerce (the Department) published in the
The Department is issuing this notice to correct two inadvertent errors in the
This correction to the amended preliminary determination of sales at less than fair value is issued and published in accordance with sections 733(f) and 777(i)(1) of the Tariff Act of 1930, as amended.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of availability.
The National Marine Fisheries Service (NMFS) announces the adoption of a Final Endangered Species Act (ESA) recovery plan (Plan) for the Oregon Coast Coho Salmon (
Electronic copies of the Plan and the Response to Comments are available online at:
Robert Walton, NMFS Oregon Coast Coho Salmon Recovery Coordinator, at (503) 231-2285, or
We are responsible for developing and implementing recovery plans for Pacific salmon and steelhead listed under the ESA of 1973, as amended (16 U.S.C. 1531
We believe it is essential to have local support of recovery plans by those whose activities directly affect the listed species and whose continued commitment and leadership will be needed to implement the necessary recovery actions. We therefore support and participate in locally led, collaborative efforts to develop recovery plans that involve state, tribal, and Federal entities, local communities, and other stakeholders.
Section 4(f) of the ESA, as amended in 1988, requires that public notice and an opportunity for public review and comment be provided prior to final approval of a recovery plan. We published a Notice of Availability of the Draft Plan in
For the purpose of recovery planning for the ESA-listed species of Pacific salmon and steelhead in Idaho, Oregon and Washington, NMFS designated five geographically based “recovery domains.” The Oregon Coast Coho Salmon ESU spawning range is in the Oregon Coast domain. For each domain, NMFS appointed a team of scientists, nominated for their geographic and species expertise, to provide a solid scientific foundation for recovery plans. The Oregon and Northern California Coasts Technical Recovery Team (TRT) included scientists from NMFS, other Federal agencies, the state of Oregon, and the private sector.
A primary task for the Oregon and Northern California Coasts Technical Recovery Team was to recommend criteria for determining when the ESU should be considered viable (
For this Plan, we collaborated with state, tribal and Federal scientists and resource managers and stakeholders to provide technical information that NMFS used to write the Plan which is built upon state and locally-led recovery efforts.
Our goal is to restore the threatened Oregon Coast Coho Salmon ESU to the point where it is again a viable, self-sustaining member of its ecosystem and no longer needs the protections of the ESA. The Plan contains biological background and contextual information that includes description of the ESU, the planning area, and the context of the plan's development. It presents relevant information on ESU structure, biological status and proposed biological viability criteria and threats criteria for delisting.
The Plan also describes specific information on the following: Current status of Oregon Coast Coho Salmon; limiting factors and threats for the full life cycle that contributed to the species decline; recovery strategies and actions addressing these limiting factors and threats; key information needs, and a proposed research, monitoring, and evaluation program for adaptive management. For recovery strategies and actions, Chapter 6 in the Plan includes proposed actions at the ESU and strata levels. Population level information will be posted on the recovery plan Web site (see below). The Plan also describes implementation, prioritization of actions, and adaptive management at the population, strata, and ESU scales. The Plan also summarizes time and costs (Chapter 7) required to implement recovery actions. In addition to the information in the Plan, readers are referred to the recovery plan Web site for more information on all these topics:
We will commit to implement the actions in the Plan for which we have authority and funding; encourage other Federal and state agencies and tribal governments to implement recovery actions for which they have responsibility, authority and funding; and work cooperatively with the public and local stakeholders on implementation of other actions. We expect the Plan to guide us and other Federal agencies in evaluating Federal actions under ESA section 7, as well as in implementing other provisions of the ESA and other statutes. For example, the Plan provides greater biological context for evaluating the effects that a proposed action may have on a species by providing delisting criteria, information on priority areas for addressing specific limiting factors, and information on how future populations within the ESU can tolerate varying levels of risk.
When we are considering a species for delisting, the agency will examine whether the section 4(a)(1) listing factors have been addressed. To assist in this examination, we will use the delisting criteria described in Chapter 4 of the Plan, which includes both biological criteria and criteria addressing each of the ESA section 4(a)(1) listing factors, as well as any other relevant data and policy considerations.
We will also work with the partners described in the Plan to develop implementation schedules that provide greater specificity for recovery actions to be implemented over three-to five-year periods. This will also help promote implementation of recovery actions and subsequent implementation schedules, and will track and report on implementation progress.
Section 4(f)(1)(B) of the ESA requires that recovery plans incorporate, to the maximum extent practicable, (1) objective, measurable criteria which, when met, would result in a determination that the species is no longer threatened or endangered; (2) site-specific management actions necessary to achieve the plan's goals; and (3) estimates of the time required and costs to implement recovery actions. We conclude that the Plan meets the requirements of ESA section 4(f) and adopt it as the
Viable salmon populations and the recovery of evolutionarily significant units. U.S.
Dept. of Commerce, NOAA Tech. Memo., NMFS NWFSC 42, 156 p.
16 U.S.C. 1531
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that Randall Wells, Ph.D., Chicago Zoological Society's Sarasota Dolphin Research Program, c/o Mote Marine Laboratory, 1600 Ken Thompson Parkway, Sarasota, FL 34236 has applied in due form for a permit to conduct research on bottlenose dolphins (
Written, telefaxed, or email comments must be received on or before January 17, 2017.
The application and related documents are available for review by selecting “Records Open for Public Comment” from the “Features” box on the Applications and Permits for Protected Species (APPS) home page,
These documents are also available upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376.
Written comments on this application should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may also be submitted by facsimile to (301) 713-0376, or by email to
Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.
Shasta McClenahan or Amy Hapeman, (301) 427-8401.
The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
The applicant requests a five-year permit to take bottlenose and spotted dolphins for scientific research to continue a long-term program to evaluate the health, environmental contamination, reproduction, population structure and dynamics, acoustics, trophic patterns, life history, social structure, and anthropogenic effects on dolphins off the west coast of Florida including bays, estuaries, and offshore waters. Up to 3,000 bottlenose and 1,000 spotted dolphins would be approached annually during vessel surveys for photography, photo-identification, video recording, behavioral observation, acoustic playbacks, and passive acoustic recording, with concurrent deployment of an unmanned aircraft system for photogrammetry. Up to 250 bottlenose and 100 spotted dolphins of the above animals may also be biopsy sampled during vessel surveys annually. Up to 50 bottlenose and 25 spotted dolphins annually of the above animals may be captured for health assessments which would include biological sampling, auditory brainstem response tests, metabolic rate studies, ultrasound, x-rays, marking, tagging, tracking, and release. Calves less than 8 months of age and females with these calves would not be captured or remotely biopsy sampled. Up to 25 adults or juveniles of each species annually would be remotely satellite tagged to test the feasibility of a new experimental dorsal fin attachment method. Two unintentional mortalities of each species could occur due to capture over the life of the permit. The following species could be incidentally harassed during surveys: Green sea turtle (
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Concurrent with the publication of this notice in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; correction.
We, NMFS, published a notice of the availability of the draft 2016 Alaska, Atlantic, and Pacific regional marine mammal stock assessment reports (SARs) in the
Comments must be received by January 9, 2017. If members of the public need additional time to review the draft Atlantic 2016 SARs, please contact Shannon Bettridge, Office of Protected Resources, 301-427-8402,
The 2016 draft SARs are available in electronic form via the Internet at
You may submit comments, identified by NOAA-NMFS-2016-0101, by any of the following methods:
Shannon Bettridge, Office of Protected Resources, 301-427-8402,
Section 117 of the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361
The MMPA requires NMFS and FWS to review the SARs at least annually for strategic stocks and stocks for which significant new information is available, and at least once every three years for non-strategic stocks. The term “strategic stock” means a marine mammal stock: (A) for which the level of direct human-caused mortality exceeds the potential biological removal level; (B) which, based on the best available scientific information, is declining and is likely to be listed as a threatened species under the Endangered Species Act (ESA) within the foreseeable future; or (C) which is listed as a threatened species or endangered species under the ESA. NMFS and the FWS are required to revise a SAR if the status of the stock has changed or can be more accurately determined. We published a notice of the availability of the draft 2016 Alaska, Atlantic, and Pacific regional marine mammal SARs in the
Subsequent to soliciting public comment on the draft 2016 SARs, we were made aware that the draft Atlantic 2016 SARs contained some technical errors. A problem with our electronic file formatting conversion introducted some erroneous numbers into the document. For example, in some of the tables contained in the reports (
We immediately corrected the errors and posted a revised version of the draft Atlantic 2016 SARs on the NMFS Web site on December 1, 2016. With this
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; availability of evaluation of tribal resource management plan and request for comment.
Notice is hereby given that the Confederated Colville Tribes have submitted a Tribal Resource Management Plan (Tribal Plan) to NMFS pursuant to the limitation on take prohibitions for actions conducted under Tribal Plans promulgated under the Endangered Species Act (ESA). The Tribal Plan specifies artificial propagation, harvest, and research and monitoring activities in the Okanogan River basin and portions of the upper Columbia River. This document serves to notify the public of the availability for comment of the proposed evaluation of the Secretary of Commerce (Secretary) as to whether implementation of the Tribal Plan will appreciably reduce the likelihood of survival and recovery of ESA-listed Upper Columbia River Spring Chinook salmon and steelhead.
This notice further advises the public of the availability for review of a draft Environmental Assessment of the effects of the NMFS determination on the subject Tribal Plan.
Comments must be received at the appropriate address or fax number (see
Written comments on the proposed evaluation and pending determination should be addressed to the NMFS Sustainable Fisheries Division, 1201 NE Lloyd Blvd., Portland, OR 97232. Comments may be submitted by email. The mailbox address for providing email comments is:
Natasha Meyers-Cherry at (503) 231-2178 or by email at
Chinook salmon (
Steelhead (
The Confederated Colville Tribes have submitted to NMFS a Tribal Plan for hatchery, fishery harvest, predator control, kelt reconditioning, and monitoring and evaluation activities in the Okanogan River basin, in the upper Columbia River basin in Washington State. The Tribal Plan was submitted February 4, 2014, pursuant to the Tribal ESA 4(d) Rule.
The Tribal Plan describes actions involving fisheries, hatchery, predator control, and kelt reconditioning activities (with associated monitoring and evaluation) in the Okanogan Basin and Columbia River mainstem. The Tribal Plan is intended to contribute to the recovery of the steelhead population in the Okanogan Basin, and to responsibly enhance fishing opportunity on non-listed Chinook salmon.
As required by the ESA 4(d) rule for Tribal Plans (65 FR 42481; July 10, 2000), the Secretary is seeking public comment on her pending determination as to whether the Tribal Plan Chinook salmon would appreciably reduce the likelihood of survival and recovery of the Upper Columbia River Steelhead Evolutionary Significant Unit.
Under section 4 of the ESA, the Secretary is required to adopt such regulations as she deems necessary and advisable for the conservation of the species listed as threatened.
The ESA Tribal 4(d) Rule (65 FR 42481; July 10, 2000) states that the ESA section 9 take prohibitions will not apply to Tribal Plans that will not
The National Oceanic and Atmospheric Administration (NOAA) on Behalf of the United States Global Change Research Program (USGCRP)
Notice of availability of draft scientific assessment for public comment.
The National Oceanic and Atmospheric Administration (NOAA) is publishing this notice on behalf of the United States Global Change Research Program (USGCRP) to announce the availability of a draft assessment, the Climate Science Special Report, for a 45-day public review, collected comments will be carefully reviewed by the relevant chapter author teams. Following revision and further review, a revised draft will undergo final Federal interagency clearance.
Comments on this draft scientific assessment must be received by 11:59 p.m. ET on 28 January 2017.
The draft USGCRP Climate Science Special Report can be accessed via the USGCRP Open Notices page (
All comments received through this process will be considered by the relevant chapter authors without knowledge of the commenters' identities. When the final assessment is issued, the comments and the commenters' names, along with the authors' responses, will become part of the public record and made available on
The Climate Science Special Report is a product of the USGCRP, organized and led by an interagency team. The draft assessment was written by Federal and non-Federal authors identified via an Open Call for nominations (
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; availability of evaluation of joint state/tribal hatchery plans and request for comment.
Notice is hereby given that the Washington Department of Fish and Wildlife and the Tulalip Tribes have submitted six Hatchery and Genetic Management Plans, to be considered jointly, to NMFS pursuant to the limitation on take prohibitions for actions conducted under Limit 6 of the 4(d) Rule for salmon and steelhead promulgated under the Endangered Species Act (ESA). The plans specify the propagation of three species of salmon in the Snohomish River basin of Washington State. This document serves to notify the public of the availability for comment of the proposed evaluation of the Secretary of Commerce
This notice further advises the public of the availability for review of a draft Environmental Assessment of the effects of the NMFS determination on the subject joint plans.
Comments must be received at the appropriate address or fax number (see
Written comments on the proposed evaluation and pending determination should be addressed to the Tim Tynan, NMFS Sustainable Fisheries Division, 510 Desmond Drive, Suite 103, Lacey, WA 98503. Comments may be submitted by email. The mailbox address for providing email comments is:
Tim Tynan at (360) 753-9579 or by email at
Chinook salmon (
Steelhead (
The Washington Department of Fish and Wildlife and the Tulalip Tribes have submitted to NMFS plans for six jointly operated hatchery programs in the Snohomish River region. The plans were submitted from December 2012 to September 2016, pursuant to limit 6 of the 4(d) Rule for ESA-listed salmon and steelhead. The hatchery programs release ESA-listed Chinook salmon and non-listed coho and fall chum salmon into the Snohomish River basin and nearby.
As required by the ESA 4(d) Rule (65 FR 42422; July 10, 2000, as updated in 70 FR 37160; June 28, 2005), the Secretary is seeking public comment on her pending determination as to whether the joint plans for hatchery programs in the Snohomish River basin would appreciably reduce the likelihood of survival and recovery of the ESA-listed Puget Sound salmon and steelhead.
Under section 4 of the ESA, the Secretary of Commerce is required to adopt such regulations as she deems necessary and advisable for the conservation of species listed as threatened. The ESA salmon and steelhead 4(d) Rule (65 FR 42422; July 10, 2000, as updated in 70 FR 37160; June 28, 2005) specifies categories of activities that contribute to the conservation of listed salmonids and sets out the criteria for such activities. Limit 6 of the updated 4(d) Rule (50 CFR 223.203(b)(6)) further provides that the prohibitions of paragraph (a) of the updated 4(d) Rule (50 CFR 223.203(a)) do not apply to activities associated with a joint state/tribal artificial propagation plan provided that the joint plan has been determined by NMFS to be in accordance with the salmon and steelhead 4(d) Rule (65 FR 42422; July 10, 2000, as updated in 70 FR 37160; June 28, 2005).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration, Commerce.
Notice of availability; extension of public comment period.
We, NMFS, announce the extension of the comment period for the
The deadline for receipt of comments on the Proposed Plan published on October 27, 2016 (81 FR 74770), is extended to close of business on February 9, 2017.
You may submit comments on the Proposed Plan by the following methods:
•
•
•
Electronic copies of the Proposed Plan are available at:
Persons wishing to obtain an electronic copy on CD ROM of the Proposed Plan may do so by calling Bonnie Hossack at (503) 736-4741, or by emailing a request to mail to:
Rosemary Furfey, NMFS Snake River Spring/Summer Chinook Salmon and Steelhead Recovery Coordinator, at (503) 231-2149, or mail to:
On October 27, 2016 (81 FR 74770), we (NMFS) published in the
We are responsible for developing and implementing recovery plans for Pacific salmon and steelhead listed under the ESA of 1973, as amended (16 U.S.C. 1531
We believe it is essential to have local support of recovery plans by those whose activities directly affect the listed species and whose continued commitment and leadership will be needed to implement the necessary recovery actions. We, therefore, support and participate in collaborative efforts to develop recovery plans that involve state, tribal, and federal entities, local communities, and other stakeholders. For this Proposed Plan for threatened Snake River Spring/Summer Chinook Salmon and Snake River Steelhead, we worked collaboratively with state, tribal, and Federal partners to produce a recovery plan that satisfies the ESA requirements. We have determined that this
For the purpose of recovery planning for the ESA-listed species of Pacific salmon and steelhead in Idaho, Oregon, and Washington, NMFS designated five geographically based “recovery domains.” The Snake River Spring/Summer Chinook Salmon ESU and Snake River Steelhead DPS spawning and rearing range is in the Snake River recovery domain of the Interior Columbia area. For each domain, NMFS appointed a team of scientists, nominated for their geographic and species expertise, to provide a solid scientific foundation for recovery plans. The technical recovery team responsible for Snake River Spring/Summer Chinook Salmon and Snake River Steelhead, the Interior Columbia Technical Recovery Team, included biologists from NMFS, other Federal agencies, states, tribes, and academic institutions.
A primary task for the Interior Columbia Technical Recovery Team was to recommend criteria for determining when each component population within an ESU or DPS should be considered viable (
We also collaborated with state, tribal, and Federal biologists and resource managers to provide technical information used to write the Proposed Plan which is built upon locally-led recovery efforts. In addition, NMFS established a multi-state (Idaho, Oregon, and Washington), tribal, and Federal partners' regional forum called the Snake River Coordination Group that addresses the four ESA-listed Snake River salmon and steelhead species, including the two species addressed in the Proposed Plan. They met twice a year to be briefed and provide technical and policy information to NMFS. We presented regular updates on the status of this Proposed Plan to the Snake River Coordination Group and posted draft chapters on NMFS' West Coast Region Snake River recovery planning Web page. We also made full drafts of the Proposed Plan available for review to the state, tribal, and federal entities with which we collaborated to develop the plan.
For the purpose of recovery planning in the Snake River recovery domain, NMFS divided the domain into three different “management units” based on jurisdictional boundaries, as well as areas where local planning efforts were underway. The three Snake River domain management units include: The Northeast Oregon unit, Southeast Washington unit, and the Idaho unit. A recovery plan addressing tributary conditions for both species was developed for each management unit. All three management unit plans were developed in coordination with respective state, federal, and local agencies, tribes, and others. This Proposed Plan synthesizes relevant information from the three management unit plans at the species level and includes them as appendices: Appendix A is the
In addition to the Proposed Plan, we developed and incorporated the
The Proposed Plan contains biological background and contextual information that includes descriptions of the ESU and DPS, the planning area, and the context of the plan's development. It presents relevant information on ESU and DPS structure, guidelines for assessing salmonid population and ESU and DPS status, and a brief summary of Interior Columbia Technical Recovery Team products on population structure and species status. It also presents NMFS' proposed biological viability criteria and threats criteria for delisting.
The Proposed Plan also describes specific information on the following: current status of Snake River Spring/Summer Chinook Salmon and Snake River Steelhead (Chapter 4); limiting factors and threats throughout the life cycle that have contributed to each species' decline (Chapter 5); recovery strategies and actions addressing these limiting factors and threats (Chapter 6); and a proposed research, monitoring, and evaluation program for adaptive management (Chapter 7). For recovery actions, the Proposed Plan incorporates the site-specific actions in each management unit plan, together with the associated location, life stage affected and potential implementing entity. The Proposed Plan also summarizes time and costs (Chapter 8) required to implement recovery actions. In some cases, costs of implementing actions could not be determined at this time and NMFS is interested in additional information regarding scale, scope, and costs of these actions. We are also particularly interested in comments on establishing appropriate forums (Chapter 9) to coordinate implementation of the Proposed Plan. We are also interested in information to address critical uncertainties identified in the Proposed Plan, particularly regarding causes of mortality of juvenile fish as they move from natal tributaries into the Salmon and Snake Rivers during migration to the Pacific Ocean.
We are soliciting written comments on the Proposed Plan. All substantive comments received by the date specified above will be considered and incorporated, as appropriate, prior to our decision whether to approve the plan. While we invite comments on all aspects of the Proposed Plan, we are particularly interested in comments on addressing critical uncertainties in our knowledge about the early juvenile life stage survival from natal tributaries downstream into the Salmon and Snake Rivers, comments on the cost of recovery actions for which we have not yet determined implementation costs, and comments on establishing an appropriate implementation forum for the plan. After considering the public comments, we will issue a news release announcing the adoption and availability of the final plan. We will post on the NMFS West Coast Region Web site (
16 U.S.C. 1531
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of intent to prepare an environmental impact statement; request for comments.
Pursuant to the National Environmental Policy Act (NEPA), this notice announces that NMFS intends to obtain information necessary to prepare an Environmental Impact Statement (EIS) for salmon and steelhead hatchery programs currently operating in the Upper Willamette River Basin of Oregon. NMFS is also requesting public review and comment on four Hatchery and Genetic Management Plans (HGMPs) submitted by the U.S. Army Corps of Engineers (USACE) for evaluation and determination under Limit 5 of the Endangered Species Act (ESA) 4(d) rule for threatened salmon and steelhead. The HGMPs specify the propagation of hatchery spring Chinook salmon released in the North Santiam, South Santiam, McKenzie, Middle Fork Willamette, Coast Fork Willamette, and Molalla Rivers.
NMFS provides this notice to: (1) Advise other agencies and the public of its plans to analyze effects related to the action, and (2) obtain suggestions and information that may be useful to the scope of issues and alternatives to include in the EIS. This notice further serves to notify the public of the availability of the four HGMPs for comment prior to a decision by NMFS on whether to approve the proposed hatchery programs.
Written or electronic scoping comments must be received at the appropriate address or email mailbox (see
Submit your comments by either of the following methods:
• Email to the following address:
• Mail or hand-deliver to NMFS Sustainable Fisheries Division, 2900 NW. Stewart Parkway, Roseburg, OR 97471.
• Fax to (541) 957-3386.
Additional information to assist with consideration of the notice of intent, as well as the HGMPs themselves, is available on the Internet at
Lance Kruzic, NMFS, by phone at (541) 957-3381, or email to
Chinook salmon (
Winter steelhead (
The USACE has submitted four HGMPs for spring Chinook salmon hatchery programs in the Upper
The hatchery programs considered in the analysis are those rearing and releasing North Santiam, South Santiam, McKenzie, and Middle Fork Willamette hatchery spring Chinook salmon. The EIS will also consider the potential effects of the current summer steelhead program. Hatchery fish are released into the following waterbodies: North Santiam River, South Santiam River, McKenzie River, Middle Fork Willamette River, Molalla River, and Coast Fork Willamette River. A list of all of the hatchery programs, including links to the HGMPs undergoing public comment, is available online (see
NMFS will perform an environmental review of the hatchery salmon and steelhead programs and prepare an EIS that will evaluate potentially significant direct, indirect, and cumulative impacts on the following resources identified to have a potential for effect from the proposed action:
• Water quantity and water quality
• Fish and wildlife species and their habitats
• Socioeconomics
• Environmental Justice
• Cumulative impacts
NMFS will rigorously explore and objectively evaluate a full range of reasonable alternatives in the EIS, including the proposed action (implementation of USACE's HGMPs) and a no-action alternative. Additional alternatives could include a reduction in artificial production and/or elimination of the hatchery programs.
For all potentially significant impacts, the EIS will identify measures to avoid, minimize, and mitigate the impacts, where feasible, to a level below significance.
NMFS provides this notice to: (1) advise other agencies and the public of its plans to analyze effects related to the action, and (2) obtain suggestions and information that may be useful to the scope of issues and the full range of alternatives to include in the EIS.
NMFS invites comment from all interested parties to ensure that the full range of issues related to hatchery salmon and steelhead are identified. Comments should be as specific as possible, with recommendations to address identified issues.
Written comments concerning the proposed action and the environmental review should be directed to NMFS as described above (see
The environmental review of the hatchery salmon and steelhead programs will be conducted in accordance with requirements of the NEPA of 1969 as amended (42 U.S.C. 4321
Under section 4 of the ESA, the Secretary of Commerce is required to adopt such regulations as he deems necessary and advisable for the conservation of species listed as threatened. The ESA salmon and steelhead 4(d) rule (65 FR 42422; July 10, 2000, as updated in 70 FR 37160; June 28, 2005) specifies categories of activities that contribute to the conservation of listed salmonids and sets out the criteria for such activities. Limit 5 of the updated 4(d) rule (50 CFR 223.203(b)(5)) further provides that the prohibitions of paragraph (a) of the updated 4(d) rule (50 CFR 223.203(a)) do not apply to activities associated with artificial propagation programs provided that an HGMP has been approved by NMFS to be in accordance with the salmon and steelhead 4(d) rule (65 FR 42422; July 10, 2000, as updated in 70 FR 37160; June 28, 2005).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Gulf of Mexico Fishery Management Council will hold a two-day meeting of its Joint Ad Hoc Reef Fish Headboat and Ad Hoc Red Snapper Charter For-Hire Advisory Panels.
The meeting will convene on Monday, January 9, 2017, from 9 a.m. to 5 p.m. and Tuesday, January 10, 2017, from 9 a.m. to 5 p.m. EDT.
The meeting will take place at the Hyatt Centric French Quarter Hotel, located at 800 Iberville Street, New Orleans, LA 70112; telephone: (504) 586-0800.
Dr. Assane Diagne, Economist, Gulf of Mexico Fishery Management Council;
You may register for Joint Ad Hoc Reef Fish Headboat and Ad Hoc Red Snapper Charter For-Hire Advisory Panel meeting on January 9-10, 2017 at:
The Agenda is subject to change, and the latest version along with other meeting materials will be posted on the Council's file server. To access the file server, the URL is
The meeting will be webcast over the internet. A link to the webcast will be available on the Council's Web site,
Although other non-emergency issues not on the agenda may come before the Advisory Panel for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, those issues may not be the subject of formal action during this meeting. Actions of the Advisory Panel will be restricted to those issues specifically identified in the agenda and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take 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 Kathy Pereira at the Gulf Council Office (see
Defense Acquisition University, DoD.
Meeting notice.
The Department of Defense is publishing this notice to announce a Federal Advisory Committee meeting of the Defense Acquisition University Board of Visitors. This meeting will be open to the public.
Wednesday, February 1, 2017, from 9:00 a.m. to 4:00 p.m.
DAU South Huntsville Campus, 7115 Old Madison Pike, Executive Classroom #1, Huntsville, Alabama 35806.
Caren Hergenroeder, Protocol Director, DAU. Phone: 703-805-5134. Fax: 703-805-5940. Email:
This meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150.
All written statements shall be submitted to the Designated Federal Officer for the Defense Acquisition University Board of Visitors, and this individual will ensure that the written statements are provided to the membership for their consideration.
Statements being submitted in response to the agenda mentioned in this notice must be received by the Designated Federal Officer at least five calendar days prior to the meeting which is the subject of this notice. Written statements received after this date may not be provided to or considered by the Defense Acquisition University Board of Visitors until its next meeting.
Defense Security Cooperation Agency, Department of Defense.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996.
Pam Young, DSCA/SA&E-RAN, (703) 697-9107.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 16-31 with attached Policy Justification and Sensitivity of Technology.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
*as defined in Section 47(6) of the Arms Export Control Act.
The Kingdom of Saudi Arabia has requested a possible sale of:
This proposed sale will contribute to the foreign policy and national security of the United States by helping to improve the security of a strategic partner which has been and continues to be a leading contributor of political stability and economic progress in the Middle East. This sale will increase the Royal Saudi Land Forces Aviation Command's (RSLFAC) interoperability with U.S. forces and convey U.S. commitment to Saudi Arabia's security and armed forces modernization.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
The proposed sale of the CH-47F aircraft will improve Saudi Arabia's heavy lift capability. Saudi Arabia will use this enhanced capability to strengthen its homeland defense and deter regional threats. Saudi Arabia will have no difficulty absorbing these aircraft into its armed forces.
The prime contractors will be The Boeing Military Aircraft Company, Ridley Park, Pennsylvania, and Honeywell Aerospace Company, Phoenix, Arizona. There are no known offset agreements in connection with this potential sale.
Implementation of this sale will require up to sixty (60) U.S. Government and contractor representatives to travel to Saudi Arabia for up to sixty (60) months for equipment de-processing, fielding, system checkout, training, and technical logistics support.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
(vii)
1. The CH-47F Chinook Cargo Helicopter is a medium-lift helicopter equipped with the Common Avionics Architecture System (CAAS) cockpit, which provides aircraft system, flight, mission, and communication management systems, five multifunction displays, two general purpose processor units, two control display units and two data concentrator units. The navigation system will have two Embedded Global Positioning System/Inertial Navigation System (GPS/INS), two Digital Advanced Flight Control Systems (DAFCS), one ARN-149 Automatic Direction Finder, one ARN-147 Very High Frequency Omnidirectional Range/Instrument Landing System (VOR/ILS) marker beacon system, one ARN-153 Tactical Airborne Navigation (TACAN) system, two air data computers, and one Radar Altimeter system. The aircraft survivability equipment includes the AN/APR-39A(V) l/4 Radar Signal Detecting Set, and the AN/AAR-57 Common Missile Warning System.
The Embedded Global Positioning System/Inertial Navigation System (GPS/INS) is SECRET. The AN/AAR-57 Common Missile Warning System
2. If a technologically advanced adversary were to obtain knowledge of the specific hardware and software elements, the information could be used to develop countermeasures or equivalent systems which might reduce weapon system effectiveness.
3. determination has been made that Saudi Arabia can provide the same degree of protection for the sensitive technology being released as the U.S. Government. This sale is necessary in furtherance of the U.S. foreign policy and national security objectives outlined in the Policy Justification.
4. All defense articles and services listed in this transmittal have been authorized for release and export to the Kingdom of Saudi Arabia.
Defense Security Cooperation Agency, Department of Defense.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996.
Pam Young, DSCA/SA&E-RAN, (703) 697-9107.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 16-61 with attached Policy Justification.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
* As defined in Section 47(6) of the Arms Export Control Act.
The Government of Qatar has requested a possible sale of the following in support of its eight (8) C-17 Globemaster III aircraft procured under a Direct Commercial Sale (DCS): four (4) spare F117-PW-100 engines, Quick Engine Change (QEC) Kits, Engine Transport Trailers, Engine Platforms, Engine Trailers, and other various support. The estimated total program cost is $81 million.
The proposed sale would contribute to the foreign policy and national security of the U.S. by helping to improve the security of an important regional ally. Qatar is a vital partner for political stability and economic progress in the Middle East. The C-17 provides a heavy airlift capability and complements the normal, day-to-day operations of Qatar's C-130J fleet. Qatar will have no difficulty absorbing this equipment into its armed forces.
The proposed sale would enhance Qatar's ability to operate and maintain its C-17s, supporting its capability to provide humanitarian aid in the Middle East and Africa region and support its troops in coalition operations.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
The prime contractor will be the Boeing Corporation of Chicago, Illinois. The U.S. Government is not aware of any known offsets associated with this sale. Any offset agreement will be defined in negotiations between the purchaser and the contractor.
Implementation of this proposed sale will not alter current assignment of additional U.S. Government or contractor representatives to Qatar. The number of U.S. Government and contractor representatives required in Qatar to support the program will be determined in joint negotiations as the program proceeds through the development, production and equipment installation phases.
There is no adverse impact on U.S. defense readiness as a result of this proposed sale. All defense articles and services listed in this transmittal are authorized for release and export to the Government of Qatar.
Defense Security Cooperation Agency, Department of Defense.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996.
Pam Young, DSCA/SA&E-RAN, (703) 697-9107.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 16-62 with attached Policy Justification and Sensitivity of Technology.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
* As defined in Section 47(6) of the Arms Export Control Act.
The Government of Qatar has requested a possible sale of continued logistics support for eight (8) C-17 aircraft which will include contract labor for sustainment engineering, on-site COMSEC support, Quality Assurance, support equipment repair, supply chain management, spares replenishment, maintenance, back shop support, and centralized maintenance support/associated services. Required upgrades will include fixed installation satellite antenna, Mode 5+ installation and sustainment, Automatic Dependent Surveillance-Broadcast Out, and two special operations loading ramps. The estimated total cost is $700 million.
The proposed sale contributes to the foreign policy and national security of the U.S. by helping to improve the security of an important regional ally. Qatar is a vital partner for political stability and economic progress in the Middle East. The C-17 provides a heavy airlift capability and complements the normal, day-to-day operations of the Government of Qatar's C-130J fleet. Qatar will have no difficulty absorbing this equipment into its armed forces.
The proposed sale will enhance Qatar's ability to operate and maintain its C-17s, supporting its capability to provide humanitarian aid in the Middle East and Africa region and support its troops in coalition operations. Qatar's current contract supporting its C-17 fleet will expire in September of 2017.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
The prime contractor will be the Boeing Corporation of Chicago, Illinois. The U.S. Government is not aware of any known offsets associated with this sale. Any offset agreement will be defined in negotiations between the purchaser and the contractor.
Implementation of this sale will require the assignment of approximately five additional U.S. Government and approximately 50 contractor representatives to Qatar.
There will be no adverse impact on U.S. defense readiness, as a result of this proposed sale.
(vii)
1. This sale will involve the release of sensitive technology to Qatar in the performance of services to sustain eight (8) Qatar C-17 aircraft. While much of the below equipment supporting the C-17 is not new to the country, there will be replenishment spares of the below sensitive technologies purchased to support the fleet.
2. The Force 524D is a 24-channel SAASM based Global Positioning System (GPS) receiver, with precise positioning service (PPS) capability built upon Trimble's next generation OPS technology. The Force 524D retains backward compatibility with the proven Force 5GS, while adding new functionality to interface with digital antenna electronics, to significantly improve anti-jam (AJ) performance. The host platform can select the radio frequency (RF) or digital antenna electronics (DAE) interface. In the digital mode, the Force 524D is capable of controlling up to 16 independent beams. The hardware and software associated with the 524D receiver card is UNCLASSIFIED.
3. The C-17 aircraft will be equipped with the GAS-1, which is comprised of the Controlled Reception Pattern Antennas (CRPA), with the associated wiring harness and the Antenna Electronics (AE)-1, to provide AJ capability. The hardware is UNCLASSIFIED.
4. The KIV-77 is the crypto applique for Mode V Identification Friend of Foe (IFF). The hardware is UNCLASSIFIED and COMSEC controlled.
5. Software, hardware, and other data/information, which is classified or sensitive, is reviewed prior to release to protect system vulnerabilities, design data, and performance parameters. Some end-item hardware, software, and other data identified above are classified at the CONFIDENTIAL and SECRET level. Potential compromise of these systems is controlled through management of the basic software programs, of highly sensitive systems and software-controlled weapon systems, on a case-by-case basis.
6. Qatar is both willing and able to protect United States classified military information. Qatari physical and document security standards are equivalent to U.S. standards. Qatar has demonstrated its willingness and capability to protect sensitive military technology and information released to its military in the past.
7. If a technologically advanced adversary were to obtain knowledge of the specific hardware or software source code in this proposed sale, the information could be used to develop countermeasures, which might reduce weapon system effectiveness or be used in the development of systems with similar or advanced capabilities. The benefits to be derived from this sale in the furtherance of the U.S. foreign policy and national security objectives, as outlined in the Policy Justification, outweigh the potential damage that could result if the sensitive technology, where revealed to unauthorized persons.
8. All defense articles and services listed in this transmittal are authorized for release and export to the Government of Qatar.
Department of Education (ED), Office of Postsecondary Education (OPE).
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 February 13, 2017.
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 Karen Wilson, 202-453-6186.
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.
Any data that is required and maintained by ED itself will be maintained in accordance with the Privacy Act of 1974, as amended. To assure that sensitive data about scholarship recipients are not compromised, all data—whether submitted electronically or as hard copy—will be maintained in a secure location. Access to these data will be limited only to staff who are directly responsible for working with the Teacher Quality Enhancement (TQE) Program and this information is only available onsite at the TQE office via desktop computer.
As noted in the Privacy Act of 1974 (5 U.S.C. 552a), the authority for collecting the requested information from and about TQE scholarship recipients is Title II, Section 204(e) of the Higher Education Act of 1965, as amended, and 31 U.S.C. Chapter 37. IHE students are advised that participation in the Teacher Quality Enhancement Grants scholarship program is voluntary and that giving the Department their Social Security Numbers (SSNs) is voluntary, but they must provide the requested information, including their SSNs, to participate. The information will be used to ensure that recipients of scholarships provided with funds under Title II of the Higher Education Act subsequently: (1) Complete a teacher education program and teach in a high-need school of a high-need local educational agency for a period of time equivalent to the period for which the recipient received scholarship assistance; or (2) repay the amount of the scholarship. The information in students' records may be disclosed to third parties as authorized under routine uses in the appropriate systems of records, either on a case-by-case basis, or, if the Department has complied with the computer matching requirements of the Privacy Act, under a computer matching agreement.
Office of Innovation and Improvement, Department of Education.
Notice.
Education Innovation and Research Program—Expansion Grants.
Notice inviting applications for new awards for fiscal year (FY) 2017.
Catalog of Federal Domestic Assistance (CFDA) Number: 84.411A (Expansion Grants).
The central design element of the EIR program is its multi-tier structure that links the amount of funding that an applicant may receive to the quality of the evidence supporting the efficacy of the proposed project, with the expectation that projects that build this evidence will advance through EIR's grant tiers. Applicants proposing innovative practices (as defined in this notice) that are supported by limited evidence can receive relatively small grants to support the development, iteration and initial evaluation of the practices; applicants proposing practices supported by evidence from rigorous evaluations, such as large randomized controlled trials (as defined in this notice), can receive larger grant awards to support expansion across the country. This structure provides incentives for applicants to: (1) Explore new ways of addressing persistent challenges that other educators can build on and learn from; (2) build evidence of effectiveness of their practices; and (3) replicate and scale successful practices in new schools, districts, and states while addressing the barriers to scale, such as cost structures and implementation fidelity.
All EIR projects are expected to generate information regarding their effectiveness in order to inform EIR grantees' efforts to learn about and improve upon their efforts, and to help similar, non-EIR efforts across the country benefit from EIR grantees' knowledge. By requiring that all grantees conduct independent evaluations of their EIR projects, EIR ensures that its funded projects make a significant contribution to improving the quality and quantity of information available to practitioners and policymakers about which practices improve student achievement, for which types of students, and in what contexts.
The Department of Education (Department) awards three types of grants under this program: “Early-phase” grants, “Mid-phase” grants, and “Expansion” grants. These grants differ in terms of the level of prior evidence of effectiveness required for consideration for funding, the expectations regarding the kind of evidence and information funded projects should produce, the level of scale that funded projects should reach, and, consequently, the amount of funding available to support each type of project.
Expansion grants provide funding for grantees to scale projects that are supported by strong evidence (as defined in this notice) for at least one population and setting and thus are ready to be implemented at the national level (as defined in this notice). This notice invites applications for Expansion grants only. The notices inviting applications for Early-phase and Mid-phase grants are published elsewhere in this issue of the
EIR Expansion grants are expected to scale practices that have prior evidence of effectiveness, in order to improve outcomes for high-need students. They should also be expected to generate important information about educational practices (
The FY 2017 EIR Expansion competition includes two absolute priorities that all applicants must address. Applicants must propose practices with strong evidence of prior effectiveness that are designed to improve student achievement and attainment in areas of critical national need and, in doing so, to serve high-need students. Given the recent increase in rigorous education research that is relevant to education practitioners,
These priorities are:
Under this priority, we provide funding to projects that are designed to
Under the priority, we provide funding to projects that meet the evidence standard established in Section III.3. for this competition and are designed to improve student achievement and attainment in areas of critical national need.
The definitions of “national level,” and “nonprofit,” are from 34 CFR 77.1. The definitions for “high-need students” and “regular high school diploma” are from the Supplemental Priorities. The definitions of “local educational agency” and “state educational agency” are from Section 8101 of the ESEA, as reauthorized by ESSA. We are establishing the definitions for “experimental study” “high-minority school,” “independent evaluation,” “large sample,” “logic model,” “meets What Works Clearinghouse Evidence Standards without reservations,” “meets What Works Clearinghouse Standards with reservations,” “multi-site sample,” “practice,” “randomized controlled trial,” “regression discontinuity design study,” “relevant finding,” “relevant outcome,” “rural local educational agencies,” “single-case design study,” “strong evidence,” and “student achievement” for the FY 2017 grant competition only, in accordance with section 437(d)(1) of GEPA, 20 U.S.C. 1232(d)(1).
(a) A public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary schools or secondary schools in a city, county, township, school district, or other political subdivision of a State, or of or for a combination of school districts or counties that is recognized in a State as an administrative agency for its public elementary schools or secondary schools.
(b) Administrative Control and Direction. The term includes any other public institution or agency having administrative control and direction of a public elementary school or secondary school.
(c) Bureau of Indian Education Schools. The term includes an elementary school or secondary school funded by the Bureau of Indian Education but only to the extent that including the school makes the school eligible for programs for which specific eligibility is not provided to the school in another provision of law and the school does not have a student population that is smaller than the student population of the local educational agency receiving assistance under this Act with the smallest student population, except that the school shall not be subject to the jurisdiction of any State educational agency (as defined in this notice) other than the Bureau of Indian Education.
(d) Educational Service Agencies. The term includes educational service agencies and consortia of those agencies.
(e) State Educational Agency. The term includes the State educational agency in a State in which the State educational agency is the sole educational agency for all public schools.
For grades and subjects in which assessments are required under section 1111(b)(2) of Elementary and Secondary Education Act (ESEA), as amended by Every Student Succeeds Act (ESSA): (1) A student's score on such assessments; and, as appropriate (2) other measures of student learning, such as those described in the subsequent paragraph, provided that they are rigorous and comparable across schools with a local educational agency (LEA).
For grades and subjects in which assessments are not required under section 1111(b)(2) of ESEA, as amended by ESSA: (1) Alternative measures of student learning and performance, such as student results on pre-tests, end-of-course tests, and objective performance-based assessments; (2) students learning objectives; (3) student performance on English language proficiency assessments; and (4) other measures of student achievement that are rigorous and comparable across schools within an LEA.
The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.
The regulations in 34 CFR part 86 apply to institutions of higher education only.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in subsequent years from the list of unfunded applications from this competition.
Under section 4611(c) of the ESEA, as amended by ESSA, the Department must use at least 25 percent of EIR funds for a fiscal year to make awards to applicants serving rural areas, contingent on receipt of a sufficient number of applications of sufficient quality. For purposes of this competition, we will consider an applicant as rural if the applicant meets the qualifications for rural applicants as described in the eligible applicants section and the applicant certifies that it meets those qualifications through the application.
In implementing this statutory provision, the Department may fund high-quality applications from rural applicants out of rank order in one or more of the EIR competitions.
The Department is not bound by any estimates in this notice.
1.
(a) An LEA;
(b) A State educational agency;
(c) The Bureau of Indian Education;
(d) A consortium of State educational agencies or LEAs;
(e) A nonprofit (as defined in this notice) organization; and
(f) A State educational agency, an LEA, a consortium described in (d), or the Bureau of Indian Education, in partnership with—
(1) A nonprofit organization;
(2) A business;
(3) An educational service agency; or
(4) An institution of higher education.
To qualify as a rural applicant under the EIR program, an applicant must meet both of the following requirements:
(a) The applicant is—
(1) An LEA with an urban-centric district locale code of 32, 33, 41, 42, or 43, as determined by the Secretary;
(2) A consortium of such LEAs;
(3) An educational service agency or a nonprofit organization in partnership with such an LEA; or
(4) A grantee described in clause (1) or (2) in partnership with a State educational agency; and
(b) A majority of the schools to be served by the program are designated with a locale code of 32, 33, 41, 42, or 43, or a combination of such codes, as determined by the Secretary.
More information on rural applicant eligibility is in the application package.
2. a.
(a) The difficulty of raising matching funds for a program to serve a rural area;
(b) The difficulty of raising matching funds in areas with a concentration of LEAs or schools with a high percentage of students aged 5 through 17—
(1) Who are in poverty, as counted in the most recent census data approved by the Secretary;
(2) Who are eligible for a free or reduced price lunch under the Richard B. Russell National School Lunch Act (42 U.S.C. 1751
(3) Whose families receive assistance under the State program funded under part A of title IV of the Social Security Act (42 U.S.C. 601
(4) Who are eligible to receive medical assistance under the Medicaid program; and
(c) The difficulty of raising funds on tribal land.
Applicants that wish to apply for a waiver must include a request in their application that describes why the matching requirement would cause serious hardship or an inability to carry out project activities. Further information about applying for waivers can be found in the application package. However, given the importance of matching funds to the long-term success of the project, the Secretary expects eligible entities to identify appropriate matching funds.
3.
•
•
An applicant must identify up to four study citations to be reviewed against WWC Evidence Standards for the purposes of meeting the EIR evidence standard requirement. An applicant should clearly identify these citations in the Evidence form. The Department will not review a study citation that an applicant fails to clearly identify for review. In addition to including up to four study citations, applicants must include a description of: (1) The positive student outcomes they intend to replicate under their Expansion grant and how the positive student outcomes correspond with the high-need students to be served under the Expansion grant; (2) the practice(s) the applicant plans to implement; and (3) the intended student outcomes that the practices(s) attempts to impact in the form.
An applicant must ensure that all evidence is available to the Department from publicly available sources and provide links or other guidance indicating where it is available. If the Department determines that an applicant has provided insufficient information, the applicant will not have an opportunity to provide additional information at a later time. However, if the WWC determines that a study does not provide enough information on key aspects of the study design, such as sample attrition or equivalence of intervention and comparison groups, the WWC will submit a query to the study author(s) to gather information for use in determining a study rating. Authors are asked to respond to queries within 10 business days. Should the author query remain incomplete within 14 days of the initial contact to the study author(s), the study will be deemed ineligible under the grant competition. After the grant competition closes, the WWC will continue to include responses to author queries and will make updates to study reviews as necessary. However, the competition can only take into account information that is available at the time the competition is open.
The evidence standards apply to the prior research that supports the effectiveness of the proposed project. The EIR program does not restrict the source of prior research providing evidence for the proposed project. As such, an applicant could cite prior research in the Evidence form for studies that were conducted by another entity (
•
Each application will be reviewed under the competition it was submitted under in the
•
•
•
In addition, the grantee and its independent evaluator must agree to cooperate with any technical assistance provided by the Department or its contractor and comply with the requirements of any evaluation of the program conducted by the Department. This includes providing to the Department or its contractor, an updated comprehensive evaluation plan in a format and using such tools as the Department may require, as outlined in the Cooperative Agreement. Expansion grantees' evaluations plans must include a description of how they intend to assess the scaling strategy in addition to measuring impact of the practice. Grantees must update this evaluation plan at least annually to reflect any changes to the evaluation. All of these updates must be consistent with the scope and objectives of the approved application.
•
(a) Type of data to be shared;
(b) Procedures for managing and for maintaining the confidentiality of personally identifiable information;
(c) Roles and responsibilities of project or institutional staff in the management and retention of research data, including a discussion of any changes to the roles and responsibilities that will occur should the Project Director/Principal Investigator and/or co-Project Directors/co-Principal Investigators leave the project or their institution;
(d) Expected schedule for data access, including how long the data will remain accessible (at least 10 years unless a shorter period of time is required to comply with applicable Federal or State laws or agreements promulgated to ensure compliance with such laws in which the destruction of records or personal information is required within a shorter period of time) and acknowledgement that the timeframe of data accessibility will be reviewed at the annual progress reviews and revised as necessary;
(e) Format of the final dataset;
(f) Dataset documentation to be provided;
(g) Method of data access (
(h) Whether or not a data agreement that specifies conditions under which the data will be shared will be required; and
(i) Any circumstances that prevent all or some of the data from being made accessible. This includes data that may fall under multiple statutes and, hence, must meet the confidentiality requirements for each applicable statute (
The costs of the DMP can be covered by the grant and should be included in the budget and explained in the budget narrative. The peer-review process will not include the DMP in the scoring of the application. The EIR team will be responsible for reviewing the completeness of the proposed DMP and will work with EIR grantees to finalize the DMP once the grant is awarded.
Recipients of awards are expected to publish or otherwise make publicly available the results of the work supported through EIR, including the evaluation report. EIR grantees must submit final studies resulting from research supported in whole or in part by EIR to the Educational Resources Information Center (ERIC),
•
•
1.
You can contact ED Pubs at its Web site, also:
If you request an application package from ED Pubs, be sure to identify this program or competition as follows: CFDA number 84.411A.
Individuals with disabilities can obtain a copy of the application package in an accessible format (
2.a.
We will be able to develop a more efficient process for reviewing grant applications if we know the approximate number of applicants that intend to apply for funding under this competition. Therefore, the Secretary strongly encourages each potential applicant to notify us of the applicant's intent to submit an application by completing a Web-based form. When completing this form, applicants will provide (1) the applicant organization's name and address and (2) the absolute priority the applicant intends to address. Applicants may access this form online at
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
The page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support. However, the page limit does apply to all of the application narrative.
b.
We plan on posting the project narrative section of funded EIR applications on the Department's Web site. Accordingly, you may wish to request confidentiality of business information. Identifying proprietary information in the submitted application will help facilitate this public disclosure process.
Consistent with Executive Order 12600, please designate in your application any information that you believe is exempt from disclosure under Exemption 4. In the appropriate Appendix section of your application, under “Other Attachments Form,”
3.
Applications for grants under this competition must be submitted electronically using the
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
6.
a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the System for Award Management (SAM), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active SAM registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet at the following Web site:
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow two to five weeks for your TIN to become active.
The SAM registration process can take approximately seven business days, but may take upwards of several weeks, depending on the completeness and accuracy of the data you enter into the SAM database. Thus, if you think you might want to apply for Federal financial assistance under a program administered by the Department, please allow sufficient time to obtain and register your DUNS number and TIN. We strongly recommend that you register early.
Once your SAM registration is active, it may be 24 to 48 hours before you can access the information in, and submit an application through,
If you are currently registered with SAM, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your registration annually. This may take three or more business days.
Information about SAM is available at
In addition, if you are submitting your application via
7.
Applications for grants under the EIR Program, CFDA number 84.411A, must be submitted electronically using the Governmentwide
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement and submit, no later than two weeks before the application deadline date, a written statement to the Department that you qualify for one of these exceptions. Further information regarding calculation of the date that is two weeks before the application deadline date is provided later in this section under
Please note the following:
• When you enter the
• Applications received by
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through
• You should review and follow the Education Submission Procedures for submitting an application through
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: The Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• You must upload any narrative sections and all other attachments to your application as files in a read-only Portable Document Format (PDF). Do not upload an interactive or fillable PDF file. If you upload a file type other than a read-only PDF (
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from
Once your application is successfully validated by
These emails do not mean that your application is without any disqualifying errors. While your application may have been successfully validated by
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevents you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Kelly Terpak, U.S.
Your paper application must be submitted in accordance with the mail or hand-delivery instructions described in this notice.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.411A), LBJ Basement Level 1, 400 Maryland Avenue SW., Washington, DC 20202-4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
We will not consider applications postmarked after the application deadline date.
c.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application, by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center,Attention: (CFDA Number 84.411A),550 12th Street SW., Room 7039, Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
The points assigned to each criterion are indicated in the parentheses next to the criterion. An applicant may earn up to a total of 100 points based on the selection criteria for the application.
In determining the significance of the project, the Secretary considers the following factors:
(1) The magnitude or severity of the problem to be addressed by the proposed project.
(2) The national significance of the proposed project.
(3) The extent to which the proposed project represents an exceptional approach to the priority or priorities established for the competition.
In determining the applicant's capacity to scale the proposed project, the Secretary considers the following factors:
(1) The extent to which the applicant demonstrates there is unmet demand for the process, product, strategy, or practice that will enable the applicant to reach the level of scale that is proposed in the application.
(2) The extent to which the applicant identifies a specific strategy or strategies that address a particular barrier or barriers that prevented the applicant, in the past, from reaching the level of scale that is proposed in the application.
(3) The extent to which the results of the proposed project are to be disseminated in ways that will enable others to use the information or strategies.
In determining the quality of the proposed project design, the Secretary considers the following factors:
(1) The extent to which the goals, objectives, and outcomes to be achieved by the proposed project are clearly specified and measurable.
(2) The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks.
(3) The adequacy of procedures for ensuring feedback and continuous improvement in the operation of the proposed project.
(4) The extent to which the applicant demonstrates that it has the resources to operate the project beyond the length of the grant, including a multi-year financial and operating model and accompanying plan; the demonstrated commitment of any partners; evidence of broad support from stakeholders (
In determining the quality of the project evaluation to be conducted, the Secretary considers the following factors:
(1) The extent to which the methods of evaluation will, if well implemented, produce evidence about the project's effectiveness that would meet the What Works Clearinghouse Evidence Standards without reservations.
(2) The extent to which the evaluation will provide guidance about effective strategies suitable for replication or testing in other settings.
(3) The extent to which the methods of evaluation will provide valid and reliable performance data on relevant outcomes.
(4) The extent to which the evaluation plan clearly articulates the key components, mediators, and outcomes of the grant-supported intervention, as well as a measurable threshold for acceptable implementation.
Applicants may wish to review the following technical assistance resources on evaluation: (1) WWC Procedures and Standards Handbook:
2.
Before making awards, we will screen applications submitted in accordance with the requirements in this notice to determine whether applications have met eligibility and other requirements. This screening process may occur at various stages of the process; applicants that are determined to be ineligible will not receive a grant, regardless of peer reviewer scores or comments.
Peer reviewers will read, prepare a written evaluation of, and score the assigned applications, using the selection criteria provided in this notice. For Expansion grant applications we intend to conduct a single-tier review.
In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
3.
4.
Please note that, if the total value of your currently active grants, cooperative agreements, and procurement contracts from the Federal Government exceeds $10,000,000, the reporting requirements in 2 CFR part 200, Appendix XII, require you to report certain integrity information to FAPIIS semiannually. Please review the requirements in 2 CFR part 200, Appendix XII, if this grant plus all the other Federal funds you receive exceed $10,000,000.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
(c) Under 34 CFR 75.250(b), the Secretary may provide a grantee with additional funding for data collection analysis and reporting. In this case the Secretary establishes a data collection period.
4.
5.
In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
Kelly Terpak, U.S. Department of Education, 400 Maryland Avenue SW., Room 4W312, Washington, DC 20202-5900. Telephone: (202) 453-7122. FAX: (202) 401-4123 or by email:
If you use a TDD or a TTY, call the Federal Relay Service, toll free, at 1-800-877-8339.
You may also access documents of the Department published in the
Office of the Secretary (OS), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before February 13, 2017.
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 Alfreida Pettiford, 202-245-6110.
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.
The Grant Application Form for Project Objectives and Performance Measures Information form and instructions are used by many ED discretionary grant programs to enable grantees to meet ED deadline dates for submission of performance reports to the Department.
Office of Innovation and Improvement, Department of Education.
Notice.
Education Innovation and Research Program—Early-phase Grants.
Notice inviting applications for new awards for fiscal year (FY) 2017.
Catalog of Federal Domestic Assistance (CFDA) Number: 84.411C (Early-phase Grants).
The central design element of the EIR program is its multi-tier structure that links the amount of funding that an applicant may receive to the quality of the evidence supporting the efficacy of the proposed project, with the expectation that projects that build this evidence will advance through EIR's grant tiers. Applicants proposing innovative projects that are supported by limited evidence can receive relatively small grants to support the development, iteration, and initial evaluation of the practices (as defined in this notice); applicants proposing projects supported by evidence from rigorous evaluations, such as large randomized controlled trials (as defined in this notice), can receive larger grant awards to support expansion across the country. This structure provides incentives for applicants to: (1) Explore new ways of addressing persistent challenges that other educators can build on and learn from; (2) build evidence of effectiveness of their practices; and (3) replicate and scale successful practices in new schools, districts, and states while addressing the barriers to scale, such as cost structures and implementation fidelity.
All EIR projects are expected to generate information regarding their effectiveness in order to inform EIR grantees' efforts to learn about and improve upon their efforts, and to help similar, non-EIR efforts across the country benefit from EIR grantees' knowledge. By requiring that all grantees conduct independent evaluations (as defined in this notice) of their EIR projects, EIR ensures that its funded projects make a significant contribution to improving the quality and quantity of information available to practitioners and policymakers about which practices improve student achievement, for which types of students, and in what contexts.
The Department of Education (Department) awards three types of grants under this program: “Early-phase” grants, “Mid-phase” grants, and “Expansion” grants. These grants differ in terms of the level of prior evidence of effectiveness required for consideration for funding, the expectations regarding the kind of evidence and information funded projects should produce, the level of scale funded projects should reach, and, consequently, the amount of funding available to support each type of project.
EIR Early-phase grants provide funding to support the development, iteration, implementation, and feasibility testing of practices that are expected to be novel and significant relative to others that are underway nationally. These Early-phase grants are not intended simply to implement established practices in additional locations or address needs that are unique to one particular context. The goal is to determine whether and in what ways relatively newer practices can improve student achievement for high-need students.
This notice invites applications for Early-phase grants only. The notices inviting applications for Mid-phase and Expansion grants are published elsewhere in this issue of the
Early-phase EIR grantees are expected to continuously make improvements in project design and implementation before conducting a full-scale evaluation of effectiveness. Grantees should consider questions such as:
• How easy would it be for others to implement this practice, and how can its implementation be improved?
• How can I use data from early indicators to gauge impact, and what changes in implementation and student achievement do these early indicators suggest? By focusing on continuous improvement and iterative development, Early-stage grantees can make adaptations that are necessary to increase their practice's potential to be effective and ensure that its EIR-funded evaluation assesses the impact of a thoroughly conceived practice.
In order to leverage existing information that can inform which kinds of practices could have a meaningful impact on underserved students, Early-phase applicants must demonstrate a rationale (as defined in this notice) for their project. In addition, like all EIR grantees, Early-stage grantees are expected to conduct an independent evaluation. Given EIR's goal of helping develop a collective body of evidence that can inform the future expansion and refinement of practices that effectively serve high-need students, Early-stage grantees' evaluation designs are expected to have the potential meet the moderate evidence (as defined in this notice) threshold. Not only will such evaluation data build the knowledge base about effective practices for underserved students, but it will also encourage prospective Mid-phase applicants to leverage the findings from Early-phase
To the extent possible, we intend to fund multiple projects addressing similar challenges. By so doing, we aim to accelerate the building of a knowledge base of effective practices for addressing these challenges and increase the likelihood that grantees can learn from one another while still exploring different approaches. We believe that improving outcomes across the education sector depends, in part, upon policymakers, practitioners and researchers continually building upon one another's efforts to have the greatest impact.
All EIR applicants are required to serve high-need students and are therefore required to address absolute priority one. In addition, EIR Early-phase applicants are also required to address one of the other five absolute priorities. These are critical areas in which rigorous evidence is scarce, and schools, districts, and States can meaningfully contribute to the generation and use of evidence-based approaches.
First, we include an absolute priority to improve school climate. Under this priority, the Department seeks to support innovative alternatives to exclusionary discipline policies and to support positive interventions that can address the negative and often disparate impact of classroom removals by promoting safe schools that have a positive culture for all students. Research has shown that implementing alternative disciplinary policies and behavioral supports can support both improved academic and non-academic outcomes for students.
Second, we include an absolute priority focusing on student diversity. In parts of the country, America's schools are more segregated than they were in the late 1960s, including by students' race and socioeconomic status.
Third, we include an absolute priority to increase the number and proportion of high-need students who are academically prepared for the transition to college, other postsecondary education, or other career and technical education. Postsecondary education is an increasingly critical requirement for succeeding in today's economy. By 2020, approximately 35 percent of job openings will require at least a bachelor's degree, and another 30 percent will require at least an associate's degree or some college.
Fourth, the Department includes an absolute priority to increase the number of effective principals who improve student outcomes in public schools. School leaders play an essential role in shaping school cultures, aligning parents and educators around shared goals, and, ultimately, influencing student achievement.
Finally, we include an absolute priority to reconnect disconnected youth (as defined in this notice) to educational opportunities. Today, roughly 14 percent of youth ages 16 to 24 in America are neither enrolled in school nor working.
These priorities are:
Under this priority, we provide funding to projects that are designed to improve academic outcomes for high-need students.
Under this priority, we provide funding to projects that are designed to improve student outcomes through reducing or eliminating disparities in school disciplinary practices for particular groups of students, including students of color and students with disabilities, or reducing or eliminating the use of exclusionary discipline (such as suspensions, expulsions, and unnecessary placements in alternative education programs) by identifying and addressing the root causes of those disparities or uses and promoting alternative disciplinary practices that address the disparities or uses.
Under this priority, we provide funding to projects that are designed to help LEAs prepare students for success in an increasingly diverse society by increasing the diversity—including racial, ethnic, and socioeconomic diversity—of students enrolled in the individual schools in the LEAs.
Under this priority, we provide funding to projects that are designed to increase the number and proportion of K-12 high-need students who are academically and socially prepared for and subsequently enroll in college, other postsecondary education, or other career and technical education.
Under this priority, we provide funding to projects that are designed to increase the number and percentage of highly effective principals by creating or expanding practices and strategies to recruit, select, prepare, and support individuals to significantly improve instruction in schools.
Under this priority, we provide funding to projects that are designed to improve student achievement through strategies that provide disconnected youth (as defined in this notice) with high-quality educational opportunities.
The definition of “nonprofit” is from 34 CFR 77.1. The definitions for “disconnected youth,” “high-need students,” and “regular high school diploma,” are from the Supplemental Priorities. The definitions of “local educational agency” and “state educational agency” are from Section 8101 of the ESEA, as amended by ESSA. We are establishing the definitions for “demonstrates a rationale,” “experimental study,” “high-minority school,” “independent evaluation,” “large sample,” “logic model,” “meets What Works Clearinghouse Evidence Standards without reservations,” “meets What Works Clearinghouse Evidence Standards with reservations,” “moderate evidence,” “multi-site sample,” “practice,” “quasi-experimental design study,” “randomized controlled trial,” “regression discontinuity design study,” “relevant finding,” “relevant outcome,” “rural local educational agencies,” “single-case design study,” and “student achievement” for the FY 2017 grant competition only, in accordance with section 437(d)(1) of the General Education Provisions Act (GEPA), 20 U.S.C. 1232(d)(1).
(a) A public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary schools or secondary schools in a city, county, township, school district, or other political subdivision of a State, or of or for a combination of school districts or counties that is recognized in a State as an administrative agency for its public elementary schools or secondary schools.
(b) Administrative Control and Direction. The term includes any other public institution or agency having administrative control and direction of a public elementary school or secondary school.
(c) Bureau of Indian Education Schools. The term includes an elementary school or secondary school funded by the Bureau of Indian Education but only to the extent that including the school makes the school eligible for programs for which specific eligibility is not provided to the school in another provision of law and the school does not have a student population that is smaller than the student population of the local educational agency receiving assistance under this Act with the smallest student population, except that the school shall not be subject to the jurisdiction of any State educational agency (as defined in this notice) other than the Bureau of Indian Education.
(d) Educational Service Agencies. The term includes educational service agencies and consortia of those agencies.
(e) State Educational Agency. The term includes the State educational agency in a State in which the State educational agency is the sole educational agency for all public schools.
For grades and subjects in which assessments are required under section 1111(b)(2) of Elementary and Secondary Education Act (ESEA), as amended by Every Student Succeeds Act (ESSA): (1) A student's score on such assessments; and, as appropriate (2) other measures of student learning, such as those described in the subsequent paragraph, provided that they are rigorous and comparable across schools with a local educational agency (LEA).
For grades and subjects in which assessments are not required under section 1111(b)(2) of ESEA, as reauthorized by ESSA: (1) Alternative measures of student learning and performance, such as student results on pre-tests, end-of-course tests, and objective performance-based assessments; (2) students learning objectives; (3) student performance on English language proficiency assessments; and (4) other measures of student achievement that are rigorous and comparable across schools within an LEA.
The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.
The regulations in 34 CFR part 86 apply to institutions of higher education only.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in subsequent years from the list of unfunded applications from this competition.
Under section 4611(c) of the ESEA, as amended by ESSA, the Department must use at least 25 percent of EIR funds for a fiscal year to make awards to applicants serving rural areas, contingent on receipt of a sufficient number of applications of sufficient quality. For purposes of this competition, we will consider an applicant as rural if the applicant meets the qualifications for rural applicants as described in the eligible applicants section and the applicant certifies that it meets those qualifications through the application. In implementing this statutory provision, the Department may fund high-quality applications from rural applicants out of rank order in one or more of the EIR competitions.
The Department is not bound by any estimates in this notice.
1.
(a) An LEA;
(b) A State educational agency;
(c) The Bureau of Indian Education;
(d) A consortium of State educational agencies or LEAs;
(e) A nonprofit organization; and
(f) A State educational agency, an LEA, a consortium described in (d), or the Bureau of Indian Education, in partnership with—
(1) A nonprofit (as defined in this notice) organization;
(2) A business;
(3) An educational service agency; or
(4) An institution of higher education.
To qualify as a rural applicant under the EIR program, an applicant must meet both of the following requirements:
(a) The applicant is—
(1) An LEA with an urban-centric district locale code of 32, 33, 41, 42, or 43, as determined by the Secretary;
(2) A consortium of such LEAs;
(3) An educational service agency or a nonprofit organization in partnership with such an LEA; or
(4) A grantee described in clause (1) or (2) in partnership with a State educational agency; and
(b) A majority of the schools to be served by the program are designated with a locale code of 32, 33, 41, 42, or 43, or a combination of such codes, as determined by the Secretary.
More information on rural applicant eligibility is in the application package.
2.a.
(a) The difficulty of raising matching funds for a program to serve a rural area;
(b) The difficulty of raising matching funds in areas with a concentration of local educational agencies or schools with a high percentage of students aged 5 through 17—
(1) Who are in poverty, as counted in the most recent census data approved by the Secretary;
(2) Who are eligible for a free or reduced price lunch under the Richard B. Russell National School Lunch Act (42 U.S.C. 1751
(3) Whose families receive assistance under the State program funded under part A of title IV of the Social Security Act (42 U.S.C. 601
(4) Who are eligible to receive medical assistance under the Medicaid program; and
(c) The difficulty of raising funds on tribal land.
Applicants that wish to apply for a waiver must include a request in their application that describes why the matching requirement would cause serious hardship or an inability to carry out project activities. Further information about applying for waivers can be found in the application package. However, given the importance of matching funds to the long-term success of the project, the Secretary expects eligible entities to identify appropriate matching funds.
3.
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•
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Each application will be reviewed under the competition it was submitted under in the
•
•
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The first years of an Early-phase grant are expected to focus on developing and iterating the practice in a few schools (or a limited version of the practice in a greater number of schools), and the independent evaluation is expected to generate information to inform the practice's development and iteration; the remaining years of an Early-phase grant are expected to entail full-scale implementation across the project's full set of schools, and the independent evaluation is expected to be an efficacy study of the practice, designed to have the potential meet the moderate evidence (as defined in this notice) threshold.
In addition, the grantee and its independent evaluator must agree to cooperate with any technical assistance provided by the Department or its contractor and comply with the requirements of any evaluation of the program conducted by the Department. This includes providing to the Department or its contractor, an updated comprehensive evaluation plan in a format and using such tools as the Department may require, as outlined in the Cooperative Agreement. Grantees must update this evaluation plan at least annually to reflect any changes to the evaluation. All of these updates must be consistent with the scope and objectives of the approved application.
•
Recipients of awards are expected to publish or otherwise make publicly available the results of the work supported through EIR, including the evaluation report. EIR grantees must submit final studies resulting from research supported in whole or in part by EIR to the Educational Resources Information Center (ERIC,
•
•
1.
You can contact ED Pubs at its Web site, also:
If you request an application package from ED Pubs, be sure to identify this program or competition as follows: CFDA number 84.411C.
Individuals with disabilities can obtain a copy of the application package in an accessible format (
2.a.
We will be able to develop a more efficient process for reviewing grant applications if we know the approximate number of applicants that intend to apply for funding under this competition. Therefore, the Secretary strongly encourages each potential applicant to notify us of the applicant's intent to submit an application by completing a Web-based form. When completing this form, applicants will provide (1) the applicant organization's name and address and (2) the absolute priority the applicant intends to address. Applicants may access this form online at
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
The page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support. However, the page limit does apply to all of the application narrative.
b.
We plan on posting the project narrative section of funded EIR applications on the Department's Web site. Accordingly, you may wish to request confidentiality of business information. Identifying proprietary information in the submitted application will help facilitate this public disclosure process.
Consistent with Executive Order 12600, please designate in your application any information that you believe is exempt from disclosure under Exemption 4. In the appropriate Appendix section of your application, under “Other Attachments Form,” please list the page number or numbers on which we can find this information. For additional information please see 34 CFR 5.11(c).
3.
Applications for grants under this competition must be submitted electronically using the
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
6.
a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the System for Award Management (SAM), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active SAM registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet at the following Web site:
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow two to five weeks for your TIN to become active.
The SAM registration process can take approximately seven business days, but may take upwards of several weeks, depending on the completeness and accuracy of the data you enter into the SAM database. Thus, if you think you might want to apply for Federal financial assistance under a program administered by the Department, please allow sufficient time to obtain and register your DUNS number and TIN. We strongly recommend that you register early.
Once your SAM registration is active, it may be 24 to 48 hours before you can access the information in, and submit an application through,
If you are currently registered with SAM, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your registration annually. This may take three or more business days.
Information about SAM is available at
In addition, if you are submitting your application via
7.
a.
Applications for grants under the EIR Program, CFDA number 84.411C, must be submitted electronically using the Governmentwide
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement and submit, no later than two weeks before the application deadline date, a written statement to the Department that you qualify for one of these exceptions. Further information regarding calculation of the date that is two weeks before the application deadline date is provided later in this section under
You may access the electronic grant application for EIR Early-phase at
Please note the following:
• When you enter the
• Applications received by
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through
• You should review and follow the Education Submission Procedures for submitting an application through
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: the Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• You must upload any narrative sections and all other attachments to your application as files in a read-only Portable Document Format (PDF). Do not upload an interactive or fillable PDF file. If you upload a file type other than a read-only PDF (
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from
Once your application is successfully validated by
These emails do not mean that your application is without any disqualifying errors. While your application may have been successfully validated by
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevents you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Kelly Terpak, U.S. Department of Education, 400 Maryland Avenue SW., Room 4W312, Washington, DC 20202-5900. FAX: (202) 401-4123.
Your paper application must be submitted in accordance with the mail or hand-delivery instructions described in this notice.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.411C), LBJ Basement Level 1, 400 Maryland Avenue SW., Washington, DC 20202-4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
We will not consider applications postmarked after the application deadline date.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application, by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.411C), 550 12th Street SW., Room 7039, Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
The points assigned to each criterion are indicated in the parentheses next to the criterion. An applicant may earn up to a total of 100 points based on the selection criteria for the application.
In determining the significance of the project, the Secretary considers the following factors:
(1) The national significance of the proposed project.
(2) The extent to which the proposed project involves the development or demonstration of promising new strategies that build on, or are alternatives to, existing strategies.
(3) The extent to which the proposed project represents an exceptional approach to the priority or priorities established for the competition.
In determining the quality of the proposed project design, the Secretary considers the following factors:
(1) The extent to which the goals, objectives, and outcomes to be achieved by the proposed project are clearly specified and measurable.
(2) The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks.
(3) The extent to which performance feedback and continuous improvement are integral to the design of the proposed project.
(4) The mechanisms the applicant will use to broadly disseminate information on its project so as to support further development or replication.
In determining the quality of the project evaluation to be conducted, the Secretary considers the following factors:
(1) The extent to which the methods of evaluation will, if well implemented, produce evidence about the project's effectiveness that would meet the What Works Clearinghouse Evidence Standards with reservations.
(2) The extent to which the evaluation will provide guidance about effective strategies suitable for replication or testing in other settings.
(3) The extent to which the methods of evaluation will provide valid and reliable performance data on relevant outcomes.
(4) The extent to which the evaluation plan clearly articulates the key components, mediators, and outcomes of the grant-supported intervention, as well as a measurable threshold for acceptable implementation.
Applicants may wish to review the following technical assistance resources on evaluation: (1) WWC Procedures and Standards Handbook:
2.
Before making awards, we will screen applications submitted in accordance with the requirements in this notice to determine whether applications have met eligibility and other requirements. This screening process may occur at various stages of the process; applicants that are determined to be ineligible will not receive a grant, regardless of peer reviewer scores or comments.
Peer reviewers will read, prepare a written evaluation of, and score the assigned applications, using the selection criteria provided in this notice. For Early-phase grant applications we intend to conduct a single-tier review.
In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
3.
4.
Please note that, if the total value of your currently active grants, cooperative agreements, and procurement contracts from the Federal Government exceeds $10,000,000, the reporting requirements in 2 CFR part 200, Appendix XII, require you to report certain integrity information to FAPIIS semiannually. Please review the requirements in 2 CFR part 200, Appendix XII, if this grant plus all the other Federal funds you receive exceed $10,000,000.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
(c) Under 34 CFR 75.250(b), the Secretary may provide a grantee with additional funding for data collection analysis and reporting. In this case the Secretary establishes a data collection period.
4.
5.
In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
Kelly Terpak, U.S. Department of Education, 400 Maryland Avenue SW., Room 4W312, Washington, DC 20202-5900. Telephone: (202) 453-7122. FAX: (202) 401-4123 or by email:
If you use a TDD or a TTY, call the Federal Relay Service, toll free, at 1-800-877-8339.
You may also access documents of the Department published in the
Federal Student Aid (FSA), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before February 13, 2017.
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 Ian Foss, 202-377-3681.
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.
The Department is creating an application for forgiveness and revising the Employment Certification Form which is already part of this collection. Pages 2 through 6 of the current Employment Certification Form will also be embedded in the application. Slight changes have been made to the language on the Employment Certification Form to increase consistency and understanding.
Office of Innovation and Improvement, Department of Education.
Notice.
Education Innovation and Research Program—Mid-phase Grants.
Notice inviting applications for new awards for fiscal year (FY) 2017.
Catalog of Federal Domestic Assistance (CFDA) Number: 84.411B (Mid-phase Grants).
The central design element of the EIR program is its multi-tier structure that links the amount of funding that an applicant may receive to the quality of the evidence supporting the efficacy of the proposed project, with the expectation that projects that build this evidence will advance through EIR's grant tiers. Applicants proposing innovative practices (as defined in this notice) that are supported by limited evidence can receive relatively small grants to support the development, iteration, and initial evaluation of the practices; applicants proposing practices supported by evidence from rigorous evaluations, such as large randomized controlled trials (as defined in this notice), can receive larger grant awards to support expansion across the country. This structure provides incentives for applicants to: (1) Explore new ways of addressing persistent challenges that other educators can build on and learn from; (2) build evidence of effectiveness of their practices; and (3) replicate and scale successful practices in new schools, districts, and states while addressing the barriers to scale, such as cost structures and implementation fidelity.
All EIR projects are expected to generate information regarding their effectiveness in order to inform EIR grantees' efforts to learn about and improve upon their efforts, and to help similar, non-EIR efforts across the country benefit from EIR grantees' knowledge. By requiring that all grantees conduct independent evaluations (as defined in this notice) of their EIR projects, EIR ensures that its funded projects make a significant contribution to improving the quality and quantity of information available to practitioners and policymakers about which practices improve student achievement, for which types of students, and in what contexts.
The Department of Education (Department) awards three types of grants under this program: “Early-phase” grants, “Mid-phase” grants, and “Expansion” grants. These grants differ in terms of the level of prior evidence of effectiveness required for consideration for funding, the expectations regarding the kind of evidence and information funded projects should produce, the level of scale funded projects should reach, and, consequently, the amount of funding available to support each type of project.
Mid-phase grants provide funding to support scaling of projects supported by moderate evidence (as defined in this notice) for at least one population or setting to the regional level (as defined in this notice) or to the national level (as defined in this notice). This notice invites applications for Mid-phase grants only. The notices inviting applications for Early-phase and Expansion grants are published elsewhere in this issue of the
EIR Mid-phase projects are expected to refine and expand the use of practices with prior evidence of effectiveness, in order to improve outcomes for high-need students. They are also expected to generate important information about an intervention's effectiveness, including for whom and in which contexts a practice is most effective.
To the extent possible, we intend to fund multiple projects addressing similar challenges. By so doing, we aim to accelerate the building of a knowledge base of effective practices for addressing these challenges and increase the likelihood that grantees can learn from one another while still exploring different approaches. We
Mid-phase grantees must evaluate the effectiveness of the EIR-supported practice that the project implements and expands, and the application must include an evaluation designed to have the potential to meet the evidence requirement of strong evidence (as defined in this notice) under Expansion. Not only will such evaluation data build the knowledge base about effective practices for underserved students, but it will also encourage future Expansion applicants to leverage the findings from Mid-phase grantees' efforts. The evaluation of a Mid-phase project must identify and codify the core elements of the EIR-supported practice that the project implements in order to support adoption or replication by other entities; furthermore, the evaluation must examine effectiveness of the project for any new populations or settings that are included in the project. Mid-phase grantees should measure the cost-effectiveness of their practices using administrative or other readily available data, and test and validate alternatives to practices that are too costly or inefficient. These types of efforts are critical to sustaining and scaling EIR-funded effective practices after the EIR grant period ends, assuming that the practice has positive effects on important student outcomes.
All EIR applicants are required to serve high-need students and are therefore required to address absolute priority one. EIR Mid-phase applicants are also required to address one of the other four absolute priorities that address persistent challenges in public education for which there are solutions that are supported by moderate evidence.
First, the Department includes an absolute priority for improving early learning and development outcomes. Research continues to demonstrate that the quality of students' early learning (birth through third grade) experiences has a significant impact on subsequent academic and social competencies.
Second, the Department includes an absolute priority to enhance students' social-behavioral competencies. These social-behavioral competencies may include social skills (
Third, the Department includes an absolute priority for projects to improve low-performing schools (
Finally, the Department includes an absolute priority for projects supported by moderate evidence. Projects must demonstrate moderate evidence, for at least one population or setting, that are designed to improve student achievement and attainment in emerging areas of critical need. In recent years, there has been an increase in rigorous education research that is relevant to education practitioners.
These priorities are:
Under this priority, we provide funding to projects that are designed to improve academic outcomes for high-need students.
Under this priority, we provide funding to projects that are designed to improve early learning and development outcomes across one or more of the essential domains of school readiness (as defined in this notice) by sustaining students' improved early learning and development outcomes from Pre-K programs throughout the early elementary school years.
Under this priority, we provide funding to projects that are designed to help students improve their social skills, behaviors, or underlying cognitive abilities that support social-behavioral competencies; improve students' mastery of non-cognitive skills and behaviors (such as academic behaviors, academic mindset, perseverance, self-regulation, social and emotional skills, and approaches toward learning strategies) and enhance student motivation and engagement in learning; and identify better ways of measuring the impact of students' social-behavioral competencies on student achievement.
Under this priority, we provide funding to support strategies, practices, or programs that are designed to improve outcomes for students in low-performing schools (as defined in this notice).
Under the priority, we provide funding to projects that meet the evidence standard established in Section III.3. for this competition and are designed to improve student achievement and attainment in areas of critical national need.
The definitions of “national level” and “nonprofit” are from 34 CFR 77.1. The definitions for “essential domains of school readiness,” “high-need students,” and “regular high school diploma are from the Supplemental Priorities. The definitions of “local educational agency” and “state educational agency” are from Section 8101 of the ESEA, as reauthorized by ESSA. We are establishing the definitions for “experimental study,” “high-minority school,” “independent evaluation,” “large sample,” “logic model,” “low-performing schools,” “meets What Works Clearinghouse Standards without reservations,” “meets What Works Clearinghouse Evidence Standards with reservations,” “moderate evidence,” “multi-site sample,” “practice,” “quasi-experimental design study,” “randomized controlled trial,” “regional level,” “regression discontinuity design study,” “relevant finding,” “relevant outcome,” “rural local educational agencies,” “single-case design study,” “strong evidence,” and “student achievement” for the FY 2017 grant competition only, in accordance with section 437(d)(1) of GEPA, 20 U.S.C. 1232(d)(1).
(a) A public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary schools or secondary schools in a city, county, township, school district, or other political subdivision of a State, or of or for a
(b) Administrative Control and Direction. The term includes any other public institution or agency having administrative control and direction of a public elementary school or secondary school.
(c) Bureau of Indian Education Schools. The term includes an elementary school or secondary school funded by the Bureau of Indian Education but only to the extent that including the school makes the school eligible for programs for which specific eligibility is not provided to the school in another provision of law and the school does not have a student population that is smaller than the student population of the local educational agency receiving assistance under this Act with the smallest student population, except that the school shall not be subject to the jurisdiction of any State educational agency (as defined in this notice) other than the Bureau of Indian Education.
(d) Educational Service Agencies. The term includes educational service agencies and consortia of those agencies.
(e) State Educational Agency. The term includes the State educational agency in a State in which the State educational agency is the sole educational agency for all public schools.
For grades and subjects in which assessments are required under section 1111(b)(2) of Elementary and Secondary Education Act (ESEA), as amended by Every Student Succeeds Act (ESSA): (1) A student's score on such assessments; and, as appropriate (2) other measures of student learning, such as those described in the subsequent paragraph, provided that they are rigorous and comparable across schools with a local educational agency (LEA).
For grades and subjects in which assessments are not required under section 1111(b)(2) of ESEA, as amended by ESSA: (1) Alternative measures of student learning and performance, such as student results on pre-tests, end-of-course tests, and objective performance-based assessments; (2) students learning objectives; (3) student performance on English language proficiency assessments; and (4) other measures of student achievement that are rigorous and comparable across schools within an LEA.
The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.
The regulations in 34 CFR part 86 apply to institutions of higher education only.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in subsequent years from the list of unfunded applications from this competition.
Under section 4611(c) of the ESEA, as amended by ESSA, the Department must use at least 25 percent of EIR funds for a fiscal year to make awards to applicants serving rural areas, contingent on receipt of a sufficient number of applications of sufficient quality. For purposes of this competition, we will consider an applicant as rural if the applicant meets the qualifications for rural applicants as described in the eligible applicants section and the applicant certifies that it meets those qualifications through the application.
In implementing this statutory provision, the Department may fund high-quality applications from rural applicants out of rank order in one or more of the EIR competitions.
The Department is not bound by any estimates in this notice.
1.
(a) An LEA;
(b) A State educational agency;
(c) The Bureau of Indian Education;
(d) A consortium of State educational agencies or LEAs;
(e) A nonprofit (as defined in this notice) organization; and
(f) A State educational agency, an LEA, a consortium described in (d), or the Bureau of Indian Education, in partnership with—
(1) A nonprofit organization;
(2) A business;
(3) An educational service agency; or
(4) An institution of higher education.
To qualify as a rural applicant under the EIR program, an applicant must meet both of the following requirements:
(a) The applicant is—
(1) An LEA with an urban-centric district locale code of 32, 33, 41, 42, or 43, as determined by the Secretary;
(2) A consortium of such LEAs;
(3) An educational service agency or a nonprofit organization in partnership with such an LEA; or
(4) A grantee described in clause (1) or (2) in partnership with a State educational agency; and
(b) A majority of the schools to be served by the program are designated with a locale code of 32, 33, 41, 42, or 43, or a combination of such codes, as determined by the Secretary.
More information on rural applicant eligibility is in the application package.
2. a.
(a) The difficulty of raising matching funds for a program to serve a rural area;
(b) The difficulty of raising matching funds in areas with a concentration of local educational agencies or schools with a high percentage of students aged 5 through 17—
(1) Who are in poverty, as counted in the most recent census data approved by the Secretary;
(2) Who are eligible for a free or reduced price lunch under the Richard B. Russell National School Lunch Act (42 U.S.C. 1751
(3) Whose families receive assistance under the State program funded under part A of title IV of the Social Security Act (42 U.S.C. 601
(4) Who are eligible to receive medical assistance under the Medicaid program; and
(c) The difficulty of raising funds on tribal land.
Applicants that wish to apply for a waiver must include a request in their application that describes why the matching requirement would cause serious hardship or an inability to carry out project activities. Further information about applying for waivers can be found in the application package. However, given the importance of matching funds to the long-term success of the project, the Secretary expects eligible entities to identify appropriate matching funds.
3.
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•
An applicant must identify up to two study citations to be reviewed against WWC Evidence Standards for the purposes of meeting the EIR evidence standard requirement. An applicant must clearly identify these citations in the Evidence form. The Department will not review a study citation that an applicant fails to clearly identify for review. In addition to the two study citations, applicants should include (1) the positive student outcomes they intend to replicate under their Mid-phase grant, (2) the intervention the applicant plans to implement, and (3) the intended student outcomes that the intervention(s) attempts to impact in the Evidence form.
An applicant must ensure that all evidence is available to the Department from publicly available sources and provide links or other guidance indicating where it is available. If the Department determines that an applicant has provided insufficient information, the applicant will not have an opportunity to provide additional information at a later time. However, if the WWC determines that a study does not provide enough information on key aspects of the study design, such as
The evidence standards apply to the prior research that supports the effectiveness of the proposed project. The EIR program does not restrict the source of prior research providing evidence for the proposed project. As such, an applicant could cite prior research in the Evidence form for studies that were conducted by another entity (
•
Each application will be reviewed under the competition it was submitted under in the
•
•
•
In addition, the grantee and its independent evaluator must agree to cooperate with any technical assistance provided by the Department or its contractor and comply with the requirements of any evaluation of the program conducted by the Department. This includes providing to the Department or its contractor, an updated comprehensive evaluation plan in a format and using such tools as the Department may require, as outlined in the Cooperative Agreement. Grantees must update this evaluation plan at least annually to reflect any changes to the evaluation. All of these updates must be consistent with the scope and objectives of the approved application.
•
(a) Type of data to be shared;
(b) Procedures for managing and for maintaining the confidentiality of personally identifiable information;
(c) Roles and responsibilities of project or institutional staff in the management and retention of research data, including a discussion of any changes to the roles and responsibilities that will occur should the Project Director/Principal Investigator and/or co-Project Directors/co-Principal Investigators leave the project or their institution;
(d) Expected schedule for data access, including how long the data will remain accessible (at least 10 years unless a shorter period of time is required to comply with applicable Federal or State laws or agreements promulgated to ensure compliance with such laws in which the destruction of records or personal information is required within a shorter period of time) and acknowledgement that the timeframe of data accessibility will be reviewed at the annual progress reviews and revised as necessary;
(e) Format of the final dataset;
(f) Dataset documentation to be provided;
(g) Method of data access (
(h) Whether or not a data agreement that specifies conditions under which the data will be shared will be required; and
(i) Any circumstances that prevent all or some of the data from being made accessible. This includes data that may fall under multiple statutes and, hence, must meet the confidentiality requirements for each applicable statute (
The costs of the DMP can be covered by the grant and should be included in the budget and explained in the budget narrative. The peer-review process will not include the DMP in the scoring of the application. The EIR team will be responsible for reviewing the completeness of the proposed DMP and will work with EIR grantees to finalize the DMP once the grant is awarded.
Recipients of awards are expected to publish or otherwise make publicly available the results of the work supported through EIR, including the evaluation report. EIR grantees must submit final studies resulting from research supported in whole or in part by EIR to the Educational Resources Information Center (ERIC),
•
•
1.
You can contact ED Pubs at its Web site, also:
If you request an application package from ED Pubs, be sure to identify this program or competition as follows: CFDA number 84.411B.
Individuals with disabilities can obtain a copy of the application package in an accessible format (
2. a.
We will be able to develop a more efficient process for reviewing grant applications if we know the approximate number of applicants that intend to apply for funding under this competition. Therefore, the Secretary strongly encourages each potential applicant to notify us of the applicant's intent to submit an application by completing a Web-based form. When completing this form, applicants will provide (1) the applicant organization's name and address and (2) the absolute priority the applicant intends to address. Applicants may access this form online at
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
The page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support. However, the page limit does apply to all of the application narrative.
b.
We plan on posting the project narrative section of funded EIR applications on the Department's Web site. Accordingly, you may wish to request confidentiality of business information. Identifying proprietary information in the submitted application will help facilitate this public disclosure process.
Consistent with Executive Order 12600, please designate in your application any information that you believe is exempt from disclosure under Exemption 4. In the appropriate Appendix section of your application, under “Other Attachments Form,” please list the page number or numbers on which we can find this information. For additional information please see 34 CFR 5.11(c).
3.
Applications for grants under this competition must be submitted electronically using the
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
6.
a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the System for Award Management (SAM), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active SAM registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet at the following Web site:
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow two to five weeks for your TIN to become active.
The SAM registration process can take approximately seven business days, but may take upwards of several weeks, depending on the completeness and accuracy of the data you enter into the SAM database. Thus, if you think you might want to apply for Federal financial assistance under a program administered by the Department, please allow sufficient time to obtain and register your DUNS number and TIN. We strongly recommend that you register early.
Once your SAM registration is active, it may be 24 to 48 hours before you can access the information in, and submit an application through,
If you are currently registered with SAM, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your registration annually. This may take three or more business days.
Information about SAM is available at
In addition, if you are submitting your application via
7.
Applications for grants under the EIR Program, CFDA number 84.411B, must be submitted electronically using the Governmentwide
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement and submit, no later than two weeks before the application deadline date, a written statement to the Department that you qualify for one of these exceptions. Further information regarding calculation of the date that is two weeks before the application deadline date is provided later in this section under
You may access the electronic grant application for EIR Mid-phase at
Please note the following:
• When you enter the
• Applications received by
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through
• You should review and follow the Education Submission Procedures for submitting an application through
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: The Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• You must upload any narrative sections and all other attachments to
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from
Once your application is successfully validated by
These emails do not mean that your application is without any disqualifying errors. While your application may have been successfully validated by
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevents you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Kelly Terpak, U.S. Department of Education, 400 Maryland Avenue SW., Room 4W312, Washington, DC 20202-5900. FAX: (202) 401-4123.
Your paper application must be submitted in accordance with the mail or hand-delivery instructions described in this notice.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.411B), LBJ Basement Level 1, 400 Maryland Avenue SW., Washington, DC 20202-4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
We will not consider applications postmarked after the application deadline date.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application, by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.411B), 550 12th Street SW., Room 7039, Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
The points assigned to each criterion are indicated in the parentheses next to the criterion. An applicant may earn up to a total of 100 points based on the selection criteria for the application.
In determining the significance of the project, the Secretary considers the following factors:
(1) The magnitude or severity of the problem to be addressed by the proposed project.
(2) The national significance of the proposed project.
(3) The extent to which the proposed project represents an exceptional approach to the priority or priorities established for the competition.
In determining the applicant's capacity to scale the proposed project, the Secretary considers the following factors:
(1) The extent to which the applicant demonstrates there is unmet demand for the process, product, strategy, or practice that will enable the applicant to reach the level of scale that is proposed in the application.
(2) The extent to which the applicant identifies a specific strategy or strategies that address a particular barrier or barriers that prevented the applicant, in the past, from reaching the level of scale that is proposed in the application.
(3) The feasibility of successful replication of the proposed project, if favorable results are obtained, in a variety of settings and with a variety of populations.
In determining the quality of the proposed project design, the Secretary considers the following factors:
(1) The extent to which the goals, objectives, and outcomes to be achieved by the proposed project are clearly specified and measurable.
(2) The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks.
(3) The adequacy of procedures for ensuring feedback and continuous improvement in the operation of the proposed project.
(4) The potential and planning for the incorporation of project purposes, activities, or benefits into the ongoing work of the applicant beyond the end of the grant.
In determining the quality of the project evaluation to be conducted, the Secretary considers the following factors:
(1) The extent to which the methods of evaluation will, if well implemented, produce evidence about the project's effectiveness that would meet the What Works Clearinghouse Evidence Standards without reservations.
(2) The extent to which the evaluation will provide guidance about effective strategies suitable for replication or testing in other settings.
(3) The extent to which the methods of evaluation will provide valid and reliable performance data on relevant outcomes.
(4) The extent to which the evaluation plan clearly articulates the key components, mediators, and outcomes of the grant-supported intervention, as well as a measurable threshold for acceptable implementation.
Applicants may wish to review the following technical assistance resources on evaluation: (1) WWC Procedures and Standards Handbook:
2.
Before making awards, we will screen applications submitted in accordance with the requirements in this notice to determine whether applications have met eligibility and other requirements. This screening process may occur at various stages of the process; applicants that are determined to be ineligible will not receive a grant, regardless of peer reviewer scores or comments.
Peer reviewers will read, prepare a written evaluation of, and score the assigned applications, using the selection criteria provided in this notice. For Mid-phase grant applications we intend to conduct a single-tier review.
In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
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Please note that, if the total value of your currently active grants, cooperative agreements, and procurement contracts from the Federal Government exceeds $10,000,000, the reporting requirements in 2 CFR part 200, Appendix XII, require you to report certain integrity information to FAPIIS semiannually. Please review the requirements in 2 CFR part 200, Appendix XII, if this grant plus all the other Federal funds you receive exceed $10,000,000.
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If your application is not evaluated or not selected for funding, we notify you.
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We reference the regulations outlining the terms and conditions of an award in the
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(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
(c) Under 34 CFR 75.250(b), the Secretary may provide a grantee with additional funding for data collection analysis and reporting. In this case the Secretary establishes a data collection period.
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In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
Kelly Terpak, U.S. Department of Education, 400 Maryland Avenue SW., Room 4W312, Washington, DC 20202-5900. Telephone: (202) 453-7122. FAX: (202) 401-4123 or by email:
If you use a TDD or a TTY, call the Federal Relay Service, toll free, at 1-800-877-8339.
You may also access documents of the Department published in the
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following public utility holding company filings:
Take notice that the Commission received the following qualifying facility filings:
Take notice that the Commission received the following electric reliability filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and § 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any of the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
On February 19, 2016, Energy Resources USA, Inc. (Energy Resources) filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the New Savannah Bluff Lock and Dam Hydroelectric Project (project) to be located at the U.S. Army Corps of Engineers' New Savannah Bluff Lock and Dam on the Savannah River in Aiken County, South Carolina. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed project would consist of the following: (1) A 300-foot-long, 90-foot-wide intake area; (2) a 98-foot-long, 45-foot-wide powerhouse containing two vertical Kaplan turbine-generator units with a total capacity of 8 megawatts; (3) a 350-foot-long, 120-foot-wide tailrace; (4) a 60-foot-long, 50-foot-wide substation; and (5) a 6.54-mile-long, 69 kV transmission line. The estimated annual generation of the project would be 68.5 gigawatt-hours, and would operate as directed by the U.S. Army Corps of Engineers.
Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Competing applications and notices of intent must meet the requirements of 18 CFR 4.36.
The Commission strongly encourages electronic filing. Please file comments, motions to intervene, notices of intent, and competing applications using the Commission's eFiling system at
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of Commission's Web site at
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following PURPA 210(m)(3) filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on December 5, 2016, City Pasadena, California submitted its tariff filing: City of Pasadena, California 2017 Transmission Revenue Balancing Account Adjustment Update to be effective 1/1/2017.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant and all the parties in this proceeding.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Environmental Protection Agency (EPA).
Notice.
EPA has granted emergency exemptions under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) for use of pesticides as listed in this notice. The exemptions were granted during the period October 1, 2015 to September 30, 2016 to control unforeseen pest outbreaks.
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
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
If you have any questions regarding the applicability of this action to a particular entity, consult the person listed at the end of the emergency exemption.
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2016-0104, is available at
EPA has granted emergency exemptions to the following State and Federal agencies. The emergency exemptions may take the following form: Crisis, public health, quarantine, or specific.
Under FIFRA section 18 (7 U.S.C. 136p), EPA can authorize the use of a pesticide when emergency conditions exist. Authorizations (commonly called emergency exemptions) are granted to State and Federal agencies and are of four types:
1. A “specific exemption” authorizes use of a pesticide against specific pests on a limited acreage in a particular State. Most emergency exemptions are specific exemptions.
2. “Quarantine” and “public health” exemptions are emergency exemptions issued for quarantine or public health purposes. These are rarely requested.
3. A “crisis exemption” is initiated by a State or Federal agency (and is confirmed by EPA) when there is insufficient time to request and obtain EPA permission for use of a pesticide in an emergency.
EPA may deny an emergency exemption: If the State or Federal agency cannot demonstrate that an emergency exists, if the use poses unacceptable risks to the environment, or if EPA cannot reach a conclusion that the proposed pesticide use is likely to result in “a reasonable certainty of no harm” to human health, including exposure of residues of the pesticide to infants and children.
If the emergency use of the pesticide on a food or feed commodity would result in pesticide chemical residues, EPA establishes a time-limited tolerance meeting the “reasonable certainty of no harm standard” of the Federal Food, Drug, and Cosmetic Act (FFDCA).
In this document: EPA identifies the State or Federal agency granted the exemption, the type of exemption, the pesticide authorized and the pests, the crop or use for which authorized, and the duration of the exemption.
EPA authorized the use of sulfoxaflor on sorghum to control sugarcane aphids; May 5, 2016 to April 8, 2017.
EPA authorized the use of sulfoxaflor on sorghum to control sugarcane aphids; May 5, 2016 to April 8, 2017.
On June 30, 2016, the California Department of Pesticide Regulation declared a crisis exemption to allow use of methoxyfenozide in rice to control armyworms. The use was expected to be needed beyond the 15 days allowed under a crisis exemption and a specific exemption request was also submitted.
EPA authorized the use of bifenthrin on apple, peach, and nectarine to control the brown marmorated stinkbug; May 31 to October 15, 2016.
EPA authorized the use of tolfenpyrad on fruiting vegetables crop group 8-10
EPA authorized the use of clothianidin on immature (3 to 5 years old) citrus trees to manage transmission of Huanglongbing (HLB) disease vectored by the Asian citrus psyllid; January 15 to October 31, 2016.
EPA authorized the use of fluridone in cotton to control Palmer amaranth; December 18, 2015 to August 31, 2016.
EPA authorized the use of sulfoxaflor on sorghum to control sugarcane aphids; May 5, 2016 to April 8, 2017.
EPA authorized the use of bifenthrin on apple, peach, and nectarine to control the brown marmorated stinkbug; May 31 to October 15, 2016.
EPA authorized the use of sulfoxaflor on sorghum to control sugarcane aphids; May 5, 2016 to April 8, 2017.
EPA authorized the use of sulfoxaflor on sorghum to control sugarcane aphids; May 11, 2016 to April 8, 2017.
On January 11, 2016, the North Carolina Department of Agriculture declared a crisis exemption for the postharvest use of thiabendazole on sweet potatoes to control black rot disease. The use was expected to be needed until December 31, 2016 and a request for a specific exemption was also submitted.
EPA authorized the uses of bifenthrin on apple, peach, and nectarine to control the brown marmorated stinkbug; July 12 to October 15, 2016.
EPA authorized the use of dinotefuran on pome and stone fruits to control the brown marmorated stinkbug; June 16 to October 15, 2016.
EPA authorized the use of sulfoxaflor on sorghum to control sugarcane aphids; May 5, 2016 to April 8, 2017.
EPA authorized the use of bifenthrin on apple, peach, and nectarine to control the brown marmorated stinkbug; May 31 to October 15, 2016.
EPA authorized the use of thiabendazole on mushroom to control
EPA authorized the use of sulfoxaflor on sorghum to control sugarcane aphids; May 5, 2016 to April 8, 2017.
EPA authorized the use of bifenthrin on apple, peach, and nectarine to control the brown marmorated stinkbug; May 31 to October 15, 2016.
EPA authorized the use of sulfoxaflor on sorghum to control sugarcane aphids; May 16, 2016 to April 8, 2017.
On May 19, 2016, the Washington Department of Agriculture declared a crisis exemption for use of isofetamid on blackberry, blueberry, and raspberry to control
EPA authorized the use of isofetamid on blackberry, blueberry, and raspberry to control
EPA authorized the use of bifenthrin on apple, peach, and nectarine to control the brown marmorated stinkbug; May 31 to October 15, 2016.
EPA authorized the use of a mixture of potassium peroxymonosulfate and propylene glycol for disinfection of nonporous surfaces associated with poultry facilities infected with highly pathogenic avian influenza virus; January 20, 2016 to January 20, 2019.
EPA authorized use of pyriproxyfen (a larvicide) and
7 U.S.C. 136
Environmental Protection Agency (EPA).
Notice; request for public comment.
The Environmental Protection Agency is giving notice of two proposed administrative settlements concerning the Scrub-A-Dubb Barrel Company Superfund Site, located in the City of Lubbock, Lubbock County, Texas.
Comments must be submitted on or before January 17, 2017.
The proposed settlements and additional background information relating to the settlements are available for public inspection at 1445 Ross Avenue, Dallas, Texas 75202-2733. Copies of the proposed settlements may be obtained from Robert Werner, Enforcement Officer, 1445 Ross Avenue, Dallas, Texas 75202-2733 or by calling (214) 665-6724. Comments should reference the Scrub-A-Dubb Barrel Company Superfund Site, located in the City of Lubbock, Lubbock County, Texas and EPA CERCLA Docket Number 06-09-16 for the Enterprise Products BBCT LLC settlement and EPA CERCLA Docket Number 06-10-16 for the Foster Testing, Inc. settlement and should be addressed to Robert Werner, Enforcement Officer, at the address listed above.
Amy Salinas, Attorney, 1445 Ross Avenue, Dallas, Texas 75202-2733 or call (214) 665-8063.
In accordance with Section 122(h) of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (CERCLA), 42 U.S.C. 9622(h)(1), notice is hereby given of two proposed administrative settlements concerning the Scrub-A-Dubb Barrel Company Superfund Site, located in the City of Lubbock, Lubbock County, Texas.
The settlements require two settling parties, Enterprise Products BBCT, LLC, and Foster Testing, Inc., to pay a total of $147,800.00 as payment of response costs to the Hazardous Substances Superfund. The settlements include a covenant not to sue pursuant to Section 107 of CERCLA, 42, U.S.C. 9607.
For thirty (30) days beginning the date of publication of this notice, the Agency will receive written comments relating to this notice and will receive written comments relating to the settlement. The Agency will consider all comments received and may modify or withdraw its consent to the settlement if comments received disclose facts or considerations which indicate that the settlement is inappropriate, improper, or inadequate. The Agency's response to any comments received will be available for public inspection at 1445 Ross Avenue, Dallas, Texas 75202-2733.
Environmental Protection Agency (EPA).
Notice.
On June 22, 2016, President Obama signed into law the Frank R. Lautenberg Chemical Safety for the 21st Century Act which amended the Toxic Substance Control Act (TSCA). TSCA, as amended, requires EPA to review the size standards for small manufacturers and processors, which are currently used in connection with reporting regulations under TSCA Section 8(a). In particular, EPA must make a determination whether a revision of those standards is warranted. EPA's preliminary determination is that revisions to currently codified size standards for TSCA Section 8(a) are indeed warranted. As part of the ongoing review process, the EPA is requesting public comment on whether a revision of the current size standard definitions is warranted at this time.
Comments must be received on or before January 17, 2017.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2016-0675, 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
You may be potentially affected by this action if you manufacture or process chemical substances or mixtures. 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:
• Basic Chemical Manufacturers (NAICS code 3251);
• Resin, Synthetic Rubber, and Artificial Synthetic Fibers and Filament Manufacturers (NAICS code 3252);
• Pesticide, Fertilizer, and Other Agricultural Chemical Manufacturers (NAICS code 3255);
• Paint, Coating, and Adhesive Manufacturers (NAICS code 3255);
• Other Chemical Product and Preparation Manufacturers (NAICS code 3259); and
• Petroleum Refineries (NAICS code 32411).
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On June 22, 2016, President Obama signed into law the Frank R. Lautenberg Chemical Safety for the 21st Century Act which amends the Toxic Substance Control Act (TSCA), the nation's primary chemicals management law. A summary of the new law, is available at
In the 1980s, the EPA issued standards that are used in identifying which businesses qualify as small manufacturers and processors for purposes of the reporting and recordkeeping rules issued under TSCA section 8(a). (Under TSCA, manufacture includes import, so references to chemical manufacture include chemical import.) These size standards describe who is generally exempt from reporting requirements under TSCA section 8(a). This exemption arises because TSCA section 8(a)(1) generally exempts small manufacturers and processors from reporting requirements, except in limited cases set forth in TSCA section 8(a)(3).
In 1982, the EPA finalized standards for determining which manufacturers of a reportable chemical substance qualified as small manufacturers for purposes of a particular set of TSCA section 8(a) rules. These are the Preliminary Assessment Information Reporting (PAIR) rules, codified in 40 CFR part 712, subpart B. The small manufacturer standard for PAIR rules is found at 40 CFR 712.25(c).
In 1988 EPA established general small manufacturer standards for use in other rules issued under TSCA section 8(a) (40 CFR 704.3). For example, these are the standards that now apply to the Chemical Data Reporting (CDR) rule (40 CFR part 711). The general standards are somewhat different from the earlier standards that are codified for use in the PAIR rules. The general small manufacturer standard is as follows:
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Certain rules issued under TSCA section 8(a) directly codify slight variations of the general small manufacturer standards at 40 CFR 704.3. (See,
As an initial step in evaluating whether a change in these current size standards are warranted, EPA reviewed the change in the Producer Price Index (PPI) for Chemicals and Allied Products between 1988 (the year the size
EPA is requesting public comment on the adequacy of the current standards and whether revision of the standards is warranted. In the event that EPA determines that a revision to the standards is warranted, any such revision would occur by subsequent rulemaking, which would involve a further opportunity for public notice and comment. Accordingly, the scope of this first action (
EPA is also in the process of consulting with the SBA on the adequacy of the current standards and whether revision of the standards is warranted. (Ref. 2.) EPA has requested that SBA provide its input within 15 business days of receiving EPA's consultation request. When SBA's consultation response becomes available, EPA plans to add that response to the docket for this preliminary determination.
The following is a listing of the documents that are specifically referenced in this document. The docket includes these documents and other information considered by EPA, including documents that are referenced within the documents that are included in the docket, even if the referenced document is not physically located in the docket. For assistance in locating these other documents, please consult the technical person listed under
15 U.S.C. 2607(a)(3)(C).
Environmental Protection Agency (EPA).
Notice.
EPA has received applications to register new uses for pesticide products containing currently registered active ingredients. Pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), EPA is hereby providing notice of receipt and opportunity to comment on these applications.
Comments must be received on or before January 17, 2017.
Submit your comments, identified by the Docket Identification (ID) Number and the File Symbol or EPA Registration Number of interest as shown in the body of this document, by one of the following methods:
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Steve Knizner, Antimicrobials Division (AD) (7510P), 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).
If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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EPA has received applications to register new uses for pesticide products containing currently registered active ingredients. Pursuant to the provisions of FIFRA section 3(c)(4) (7 U.S.C. 136a(c)(4)), EPA is hereby providing notice of receipt and opportunity to comment on these applications. Notice of receipt of these applications does not imply a decision by EPA on these applications. For actions being evaluated under EPA's public participation process for registration actions, there will be an additional opportunity for public comment on the proposed decisions. Please see EPA's public participation Web site for additional information on this process
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7 U.S.C. 136
Environmental Protection Agency (EPA).
Notice of Intent to Establish Negotiated Rulemaking Committee and Negotiate a Proposed Rule.
EPA is giving notice that it intends to establish a Negotiated Rulemaking Committee under the Federal Advisory Committee Act
Comments must be received on or before January 17, 2017.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2016-0597, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
You may be potentially affected by this action if you manufacture (including manufacture as a byproduct chemical substance) or import chemical substances listed on the TSCA Inventory. The following list of North American Industrial Classification System (NAICS) codes are not intended to be exhaustive, but rather provides a guide to help readers determine whether this action may apply to them:
• Chemical manufacturers and importers (NAICS codes 325 and 324110;
• Chemical users and processors who may manufacture a byproduct chemical substance (NAICS codes 22, 322, 331, and 3344;
If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under
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As required by the Negotiated Rulemaking Act of 1996 (NRA), EPA is giving notice that the Agency intends to establish a Negotiated Rulemaking Committee. The objective of this Negotiated Rulemaking Committee will be to develop a proposed rule providing for limiting chemical data reporting requirements, under TSCA section 8(a), for manufacturers of any inorganic byproduct chemical substances, when such byproduct chemical substances are subsequently recycled, reused, or reprocessed. This negotiation process, which includes the establishment of a federal advisory committee, is required by section 8(a)(6) of the Toxic Substances Control Act (TSCA), as amended by the Frank. R. Lautenberg Chemical Safety for the 21st Century Act (“Lautenberg Act”).
This notice announcing EPA's intent to establish a Negotiated Rulemaking Committee to negotiate a proposed regulation was developed under the authority of sections 563 and 564 of the Negotiated Rulemaking Act (NRA) (5 U.S.C. 561, Pub. L. 104-320). This Negotiated Rulemaking Committee will be a statutory committee under the Federal Advisory Committee Act (FACA) (5 U.S.C. App. 2, section 9(a)(1)). Any proposed regulation resulting from the negotiation process would be developed under the authority of TSCA section 8 (15 U.S.C. 2607), as amended by the Lautenberg Act (Pub. L. 114-182).
In the Lautenberg Act, Congress mandated that EPA undertake a negotiation process, pursuant to the NRA, aimed at developing a rule to limit TSCA section 8(a) chemical data reporting requirements for manufacturers of any inorganic byproduct chemical substances, when such byproduct chemical substances are subsequently recycled, reused, or reprocessed.
EPA sees potential benefits from undertaking this negotiated rulemaking process. A regulatory negotiation process will allow EPA to engage directly with informed, interested, and affected parties, all of whom are working together to resolve their differences. Because a negotiating committee includes representatives from the major stakeholder groups affected by or interested in the rule, the number of public comments on any proposed rule may be reduced and those comments that are received may be more moderate. EPA anticipates that few substantive changes would be
Negotiated rulemaking is a process in which a proposed rule is developed by a committee composed of representatives of all those interests that will be significantly affected by the rule. Decisions are made by consensus, which the NRA defines as the unanimous concurrence among interests represented on a Negotiated Rulemaking Committee, unless the Negotiated Rulemaking Committee itself unanimously agrees to use a different definition. To start the process, the Agency identifies all interests potentially affected by the rulemaking under consideration. To help in this identification process, the Agency publishes a notice in the
If a regulatory negotiation advisory committee reaches consensus on the provisions of a proposed rule, the Agency, consistent with its legal obligations, would use such consensus as the basis of a proposed rule, to be published in the
In initiating this regulatory negotiation process, EPA is making a commitment to provide adequate resources to ensure timely and successful completion of the process. This commitment includes making the process a priority activity for all representatives, components, officials, and personnel of the Agency who need to be involved in the rulemaking, from the time of initiation until such time as a final rule is issued or the process is expressly terminated. EPA will provide administrative support for the process and will take steps to ensure that the Negotiated Rulemaking Committee has the dedicated resources it requires to complete its work in a timely fashion. These include the provision or procurement of such support services as: Properly equipped space adequate for public meetings and caucuses; logistical support; distribution of background information; the service of a facilitator; and such additional research and other technical assistance as may be necessary. If there is consensus within the Negotiated Rulemaking Committee, EPA will use the consensus to the maximum extent possible, consistent with the legal obligations of the Agency, as the basis for a rule proposed by the Agency for public notice and comment. The Agency is committed to working in good faith to seek consensus on a proposal that is consistent with the legal mandate of TSCA.
A key principle of negotiated rulemaking is that agreement is by consensus of all the interests. Thus, no one interest or group of interests is able to control the process. Again, the NRA defines consensus as the unanimous concurrence among interests represented on a Negotiated Rulemaking Committee, unless the Negotiated Rulemaking Committee itself unanimously agrees to use a different definition. In addition, experience has demonstrated that using a trained mediator to facilitate this process will assist all potential parties, including EPA, to identify their interests in the rule and so to be able to reevaluate previously stated positions on issues involved in this rulemaking effort.
Under TSCA, EPA regulates the manufacture, processing, distribution, use, and disposal of chemical substances in the United States. The TSCA Inventory of Chemical Substances (TSCA Inventory) lists the chemical substances which are manufactured or processed in the United States (also called “existing chemical substances”). Chemical substances not on the TSCA Inventory are known as “new chemical substances” and are required to be reviewed through EPA's new chemical program (under TSCA section 5) prior to the commencement of manufacture or processing. There are over 85,000 chemical substances listed on the TSCA Inventory.
In 1986, EPA created the Inventory Update Reporting (IUR) regulation under TSCA section 8 to collect, every four years, limited information on the manufacture (which includes import) of organic chemical substances listed on the TSCA Inventory, thereby providing more up-to-date production volume information on the chemical substances in U.S. commerce. In 2005, EPA amended the IUR to require the reporting of information on inorganic chemical substances and to collect additional manufacturing, processing, and use information. EPA has since made additional changes to the reporting requirements, and in 2011 changed the name of the reporting rule to Chemical Data Reporting. CDR regulations are currently codified at 40 CFR part 711. EPA believes CDR is the only current reporting obligation under TSCA section 8(a) that is likely to affect the manufacturers of inorganic byproduct chemical substances. Information collected under CDR is used to support Agency programs, providing exposure-related data for chemical substances subject to TSCA in U.S. commerce. This information is also made publicly available, to the extent possible while continuing to protect submitted information claimed as confidential business information.
Manufacturers of inorganic chemical substances first reported under the IUR in 2006. They also reported under the CDR in 2012 and 2016. Specific reporting requirements for these manufacturers were phased in, to allow for the industry to better understand the reporting requirements and for EPA to
A byproduct chemical substance is a chemical substance produced without a separate commercial intent during the manufacture, processing, use, or disposal of another chemical substance or mixture. Such byproduct chemical substances may, or may not, in themselves have commercial value. They are nonetheless produced for the purpose of obtaining a commercial advantage. Because byproduct chemical substances are manufactured for a commercial purpose, such manufacturing is reportable under CDR unless covered by a specific reporting exemption. CDR contains a specific reporting exemption for the manufacture of byproduct chemical substances, limited to cases where those byproduct chemical substances are not
Beginning in 2006, EPA became aware of a variety of questions raised by the manufacturers of inorganic byproduct chemical substances about their obligations to report their manufacture of those byproduct chemical substances. EPA has since provided detailed guidance to address a variety of questions that have been raised. See 75 FR 49675-6 (2010); 76 FR 50832-3, 50849-50851 (2011). In 2011, EPA also stated that it would examine CDR information related to byproduct chemical substances to identify whether there are segments of byproduct chemical substance manufacturing for which EPA can determine that there is no need for the CDR information to continue to be collected, either for 2016 or for future reporting cycles. 76 FR 50832-3 (2011). EPA did not amend the CDR requirements for the 2016 reporting cycle. Documents providing information to assist inorganic byproduct chemical substance manufacturers with reporting under CDR requirements include: Instructions for the 2016 TSCA CDR (Ref. 1); CDR Byproduct and Recycling Scenarios (Ref. 2); TSCA CDR Fact Sheet for the Printed Circuit Board Industry (Ref. 3); and TSCA CDR Fact Sheet for Reporting Manufactured Chemical Substances from Metal Mining and Related Activities (Ref. 4).
On June 22, 2016, TSCA was amended by the Lautenberg Act. TSCA now includes a requirement that EPA enter into a negotiated rulemaking, pursuant to the NRA, to develop and publish a proposed rule to limit the reporting requirements under TSCA section 8(a), for manufacturers of any inorganic byproduct chemical substances, when such byproduct chemical substances, whether by the byproduct chemical substance manufacturer or by any other person, are subsequently recycled, reused, or reprocessed. The objective of the negotiated rulemaking process is to develop and publish a proposed rule by June 22, 2019. In the event a proposed rule is developed through the negotiated rulemaking process, a final rule “resulting from such negotiated rulemaking” must be issued by December 22, 2019. 15 U.S.C. 2607(a)(6).
EPA construes its obligation to propose and finalize a rule under TSCA section 8(a)(6) as being contingent on the Negotiated Rulemaking Committee reaching a consensus. EPA's interpretation is based on several factors. First, TSCA section 8(a)(6)(A) does not give any direction on how CDR reporting requirements for the specified byproduct chemical substance manufacturers should be limited, other than directing that the particular limitations should be negotiated. Second, EPA's obligation to finalize a rule under TSCA section 8(a)(6)(B) presupposes that such rule would be one “resulting from such negotiated rulemaking.” While EPA would have authority to issue an amendment to the CDR even if negotiation failed to achieve a consensus, such a rule would not be a rule
Section 562 of the NRA defines the term “interest” as one of “multiple parties which have a similar point of view or which are likely to be affected in a similar manner.” We anticipate that the following key interests are likely to be significantly affected by the rule to be addressed by the Negotiated Rulemaking Committee while negotiating how to limit CDR requirements for manufacturers of any inorganic byproduct chemical substances, when such byproduct chemical substances are subsequently recycled, reused, or reprocessed:
Inorganic chemical manufacturers and processors, including metal mining and related activities;
Recyclers, including scrap recyclers;
Industry advocacy groups;
Environmental advocacy groups;
Federal, State, or Tribal governments; and
Employee advocacy groups, such as labor unions.
The Negotiated Rulemaking Committee will be formed and operated in full compliance with the requirements of FACA in a manner consistent with the requirements of the NRA.
The Agency intends to conduct the negotiated rulemaking proceedings with particular attention to ensuring full and adequate representation of those interests that may be significantly affected by a rule providing for limiting CDR requirements for inorganic byproduct chemical substances. We have listed those interests likely to be significantly affected by a rule in Unit V.A., and the following list identifies the parties that the Agency has initially identified as representing interests likely to be significantly affected by a rule:
The listed parties have been preliminarily identified by EPA as being either a potential member of the Negotiated Rulemaking Committee, or a potential member of a coalition that would in turn nominate a candidate to represent one of the significantly affected interests listed in Unit V.A. This list is not presented as a complete or exclusive list from which Negotiated Rulemaking Committee members will be selected, nor does inclusion on the list mean that a party on the list has agreed to participate as a member of the Negotiated Rulemaking Committee or as a member of a coalition. This list merely indicates those parties that represent interests that EPA has tentatively identified as being significantly affected by a rule providing for limiting CDR requirements for inorganic byproduct chemical substances.
EPA anticipates that the Negotiated Rulemaking Committee will be comprised of approximately 10-25 members representing significantly affected interests. The EPA Administrator will select members carefully to ensure that there is a balanced representation of such interests on the Negotiated Rulemaking Committee. EPA anticipates that the Negotiated Rulemaking Committee will contain representatives from industry, environmental groups, and state, local, and tribal governments.
One purpose of this document is to determine whether the negotiated rulemaking will significantly affect interests that are not listed in Unit V.A., as well as whether the list of parties the Agency has listed identifies accurately and comprehensively a group of stakeholders representing the significantly affected interests listed in Unit V.A. EPA requests comment and suggestions on the list of significantly affected interests, as well as the list of proposed representatives of those interests. EPA recognizes that any regulatory actions it takes under this program may at times affect various segments of society in different ways, and that this may in some cases produce unique interests in a rule based on demographic factors. Particular attention will be given by the Agency to ensure that any unique interests that have been identified in this regard, and that may be significantly affected by any rule resulting from the negotiation, are represented.
This document affords potential participants the opportunity to request representation in the negotiations. Request such representation by submitting a comment as described under
Section 565(b) of the NRA requires the Agency to limit membership on a Negotiated Rulemaking Committee to 25 members, unless the Agency determines that more members are necessary in order for the Negotiated Rulemaking Committee to function or to achieve balanced membership. The Agency believes that the negotiating group should not exceed 25 members, which would make it difficult to conduct effective negotiations. EPA is aware that there are many more than 25 potential participants to consider for the Negotiated Rulemaking Committee. The Agency does not believe, nor does the NRA contemplate, that each significantly affected interest must participate directly in the negotiations; however, each significantly affected interest can be adequately represented. To have a successful negotiation, it is important for significantly affected interests to identify and form coalitions that adequately represent those interests. These coalitions, to provide adequate representation, must agree to support, both financially and technically, a member to the Negotiated Rulemaking Committee whom they will choose to represent their interest. The Agency believes it is very important to recognize that interested parties who are not selected to membership on the Negotiated Rulemaking Committee can still make valuable contributions to this negotiated rulemaking effort in any of several ways:
• The party could request to be placed on the Negotiated Rulemaking Committee mailing list, submitting written comments, as appropriate;
• The party could attend the Negotiated Rulemaking Committee meetings, which are open to the public, caucus with his or her interest's member on the Negotiated Rulemaking Committee, or even address the Negotiated Rulemaking Committee (usually allowed at the end of an issue's discussion or the end of the session, as time permits); or
• The party could assist a workgroup that might be established by the Negotiated Rulemaking Committee.
An advisory committee may convene informal workgroups to assist the Negotiated Rulemaking Committee in “staffing” various discrete and technical matters (
EPA requests comment regarding particular appointments to membership on the Negotiated Rulemaking Committee. Members can be individuals or organizations. If the effort is to be successful, participants should be able to fully and adequately represent the viewpoints of their respective interests. Those who wish to be appointed as members of the Negotiated Rulemaking Committee should submit a request to EPA by submitting a comment as described under
EPA values and welcomes diversity. In an effort to obtain nominations of diverse candidates, EPA encourages nominations of women and men of all racial and ethnic groups.
Negotiated Rulemaking Committee members should be willing to negotiate in good faith and have the authority, from her or his constituency, to do so. The first step is to ensure that each member has good communications with her or his constituencies. An intra-interest network of communication should be established to bring information from the support organization to the member at the table, and to take information from the table back to the support organization. Second, each organization or coalition should, therefore, designate as its
Negotiated rulemaking efforts can require a very significant contribution of time by the appointed members. The convening meeting of the Negotiated Rulemaking Committee is expected to be held in March 2017, and the work of the Negotiated Rulemaking Committee is expected to conclude approximately in September 2017.
Other qualities that can be very helpful are negotiating experience and skills, as well as sufficient technical knowledge to participate in substantive negotiations. Certain concepts are central to negotiating in good faith. One is the willingness to bring key issues to the bargaining table in an attempt to reach a consensus, instead of keeping issues in reserve. The second is a willingness to keep the issues at the table and not take them to other forums. Finally, good faith includes a willingness to move away from the type of positions usually taken in a more traditional rulemaking process, and instead explore openly with other parties all ideas that may emerge from the discussions of the Negotiated Rulemaking Committee.
The facilitator will not be involved with the substantive development of any proposed rule. Rather, the facilitator's role generally includes facilitating the meetings of the Negotiated Rulemaking Committee in an impartial manner and impartially assisting the members of the Negotiated Rulemaking Committee in conducting discussions and negotiations.
The EPA representative will be a full and active participant in the consensus building negotiations. The Agency's representative will meet regularly with various senior Agency officials, briefing them on the negotiations and receiving their suggestions and advice, in order to effectively represent the Agency's views regarding the issues before the Negotiated Rulemaking Committee. EPA's representative also will ensure that the entire spectrum of federal governmental interests affected by the rulemaking, including the Office of Management and Budget (OMB) and other Departments and agencies, are kept informed of the negotiations and encouraged to make their concerns known in a timely fashion.
EPA requests comment on the extent to which the issues, interests, Negotiated Rulemaking Committee representatives, and procedures described in this document are adequate and appropriate.
The following is a listing of the documents that are specifically referenced in this document. The docket includes these documents and other information considered by EPA, including documents referenced within the documents that are included in the docket, even if the referenced document is not physically located in the docket. For assistance in locating these other documents, please consult the technical person listed under
15 U.S.C. 2601
Environmental Protection Agency (EPA).
Notice.
This notice announces EPA's approval of the State of Oregon's request to revise/modify its EPA Administered Permit Programs: The National Pollutant Discharge Elimination System EPA-authorized program to allow electronic reporting.
EPA's approval is effective December 15, 2016.
Karen Seeh, U.S. Environmental Protection Agency, Office of Environmental Information, Mail Stop 2823T, 1200 Pennsylvania Avenue NW., Washington, DC 20460, (202) 566-1175,
On October 13, 2005, the final Cross-Media Electronic Reporting Rule (CROMERR) was published in the
On November 3, 2016, the Oregon Department of Environmental Quality (OR DEQ) submitted an application titled “National Pollutant Discharge Elimination System” for revision/modification to its EPA-approved program under title 40 CFR to allow new electronic reporting. EPA reviewed OR DEQ's request to revise/modify its EPA-authorized programs and, based on this review, EPA determined that the application met the standards for
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communication Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written comments should be submitted on or before January 17, 2017. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, OMB, via email
For additional information or copies of the information collection, contact Cathy Williams at (202) 418-2918. To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the Web page <
On (date of waiver request was filed with the Commission), (cable operator's name) filed with the Federal Communications Commission a request for waiver of the rule prohibiting scrambling of channels on the basic tier of service. The request for waiver states (a brief summary of the waiver request). A copy of the request for waiver is on file for public inspection at (the address of the cable operator's local place of business).
Individuals who wish to comment on this request for waiver should mail comments to the Federal Communications Commission by no later than 30 days from (the date the notification was mailed to subscribers). Those comments should be addressed to the: Federal Communications Commission, Media Bureau, Washington, DC 20554, and should include the name of the cable operator to whom the comments are applicable. Individuals should also send a copy of their comments to (the cable operator at its local place of business). Cable operators may file comments in reply no
The information collection requirements in 47 CFR 76.1621 states a cable system operators that use scrambling, encryption or similar technologies in conjunction with cable system terminal devices, as defined in § 15.3(e) of this chapter, that may affect subscribers' reception of signals shall offer to supply each subscriber with special equipment that will enable the simultaneous reception of multiple signals. The equipment offered shall include a single terminal device with dual descramblers/decoders and/or timers and bypass switches. Other equipment, such as two independent set-top terminal devices may be offered at the same time that the single terminal device with dual tuners/descramblers is offered. For purposes of this rule, two set-top devices linked by a control system that provides functionality equivalent to that of a single device with dual descramblers is considered to be the same as a terminal device with dual descramblers/decoders.
(a) The offer of special equipment shall be made to new subscribers at the time they subscribe and to all subscribers at least once each year (
(b) Such special equipment shall, at a minimum, have the capability:
(1) To allow simultaneous reception of any two scrambled or encrypted signals and to provide for tuning to alternative channels on a pre-programmed schedule; and
(2) To allow direct reception of all other signals that do not need to be processed through descrambling or decryption circuitry (this capability can generally be provided through a separate by-pass switch or through internal by-pass circuitry in a cable system terminal device).
(c) Cable system operators shall determine the specific equipment needed by individual subscribers on a case-by-case basis, in consultation with the subscriber. Cable system operators are required to make a good faith effort to provide subscribers with the amount and types of special equipment needed to resolve their individual compatibility problems.
(d) Cable operators shall provide such equipment at the request of individual subscribers and may charge for purchase or lease of the equipment and its installation in accordance with the provisions of the rate regulation rules for customer premises equipment used to receive the basic service tier, as set forth in § 76.923. Notwithstanding the required annual offering, cable operators shall respond to subscriber requests for special equipment for reception of multiple signals that are made at any time.
In October 2012, the Commission loosened its prohibition on encryption of the basic service tier. This rule change allows all-digital cable operators to encrypt, subject to certain consumer protection measures. 77 FR 67290 (Nov. 9, 2012); 47 CFR 76.630(a)(1). Encryption of all-digital cable service will allow cable operators to activate and/or deactivate cable service remotely, thus relieving many consumers of the need to wait at home to receive a cable technician when they sign up for or cancel cable service, or expand service to an existing cable connection in their home.
In addition, encryption will reduce service theft by ensuring that only paying subscribers have decryption equipment. Encryption could reduce cable rates and reduce the theft that often degrades the quality of cable service received by paying subscribers. Encryption also will reduce the number of service calls necessary for manual installations and disconnections, which may have beneficial effects on vehicle traffic and the environment.
Because this rule change allows cable operators to encrypt the basic service tier without filing a request for waiver, we expect that the number of requests for waiver will decrease significantly.
The information collection requirements in 47 CFR 76.1622 states that Cable system operators shall provide a consumer education program on compatibility matters to their subscribers in writing, as follows:
(a) The consumer information program shall be provided to subscribers at the time they first subscribe and at least once a year thereafter. Cable operators may choose the time and means by which they comply with the annual consumer information requirement. This requirement may be satisfied by a once-a-year mailing to all subscribers. The information may be included in one of the cable system's regular subscriber billings.
(b) The consumer information program shall include the following information:
(1) Cable system operators shall inform their subscribers that some models of TV receivers and videocassette recorders may not be able to receive all of the channels offered by the cable system when connected directly to the cable system. In conjunction with this information, cable system operators shall briefly explain, the types of channel compatibility problems that could occur if subscribers connected their equipment directly to the cable system and offer suggestions for resolving those problems. Such suggestions could include, for example, the use of a cable system terminal device such as a set-top channel converter. Cable system operators shall also indicate that channel compatibility problems associated with reception of programming that is not scrambled or encrypted programming could be resolved through use of simple converter devices without descrambling or decryption capabilities that can be obtained from either the cable system or a third party retail vendor.
(2) In cases where service is received through a cable system terminal device, cable system operators shall indicate that subscribers may not be able to use special features and functions of their TV receivers and videocassette recorders, including features that allow the subscriber to: View a program on one channel while simultaneously recording a program on another channel; record two or more consecutive programs that appear on different channels; and, use advanced picture generation and display features such as “Picture-in-Picture,” channel review and other functions that necessitate channel selection by the consumer device.
(3) In cases where cable system operators offer remote control capability with cable system terminal devices and other customer premises equipment that is provided to subscribers, they shall advise their subscribers that remote control units that are compatible with that equipment may be obtained from other sources, such as retail outlets. Cable system operators shall also provide a representative list of the models of remote control units currently available from retailers that are compatible with the customer premises equipment they employ. Cable system operators are required to make a good faith effort in compiling this list and will not be liable for inadvertent omissions. This list shall be current as of no more than six months before the date the consumer education program is distributed to subscribers. Cable operators are also required to encourage subscribers to contact the cable operator to inquire about whether a particular remote control unit the subscriber might be considering for purchase would be compatible with the subscriber's customer premises equipment.
Therefore, the information collections requirements for ATSC PSIP standard A/65C requires broadcasters to provide detailed programming information when transmitting their broadcast signal. This standard enhances consumers' viewing experience by providing detailed information about digital channels and programs, such as how to find a program's closed captions, multiple streams and V-chip information. This standard requires broadcasters to populate the Event Information Tables (“EITs”) (or program guide) with accurate information about each event (or program) and to update the EIT if more accurate information becomes available. The previous ATSC PSIP standard A/65-B did not require broadcasters to provide such detailed programming information but only general information.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written comments should be submitted on or before January 17, 2017. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts below as soon as possible.
Direct all PRA comments to Kimberly R. Keravuori, OMB, via email
For additional information or copies of the information collection, contact Nicole Ongele at (202) 418-2991. To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the Web page
The Federal Communications Commission will hold an Open Meeting on the subjects listed below on Thursday, December 15, 2016 which is scheduled to commence at 10:30 a.m. in Room TW-C305, at 445 12th Street, SW., Washington, DC.
The meeting site is fully accessible to people using wheelchairs or other mobility aids. Sign language interpreters, open captioning, and assistive listening devices will be provided on site. Other reasonable accommodations for people with disabilities are available upon request. In your request, include a description of the accommodation you will need and a way we can contact you if we need more information. Last minute requests will be accepted, but may be impossible to fill. Send an email to:
Additional information concerning this meeting may be obtained from the Office of Media Relations, (202) 418-0500; TTY 1-888-835-5322. Audio/Video coverage of the meeting will be broadcast live with open captioning over the Internet from the FCC Live Web page at
For a fee this meeting can be viewed live over George Mason University's Capitol Connection. The Capitol Connection also will carry the meeting live via the Internet. To purchase these services, call (703) 993-3100 or go to
Pursuant to the provisions of the “Government in the Sunshine Act” (5 U.S.C. 552b), notice is hereby given that at 10:22 a.m. on Tuesday, December 13, 2016, the Board of Directors of the Federal Deposit Insurance Corporation met in closed session to consider matters related to the Corporation's supervision, corporate, and resolution activities.
In calling the meeting, the Board determined, on motion of Vice Chairman Thomas M. Hoenig, seconded by Director Richard Cordray (Director, Consumer Financial Protection Bureau), concurred in by Director Thomas J. Curry (Comptroller of the Currency) and Chairman Martin J. Gruenberg, that Corporation business required its consideration of the matters which were to be the subject of this meeting on less than seven days' notice to the public; that no earlier notice of the meeting was practicable; that the public interest did not require consideration of the matters in a meeting open to public observation; and that the matters could be considered in a closed meeting by authority of subsections (c)(2), (c)(4), (c)(6), (c)(8), (c)(9)(A)(ii), (c)(9)(B), and (c)(10) of the “Government in the Sunshine Act” (5 U.S.C. 552b(c)(2), (c)(4), (c)(6), (c)(8), (c)(9)(A)(ii), (c)(9)(B), and (c)(10).
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than January 13, 2017.
1.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice.
The Centers for Disease Control and Prevention (CDC), located within the Department of Health and Human Services (HHS) announces clarification and modification of certain definitions used for reporting of pregnancy success rates from assisted reproductive technology (ART) programs as required by the Fertility Clinic Success Rate and Certification Act of 1992 (FCSRCA). These clarifications and modifications are based on inquiries and comments to CDC after the publication of the Final Notice on August 26, 2015. All comments were reviewed and carefully considered in developing the final definition to better assist ART clinics in reporting accurate data to CDC.
Jeani Chang, Division of Reproductive Health, National Center for Chronic Disease Prevention and Health Promotion, Centers for Disease Control and Prevention, 4770 Buford Highway, MS-74, Atlanta, Georgia 30341. Phone: (770) 488-6370. Email:
On August 26, 2015, HHS/CDC published a notice in the
This notice includes clarification and modification of certain definitions used for reporting of pregnancy success rates from assisted reproductive technology (ART) programs, reporting requirements and responsibilities, and data validation.
Food and Drug Administration and Office for Human Research Protections, HHS.
Notice of availability.
The Food and Drug Administration (FDA) and the Office for Human Research Protections (OHRP), Department of Health and Human Services (HHS), are announcing the availability of a guidance entitled “Use of Electronic Informed Consent—Questions and Answers.” The guidance is intended for institutional review boards (IRBs), investigators, and sponsors engaged in or responsible for oversight of human subject research under HHS and/or FDA regulations. The guidance provides recommendations on the use of electronic systems and processes that may employ multiple electronic media to obtain informed consent for both HHS-regulated human subject research and FDA-regulated clinical investigations of medical products, including human drug and biological products, medical devices, and combinations thereof. This guidance finalizes the draft guidance entitled “Use of Electronic Informed Consent in Clinical Investigations—Questions and Answers” issued in March 2015.
Submit either electronic or written comments on Agency guidances at any time.
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
•
See section III of the
Cheryl Grandinetti, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 3348, Silver Spring, MD 20993-0002, 301-796-2500; Nicole Wolanski, Office of Good Clinical Practice, Office of Special Medical Programs, Office of Medical Products and Tobacco, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 32, Rm. 5108, Silver Spring, MD 20993, 301 796-6570; Stephen Ripley, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993-0002, 240-402-7911; Irfan Khan, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 3459, Silver Spring, MD 20993, 1-800-638-2041 or 301-796-7100; or Irene Stith-Coleman, Office for Human Research Protections, 1101 Wootton Pkwy., suite 200, Rockville, MD 20852, 240-453-6900.
FDA and OHRP are announcing the availability of a guidance entitled “Use of Electronic Informed Consent—Questions and Answers.” The guidance is intended for IRBs, investigators, and sponsors responsible for oversight of human subject research under HHS and/or FDA regulations. The guidance provides recommendations on the use of electronic systems and processes that
In the
In addition, in the
To enhance human subject protection and reduce regulatory burden, OHRP and FDA have been actively working to harmonize the Agencies' regulatory requirements and guidance for human subject research. This guidance was developed as a part of these efforts. OHRP and FDA believe that it will be helpful to the regulated community to issue a joint guidance, which will clearly demonstrate the Agencies' collaborative approach to the topic of electronic informed consent.
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of FDA and OHRP on the use of electronic informed consent. It does not establish any rights for any person and is not binding on OHRP, FDA, or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
This guidance refers to previously approved collections of information. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR part 11 related to electronic records and electronic signatures have been approved under OMB control number 0910-0303; the collections of information in 21 CFR parts 50 and 56 related to protection of human subjects and to IRBs have been approved under OMB control number 0910-0755; the collections of information in 21 CFR 56.115 related to IRB recordkeeping requirements, which include requirements for records related to informed consent, have been approved under OMB control number 0910-0130; the collections of information in 21 CFR part 312 have been approved under OMB control number 0910-0014; and the collections of information in 21 CFR part 812 have been approved under OMB control number 0910-0078. The collections of information related to the protection of human subjects under 45 CFR part 46 and to IRB recordkeeping under 45 CFR 46.115 have been approved under OMB control number 0990-0260.
Submit written requests for single copies of this guidance and for electronic access to the guidance document to one of the following Centers.
Persons with access to the Internet may obtain the guidance at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by January 17, 2017.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, FAX: 202-395-7285, or emailed to
FDA PRA Staff, Office of Operations, Food and Drug Administration, Three White Flint North, 10A63, 11601 Landsdown St., North Bethesda, MD 20852,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Section 210 of the Food and Drug Administration Modernization Act (FDAMA) established section 523 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360m), directing FDA to accredit persons in the private sector to review certain premarket notifications (510(k)s). Participation in this third-party review program by accredited persons is entirely voluntary. A third party wishing to participate will submit a request for accreditation to FDA. Accredited third-party reviewers have the ability to review a manufacturer's 510(k) submission for selected devices. After reviewing a submission, the reviewer will forward a copy of the 510(k) submission, along with the reviewer's documented review and recommendation, to FDA. Third-party reviewers should maintain records of their 510(k) reviews and a copy of the 510(k) for a reasonable period of time, usually a period of 3 years.
This information collection will allow FDA to continue to implement the accredited person review program established by FDAMA and improve the efficiency of 510(k) review for low- to moderate-risk devices. Respondents to this information collection are businesses or other for-profit organizations.
FDA receives an average of one application for accreditation for third-party review per year. According to FDA's data, the number of 510(k)s submitted for third-party review is approximately 260 annually, which is 26 annual reviews per each of the 10 accredited reviewers. Third-party reviewers are required to keep records of their review of each submission.
In the
FDA estimates the burden of this collection of information as follows:
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 a meeting of the National Advisory Council for Biomedical Imaging and Bioengineering.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will 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/or contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications and/or contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
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.
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of accreditation and approval of Intertek USA, Inc., as a commercial gauger and laboratory.
Notice is hereby given, pursuant to CBP regulations, that Intertek USA, Inc., has been approved to gauge and accredited to test petroleum and petroleum products for customs purposes for the next three years as of March 2, 2016.
Approved Gauger and Accredited Laboratories Manager, Laboratories and Scientific Services Directorate, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW., Suite 1500N, Washington, DC 20229, tel. 202-344-1060.
Notice is hereby given pursuant to 19 CFR 151.12 and 19 CFR 151.13, that Intertek USA, Inc., 804 East North St., Cushing, OK 74023, has been approved to gauge and accredited to test petroleum and petroleum products for customs purposes, in accordance with the provisions of 19 CFR 151.12 and 19 CFR 151.13. Intertek USA, Inc., is approved for the following gauging procedures for petroleum and certain petroleum products set forth by the American Petroleum Institute (API):
Intertek USA, Inc., is accredited for the following laboratory analysis procedures and methods for petroleum and certain petroleum products set forth by the U.S. Customs and Border Protection Laboratory Methods (CBPL) and American Society for Testing and Materials (ASTM):
Anyone wishing to employ this entity to conduct laboratory analyses and gauger services should request and receive written assurances from the entity that it is accredited or approved by the U.S. Customs and Border Protection to conduct the specific test or gauger service requested. Alternatively, inquiries regarding the specific test or gauger service this entity is accredited or approved to perform may be directed to the U.S. Customs and Border Protection by calling (202) 344-1060. The inquiry may also be sent to
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of accreditation of SEA, Ltd. as a commercial laboratory.
Notice is hereby given, pursuant to CBP regulations, that SEA, Ltd. has been accredited to test certain wax and candle products under Chapter 34 of the Harmonized Tariff Schedule of the United States (HTSUS) for customs purposes for the next three years as of September 15, 2016.
Approved Gauger and Accredited Laboratories Manager, Laboratories and Scientific Services Directorate, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW., Suite 1500N, Washington, DC 20229, tel. 202-344-1060.
Notice is hereby given pursuant to 19 CFR 151.12, that SEA, Ltd., 7001 Buffalo Parkway, Columbus, OH 43229, has been accredited to test certain wax and candle products under Chapter 34 of the Harmonized Tariff Schedule of the United States (HTSUS) for customs purposes, in accordance with the provisions of 19 CFR 151.12. SEA, Ltd. is accredited for the following laboratory analysis procedures and methods for certain wax and candle products set forth by the U.S. Customs and Border Protection Laboratory Methods (CBPL):
Anyone wishing to employ this entity to conduct laboratory analyses should request and receive written assurances from the entity that it is accredited by the U.S. Customs and Border Protection to conduct the specific test requested. Alternatively, inquiries regarding the specific test this entity is accredited to perform may be directed to the U.S. Customs and Border Protection by calling (202) 344-1060. The inquiry may also be sent to
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of approval of Intertek USA, Inc. as a commercial gauger.
Notice is hereby given, pursuant to CBP regulations, that Intertek USA, Inc. has been approved to gauge petroleum and certain petroleum products for customs purposes for the next three years as of June 9, 2016.
Approved Gauger and Accredited Laboratories Manager, Laboratories and Scientific Services Directorate, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW., Suite 1500N, Washington, DC 20229, tel. 202-344-1060.
Notice is hereby given pursuant to 19 CFR 151.13, that Intertek USA, Inc., 91-110 Hanua Street #204, Kapolei, HI 96707, has been approved to gauge petroleum and certain petroleum products for customs purposes, in accordance with the provisions of 19 CFR 151.13. Intertek USA, Inc. is approved for the following gauging procedures for petroleum and certain petroleum products from the American Petroleum Institute (API):
Anyone wishing to employ this entity to conduct gauger services should request and receive written assurances from the entity that it is approved by the U.S. Customs and Border Protection to conduct the specific gauger service requested. Alternatively, inquiries regarding the specific gauger service this entity is approved to perform may be directed to the U.S. Customs and Border Protection by calling (202) 344-1060. The inquiry may also be sent to
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of accreditation and approval of AmSpec Services, LLC, as a commercial gauger and laboratory.
Notice is hereby given, pursuant to CBP regulations, that AmSpec Services, LLC, has been approved to gauge petroleum and certain petroleum products and accredited to test petroleum and certain petroleum products for customs purposes for the next three years as of August 4, 2016.
Approved Gauger and Accredited Laboratories Manager, Laboratories and Scientific Services Directorate, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW., Suite 1500N, Washington, DC 20229, tel. 202-344-1060.
Notice is hereby given pursuant to 19 CFR 151.12 and 19 CFR 151.13, that AmSpec Services, LLC, 36 Mileed Way, Avenel, NJ 07001, has been approved to gauge petroleum and certain petroleum products and accredited to test petroleum and certain petroleum products for customs purposes, in accordance with the provisions of 19 CFR 151.12 and 19 CFR 151.13. AmSpec Services, LLC is approved for the following gauging procedures for petroleum and certain petroleum products from the American Petroleum Institute (API):
AmSpec Services, LLC is accredited for the following laboratory analysis procedures and methods for petroleum and certain petroleum products set forth by the U.S. Customs and Border Protection Laboratory Methods (CBPL) and American Society for Testing and Materials (ASTM):
Anyone wishing to employ this entity to conduct laboratory analyses and gauger services should request and receive written assurances from the entity that it is accredited or approved by the U.S. Customs and Border Protection to conduct the specific test or gauger service requested. Alternatively, inquiries regarding the specific test or gauger service this entity is accredited or approved to perform may be directed to the U.S. Customs and Border Protection by calling (202) 344-1060. The inquiry may also be sent to
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of approval of Intertek USA, Inc., as a commercial gauger.
Notice is hereby given, pursuant to CBP regulations, that Intertek USA, Inc., has been approved to gauge petroleum and petroleum products for customs purposes for the next three years as of January 26, 2016.
Approved Gauger and Accredited Laboratories Manager, Laboratories and Scientific Services Directorate, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW., Suite 1500N, Washington, DC 20229, tel. 202-344-1060.
Notice is hereby given pursuant to 19 CFR 151.13, that Intertek USA, Inc., 214 N Gulf Blvd., Freeport, TX 77541, has been approved to gauge petroleum and petroleum products for customs purposes, in accordance with the provisions of 19 CFR 151.13. Intertek
Anyone wishing to employ this entity to conduct gauger services should request and receive written assurances from the entity that it is accredited or approved by the U.S. Customs and Border Protection to conduct the specific gauger service requested. Alternatively, inquiries regarding the specific gauger service this entity is accredited or approved to perform may be directed to the U.S. Customs and Border Protection by calling (202) 344-1060. The inquiry may also be sent to
National Protection and Programs Directorate, DHS.
30-day notice of availability of public review of a Supplemental Programmatic Environmental Assessment.
The Department of Homeland Security (DHS), National Protection and Programs Directorate (NPPD), Office of Biometric Identity Management (OBIM) has completed a Draft Supplemental Programmatic Environmental Assessment (SPEA) to assess the impacts resulting from the replacement of the existing Automated Biometric Identification System (IDENT) in order to meet obligations pertaining to expanded biometric service obligations.
IDENT was developed in the 1990s by the Immigration and Naturalization Service as a pilot project. As DHS demands for biometric identity services grew and evolved, IDENT expanded both its customer base and services provided to those customers by retrofitting functionalities to its original pilot project foundation to meet urgent mission needs. The system has progressed from supporting one usage scenario and one stakeholder in 1994 to a multiplicity of business processes, services, and interfaces required to meet the needs of a variety of stakeholders. In 2003 the former United States Visitor and Immigrant Status Indicator Technology (US-VISIT) Program was designated as the DHS provider for biometric and associated biographic identity screening and analysis services.
The primary mission of the former US-VISIT program was to serve as a repository of collected information on the unique identity of travelers and to collect, maintain, and share information related to entry, exit, and status events of foreign nationals in order to enhance national security, facilitate legitimate trade and travel, and ensure the integrity of our immigration system, while deploying the program in accordance with existing privacy laws and policies. This mission was accomplished through the deployment of discrete capabilities through two systems: IDENT and the Arrival and Departure Information System (ADIS).
In 2013 OBIM assumed cross-cutting responsibility for DHS biometric identity services from the former US-VISIT Program. OBIM operates and maintains IDENT, and matches, stores, analyzes, and shares biometric data to provide more accurate and high assurance biometric identity information and analysis. IDENT, with its repository of biometrics and associated biographic data, is used by its customers for biometric identity verification and determination. Current IDENT customers include DHS components such as U.S. Citizenship and Immigration Services, U.S. Coast Guard, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, Transportation Security Administration, and various elements of DHS Headquarters; the Intelligence Community; other Federal agencies including the Departments of Justice, State, and Defense; State and local law enforcement; and international partners. OBIM needs HART to replace the 22-year-old legacy IDENT system to ensure continued fulfillment of evolving customer and mission needs. The redesign and development of the system will address the baseline and current gaps including capacity, increased security and privacy protections, interoperability, unsustainable costs, and performance and availability. Support of the system for additional biometric identity modalities beyond fingerprints will address customer needs for alternative modalities, provide options for non-contact biometric data collection, improve performance, and increase interoperability with customers and partners that support multiple biometric modalities.
For the Proposed Action, OBIM would develop and implement a solution to address increasing customer demand for biometric services in addition to providing technological advances, more efficient processing, and a flexible and a scalable platform to meet DHS's mid- and long-term identity needs. Several project alternatives explored in the SPEA were: (1) No Action; (2) Enhanced Baseline with Transaction Manager Replacement Alternative; (3) Data Driven Modular Alternative; and (4) Cloud Based and Managed Service. In reviewing the alternatives, OBIM's objective was to determine whether to prepare a “Finding of No Significant Impact” (FONSI) or an “Environmental Impact Statement” (EIS). With the No Action Alternative, minor indirect effects may occur with respect to noise and air quality from the slowing of services at customer locations. With Alternatives 2, 3, or 4, minor impacts are anticipated with respect to energy use. With any of these alternatives, OBIM will have an increase in capacity and scope of services which may increase energy use. However, it is also anticipated that the proposed improvements will increase efficiencies in the administration and use of OBIM services with all of the action alternatives. Therefore, energy impacts are expected to be minimal. For implementation of Alternative 4 specifically, managed service may be hosted in the existing DHS data centers or other federally approved sites. For the No Action Alternative and Alternative 4, potential changes to facilities or personnel may have some minimal effects, particularly with the potential for temporary construction. However, more specific analysis is not possible at this programmatic level of assessment, and would have to be performed with site-specific environmental analysis.
Comments are encouraged and will be accepted until thirty (30) days after the date of this notice.
This process is conducted in accordance with sec. 102 of the National Environmental Policy Act (NEPA) of 1969, as implemented by the regulations promulgated by the President's Council on Environmental Quality (CEQ; 40 CFR parts 1500-1508) and the U.S. Department of Homeland Security (DHS) NEPA implementing procedures, DHS Directive 023-01, Environmental Planning Program.
Public comments are encouraged and can be made through written communication sent through electronic mail at:
Use the following subject when writing in: Draft SPEA Proposed Establishment and Operations of OBIM and the HART. Public input submitted will be discussed and considered with respect to conclusions of this SPEA.
NPPD Environmental and Energy Program:
Comments on this Draft SPEA are also being solicited through a notice on the DHS NEPA Web site at:
Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit.
We, the U.S. Fish and Wildlife Service, invite the public to comment on the following applications to conduct certain activities with endangered species. With some exceptions, the Endangered Species Act (ESA) prohibits activities with listed species unless Federal authorization is acquired that allows such activities.
We must receive comments or requests for documents on or before January 17, 2017.
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When submitting comments, please indicate the name of the applicant and the PRT# you are commenting on. We will post all comments on
Brenda Tapia, (703) 358-2104 (telephone); (703) 358-2281 (fax);
Send your request for copies of applications or comments and materials concerning any of the applications to the contact listed under
Please make your requests or comments as specific as possible. Please confine your comments to issues for which we seek comments in this notice, and explain the basis for your comments. Include sufficient information with your comments to allow us to authenticate any scientific or commercial data you include.
The comments and recommendations that will be most useful and likely to influence agency decisions are: (1) Those supported by quantitative information or studies; and (2) Those that include citations to, and analyses of, the applicable laws and regulations. We will not consider or include in our administrative record comments we receive after the close of the comment period (see
Comments, including names and street addresses of respondents, will be available for public review at the street address listed under
To help us carry out our conservation responsibilities for affected species, and in consideration of section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The applicant requests a permit to import biological samples from wild specimens of the Haitian solenodon (
The applicant requests a permit to import one female captive-bred snow leopard (
The applicant requests a permit to import biological samples from wild specimens of the medium tree finch (
The applicant requests a permit to import one captive-born Siberian tiger (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the following species to enhance species propagation or survival: Spotted pond (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for jackass penguins (
The following applicants each request a permit to import the sport-hunted trophy of one male bontebok (
Bureau of Land Management, Interior.
Notice.
The Bureau of Land Management (BLM), pursuant to its regulations, is issuing a closure order which maintains an existing closure of approximately 900 acres of public land on the Lake Mountains in Utah County, Utah. This closure is necessary to protect persons, property, the public lands and resources from the discharge or use of firearms or dangerous weapons for the purposes of recreational target shooting. This closure does not restrict other public activities or access to this portion of the Lake Mountains that is hereby closed to recreational target shooting.
This notice announces a target shooting closure order within the described area for no longer than two years from December 15, 2016. This closure will maintain an existing closure of the same area.
Matt Preston, Field Manager; Phone: (801) 977-4300; Mail: Salt Lake Field Office, 2370 South Decker Lake Boulevard, West Valley City, Utah 84119; Email:
Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 1-800-877-8339 to contact the above individual during normal business hours. The Service is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. Replies are provided during normal business hours.
This closure affects public lands on the Lake Mountains in Utah County, Utah. The legal description of the affected public lands is:
The area described contains approximately 900 acres.
The Salt Lake Field Office hereby closes a portion of the Lake Mountains, Utah County, Utah, to all target shooting to protect public safety, property and resources. The area will be closed under the authority of 43 CFR 8364.1—Closures and Restrictions and in conformance with BLM Washington Office Instruction Memorandum 2016-128, Requirements for Processing and Approving Temporary Public Land Closure and Restriction Orders. Due to unsafe conditions and danger to the public, it is imperative for the BLM to maintain the closure on the area.
The BLM will post target shooting closure signs at main entry points to this area. A notice and map of the target shooting closure will be posted in the Salt Lake Field Office. Maps of the affected area and other documents associated with this closure are available at: Salt Lake Field Office, 2370 S. Decker Lake Blvd., West Valley City, UT 84119 and the Salt Lake Field Office, Target Shooting Program Web site located online at:
The Lake Mountains are a small mountain range located on the west side of Utah Lake. The city of Saratoga Springs borders the north side of the mountains and Eagle Mountain City is along the west side. State Highway 68 runs along the eastern bench of the Lake Mountains; it is a main arterial road and is used by residential, agricultural, and recreational traffic. Across Highway 68, there are residences along the lake shore. Utah Lake is a popular area for recreationists, boaters, and anglers. The Lake Mountains are comprised of a
The target shooting closure is necessary to protect persons, property, and the public lands and resources in the area. An existing target shooting closure of the area will expire on December 15, 2016 (see 79 FR 74111, December 15, 2014). The Eastern Lake Mountains Target Shooting Plan Amendment (plan amendment) is currently underway and is expected to be completed by March 2017. This plan amendment process is analyzing management of target shooting in the Lake Mountains. Following the final agency decision on the plan amendment, the promulgation of supplementary rules may be necessary to implement the plan amendment.
Prior to the 2012 closure, the Lake Mountains received about 4,000 target shooters each month; on weekends, as many as 400 shooters concentrated into 5 areas, and other dispersed locations. The slopes of the Lake Mountains provide a natural backstop that is ideal for target shooting; however, some shooters chose to target practice in the relatively flat terrain on the lower slopes. Given the topography of the area and the number of people who visit it, the area subject to this Order is not conducive to safe target shooting. Target shooting in the area has resulted in nearby private residences being shot and near-misses of automobiles and people. An additional danger is the annual threat from target shooting-related wildfires adjacent to private residences, a major power line, communication towers on the ridge top, and public land resources.
The previous two-year closure proved effective in redirecting target shooting to safer locations, allowing cleanup of the area, eliminating illegal dumping and significantly reducing target shooting-related wildfires. Since the implementation of the closure in August 2012, no near-misses from errant gunfire have been reported to law enforcement.
Since the implementation of the 2012 target shooting closure, several additional actions have been taken by private landowners, other agency partners and the BLM to augment the closure. Regular patrols have been conducted by the Utah County Sheriff's Office, BLM law enforcement rangers and private property owners. Barricades have been installed to identify the closure boundary, especially along private property and in areas receiving recurring violations, such as the Little Cove area. In 2014, Utah County installed a six-mile fence along the west side of Highway 68 with gates to allow public access on a few controlled routes. Utah County also has started planning for development of a nearby managed target shooting range. In April 2014, SITLA closed approximately 1,500 acres of state lands adjacent to and near the BLM closure to recreational access. Additionally, the BLM is nearing completion of an amendment to its land use plan to develop a long-term solution for the target shooting issues in this area. With the closure and these subsequent actions, volunteers have been able to clean up the large amounts of trash and household appliances in these areas.
This closure is made under the authority of the regulations in 43 CFR 8364.1 which states: “To protect persons, property, and public lands and resources, the authorized officer may issue an order to close or restrict use of designated public lands.” The closure only applies to the discharge or use of firearms or dangerous weapons for the purposes of recreational target shooting and does not affect legal hunting.
Any person who violates the above restriction may be tried before a United States Magistrate and fined in accordance with 18 U.S.C. 3571, imprisoned for no more than 12 months under 43 U.S.C. 1733(a) and 43 CFR 8360.0-7, or both. Such violations also may be subject to the enhanced fines provided for in 18 U.S.C. 3571.
43 CFR 8364.1.
Bureau of Land Management, Interior.
Notice
In accordance with the National Environmental Policy Act of 1969, as amended, and the Federal Land Policy and Management Act of 1976, as amended, the Bureau of Land Management (BLM) Lower Sonoran Field Office, Phoenix, Arizona, has prepared a draft resource management plan (RMP) amendment/draft environmental impact statement (EIS) for the Sonoran Desert National Monument (SDNM). By this notice the BLM is announcing the opening of the public comment period.
To ensure that comments will be considered, the BLM must receive written comments on the draft RMP amendment/draft EIS within 90 days following the date the Environmental Protection Agency publishes its Notice of Availability in the
You may submit comments related to the draft RMP amendment/draft EIS addressing Recreational Target Shooting in the SDNM by any of the following methods:
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Dave Scarbrough, Monument Manager, telephone 623-580-5651 or, Wayne Monger, Project Manager, telephone 623-580-5683; address 21605 North 7th Avenue, Phoenix Arizona 85027; email
Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 1-800-877-8339 to contact the above individual during normal business hours. The Service is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The planning area covers nearly 496,400 surface acres of south-central Arizona and lies within Maricopa and Pinal Counties. Population centers adjacent to the planning area include metropolitan Phoenix, and the communities of Ajo, Goodyear, Buckeye, Gila Bend, Mobile, and Maricopa. The planning area
The BLM has prepared the SDNM draft RMP amendment/draft EIS to address the management of recreational target shooting within the SDNM. The draft RMP amendment/draft EIS is needed to analyze recreational target shooting within the SDNM due to a ruling by the U.S. District Court-District of Arizona. The court vacated portions of the 2012 Record of Decision, approved RMP, and final EIS pertaining to the management of recreational target shooting throughout the SDNM and remanded the decision to the BLM for reconsideration. Pursuant to the court order, the BLM must complete the plan amendment by September 30, 2017. The formal public scoping process for the draft RMP amendment/draft EIS began on January 21, 2016, with the publication of a Notice of Intent in the
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
40 CFR 1506.6, 40 CFR 1506.10, 43 CFR 1610.2.
Bureau of Land Management, Interior
Notice of public meeting
In accordance with the Federal Land Policy and Management Act and the Federal Advisory Committee Act of 1972, and the U.S. Department of the Interior, Bureau of Land Management (BLM), the San Juan Islands National Monument Advisory Committee (MAC) will meet as indicated below:
The MAC will hold a public meeting Monday, January 30th, 2017. The meeting will run from 8:00 a.m. to 3:00 p.m. The meeting will be held at the Lopez Library at 2225 Fisherman Bay Rd, Lopez Island, WA 98261. A public comment period will be available in the afternoon from noon until 1 p.m.
Marcia deChadenèdes, San Juan Islands National Monument Manager, P.O. Box 3, 37 Washburn Ave., Suite 101, Lopez Island, Washington 98261, (360) 468-3051, or
The twelve member San Juan Islands MAC was chartered to provide information and advice regarding the development of the San Juan Islands National Monument's RMP. Members represent an array of stakeholder interests in the land and resources from within the local area and statewide. All advisory committee meetings are open to the public. At noon members of the public will have the opportunity to make comments to the MAC during a one hour public comment period. Persons wishing to make comments during the public comment period should register in person with the BLM by 11 a.m. on the meeting day, at the meeting location. Depending on the number of persons wishing to comment, the length of comments may be limited. The public may send written comments to the MAC at San Juan Islands National Monument, Attn. MAC, P.O. Box 3, 37 Washburn Ave., Suite 101, Lopez Island, Washington 98261. The BLM appreciates all comments.
National Park Service, Interior.
Notice; request for comments.
We (National Park Service) will ask the Office of Management and Budget (OMB) to approve the information collection (IC) described below. As required by the Paperwork Reduction Act of 1995 and as part of our continuing efforts to reduce paperwork and respondent burden, we invite the general public and other Federal agencies to take this opportunity to comment on this IC. We may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
You must submit comments on or before February 13, 2017.
Send your comments on the IC to Madonna L. Baucum, Information Collection Clearance Officer, National Park Service, 12201 Sunrise Valley Drive (Mail Stop 242), Reston, VA 20192 (mail); or via email at
To request additional information about this IC, contact CDR George A. Larsen, Public Health Consultant, Office of Public Health, National Park Service, P.O. Box 168, Yellowstone National Park, WY 92190; or via email at
The National Park Service (NPS) Organic Act of 1916 (Organic Act) (54 U.S.C. 100101
The Disease Reporting and Surveillance System (DRSS) collects de-identified data on illness reports and standardizes data collection regarding illness case reports and outbreaks among NPS employees, park concessioner employees, and visitors to the park. Individual illness reports are entered into the DRSS database by NPS staff, as well as employees of park concessioners and Commercial Use Authorization (CUA) holders, utilizing a secure web-based interface application. These data provide parks, OPH, staff and managers of park concessioners (lodging, restaurants, general stores, and snack bars), and park clinic concessioners with an early warning system for potential outbreaks and inform public health interventions. By collecting and storing data from multiple sources, the system monitors health trends among NPS employees, concessioner employees, park visitors through CUA holders, and clinic visitors; detect potential clusters or outbreaks; and inform the development and implementation of disease response and control activities. The system is currently in operation in Yellowstone National Park; however, the NPS hopes to expand the system to other parks in the future.
We invite comments concerning this information collection on:
• Whether or not the collection of information is necessary, including whether or not the information will have practical utility;
• The accuracy of our estimate of the burden for this collection of information;
• Ways to enhance the quality, utility, and clarity of the information to be collected; and
• Ways to minimize the burden of the collection of information on respondents.
Comments that you submit in response to this notice are a matter of public record. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask OMB in your comment to withhold your personal identifying information from public review, we cannot guarantee that it will be done.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of a full review pursuant to the Tariff Act of 1930 (“the Act”) to determine whether revocation of the antidumping duty order on raw-in-shell pistachios from Iran would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time. The Commission has determined to exercise its authority to extend the review period by up to 90 days.
December 9, 2016.
Amy Sherman (202-205-3289), Office
For further information concerning the conduct of this review and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A, D, E, and F (19 CFR part 207).
Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the review must be served on all other parties to the review (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
The Commission has determined that this review is extraordinarily complicated and therefore has determined to exercise its authority to extend the review period by up to 90 days pursuant to 19 U.S.C.1675(c)(5)(B).
This review is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.62 of the Commission's rules.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review two initial determinations (“IDs”) (Order Nos. 9 and 10) of the presiding administrative law judge (“ALJ”) terminating the above-captioned investigation based upon a consent order stipulation and proposed consent order, a settlement agreement, and a withdrawal of the complaint. The Commission has also determined to issue the consent order. The investigation is terminated.
Robert Needham, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 708-5468. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted this investigation on May 23, 2016, based on a complaint filed by Select Comfort Corporation of Minneapolis, Minnesota; and Select Comfort SC Corporation of Greenville, South Carolina (together, “Select Comfort”). 81 FR 32344-45. The complaint alleges a violation of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, based on infringement of U.S. Patent Nos. 6,804,848 (“the '848 patent”) and 7,389,554 (“the '554 patent”) by respondents Elements of Rest Inc. of Atlanta, Georgia, and Responsive Surface Technology LLC of Atlanta, Georgia (together, “ReST”); and American National Manufacturing Inc. of Corona, California, and Dires LLC d/b/a Personal Comfort Bed of Orlando, Florida (together, “ANM”).
On November 4, 2016, Select Comfort and ReST filed a joint motion to terminate the investigation with respect to ReST's alleged infringement of the '554 patent based on a consent order stipulation and proposed consent order. No party responded to the motion. On November 18, 2016, the ALJ issued an ID (Order No. 9) granting the motion.
Also on November 4, 2016, Select Comfort moved to terminate the investigation in its entirety. Specifically, Select Comfort moved to terminate the investigation with respect to ReST's alleged infringement of the '848 patent based on a settlement agreement, and to terminate the investigation with respect to ANM based on a withdrawal of the complaint. On November 9, 2016, ANM opposed its termination from the investigation. On November 18, 2016, the ALJ issued an ID (Order No. 10) granting the motion.
No petitions for review of either ID were received.
The Commission has determined not to review either ID, and to issue the consent order. The investigation is terminated in its entirety.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, and in part 210 of the Commission's Rules of Practice and Procedure, 19 CFR part 210.
By order of the Commission.
Community Oriented Policing Services, Department of Justice.
60-day notice.
The Department of Justice (DOJ) Office of Community Oriented Policing Services (COPS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
The purpose of this notice is to allow for an additional 60 days for public comment February 13, 2017.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Lashon M. Hilliard, Department of Justice Office of Community Oriented Policing Services, 145 N Street NE., Washington, DC 20530.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6) An estimate of the total public burden (in hours) associated with the collection: There are an estimated 55,000 total annual burden hours associated with this collection.
If additional information is required contact:: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 3E.405B, Washington, DC 20530.
Office of Tribal Justice, Department of Justice.
Notice.
The Deputy Attorney General, exercising authority delegated by the Attorney General, granted the request by the Hoopa Valley Tribe for United States Assumption of Concurrent Federal Criminal Jurisdiction. Concurrent federal criminal jurisdiction will take effect no later than November 18, 2017.
This determination took effect on November 18, 2016.
Mr. Tracy Toulou, Director, Office of Tribal Justice, Department of Justice, 950 Pennsylvania Avenue NW., Room 2310, Washington, DC 20530, email
Mr. Tracy Toulou, Director, Office of Tribal Justice, Department of Justice, at (202) 514-8812 (not a toll-free number) or
The Tribal Law and Order Act (TLOA) was enacted on July 29, 2010, as Title II of Public Law 111-211. The purpose of TLOA is to help the Federal Government and tribal governments better address the unique public safety challenges that confront tribal communities. Section 221(b) of the new law, now codified at 18 U.S.C. 1162(d), permits an Indian tribe with Indian country subject to State criminal jurisdiction under Public Law 280, Pub. L. 83-280, 67 Stat. 588 (1953), to request that the United States accept concurrent jurisdiction to prosecute violations of the General Crimes Act (18 U.S.C. 1152) and the Major Crimes Act (18 U.S.C. 1153) within that tribe's Indian country.
On December 6, 2011, the Department published final regulations that established the framework and procedures for a mandatory Public Law 280 tribe to request the assumption of concurrent Federal criminal jurisdiction within the Indian country of the tribe that is subject to Public Law 280. 76 FR 76037 (Dec. 6, 2011), codified at 28 CFR 50.25. Among other provisions, the regulations provide that, upon acceptance of a tribal request, the Office of Tribal Justice shall publish notice of the consent in the
By a request dated January 17, 2012, the Hoopa Valley Tribe, located in the State of California, requested that the United States assume concurrent Federal jurisdiction to prosecute violations of the General Crimes Act and the Major Crimes Act within the Indian country of the tribe. This would allow the United States to assume concurrent criminal jurisdiction over offenses within the Indian country of the tribe without eliminating or affecting the State's existing criminal jurisdiction.
The Department of Justice granted the tribe's request on November 18, 2016. In deciding to grant the tribe's request, the Department followed the procedures described in the Department's final notice on Assumption of Concurrent Federal Criminal Jurisdiction in Certain Areas of Indian Country, 76 FR 76037 (Dec. 6, 2011). The Federal government's assumption of concurrent federal criminal jurisdiction within the Indian country of the Hoopa Valley Tribe will take effect no later than November 18, 2017.
National Science Foundation
Notice of permit applications received under the Antarctic Conservation Act of 1978, Public Law 95-541.
The National Science Foundation (NSF) is required to publish a notice of permit applications received to conduct activities regulated under the Antarctic Conservation Act of 1978. NSF has published regulations under the Antarctic Conservation Act at Title 45 Part 671 of the Code of Federal Regulations. This is the required notice of permit applications received.
Interested parties are invited to submit written data, comments, or views with respect to this permit application by January 17, 2017. This application may be inspected by interested parties at the Permit Office, address below.
Comments should be addressed to Permit Office, Room 755, Division of Polar Programs, National Science Foundation, 4201 Wilson Boulevard, Arlington, Virginia 22230.
Nature McGinn, ACA Permit Officer, at the above address or
The National Science Foundation, as directed by the Antarctic Conservation Act of 1978 (Pub. L. 95-541), as amended by the Antarctic Science, Tourism and Conservation Act of 1996, has developed regulations for the establishment of a permit system for various activities in Antarctica and designation of certain animals and certain geographic areas a requiring special protection. The regulations establish such a permit system to designate Antarctic Specially Protected Areas.
Waste Management. The applicant proposes to conduct waste management activities associated with the operation of an unmanned aircraft system (UAS) in the Antarctic Peninsula region. The applicant is seeking this waste management permit in the unlikely even that the aircraft is lost and deemed unrecoverable during the conduct of the science missions. The applicant proposes to conduct a small number of aerial camera missions with a small UAS/quadcopter (DJI Phantom 4) to collect imagery along the fronts of floating ice tongues and tidewater glaciers. The pilot/operator has experience conducting similar UAS operations in cold and polar regions. Strict maintenance protocols will be adhered to and flight planning/mission will take place. The UAS will be launched from small inflatable watercraft,
Antarctic Peninsula region
January 15-30, 2017
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation (NSF) announces the following meeting:
The National Science Board's Committee on Audit and Oversight, pursuant to NSF regulations (45 CFR part 614), the National Science Foundation Act, as amended (42 U.S.C. 1862n-5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice of the scheduling of a teleconference for the transaction of National Science Board business, as follows:
December 21, 2016 from 10:00-11:00 a.m. EST.
(1) Committee Chair's opening remarks; (2) Discussion of the audit resolution process at NSF.
Closed.
This meeting will be held by teleconference at the National Science Foundation, 4201 Wilson Blvd., Arlington, VA 22230. Please refer to the National Science Board Web site
Nuclear Regulatory Commission.
License amendment application; opportunity to comment, request a hearing, and petition for leave to intervene.
The U.S. Nuclear Regulatory Commission (NRC) is considering issuance of an amendment and exemption to Combined Licenses (NPF-93 and NPF-94), issued to South Carolina Electric & Gas Company (SCE&G) and South Carolina Public Service Authority (Santee Cooper) (the licensee); for construction and operation of the Virgil C. Summer Nuclear Station (VCSNS) Units 2 and 3, located in Fairfield County, South Carolina.
Submit comments by January 17, 2017. Requests for a hearing or petition for leave to intervene must be filed by February 13, 2017.
You may submit comments by any of the following methods:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Ruth C. Reyes, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555-000; telephone: 301-415-3249; email:
Please refer to Docket ID NRC-2008-0441 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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Please include Docket ID NRC-2008-0441 in your comment submission.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC posts all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
The NRC is considering issuance of an amendment to Facility Operating License Nos. NPF-93 and NPF-94, issued to SCE&G and Santee Cooper for operation of the VCSNS, Units 2 and 3, located in Fairfield County, South Carolina.
The proposed changes would revise the Combined Licenses to reflect an increase in the efficiency of the return of condensate utilized by the passive core cooling system to the in-containment refueling water storage tank (IRWST) to support the capability for long-term cooling. Because, this proposed change requires a departure from Tier 1 information in the Westinghouse AP1000 Design Control Document (DCD), the licensee also requested an exemption from the requirements of the Generic DCD Tier 1 in accordance with section 52.63(b)(1) of title 10 of the
Before any issuance of the proposed license amendment, the NRC will need to make the findings required by the Atomic Energy Act of 1954, as amended (the Act), and NRC's regulations.
The NRC has made a proposed determination that the license amendment request involves no significant hazards consideration. Under the NRC's regulations in 10 CFR 50.92, this means that operation of the facility in accordance with the proposed amendment would not (1) involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) involve a significant reduction in a margin of safety. As required by 10 CFR 50.91(a), the licensee has provided its analysis of the issue of no significant hazards consideration, which is presented below:
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed containment condensate flow path changes provide sufficient condensate return flow to maintain In-containment Refueling Water Storage Tank (IRWST) level above the top of the Passive Residual Heat Removal Heat Exchanger (PRHR HX) tubes long enough to prevent PRHR HX performance degradation from that considered in the UFSAR Chapter 15 safety analyses. The added components are seismically qualified and constructed of only those materials appropriately suited for exposure to the reactor coolant environment as described in UFSAR Section 6.1. No aluminum is permitted to be used in the construction of these components so that they do not contribute to hydrogen production in containment.
The proposed changes clarify the design basis for the PRHR HX, which removes decay heat from the Reactor Coolant System (RCS) during a non-loss-of-coolant accident (non-LOCA). With operator action to avoid unnecessary Automatic Depressurization System (ADS) actuation based on RCS conditions, PRHR HX operation can be extended longer than is maintained automatically by the protection and safety monitoring system. Though analysis shows significantly greater capacity, the extent of capability of the PRHR HX in the licensing basis is changed from operating indefinitely to operating for at least 72 hours. If PRHR HX capability was exhausted after 72 hours, the ADS is actuated, which could result in significant containment floodup. However, the probabilistic analysis shows that the probability of design basis containment floodup after PRHR HX operation during a non-LOCA event is significantly lower than the probability of a small break LOCA, for which comparable containment floodup is anticipated. Therefore, the probability of significant containment floodup is not increased.
The proposed changes do not affect components whose failure could initiate an event, thus the probabilities of the accidents previously evaluated are not affected. The affected equipment does not adversely affect or interact with safety-related equipment or another radioactive material barrier. The proposed changes clarify the post-accident performance requirements for the PRHR HX. However, the proposed changes do not prevent the engineered safety features from performing their safety-related accident mitigating functions. The radioactive material source terms and release paths used in the safety analyses are unchanged, thus the radiological releases in the UFSAR accident analyses are not affected.
Therefore, the proposed amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The long-term safe shutdown analysis results show that the PRHR HX continues to meet its acceptance criterion,
The proposed change quantifies the duration that the PRHR HX is capable of maintaining adequate core cooling, and specifies that if the PRHR HX cooling capability is exhausted, the ADS is actuated. This involves the possibility of opening the ADS valves after the IRWST water level has decreased below the spargers, which promote steam condensation in the IRWST. During this condition, the loads on the IRWST, spargers, and any internal structures or components in the IRWST are still less than their limiting loads, and these SSCs are not adversely affected or cause a different mode of operation. Therefore, no new type of accident could be created by this condition.
Therefore, the proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The proposed changes do not reduce the redundancy or diversity of any safety-related function. The added components are classified as safety-related, seismically qualified, and are designed to comply with applicable design codes. The proposed containment condensate flow path changes provide sufficient condensate return flow to maintain adequate IRWST water level for those events using the PRHR HX cooling function. The long-term Shutdown Temperature Evaluation results in UFSAR Appendix 19E show the PRHR HX continues to meet its acceptance criterion. The UFSAR Chapters 6 and 15 analyses results are not affected, thus margins to their regulatory acceptance criteria are unchanged. The former design basis, which stated the PRHR HX could bring the plant to 420 °F within 36 hours is changed to state the heat exchanger can establish safe, stable conditions in the reactor coolant system after a design basis event. Such safe, stable conditions may not coincide with a core average temperature of 420 °F. However, the PRHR HX is able to bring the RCS to a sufficiently low temperature such that RCS conditions are comparable to those achieved at 420 °F—peak cladding temperatures and departure from nucleate boiling are maintained within acceptable limits of the evaluation criteria with adequate margin. No safety analysis or design basis acceptance limit/criterion is challenged or exceeded by the proposed changes, thus no margin of safety is reduced.
Therefore, the proposed amendment does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the license amendment request involves a no significant hazards consideration.
The NRC is seeking public comments on this proposed determination that the license amendment request involves no significant hazards consideration. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60-day notice period if the Commission concludes the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30-day comment period should circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example, in derating or shutdown of the facility. Should the Commission take action prior to the expiration of either the comment period or the notice period, the Commission will publish a notice of issuance in the
Within 60 days after the date of publication of this notice, any persons (petitioner) whose interest may be affected by this action may file a request for a hearing and a petition to intervene (petition) with respect to the action. Petitions shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR part 2. Interested persons should consult a current copy of 10 CFR 2.309, which is available at the NRC's PDR, located at One White Flint North, Room O1-F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. The NRC's regulations are accessible electronically from the NRC Library on the NRC's Web site at
As required by 10 CFR 2.309, a petition shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements: (1) The name, address, and telephone number of the petitioner; (2) the nature of the petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the petitioner's interest. The petition must also set forth the specific contentions which the petitioner seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts or expert opinion to support its position on the issue. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the proceeding. The contention must be one which, if proven, would entitle the petitioner to relief. A petitioner who fails to satisfy these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing with respect to resolution of
Petitions for leave to intervene must be filed no later than 60 days from the date of publication of this notice. Requests for hearing, petitions for leave to intervene, and motions for leave to file new or amended contentions that are filed after the 60-day deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i) through (iii).
If a hearing is requested, and the Commission has not made a final determination on the issue of no significant hazards consideration, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place before the issuance of any amendment unless the Commission finds an imminent danger to the health or safety of the public, in which case it will issue an appropriate order or rule under 10 CFR part 2.
A State, local governmental body, Federally-recognized Indian Tribe, or agency thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h)(1).
The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission by February 13, 2017. The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document, and should meet the requirements for petitions set forth in this section, except that under 10 CFR 2.309(h)(2) a State, local governmental body, or Federally-recognized Indian Tribe, or agency thereof does not need to address the standing requirements in 10 CFR 2.309(d) if the facility is located within its boundaries. A State, local governmental body, Federally-recognized Indian Tribe, or agency thereof may also have the opportunity to participate under 10 CFR 2.315(c).
If a hearing is granted, any person who does not wish, or is not qualified, to become a party to the proceeding may, in the discretion of the presiding officer, be permitted to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a). A person making a limited appearance may make an oral or written statement of position on the issues, but may not otherwise participate in the proceeding. A limited appearance may be made at any session of the hearing or at any prehearing conference, subject to the limits and conditions as may be imposed by the presiding officer. Details regarding the opportunity to make a limited appearance will be provided by the presiding officer if such sessions are scheduled.
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 (hereinafter “petition”), 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 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 petition. Submissions should be in Portable Document Format (PDF). Additional guidance on PDF submissions is available on the NRC's public Web site at
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 “Contact Us” link located on 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
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
For further details with respect to this action, see the application for license amendment dated November 18, 2016.
Attorney for licensee: Ms. Kathryn M. Sutton, Morgan, Lewis & Bockius LLC, 1111 Pennsylvania Avenue NW., Washington, DC 20004-2514.
NRC Branch Chief: Jennifer Dixon-Herrity.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Supplemental environmental impact statement; issuance.
The U.S. Nuclear Regulatory Commission (NRC) and the U.S. Army Corps of Engineers, Jacksonville District, are issuing a supplement to the final environmental impact statement (EIS), NUREG-2176, “Environmental Impact Statement for Combined Licenses (COL) for Turkey Point Nuclear Plant, Units 6 and 7.” Florida Power and Light Company (FPL) submitted an application for COLs to construct and operate two new nuclear power plants at its Turkey Point site near Homestead, Florida. This supplement to the final EIS considers and responds to 59 comment letters that were inadvertently not included in the final EIS.
The supplement to the final EIS is available as of December 2, 2016.
Please refer to Docket ID NRC-2009-0337, when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this action by the following methods:
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Alicia Williamson Dickerson, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-415-1878, email:
The NRC issued NUREG-2176, “Environmental Impact Statement for Combined Licenses (COLs) for Turkey Point Nuclear Plant, Units 6 and 7,” on October 28, 2016 (ADAMS Accession No. ML16335A219). On November 2, 2016, the NRC published a
The NRC staff considered all 59 comment letters and determined that none of them provides new and significant information regarding the project or its environmental impacts. In evaluating the comments in the letters, the staff determined that it had already addressed the majority of comments by responding to other similar comments in Appendix E to the final EIS. In developing a document to respond to the comments in the letters not included in the final EIS, the staff concluded that, for public access and readability, the most effective method for documenting the staff responses would include reprinting the applicable existing responses in Appendix E. The staff also recognized that responses drawn from the final EIS (including existing responses in Appendix E) would be
The final EIS summarizes the results of the review team's environmental analysis of the FPL COL application for compliance with the requirements of 10 CFR part 51. On the basis of the information contained in the final EIS and this supplement, the review team finds that the comment letters not included in the final EIS did not provide information that would change the analysis in the final EIS or the NRC staff's recommendation to the Commission that the COLs be issued as proposed. This recommendation is based on (1) the application, including the Environmental Report (ER), submitted by FPL; (2) consultation with Federal, State, Tribal, and local agencies; (3) the review team's independent review; (4) consideration of public comments received on the environmental review; and (5) the assessments summarized in the EIS and this supplement, including the potential mitigation measures identified in the ER and the EIS.
For the Nuclear Regulatory Commission.
On June 1, 2016, NYSE Arca, Inc. (“NYSE Arca” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act”)
In its filing with the Commission, NYSE Arca included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. NYSE Arca has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to list and trade the Shares, a series of the World Currency Gold Trust (“Trust”), under NYSE Arca Equities Rule 8.201.
The Fund will not be registered as an investment company under the Investment Company Act of 1940
The Sponsor of the Fund and the Trust will be WGC USA Asset Management Company, LLC (“Sponsor”).
The Commission has previously approved listing on the Exchange under NYSE Arca Equities Rules 5.2(j)(5) and 8.201 of other precious metals and gold-based commodity trusts, including the Merk Gold Trust;
Gold bullion typically is priced and traded throughout the world in U.S. dollars. The Fund has been established as an alternative to traditional dollar-based gold investing. Although investors will purchase shares of the Fund with U.S. dollars, the Fund is designed to provide investors with the economic effect of holding gold in terms of a specific basket of major, non-U.S. currencies, such as the euro, Japanese yen and British pound (each, a “Reference Currency”), rather than the U.S. dollar. Specifically, the Fund will seek to track the performance of the Solactive GLD® Long USD Gold Index, less Fund expenses. The Solactive GLD® Long USD Gold Index, or the “Index,” represents the daily performance of a long position in physical gold and a short position in the FX Basket
The U.S. dollar value of an investment in Shares would therefore be expected to increase when both the price of Gold goes up and the value of the U.S. dollar increases against the value of the Reference Currencies comprising the FX Basket (as weighted in the Index). Conversely, the U.S. dollar value of an investment would be expected to decrease when the price of Gold goes down and the value of the U.S. dollar decreases against the value of the Reference Currencies comprising the FX Basket (as weighted in the Index). If Gold increases and the value of the U.S. dollar decreases against the value of the Reference Currencies comprising the FX Basket, or vice versa, the net impact of these changes will determine the value of the Shares on a daily basis.
The Fund is a passive investment vehicle and is designed to track the performance of the Index regardless of: (i) The value of Gold or any Reference Currency; (ii) market conditions; and (iii) whether the Index is increasing or decreasing in value. The Fund's holdings generally will consist entirely of Gold. Substantially all of the Fund's Gold holdings will be delivered by Authorized Participants (defined below) in exchange for Shares. The Fund will not hold any of the Reference Currencies. The Fund generally will not hold U.S. dollars (except from time to time in very limited amounts to pay expenses). The Fund's Gold holdings will not be managed and the Fund will not have any investment discretion.
The Fund's NAV will go up or down each “Business Day” based primarily on two factors.
Because the Fund generally will hold only Gold bullion (and not U.S. dollars or the Reference Currencies), the economic impact of changes to the value of the Reference Currencies against the U.S. dollar from day to day is reflected in the Fund by moving an amount of Gold ounces of equivalent value in or out of the Fund. Therefore, the Fund will seek to track the performance of the Index by entering into a transaction each Index Business Day with the “Gold Delivery Provider” pursuant to which Gold is moved in or out of the Fund.
The Fund does not intend to enter into any other Gold transactions other than with the Gold Delivery Provider as described in the Gold Delivery Agreement (except that the Fund may sell Gold to cover Fund expenses), and the Fund does not intend to hold any Reference Currency or enter into any currency transactions.
The Index is maintained and calculated by a third-party data and index provider, Solactive AG (“Index Provider”). The Index Provider will license the Index to the Sponsor for use in connection with the Trust and the Fund. The Index Provider is not affiliated with the Trust, the Fund, the Sponsor, the trustee for the Trust, the Administrator, the Transfer Agent, the Custodian or the Gold Delivery Provider. The Index Provider is not affiliated with a broker-dealer. The Index Provider has adopted policies and procedures designed to prevent the spread of material non-public information about the Index.
The description of the strategy and methodology underlying the Index, which will be identified and described in the Registration Statement, is based on rules formulated by the Index Provider (“Index Rules”). The Index Rules, which will be described in the Registration Statement, will govern the calculation and constitution of the Index and other decisions and actions related to its maintenance. The Index is described as a “notional” or “synthetic” portfolio or strategy because there is no actual portfolio of assets to which any person is entitled or in which any person has any ownership interest. The Index references certain assets (
The Index values Gold on a daily basis using the “Gold Price.” The Gold Price generally is the LBMA Gold Price AM. The “LBMA Gold Price” means the price per troy ounce of Gold stated in U.S. dollars as set via an electronic auction process run twice daily at 10:30 a.m. and 3:00 p.m., London time each Business Day as calculated and administered by ICE Benchmark Administration Limited (“IBA”) and
As noted herein, the term “Reference Currencies” refers to the following non-U.S. currencies: The euro, Japanese yen, British pound sterling, Canadian dollar, Swedish krona and Swiss franc. Each Reference Currency comprising the FX Basket is expressed in terms of a number of foreign currency units relative to one U.S. dollar (
The Index references European Union euro (“euro” or “EUR”), the Japanese yen (“JPY” or “yen”), the British pound sterling (“GBP”), the Swiss franc (“CHF”), the Canadian dollar (“CAD”) and the Swedish Krona (“SEK”) (each of which is measured against U.S. dollars). The weightings of each currency referenced are as follows: Euro (57.6%), yen (13.6%), GBP (11.9%), CAD (9.1%), SEK (4.2%) and CHF (3.6%).
Reference Currency Index values generally are calculated using the published WM/Reuters (“WMR”)
Settlement in most spot currency transactions is two currency business days after the trade date. A “spot-next trade” effectively extends the spot settlement cycle by one Business Day (
In general, the Index is calculated and published by the Index Provider each Index Business Day, unless there is a “Market Disruption Event” or “Extraordinary Event” as described below. The Index value is disseminated each Index Business Day at approximately 6:00 a.m. ET.
The Index methodology is transparent. Market makers will recalculate an approximate Index value using reliable intraday prices of gold and the relevant Index currencies to identify arbitrage opportunities that present themselves during the
The Fund has entered into a written contract with the Gold Delivery Provider. Subject to the terms of the Gold Delivery Agreement, on a daily basis, the Gold Delivery Provider will (i) calculate the Gold Delivery Amount and (ii) deliver Gold ounces equal to the U.S. dollar value of the Gold Delivery Amount into or out of the Fund. The Gold Delivery Amount is the amount of Gold ounces to be delivered into or out of the Fund on a daily basis to reflect price movements in the Reference Currencies comprising the FX Basket against the U.S. dollar from the prior Index Business Day (assuming no Market Disruption Event or Extraordinary Event has occurred or is continuing, as described in more detail below).
On each Index Business Day, the Gold Delivery Provider determines the notional exposure for each Reference Currency comprising the FX Basket based upon their respective Index weights. The total notional exposure for each Reference Currency on an Index Business Day takes into account the NAV of the Fund (which takes into account creation and redemption orders received on that day).
The Gold Delivery Provider then determines the “FX PnL” which captures the effect of changes in the daily value of the Reference Currencies comprising the FX Basket in their respective weights by calculating the change in the Spot Rate from the prior Index Business Day to the current Index Business Day and adjusting that change to reflect a notional spot-next trade because delivery of currencies is not being taken. The Gold Delivery Provider may use another rate if any Spot Rate is delayed or unavailable as set forth in the Gold Delivery Agreement. The Gold Delivery Provider generally will make this calculation outside of U.S. market hours (at approximately 4:00 a.m. ET) based on the prices of the Reference Currencies comprising the FX Basket published at the “WMR FX Fixing Time,” which is generally at 9:00 a.m., London Time.
The FX PnL is divided by the Gold Price (
If the Gold Delivery Amount is a positive number (meaning that the Fund has experienced a currency gain on the notional short position in the FX Basket comprised of Reference Currencies), the Gold Delivery Provider will transfer to the Fund's custody account an amount of Gold (in ounces) equal to the Gold Delivery Amount. If the Gold Delivery Amount is a negative number (meaning that the Fund has experienced a currency loss on the notional short position in the FX Basket comprised of Reference Currencies), the Fund will transfer to the Gold Delivery Provider's custody account an amount of Gold (in ounces) equal to the Gold Delivery Amount.
From time to time, unexpected events may cause the calculation of the Index and/or the operation of the Fund to be disrupted. These events are expected to be relatively rare, but there can be no guarantee that these events will not occur. These events are referred to as either “Market Disruption Events” or “Extraordinary Events” depending largely on their significance and potential impact to the Index and Fund. Market Disruption Events generally include disruptions in the trading of Gold or the Reference Currencies comprising the FX Basket, delays or disruptions in the publication of the LBMA Gold Price or the Reference Currency prices, and unusual market or other events that are tied to either the trading of gold or the Reference Currencies comprising the FX Basket or otherwise have a significant impact on the trading of gold or the Reference Currencies comprising the FX Basket. For example, market conditions or other events which result in a material limitation in, or a suspension of, the trading of physical Gold generally would be considered Market Disruption Events, as would material disruptions or delays in the determination or publication of the LBMA Gold Price AM. Similarly, market conditions which prevent, restrict or delay the Gold Delivery Provider's ability to convert a Reference Currency to U.S. dollars or deliver a Reference Currency through customary channels generally would be considered a Market Disruption Event, as would material disruptions or delays in the determination or publication of WMR spot prices for any Reference Currency comprising the FX Basket. The complete definition of a Market Disruption Event is set forth below.
A “Market Disruption Event” occurs if either an “FX Basket Disruption Event” or a “Gold Disruption Event” occurs.
An “FX Basket Disruption Event” occurs if any of the following exist on any “Index Business Day”
(i) An event, circumstance or cause (including, without limitation, the adoption of or any change in any applicable law or regulation) that has had or would reasonably be expected to have a materially adverse effect on the availability of a market for converting such Reference Currency to US Dollars (or vice versa), whether due to market illiquidity, illegality, the adoption of or change in any law or other regulatory instrument, inconvertibility, establishment of dual exchange rates or foreign exchange controls or the occurrence or existence of any other circumstance or event, as determined by the Index Sponsor; or
(ii) the failure of Reuters to announce or publish the relevant spot exchange rates for any Reference Currency in the FX Basket; or
(iii) any event or any condition that (I) results in a lack of liquidity in the market for trading any Reference Currency that makes it impossible or illegal for market participants (a) to convert from one currency to another through customary commercial channels, (b) to effect currency transactions in, or to obtain market values of, such, currency, (c) to obtain a firm quote for the related exchange rate, or (d) to obtain the relevant exchange rate by reference to the applicable price source; or (II) leads to any governmental entity imposing rules that effectively set the prices of any of the currencies; or
(iv) the declaration of (a) a banking moratorium or the suspension of payments by banks, in either case, in the country of any currency used to determine any Reference Currency exchange rate, or (b) capital and/or currency controls (including, without limitation, any restriction placed on assets in or transactions through any account through which a non-resident of the country of any currency used to determine the currency exchange rate may hold assets or transfer monies outside the country of that currency, and any restriction on the transfer of funds, securities or other assets of market participants from, within or outside of the country of any currency used to determine the applicable exchange rate.
A “Gold Disruption Event” occurs if any of the following exist on any Index Business Day with respect to gold:
(i) (a) The failure of the LBMA to announce or publish the LBMA Gold Price (or the information necessary for determining the price of gold) on that Index Business Day, (b) the temporary or permanent discontinuance or unavailability of the LBMA or the LBMA Gold Price; or
(ii) the material suspension of, or material limitation imposed on, trading in Gold by the LBMA; or
(iii) an event that causes market participants to be unable to deliver gold bullion loco London under rules of the LBMA by credit to an unallocated account at a member of the LBMA; or
(iv) the permanent discontinuation of trading of gold on the LBMA or any successor body thereto, the disappearance of, or of trading in, gold; or
(v) a material change in the formula for or the method of calculating the price of gold, or a material change in the content, composition or constitution of gold.
The occurrence of a Market Disruption Event for five Index Business Days generally would be considered an Extraordinary Event for the Index and Fund.
On any Index Business Day in which a Market Disruption Event or Extraordinary Event has occurred or is continuing, the Index Provider generally will calculate the Index based on the following fallback procedures: (i) Where the Market Disruption Event is based on the Gold Price, the Index will be kept at the same level as the previous Index Business Day and updated when the Gold Price is no longer disrupted; (ii) where the Gold Price is not disrupted but one of the Reference Currency prices is disrupted, the Index will be calculated in the ordinary course except that the disrupted Reference Currency will be kept at its value from the previous Index Business Day and updated when it is no longer disrupted; and (iii) if both the Gold Price and a Reference Currency price are disrupted, the Index will be kept at the same level as the previous Index Business Day and updated when such prices are no longer disrupted. If a Market Disruption Event has occurred and is continuing for five (5) or more consecutive Index Business Days, the Index Provider will calculate a substitute price for each index component that is disrupted. If an Extraordinary Event has occurred and is continuing, the Index Provider shall be responsible for making any decisions regarding the future composition of the Index and implement any necessary adjustments that might be required. If necessary, the Fund may use alternate pricing sources to calculate NAV during the occurrence of any Market Disruption or Extraordinary Event.
Although the market for physical gold is global, most over-the-counter, or “OTC,” trades are cleared through London. In addition to coordinating market activities, the LBMA acts as the principal point of contact between the market and its regulators. A primary function of the LBMA is its involvement in the promotion of refining standards by maintenance of the “London Good Delivery Lists,” which are the lists of LBMA accredited melters and assayers of gold. The LBMA also coordinates market clearing and vaulting, promotes good trading practices and develops standard documentation.
The term “loco London” refers to gold bars physically held in London that meet the specifications for weight, dimensions, fineness (or purity), identifying marks (including the assay stamp of a LBMA acceptable refiner) and appearance set forth in “The Good Delivery Rules for Gold and Silver Bars” published by the LBMA. Gold bars meeting these requirements are known as “London Good Delivery Bars.” All of the gold held by the Fund will be London Good Delivery Bars meeting the specifications for weight, dimensions, fineness (or purity), identifying marks and appearance of gold bars as set forth in “The Good Delivery Rules for Gold and Silver Bars” published by the LBMA.
The unit of trade in London is the troy ounce, whose conversion between grams is: 1,000 grams = 32.1507465 troy ounces and 1 troy ounce = 31.1034768 grams. A London Good Delivery Bar is acceptable for delivery in settlement of a transaction on the OTC market. Typically referred to as 400-ounce bars, a London Good Delivery Bar must contain between 350 and 430 fine troy ounces of gold, with a minimum fineness (or purity) of 995 parts per 1,000 (99.5%), be of good appearance and be easy to handle and stack. The fine gold content of a gold bar is calculated by multiplying the gross weight of the bar (expressed in units of 0.025 troy ounces) by the fineness of the bar.
IBA hosts a physically settled, electronic and tradeable auction process that provides a market-based platform for buyers and sellers to trade physical spot Gold. The final auction price is used and published to the market as the “LBMA Gold Price benchmark.” The LBMA Gold Price is set twice daily at 10:30 a.m., London time and 3:00 p.m., London time in three currencies: U.S. dollars, euro and British pounds sterling. The LBMA Gold Price is a widely used benchmark for the physical spot price of Gold and is quoted by various financial information sources.
Participants in the IBA auction process submit anonymous bids and offers which are published on screen and in real-time. Throughout the auction process, aggregated Gold bids and offers are updated in real-time with the imbalance calculated and the price updated every 45 seconds until the buy and sell orders are matched. When the net volume of all participants falls within a pre-determined tolerance, the auction is deemed complete and the applicable LBMA Gold Price is published. Information about the auction process (such as aggregated bid and offer volumes) will be immediately available after the auction on the IBA's Web site.
The LBMA Gold Price replaced the widely used “London Gold Fix” as of March 20, 2015.
Although the Fund will not invest in gold futures, information about the gold futures market is relevant as such markets contribute to, and provide evidence of, the liquidity of the overall market for Gold.
The most significant gold futures exchange is COMEX, part of the CME Group, Inc., which began to offer trading in gold futures contracts in 1974. TOCOM (Tokyo Commodity Exchange) is another significant futures exchange and has been trading gold since 1982. Trading on these exchanges is based on fixed delivery dates and transaction sizes for the futures and options contracts traded. Trading costs are negotiable. As a matter of practice, only a small percentage of the futures market turnover ever comes to physical delivery of the gold represented by the contracts traded. Both exchanges permit trading on margin. Both COMEX and TOCOM operate through a central clearance system and in each case, the
The global gold markets are overseen and regulated by both governmental and self-regulatory organizations. In addition, certain trade associations have established rules and protocols for market practices and participants.
The Administrator will determine the NAV of Shares each Business Day. The NAV of Shares will be the aggregate value of the Fund's assets (which include gold payable, but not yet delivered, to the Fund) less its liabilities (which include accrued but unpaid fees and expenses). The NAV of the Fund will be calculated based on the price of Gold per ounce applied against the number of ounces of Gold owned by the Fund. For purposes of calculating NAV, the number of ounces of Gold owned by the Fund is adjusted up or down on a daily basis to reflect the Gold Delivery Amount. The number of ounces of Gold held by the Fund also reflects the amount of Gold delivered into (or out of) the Fund on a daily basis by Authorized Participants (as described below) creating and redeeming Shares. The number of ounces of Gold held by the Fund is adjusted downward by the Sponsor's fee and the expenses of the Gold Delivery Agreement.
In determining the Fund's NAV, the Administrator generally will value the Gold held by the Fund based on the LBMA Gold Price AM for an ounce of Gold. If no LBMA Gold Price AM is made on a particular Business Day (including a Business Day that is not an Index Business Day), the next most recent LBMA Gold Price AM determined prior to that Business Day generally will be used in the determination of the NAV of the Fund, unless the Sponsor determines that such price is inappropriate to use as the basis for such determination.
The Fund expects to create and redeem Shares but only in Creation Units (a Creation Unit equals a block of 10,000 Shares or more). The creation and redemption of Creation Units requires the delivery to the Fund (or the distribution by the Fund in the case of redemptions) of the amount of Gold and any cash, if any, represented by the Creation Units being created or redeemed. The total amount of Gold and cash, if any, required for the creation of Creation Units will be based on the combined NAV of the number of Creation Units being created or redeemed. The initial amount of Gold required for deposit with the Fund to create Shares is 1,000 ounces per Creation Unit. The number of ounces of Gold required to create a Creation Unit or to be delivered upon redemption of a Creation Unit will change over time depending on Index performance net of the fees charged by the Fund and the Gold Delivery Provider. Creation Units may be created or redeemed only by “Authorized Participants” (as described below), who may be required to pay a transaction fee for each order to create or redeem Creation Units as will be set forth in the Registration Statement. Authorized Participants may sell to other investors all or part of the Shares included in the Creation Units they purchase from the Fund.
Authorized Participants are the only persons that may place orders to create and redeem Creation Units. To become an Authorized Participant, a person must enter into a Participant Agreement. All Gold bullion must be delivered to the Fund and distributed by the Fund in unallocated form through credits and debits between an Authorized Participant's unallocated account (“Authorized Participant Unallocated Account”) and the Fund's unallocated account (“Fund Unallocated Account”) (except for Gold delivered to or from the Gold Delivery Provider pursuant to the Gold Delivery Agreement). All Gold bullion must be of at least a minimum fineness (or purity) of 995 parts per 1,000 (99.5%) and otherwise conform to the rules, regulations practices and customs of the LBMA, including the specifications for a London Good Delivery Bar.
On any Business Day, an Authorized Participant may place an order with the Fund to create one or more Creation Units. Purchase orders must be placed by 5:30 p.m., ET. The day on which the Fund receives a valid purchase order is the purchase order date. By placing a purchase order, an Authorized Participant agrees to deposit Gold with the Fund, or a combination of Gold and cash, if any, as described below.
The total deposit of Gold (and cash, if any) required to create each Creation Unit is referred to as the “Creation Unit Gold Delivery Amount.” The Creation Unit Gold Delivery Amount is the number of ounces of Gold required to be delivered to the Fund by an Authorized Participant in connection with a creation order for a single Creation Unit.
An Authorized Participant who places a purchase order is responsible for crediting its Authorized Participant Unallocated Account with the required Gold deposit amount by the end of the third Business Day in London following the purchase order date. Upon receipt of the Gold deposit amount, the Custodian, after receiving appropriate instructions from the Authorized Participant and the Fund, will transfer on the third Business Day following the purchase order date the Gold deposit amount from the Authorized Participant Unallocated Account to the Fund Unallocated Account and the Administrator will direct the Depository Trust Company (“DTC”) to credit the number of Creation Units ordered to the Authorized Participant's DTC account. The expense and risk of delivery, ownership and safekeeping of Gold until such Gold has been received by the Fund will be borne solely by the Authorized Participant. If Gold is to be delivered other than as described above, the Sponsor is authorized to establish such procedures and to appoint such custodians and establish such custody accounts as the Sponsor determines to be desirable.
Acting on standing instructions given by the Fund, the Custodian will transfer the Gold deposit amount from the Fund Unallocated Account to the Fund's allocated account by allocating to the allocated account specific bars of Gold which the Custodian holds or instructing a sub-custodian to allocate specific bars of Gold held by or for the sub-custodian. The Gold bars in an allocated Gold account are specific to that account and are identified by a list which shows, for each Gold bar, the refiner, assay or fineness, serial number and gross and fine weight. Gold held in the Fund's allocated account is the property of the Fund and is not traded, leased or loaned under any circumstances.
The Custodian will use commercially reasonable efforts to complete the transfer of Gold to the Fund's allocated account prior to the time by which the Administrator is to credit the Creation Unit to the Authorized Participant's DTC account; if, however, such transfers have not been completed by such time, the number of Creation Units ordered will be delivered against receipt of the Gold deposit amount in the Fund's unallocated account, and all Shareholders will be exposed to the risks of unallocated Gold to the extent of that Gold deposit amount until the Custodian completes the allocation process.
The Fund has the right, but not the obligation, to reject a purchase order if (i) the order is not in proper form as described in the Participant Agreement, (ii) the fulfillment of the order, in the opinion of its counsel, might be unlawful, (iii) if the Fund determines that acceptance of the order from an Authorized Participant would expose the Fund to credit risk; or (iv) circumstances outside the control of the Administrator, the Sponsor or the Custodian make the purchase, for all practical purposes, not feasible to process.
The procedures by which an Authorized Participant can redeem one or more Creation Units mirror the procedures for the creation of Creation Units. On any Business Day, an Authorized Participant may place an order with the Fund to redeem one or more Creation Units. Redemption orders must be placed by 5:30 p.m. ET. A redemption order so received is effective on the date it is received in satisfactory form by the Fund. An Authorized Participant may be required to pay a transaction fee per order to create or redeem Creation Units as will be set forth in the Registration Statement.
The redemption distribution from the Fund consists of a credit in the amount of the Creation Unit Gold Delivery Amount to the Authorized Participant Unallocated Account of the redeeming Authorized Participant. The Creation Unit Delivery Amount for redemptions is the number of ounces of Gold held by the Fund associated with the Shares being redeemed plus, or minus, the cash redemption amount (if any). The Sponsor anticipates that in the ordinary course of the Fund's operations there will be no cash distributions made to Authorized Participants upon redemptions. In addition, because the Gold to be paid out in connection with the redemption order will decrease the amount of Gold subject to the Gold Delivery Agreement, the Creation Unit Gold Delivery Amount reflects the cost to the Gold Delivery Provider of resizing (
The redemption distribution due from the Fund is delivered to the Authorized Participant on the third Business Day following the redemption order date if, by 10:00 a.m. ET on such third Business Day, the Fund's DTC account has been credited with the Creation Units to be redeemed. If the Administrator's DTC account has not been credited with all of the Creation Units to be redeemed by such time, the redemption distribution is delivered to the extent of whole Creation Units received. Any remainder of the redemption distribution is delivered on the next Business Day to the extent of remaining whole Creation Units received if the Administrator receives the fee applicable to the extension of the redemption distribution date which the Administrator may, from time to time, determine and the remaining Creation Units to be redeemed are credited to the Administrator's DTC account by 10:00 a.m. ET on such next Business Day. Any further outstanding amount of the redemption order will be cancelled. The Administrator is also authorized to deliver the redemption distribution notwithstanding that the Creation Units to be redeemed are not credited to the Administrator's DTC account by 10:00 a.m. ET on the third Business Day following the redemption order date if the Authorized Participant has collateralized its obligation to deliver the Creation Units through DTC's book entry system on such terms as the Sponsor and the Administrator may from time to time agree upon.
The Custodian transfers the redemption Gold amount from the Fund's allocated account to the Fund's unallocated account and, thereafter, to the redeeming Authorized Participant's Authorized Participant Unallocated Account.
The Fund may, in its discretion, suspend the right of redemption, or postpone the redemption settlement date: (1) For any period during which NYSE Arca is closed other than customary weekend or holiday closings, or trading on NYSE Arca is suspended or restricted, (2) for any period during which an emergency exists as a result of which delivery, disposal or evaluation of Gold is not reasonably practicable, or (3) such other period as the Sponsor determines to be necessary for the protection of the Shareholders, such as during the occurrence of a Market Disruption Event or Extraordinary Event based on the Gold Price.
The Fund has the right, but not the obligation, to reject a redemption order if (i) the order is not in proper form as described in the Participant Agreement, (ii) the fulfillment of the order, in the opinion of its counsel, might be unlawful, (iii) if the Fund determines that acceptance of the order from an Authorized Participant would expose the Fund to credit risk; or (iv) circumstances outside the control of the
While the Fund's investment objective is for the Shares to reflect the performance of Gold bullion in terms of the Reference Currencies reflected in the Index, less the expenses of the Fund, the Shares may trade in the secondary market at prices that are lower or higher relative to their NAV per Share. The amount of the discount or premium in the trading price relative to the NAV per Share may be influenced by non-concurrent trading hours between the NYSE Arca and the COMEX, London, Zurich and Singapore. While the Shares will trade on NYSE Arca until 8:00 p.m. ET, liquidity in the global gold market will be reduced after the close of the COMEX at 1:30 p.m. ET. As a result, during this time, trading spreads, and the resulting premium or discount, on the Shares may widen.
The Adviser represents that market makers in the Shares will be able to efficiently hedge their positions through use of spot gold transactions and spot currency transactions in Reference Currencies comprising the FX Basket. Transactions in spot gold and spot currencies during the Exchange's Core Trading Session (9:30 a.m. to 4:00 p.m. ET) take place in a highly liquid market; such transactions that hedge the market makers' positions in Shares are expected to facilitate the market maker's ability to trade Shares at a price that is not at a material discount or premium to NAV.
The Sponsor will receive an annual fee equal to 0.33% of the daily NAV of the Fund. In return the Sponsor will be responsible for the payment of the ordinary fees and expenses of the Fund, including the Administrator's fee, the Custodian's fee, and the Index Provider's fee. This will be the case regardless of whether the ordinary expenses of the Fund exceed 0.33% of the daily NAV of the Fund. In addition, the Fund will pay the Gold Delivery Provider an annual fee of 0.17% of the daily NAV, so that the Fund's total annual expense ratio will be equal to 0.50%. The Sponsor's fee and payment to the Gold Delivery Provider are expected to be the only ordinary recurring expenses of the Fund.
Currently, the Consolidated Tape Plan does not provide for dissemination of the spot price of a commodity, such as gold, or the spot price of the Reference Currencies, over the Consolidated Tape. However, there will be disseminated over the Consolidated Tape the last sale price for the Shares, as is the case for all equity securities traded on the Exchange (including exchange-traded funds). In addition, there is a considerable amount of information about gold and currency prices and gold and currency markets available on public Web sites and through professional and subscription services.
Investors may obtain on a 24-hour basis gold pricing information based on the spot price for an ounce of Gold and pricing information for the Reference Currencies from various financial information service providers, such as Reuters and Bloomberg.
Reuters and Bloomberg, for example, provide at no charge on their Web sites delayed information regarding the spot price of Gold and last sale prices of Gold futures, as well as information about news and developments in the gold market. Reuters and Bloomberg also offer a professional service to subscribers for a fee that provides information on Gold prices directly from market participants. Complete real-time data for Gold futures and options prices traded on the COMEX are available by subscription from Reuters and Bloomberg. There are a variety of other public Web sites providing information on gold, ranging from those specializing in precious metals to sites maintained by major newspapers. In addition, the LBMA Gold Price is publicly available at no charge at
In addition, Reuters and Bloomberg, for example, provide at no charge on their Web sites delayed information regarding the spot price of each Reference Currency, as well as information about news and developments in the currency markets. Reuters and Bloomberg also offer a professional service to subscribers for a fee that provides information on currency transactions directly from market participants. Complete real-time data for currency transactions are available by subscription from Reuters and Bloomberg. There are a variety of other public Web sites providing information about the Reference Currencies and currency transactions, ranging from those specializing in currency trading to sites maintained by major newspapers.
The Fund's Web site (
In addition, the Web site for the Fund will contain the following information, on a per Share basis, for the Fund: (a) The mid-point of the bid-ask price
The Fund will be subject to the criteria in NYSE Arca Equities Rule 8.201(e) for initial and continued listing of the Shares.
A minimum of 100,000 Shares will be required to be outstanding at the start of trading. The minimum number of shares required to be outstanding is comparable to requirements that have been applied to previously listed shares of the Sprott Physical Gold Trust, ETFS Trusts, streetTRACKS Gold Trust, the iShares COMEX Gold Trust, and the
The Exchange deems the Shares to be equity securities, thus rendering trading in the Fund subject to the Exchange's existing rules governing the trading of equity securities. Trading in the Shares on the Exchange will occur in accordance with NYSE Arca Equities Rule 7.34(a). The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions. As provided in NYSE Arca Equities Rule 7.6, Commentary .03, the minimum price variation (“MPV”) for quoting and entry of orders in equity securities traded on the NYSE Arca Marketplace is $0.01, with the exception of securities that are priced less than $1.00 for which the MPV for order entry is $0.0001.
Further, NYSE Arca Equities Rule 8.201 sets forth certain restrictions on ETP Holders acting as registered market makers in the Shares to facilitate surveillance. Rule 8.201(g) requires that a market maker in Commodity-Based Trust Shares must file with the Exchange in a manner prescribed by the Exchange and keep current a list identifying all accounts for trading in an underlying commodity, related commodity futures or options on commodity futures, or any other related commodity derivatives, which the market maker may have or over which it may exercise investment discretion. Such rule provides further that no market maker shall trade in an underlying commodity, or options on commodity futures, or any other related commodity derivatives, in an account in which a market maker, directly or indirectly, controls trading activities, or has a direct interest in the profits or losses thereof, which has not been reported to the Exchange as required by such rule. The Exchange proposes to amend Rule 8.201(g) to state that an ETP Holder acting as a registered market maker in Commodity-Based Trust Shares with no exposure to a non-U.S. currency or currencies must file with the Exchange in a manner prescribed by the Exchange and keep current a list identifying all accounts for trading in an underlying commodity, related commodity futures or options on commodity futures, or any other related commodity derivatives, which the market maker may have or over which it may exercise investment discretion. An ETP Holder acting as a registered market maker in Commodity-Based Trust Shares with exposure to one or more non-U.S. currencies (“Underlying FX”) also must file with the Exchange, in a manner prescribed by the Exchange, and keep current a list identifying all accounts for trading in Underlying FX and derivatives overlying Underlying FX which the market maker may have or over which it may exercise investment discretion, as well as a list of all commodity and commodity-related accounts referenced above. In addition, the proposed amended rule would state that no market maker in Commodity-Based Trust Shares shall trade in a commodity, Underlying FX or any related derivative in an account that the market maker (1) directly or indirectly controls trading activities or has a direct interest in the profits or losses thereof, (2) is required by this rule to disclose to the Exchange, and (3) has not reported to the Exchange. The last sentence of the first paragraph of Rule 8.201(g) is proposed to be deleted as unnecessary in view of the proposed amendment to such rule. The Exchange further proposes to amend the second paragraph of Rule 8.201(g), which relates to books, records or other information required to be made available to the Exchange, to add applicable Underlying FX and Underlying FX derivatives to the financial instruments that are subject to requirements of such rule.
Pursuant to NYSE Arca Equities Rule 8.201(g), an ETP Holder acting as a registered market maker in the Shares is required to provide the Exchange, upon request, with information relating to its trading in the underlying commodity (
With respect to issues of Commodity-Based Trust Shares for which non-U.S. currency price changes may impact the NAV of the applicable shares, such as the Shares, the Exchange believes the proposed amendments to Rule 8.600(g) are appropriate in that a market maker may find it necessary to use non-U.S. currencies or currency derivatives to hedge positions in the underlying commodity. Therefore, to facilitate Exchange surveillance, any such non-U.S. currency-related trading activity should be in accounts reported to the Exchange, and books, records or other information related to such activity should be made available to the Exchange.
The Exchange notes that, under NYSE Arca Equities Rule 10.2, in the course of an investigation by the Exchange, the Exchange may request from ETP Holders documentary materials and other information, including trading records, regarding trading in currencies and currency derivatives. In addition, Commentary .04 of NYSE Arca Equities Rule 6.3 requires an ETP Holder acting as a registered market maker, and its affiliates, in the Shares to establish, maintain and enforce written policies and procedures reasonably designed to prevent the misuse of any material nonpublic information with respect to such products, any components of the related products, any physical asset or commodity underlying the product, applicable currencies, underlying indexes, related futures or options on futures, and any related derivative instruments (including the Shares).
As a general matter, the Exchange has regulatory jurisdiction over its ETP Holders and their associated persons, which include any person or entity controlling an ETP Holder. A subsidiary or affiliate of an ETP Holder that does business only in commodities or futures contracts would not be subject to Exchange jurisdiction, but the Exchange could obtain information regarding the activities of such subsidiary or affiliate through surveillance sharing agreements with regulatory organizations of which such subsidiary or affiliate is a member.
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares. Trading on the Exchange in the Shares may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. These may include: (1) The extent to which conditions in the underlying gold market have caused disruptions and/or lack of trading, or (2) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present. In addition, trading in Shares will be subject to trading halts caused by extraordinary market volatility pursuant to the Exchange's “circuit breaker” rule.
The Exchange represents that trading in the Shares will be subject to the existing trading surveillances administered by the Exchange, as well as cross-market surveillances administered by the Financial Industry Regulatory Authority (“FINRA”) on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws.
The surveillances referred to above generally focus on detecting securities trading outside their normal patterns, which could be indicative of manipulative or other violative activity. When such situations are detected, surveillance analysis follows and investigations are opened, where appropriate, to review the behavior of all relevant parties for all relevant trading violations.
The Exchange or FINRA, on behalf of the Exchange, or both, will communicate as needed regarding trading in the Shares with other markets and other entities that are members of the ISG, and the Exchange or FINRA, on behalf of the Exchange, or both, may obtain trading information regarding trading in the Shares from such markets and other entities. In addition, the Exchange may obtain information regarding trading in the Shares from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.
Also, pursuant to NYSE Arca Equities Rule 8.201(g), the Exchange is able to obtain information regarding trading in the Shares and the underlying gold, gold futures contracts, options on gold futures, or any other gold derivative, through ETP Holders acting as registered market makers, in connection with such ETP Holders' proprietary or customer trades through ETP Holders which they effect on any relevant market.
In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
All statements and representations made in this filing regarding (a) the description of the portfolio, (b) limitations on portfolio holdings or reference assets, or (c) the applicability of Exchange rules and surveillance procedures shall constitute continued listing requirements for listing the Shares on the Exchange.
The issuer has represented to the Exchange that it will advise the Exchange of any failure by the Fund to comply with the continued listing requirements, and, pursuant to its obligations under Section 19(g)(1) of the Exchange Act, the Exchange will monitor for compliance with the continued listing requirements. If the Fund is not in compliance with the applicable listing requirements, the Exchange will commence delisting procedures under NYSE Arca Equities Rule 5.5(m).
Prior to the commencement of trading, the Exchange will inform its ETP Holders in an Information Bulletin of the special characteristics and risks associated with trading the Shares. Specifically, the Information Bulletin will discuss the following: (1) The procedures for purchases and redemptions of Shares in Baskets (including noting that Shares are not individually redeemable); (2) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its ETP Holders to learn the essential facts relating to every customer prior to trading the Shares; (3) how information regarding the IIV is disseminated; (4) the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; (5) the possibility that trading spreads and the resulting premium or discount on the Shares may widen as a result of reduced liquidity of gold trading during the Core and Late Trading Sessions after the close of the major world gold markets; and (6) trading information. For example, the Information Bulletin will advise ETP Holders, prior to the commencement of trading, of the prospectus delivery requirements applicable to the Fund. The Exchange notes that investors purchasing Shares directly from the Fund (by delivery of the Creation Basket Deposit) will receive a prospectus. ETP Holders purchasing Shares from the Fund for resale to investors will deliver a prospectus to such investors.
In addition, the Information Bulletin will reference that the Fund is subject to various fees and expenses as will be described in the Registration Statement. The Information Bulletin will also reference the fact that there is no regulated source of last sale information regarding physical gold, that the Commission has no jurisdiction over the trading of gold as a physical commodity, and that the CFTC has regulatory jurisdiction over the trading of gold futures contracts and options on gold futures contracts.
The Information Bulletin will also discuss any relief, if granted, by the Commission or the staff from any rules under the Exchange Act.
The basis under the Exchange Act for this proposed rule change is the requirement under Section 6(b)(5)
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed and traded on the Exchange pursuant to the initial and continued listing criteria in NYSE Arca Equities Rule 8.201. The Exchange has in place surveillance procedures that are adequate to properly monitor trading in the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws. The Exchange may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement. Under NYSE Arca Equities Rule 10.2, in the course of an investigation by the Exchange, the Exchange may request from ETP Holders documentary materials and other information, including trading records, regarding trading in currencies and currency derivatives. With respect to issues of Commodity-Based Trust Shares for which non-U.S. currency price changes may impact the NAV of the applicable shares, such as the Shares, the Exchange believes the proposed amendments to Rule 8.600(g), as described above, are appropriate and in the public interest in that such amendments will facilitate Exchange surveillance of market makers' non-U.S.
The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that there is a considerable amount of gold price and gold market information available on public Web sites and through professional and subscription services. Investors may obtain on a 24-hour basis gold pricing information based on the spot price for an ounce of gold from various financial information service providers. Investors may obtain gold pricing information based on the spot price for an ounce of gold from various financial information service providers. Current spot prices also are generally available with bid/ask spreads from gold bullion dealers. In addition, the Fund's Web site will provide pricing information for gold spot prices and the Shares. Market prices for the Shares will be available from a variety of sources including brokerage firms, information Web sites and other information service providers. The NAV of the Fund will be published by the Sponsor on each day that the NYSE Arca is open for regular trading and will be posted on the Fund's Web site. The IIV relating to the Shares will be widely disseminated by one or more major market data vendors at least every 15 seconds during the Core Trading Session. In addition, the LBMA Gold Price is publicly available at no charge at
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that it will facilitate the listing and trading of an additional type of exchange-traded product that will enhance competition among market participants, to the benefit of investors and the marketplace. As noted above, the Exchange has in place surveillance procedures relating to trading in the Shares and may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement. In addition, as noted above, investors will have ready access to information regarding gold pricing.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act. The Exchange believes the proposed rule change will enhance competition by accommodating Exchange trading of an additional exchange-traded product relating to physical gold.
No written comments were solicited or received with respect to the proposed rule change.
After careful review, the Commission finds that the Exchange's proposed rule change to list and trade the Shares is consistent with the Exchange Act and the rules and regulations thereunder applicable to a national securities exchange.
Additionally, the Commission finds that the proposed rule change is consistent with Section 6(b)(5) of the Exchange Act,
The Fund's Web site (
The Commission also believes that the proposal is reasonably designed to prevent trading when a reasonable degree of transparency cannot be assured. With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares. The Exchange may halt trading in the Shares because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable including: (1) The extent to which conditions in the underlying gold market have caused disruptions and/or lack of trading, or (2) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present. The Exchange will halt trading in the Shares if the NAV is not calculated or disseminated daily.
Further, the Commission believes that the Exchange's proposal to expand the scope of NYSE Arca Equities Rule 8.201(g) is designed to prevent manipulative acts and practices. As amended, the rule would allow the Exchange to better monitor the Reference Currency positions of market makers in the Shares to ensure that such market participants do not use their positions as market makers to violate the requirements of Exchange rules or applicable federal securities laws.
In support of this proposal, the Exchange has made the following additional representations:
(1) The Shares will be listed and traded on the Exchange pursuant to the initial and continued listing criteria in NYSE Arca Equities Rule 8.201.
(2) The Exchange deems the Shares to be equity securities, and therefore the Shares will be subject to the Exchange's existing rules governing the trading of equity securities.
(3) The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions.
(4) The Exchange has a general policy prohibiting the distribution of material, non-public information by its employees.
(5) The Index Provider, which is not affiliated with a broker-dealer, has adopted policies and procedures designed to prevent the spread of material non-public information about the Index.
(6) Trading in the Shares will be subject to the existing trading surveillances administered by the Exchange, as well as cross-market surveillances administered by FINRA on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws, and that these procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and federal securities laws applicable to trading on the Exchange.
(7) The Exchange or FINRA, on behalf of the Exchange, or both, will communicate as needed regarding trading in the Shares with other markets and other entities that are members of the ISG, and the Exchange or FINRA, on behalf of the Exchange, or both, may obtain trading information regarding trading in the Shares from such markets and other entities. In addition, the Exchange may obtain information regarding trading in the Shares from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.
(8) Prior to the commencement of trading, the Exchange will inform its ETP Holders in an Information Bulletin—the contents of which are discussed above—of the special characteristics and risks associated with trading the Shares.
(9) All statements and representations made in the proposed rule change regarding (a) the description of the portfolio, (b) limitations on portfolio holdings or reference assets, or (c) the applicability of Exchange rules and surveillance procedures constitute continued listing requirements for listing the Shares on the Exchange.
(10) The issuer has represented to the Exchange that it will advise the Exchange of any failure by the Fund to comply with the continued listing requirements, and, pursuant to its obligations under Section 19(g)(1) of the Exchange Act, the Exchange will monitor for compliance with the continued listing requirements. If the Fund is not in compliance with the applicable listing requirements, the Exchange will commence delisting procedures under the NYSE Arca Equities Rule 5.5(m).
This approval order is based on all of the Exchange's representations, including those set forth above and in Amendment No. 3, and the Exchange's description of the Fund.
For the foregoing reasons, the Commission finds that the proposed rule change is consistent with Section
Interested persons are invited to submit written data, views, and arguments concerning whether Amendment No. 3 is consistent with the Exchange Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
The Commission finds good cause to approve the proposed rule change, as modified by Amendment No. 3, prior to the thirtieth day after the date of publication of notice of the filing of Amendment No. 3 in the
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(7) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend CFE Rule 601 related to fraudulent acts. The scope of this filing is limited solely to the application of the rule amendments to security futures that may be traded on CFE. The text of the proposed rule change is attached as Exhibit 4 to the filing but is not attached to the publication of this notice.
In its filing with the Commission, CFE 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. CFE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed CFE rule amendments included as part of this rule change is to amend CFE Rule 601 (Fraudulent Acts) to broaden the language of Rule 601 to also prohibit attempts to engage in any fraudulent act or scheme prohibited by Rule 601. The amendment to CFE Rule 601 is being made at the request of the CFTC. The rule amendments included as part of this rule change are to apply to all products traded on CFE, including both non-security futures and security futures.
CFE Rule 601 currently prohibits CFE Trading Privilege Holders and their related parties from engaging in any fraudulent act or in any scheme to defraud, deceive, or trick, in connection with or related to any trade on or other activity related to the Exchange or the clearing organization for the Exchange. Pursuant to CFE Rule 308, Rule 601 also applies to any person that initiates or executes a transaction on or subject to Exchange rules directly or through an intermediary and to any person for whose benefit such a transaction is initiated or executed.
The proposed rule change broadens the language of Rule 601 to also prohibit attempts to engage in any fraudulent act or any scheme prohibited by Rule 601.
This change is consistent with CFE Rule 604 (Adherence to Law) which prohibits conduct in violation of applicable law, including any provisions of the CEA and CFTC regulations which prohibit attempts to engage in fraudulent acts, such as CFTC Regulation 180.1
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
• To prevent fraudulent and manipulative acts and practices,
• to promote just and equitable principles of trade, and
• to remove impediments to and perfect the mechanism of a free and open market and a national market system, and in general, to protect investors and the public interest.
The Exchange believes that the proposed rule change would strengthen its ability to carry out its responsibilities as a self-regulatory organization by providing further guidance with regard to attempted fraudulent acts by TPHs, their related parties, and others that access CFE's market. In particular, the proposed rule change makes it clear that attempts to engage in fraudulent acts are prohibited. The proposed rule change would also contribute to enhanced protection of CFE markets and market participants.
CFE does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act, in that the rule change will enhance CFE's ability to carry out its responsibilities as a self-regulatory organization. The Exchange believes that the proposed rule change is equitable and not unfairly discriminatory because the amendments regarding attempted fraudulent acts or schemes apply equally to all market participants.
No written comments were solicited or received with respect to the proposed rule change.
The proposed rule change will become operative on December 15, 2016. At any time within 60 days of the date of the filing by the Exchange of a written certification with the CFTC under Section 5c(c) of the CEA, the Commission, after consultation with the CFTC, may summarily abrogate the proposed rule change and require that the proposed rule change be refiled in accordance with the provisions of Section 19(b)(1) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The principal purpose of the changes is to modify the ICE Clear Europe Clearing Rules (“Clearing Rules”) to clarify the application of economic sanctions compliance provisions to German CDS Clearing Members, as described herein.
In its filing with the Commission, ICE Clear Europe included statements concerning the purpose of and basis for the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. ICE Clear Europe has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of such statements.
The purpose of the rule amendments is to modify the ICE Clear Europe Clearing Rules to revise the application of certain provisions related to economic sanctions compliance by CDS Clearing Members and Customers of CDS Clearing Members incorporated in Germany. The existing ICE Clear Europe Rules impose certain requirements on all Clearing Members with respect to compliance with economic sanctions regimes, specifically those imposed by the European Union, the United Kingdom, the United States and the United Nations Security Council. These requirements include representations by Clearing Members that they would not be prevented from entering into any cleared contract or from using the Clearing House under such sanctions regimes, and that they are in compliance with requirements under such regimes relating to due diligence in respect of their customers in any cleared transactions.
Clearing Members that are incorporated in Germany (“German Clearing Members”) have expressed concern to ICE Clear Europe that these requirements under the Rules may potentially be inconsistent with the anti-boycott provisions in Section 7 of the German Foreign Trade Ordinance (
To avoid this potential conflict, ICE Clear Europe is proposing to amend its Clearing Rules to provide exceptions to certain of the representations and undertakings for German Clearing Members, to the extent the representation or undertaking would be in conflict with the anti-boycott ordinance. Instead, such German Clearing Members would be required to provide notice to the Clearing House at least 30 days in advance of any transaction (including a customer transaction) that would otherwise violate such a representation or undertaking. In such case, ICE Clear Europe would as an operational and compliance matter continue to evaluate whether the transaction or activity would be subject to or restricted under any applicable sanctions regime or restriction (including those of the United States and United Kingdom). If so, ICE Clear Europe would be entitled, as it determined to be appropriate, to use one of its existing authorities under the Clearing Rules, including potentially under Rules 104, 404 and Parts 2 and 6 depending on the circumstances, to avoid or decline to clear the transaction or impose a position limit preventing the transaction from being effective even if submitted. The amendments only relate to German Clearing Members that are CDS Clearing Members in connection with their CDS clearing activity; they do not apply to Clearing Members organized in other jurisdictions or to other products cleared by German Clearing Members.
The changes are thus intended to avoid placing German CDS Clearing Members in a situation where they face a potential conflict between the Clearing Rules as they relate to non-German sanctions regimes and the anti-boycott ordinance, while at the same time allowing ICE Clear Europe itself to maintain compliance with all applicable sanctions regimes, including those of the United States and the United Kingdom. The making of these changes is regarded as important by German market participants particularly in relation to CDS clearing, which is subject to a clearing mandate under the European Market Infrastructure Regulation (EMIR),
The proposed amendments to the Rules are described in more detail as follows:
In Rule 101, a new definition of “Sanction” has been added, which largely tracks existing references in the Rules to economic sanctions regulations and restrictions imposed by the EU, United Kingdom, United States or UN Security Council.
In Rule 201(a), which contains a representation that the Clearing Member will not be prevented from entering into a contract or using the Clearing House as a result of prohibition or restriction under an economic sanction regime, paragraph (xxxiv) has been amended to provide the exception described above for German CDS Clearing Members, solely in respect of their CDS business, and solely to the extent that the representation would conflict with applicable laws purporting to nullify or restrict the effect of foreign sanctions or preventing boycotts (the “anti-boycott exception”). It has also been modified to use the new defined term Sanction.
In Rule 203(a), a new paragraph (xxi) has been added, which requires a German CDS Clearing Member (or any Clearing Member dealing with a customer incorporated in Germany) to provide at least 30 days' notice before entering into a transaction that would breach applicable representations or undertakings in the Rules relating to Sanctions, but for the anti-boycott exception.
Similar provisions have been added in new paragraphs (xiv) and (xv) of Rule 204(a), which requires Clearing Members to provide certain notices to the Clearing House. Paragraph (xiv) requires that a German CDS Clearing Member provide notice if any UK or US Sanctions would, if they were applicable, prevent the German CDS Clearing Member from entering into a cleared contract or using the Clearing House in circumstances in which neither EU Sanctions nor UN Security Council Sanctions would impose such restriction. Similarly, paragraph (xv) requires that a German CDS Clearing Member (or any Clearing Member for a customer incorporated in Germany) provide notice if U.K. or U.S. Sanctions would, if they were applicable, restrict or prevent any derivatives or spot trading activities involving the customer in circumstances in which neither EU Sanctions nor UN Security Council Sanctions would impose such restriction. Such notices must be given 30 days before entering into any such cleared contract.
Rule 405(a), which establishes certain representations deemed made by Clearing Members upon entering into a cleared contract, has been revised in paragraph (xi) to use the defined term Sanctions and include the anti-boycott exception discussed above.
In Rule 1901(d), which establishes requirements for being a Sponsored Principal, clause (xiii) has been revised (in a manner similar to the changes in Rule 201(a) above) to use the defined term Sanction and include the anti-boycott exception discussed above.
In addition, in the form of Standard Terms Annex for CDS transactions, paragraph 3(o), which includes representations by the customer about compliance with economic sanctions, has been revised to use the defined term Sanctions and include an anti-boycott exception applicable where the Clearing Member or Customer is located in Germany. The other Standard Terms Annexes for F&O and FX include only a conforming amendment to use the new defined term Sanction.
ICE Clear Europe believes that the changes described herein are consistent with the requirements of Section 17A of the Act
ICE Clear Europe does not believe the proposed changes to the rules would have any impact, or impose any burden, on competition not necessary or appropriate in furtherance of the purpose of the Act. ICE Clear Europe is adopting amendments to the Clearing Rules intended to address certain potential compliance issues for German Clearing Members relating to different economic sanctions regimes. The amendments do not affect other Clearing Members, and are tailored to address a particular concern under the German anti-boycott ordinance that may affect the ability of German Clearing Members to comply with certain requirements under the Rules. ICE Clear Europe does not believe that these changes will impose any significant additional costs on Clearing Members or other market participants. ICE Clear Europe also does not believe the amendments will adversely affect access to clearing by Clearing Members or their customers or otherwise adversely affect Clearing Members or market participants.
ICE Clear Europe has previously conducted a public consultation with respect to a series of amendments relating to economic sanctions matters.
The foregoing rule change has become effective upon filing pursuant to Section 19(b)(3)(A)
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.
All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-ICEEU-2016-014 and should be submitted on or before January 5, 2017.
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 Section 902.04 of the NYSE Listed Company Manual (the “Manual”) to adopt a fee discount for issuers that list 20 or more closed-end funds on the Exchange. 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 Section 902.04 of the Manual to adopt a fee discount for issuers that list 20 or more closed-end funds on the Exchange. The proposed new discount will take effect on January 1, 2017. Currently, fund families that list between three and 14 closed-end funds receive a 5% discount off the calculated Annual Fee for each fund listed, and those with 15 or more listed closed-end funds receive a discount of 15%.
Currently, a small number of fund families benefit from the $1,000,000 fee cap. In most cases, fund families that benefit from the cap have a significant number of funds listed on the Exchange
There are a number of other, smaller fund families that have 20 or more funds listed on the Exchange whose aggregate fees approach but do not exceed $1,000,000 and who therefore do not benefit from the cap. Consequently, those fund families pay fees at a far higher effective fee rate than is paid by those fund families whose fees are capped. The purpose of the proposed 50% discount is to significantly reduce this disparity.
The Exchange believes that a reduction in the effective fee rate paid by fund families that have 20 or more listed funds, but do not benefit from the cap, would create an incentive for them to initiate new funds, increasing competition in the industry. In particular, the Exchange believes that the proposed amendment may create an incentive for fund families to create a greater number of smaller funds than is currently the case, as smaller funds are particularly concerned about limiting their operating costs.
The Exchange believes that it is not unfairly discriminatory to provide a greater discount for fund families listing more than [sic] 20 funds than for smaller fund families, as a significant amount of the costs of conducting the Exchange's regulatory activities and providing client services with respect to a fund family are fixed costs and, consequently, the cost to the Exchange of servicing any incremental fund are smaller when that fund is part of a larger fund family than when it is part of a smaller fund family.
The Exchange does not believe that the proposed fee discount will have any effect on its ability to fund its regulatory activities.
The Exchange also proposes to amend Section 902.04 to remove obsolete references to fee levels that are no longer applicable.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Exchange Act,
The Exchange believes that the proposed rule change is consistent with Sections 6(b)(4) and 6(b)(5) of the Exchange Act in that it represents an equitable allocation of fees and does not unfairly discriminate among listed companies. In particular, the Exchange believes the proposal represents an equitable allocation of fees and is not unfairly discriminatory because it would create an effective fee rate for a group of smaller fund families that is more consistent with the effective fee rate paid by larger fund families that benefit from the fee cap provision of the rule. The proposed amendment would also promote competition, as it would lower the costs of operating a fund for many issuers and will therefore incentivize those issuers to create new funds.
The Exchange believes that it is not unfairly discriminatory to provide a greater discount for fund families listing more than [sic] 20 funds than for smaller fund families, as a significant amount of the costs of conducting the Exchange's regulatory activities and providing client services with respect to a fund family are fixed costs and, consequently, the cost to the Exchange of servicing any incremental fund are smaller when that fund is part of a larger fund family than when it is part of a smaller fund family.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act. The proposed rule change is designed to provide a group of smaller issuers of closed-end funds with an effective fee rate that is closer to the effective rate charged to larger issuers that benefit from the rule's fee cap provision. The market for listing services is extremely competitive. Each listing exchange has a different fee schedule that applies to issuers seeking to list securities on its exchange. Issuers have the option to list their securities on these alternative venues based on the fees charged and the value provided by each listing. Because issuers have a choice to list their securities on a different national securities exchange, the Exchange does not believe that the proposed fee change imposes a burden on competition.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to extend through June 30, 2017, the Penny Pilot Program (“Penny Pilot”) in options classes in certain issues (“Pilot Program”) previously approved by the Commission.
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 purpose of this filing is to extend the Penny Pilot, which was previously approved by the Commission, through June 30, 2017, and to provide revised dates for adding replacement issues to the Pilot Program. The Exchange proposes that any Pilot Program issues that have been delisted may be replaced on the second trading day following January 1, 2017. The replacement issues will be selected based on trading activity for the most recent six month period excluding the month immediately preceding the replacement (
The Exchange represents that the Exchange has the necessary system capacity to continue to support operation of the Penny Pilot. The Exchange believes the benefits to public customers and other market participants who will be able to express their true prices to buy and sell options have been demonstrated to outweigh the increase in quote traffic.
The Exchange believes that its proposal 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(b) of the Act.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. In this regard, the Exchange notes that the rule change is being proposed in order to continue the Pilot Program, which is a
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.
Because the foregoing proposed rule change does not: (A) Significantly affect the protection of investors or the public interest; (B) impose any significant burden on competition; and (C) by its terms, become operative for 30 days from the date on which it was filed or such shorter time as the Commission may designate it has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (1) Necessary or appropriate in the public interest; (2) for the protection of investors; or (3) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to 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 October 7, 2016, Chicago Board Options Exchange, Incorporated (“CBOE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
CBOE proposes to amend its rules relating to the opening of series for trading on the Exchange. Rule 6.2B describes the process (referred to as “HOSS”) that the Exchange's Hybrid Trading System (the “System”) uses to open series on the Exchange each trading day. The Exchange may also use HOSS for closing series or opening
According to the Exchange, HOSS generally processes the opening of each series in four stages:
(1)
(2)
(3)
(4)
According to CBOE, the proposed rule change is designed to more clearly organize Rule 6.2B in this sequential order and makes the additional specific changes discussed in more detail below.
Rule 6.2B(a) currently provides that the System accepts orders and quotes, for regular trading hours, for a period of time before the opening of trading in the underlying security or, in the case of index options, prior to 8:30 a.m.,
Under the proposal, the Exchange generally will not restrict the size or origin code of orders that may be submitted during the pre-opening period. Therefore, the proposed rule change amends Rule 6.2B(a)(i) to add certainty to the rule by deleting the provision that requires the Exchange to designate—on a class-by-class basis—the eligible order size, eligible order type, and eligible order origin code (
The proposed rule change amends Rule 6.2B(a)(ii) in several ways. First, it defines EOIs and specifies the timing of their dissemination. EOIs contain information based on resting orders and quotes in the Book, including the EOP, the EOS, any reason why a series may not open pursuant to paragraph (d) of Rule 6.2B,
The proposed rule change further modifies Rule 6.2B(a)(ii) to redefine the terms EOP and EOS and address when that information will be disseminated. Currently, Rule 6.2B(a)(ii) states that the EOP is the price at which the greatest number of orders and quotes in the book are expected to trade and provides that an EOP will only be calculated if (a) there are market orders in the book, or the book is crossed or locked and (b) at least one quote is present. The proposed rule change revises this language to state that the EOP is the price at which any opening trade is expected to execute and adds that the EOS is the size of any expected opening trade. The proposed rule change further states the System will only disseminate EOP and EOS messages: (a) If the width between the highest quote bid and lowest quote offer on the Exchange is no wider than the OEPW range (as defined below), in classes in which the Hybrid Agency Liaison (“HAL”)
Rule 6.2B(b) currently provides that, unless unusual circumstances exist, at a randomly selected time within a number of seconds after the opening trade and/or the opening quote is disseminated in the market for the underlying security
The Exchange proposes to amend Rule 6.2B(b) to provide that the System will initiate the opening rotation procedure and send out a Rotation Notice on a class-by-class basis as follows:
• For regular trading hours:
○ With respect to equity and ETP options, after the opening trade or the opening quote is disseminated in the market for the underlying security, or at 8:30 for classes determined by the Exchange (including over-the-counter equity classes); or
○ with respect to index options, at 8:30 a.m., or at the later of 8:30 a.m. and the time the Exchange receives a disseminated index value for classes determined by the Exchange; and
• For extended trading hours, at 2:00 a.m.
Rule 6.2B(c) provides that after the Rotation Notice is sent, the System enters into a rotation period, during which the opening price is established for each series. The proposed rule change reorganizes paragraph (c) to more clearly demarcate and further describe (1) when the opening rotation period begins, (2) what happens during the period, (3) the handling of EOIs during the period, and (4) when the period ends.
During the opening rotation period, the System establishes the opening trade price and the opening BBO by matching and executing resting orders and quotes against each other. The proposed rule change modifies the definition of the opening trade price of a series to be the “market-clearing” price, which is the single price at which the largest number of contracts in the book can execute, leaving bids and offers that cannot trade with each other.
The proposed rule change clarifies that the System will continue to disseminate EOIs (not just the EOP and EOS) during the opening rotation period, which may be disseminated at more frequent intervals closer to the opening.
In its filing, the Exchange represented that, pursuant to the Options Price Reporting Authority (“OPRA”) Plan, once a series opens, the System disseminates all quote and trade price information to OPRA, including opening quote and trade price information.
Current Rule 6.2B(e) provides that the System will not open a series if one of a number of specified conditions is met, including the absence of a quote that complies with the bid/ask differential requirements or if the opening price would not be within an acceptable range or would leave a market order imbalance.
(1) If there are no quotes in the series on the Exchange, the System will not open the series;
(2) if the width between the Exchange's best quote bid and best quote offer is wider than an acceptable opening price range (as determined by the Exchange on a class-by-class and premium basis) (the “Opening Exchange Prescribed Width range” or “OEPW range”)
(3) if the opening trade price would be outside of the OEPW range, the System will not open the series. The Exchange states that the proposed rule change also deletes the language from the current provision regarding sending a notification when this condition is present because notifications are sent when a series does not open for any reason; or
(4) if the opening trade would leave a market order imbalance, the System will not open the series. However, if a sell market order imbalance exists, there is no bid in the series, and the best offer is $0.50 or less, the System will open the series; if there is no bid in the series and the best offer is greater than $0.50, the System will not open the series. The proposed rule change deletes the language regarding the exception for series that will open at a minimum increment.
Separately, current Interpretation and Policy .03 to Rule 6.2B describes opening conditions that apply to classes in which the Exchange
(1) If there are no quotes on the Exchange or disseminated from at least one away exchange present in the series, the System will not open the series;
(2) if the width between the best quote bid and best quote offer, which may consist of Market-Makers quotes or bids and offers disseminated from an away exchange, is wider than the OEPW range and there are orders or quotes marketable against each other or that lock or cross the OEPW range, the System will not open the series. However, if the opening quote width is no wider than the IEPW range and there are no orders or quotes marketable against each other or that lock or cross the OEPW range, the System will open the series. If the opening quote width is wider than the IEPW range, the System will not open the series. If the opening quote for a series consists solely of bids and offers disseminated from an away exchange(s), the System will open the series by matching orders and quotes to the extent they can trade and will report the opening trade, if any, at the opening trade price. The System will then exposes any remaining marketable buy (sell) orders at the widest offer (bid) point of the OEPW range or NBO (NBB), whichever is lower (higher).
(3) if the opening trade price would be outside the OEPW range or the NBBO, the System will open the series by matching orders and quotes to the extent they can trade and will report the opening trade, if any, at an opening trade price not outside either the OEPW range or NBBO. The System will then expose any remaining marketable buy (sell) orders at the widest offer (bid) point of the OEPW range or NBO (NBB), whichever is lower (higher);
(4) if the opening trade would leave a market order imbalance, the System will open the series by matching orders and quotes to the extent they can trade and will report the opening trade, if any, at the opening trade price. The System will then expose any remaining marketable buy (sell) orders at the widest offer (bid) point of the OEPW range or NBO (NBB), whichever is lower (higher); or
(5) if the opening quote bid (offer) or the NBB (NBO) crosses the opening quote offer (bid) or the NBO (NBB) by more than an amount determined by the Exchange on a class-by-class and premium basis, the System will not open the series.
In addition, the proposed rule change makes other changes to current Interpretation and Policy .03, while retaining and moving around certain other provisions.
The Exchange also proposes to add subparagraph (d)(iii), which provides that if the System does not open a series pursuant subparagraphs (i) or (ii), notwithstanding proposed paragraph (c) (which states the opening rotation period may not last more than 60 seconds), the opening rotation period continues (including the dissemination of EOIs) until the condition causing the delay is satisfied or the Exchange otherwise determines it is necessary to open a series in accordance with proposed paragraph (e).
The proposed rule change moves Rule 6.2B, Interpretation and Policy .01(a), which establishes a modified opening procedure for classes that trade on the Hybrid 3.0 platform, into the body of the rule in proposed paragraph (h). Interpretation and Policy .01 generally describes the modified opening procedures for Hybrid 3.0 series that are used to calculate volatility indexes.
The introduction to proposed paragraph (h) states that all the provisions set forth in Rule 6.2B apply to the opening of Hybrid 3.0 series except as follows in subparagraphs (i) and (ii). Proposed paragraph (h)(i) provides that only the LMM or DPM with an appointment or allocation, respectively, to the class or series may enter quotes prior to the opening of trading, subject to the obligation set forth in Rule 8.15 or 8.85, respectively. Proposed paragraph (h)(ii) states that during the pre-opening period, the System will accept all order types eligible for entry from public customers (consistent with current paragraph (a) in Interpretation and Policy .01), but adds that the System only accepts opening rotation orders from non-public customers.
The proposed rule change amends the modified opening procedures for classes and series used to calculate volatility indexes on the exercise and final settlement dates. Current Interpretation and Policy .01(b) requires the DPM or LMM to enter opening quotes in all series in a Hybrid 3.0 class during a modified opening procedure. The proposed rule change deletes this obligation. As a result, the opening quoting obligations in Rules 8.15 and 8.85, as applicable, would apply to LMMs and DPMs, respectively, in Hybrid 3.0 classes on volatility settlement days.
Current Rule 6.2B, Interpretation and Policy .01(c) describes a modified opening procedure that applies to series in Hybrid 3.0 classes that are used to calculate a volatility index on expiration and final settlement dates for those indexes.
Current Interpretation and Policy .01(c)(i) states that all orders, other than spread or non-OPG contingency orders, will be eligible to be placed on the electronic book for those option contract expirations whose prices are used to derive the volatility indexes on which options and futures are traded, for the purpose of permitting those orders to participate in the opening price calculation for the applicable series. Since the Exchange permits the same order types during the modified opening procedure as it does during the standard procedure, the proposed rule change deletes this paragraph.
Current Rule 6.2B provides in various places, including paragraphs (b)(ii), (e) and (f) and Interpretations and Policies .01 and .08, that Exchange Floor Officials may determine whether to modify the opening procedures when they deem necessary. The Exchange proposes to delete these references and combine them into current paragraph (f) and proposed paragraph (e). Additionally, the Exchange proposes to amend proposed paragraph (e) to state that senior Help Desk personnel make these determinations.
In addition, there are various provisions throughout Rule 6.2B that allow the Exchange to make certain determinations on a class-by-class basis. However, pursuant to Rule 8.14, Interpretation and Policy .01,
The proposed rule change proposes to delete certain provisions because it believes the language is obsolete or duplicative. Those changes include the following:
• Current Rule 6.2B(b)(ii) describes how a DPM or LMM, as applicable, takes part in determining the cause of a delay in the opening of an underlying security, and that the Exchange may consider such information when deciding whether to open a series despite the delay in the opening of the underlying. According to CBOE, the CBOE Help Desk generally is aware of delayed openings in the underlying securities and thus this provision is no longer necessary. Additionally, the Exchange's Help Desk would have the ability to compel the opening of a series pursuant to proposed Rule 6.2B(f) and therefore proposes to delete this provision.
• The Exchange also proposes to delete current Interpretation and Policy .01(c)(v), which states the HOSS system will automatically generate cancels immediately prior to the opening of the applicable index option series for broker-dealer, Market-Maker, away market-maker, and specialist (
• The proposed rule change deletes Interpretation and Policy .08. The modified opening procedures described in Interpretations and Policies .01 and .08 are nearly identical for Hybrid and Hybrid 3.0 classes. Therefore, the proposed rule change applies Interpretation and Policy .01 (as amended by this proposed rule change) to all classes.
The proposed rule change, as modified by Amendment No. 1, makes numerous non-substantive and clerical changes throughout Rule 6.2B and in Rules 6.1A(e)(iii)(C), 6.13(b)(v)(B)(V), 6.53(l), 8.15(b)(v), 8.85(a)(xi), and 17.50(g)(14), including adding or amending headings and defined terms, updating cross-references, adding introductory and clarifying language, using consistent language and punctuation, and replacing terms such as “option series” with series.
The Exchange also proposes to amend Interpretation and Policy .04, which states the Exchange may determine on a class-by-class basis which electronic algorithm from Rule 6.45A or 6.45B, as applicable, applies to the class during rotations. The proposed rule change makes the electronic algorithm that applies to a class intraday the default algorithm during rotations, but leaves the Exchange flexibility to apply a different algorithm to a class during rotations if it deems necessary or appropriate.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of Section 6 of the Act,
In particular, the proposed rule change reorganizes and attempts to clarify the description of the opening (and sometimes closing) procedures, deletes text that the Exchange believes is either obsolete or unnecessary, removes certain discretion for the Exchange to make determinations under the rule on a class-by-class basis where CBOE no longer needs that discretion, and is intended to promote greater consistency across Rule 6.2B. The Commission notes that these changes may offer market participants a better understanding of how the Exchange's opening (and sometimes closing) procedures operate. To the extent the changes achieve that goal, they may promote transparency, reduce the potential for investor confusion, and assist market participants in deciding whether to participate in CBOE's trading rotations and, if they do participate, have confidence and certainty as to how their orders will be processed by the CBOE System.
The Commission believes that the proposed rule change is designed to promote just and equitable principles of trade by seeking to ensure that series open in a fair and orderly manner with sufficient liquidity and opportunities for execution at prices that are determined by market forces. In particular, the Exchange notes that the proposed rule change is designed to ensure that market participants are aware of the circumstances under which the System may not open a series.
Further, the proposed change more clearly specifies the situations in which the modified opening procedures replace the opening procedures on settlement dates for certain series. The proposed rule change also sets out the circumstances when the Exchange may exercise discretion and strives to narrow that discretion within certain established parameters.
For the foregoing reasons, the Commission finds that the proposed rule change, as modified by Amendment No. 1, is consistent with Section 6(b)(5) of the Act and the rules and regulations thereunder applicable to a national securities exchange.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether Amendment No. 1 to 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.
The Commission finds good cause to approve the proposed rule change, as modified by Amendment No. 1, prior to the thirtieth day after the date of publication of notice of the amended proposal in the
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
A decision has been made, pursuant to the Iran, North Korea, and Syria Nonproliferation Act, to modify nonproliferation measures pursuant to this Act on a Russian foreign person.
Jeffrey G. McCoy, Office of Euro-Atlantic Security Affairs, Bureau of Arms Control, Verification and Compliance, Department of State, Telephone (202) 647-4940.
On September 2, 2015, the United States Government published a notice announcing the imposition of measures including the following against Rosoboronexport (ROE) (Russia) and any successor, sub-unit, or subsidiary thereof: “No department or agency of the United States Government may procure or enter into any contract for the procurement of any goods, technology, or services from Rosoboronexport (ROE) (Russia) and any successor, sub-unit, or subsidiary thereof, except to the extent that the Secretary of State otherwise may determine. . . .” (See 80 FR 53222, Public Notice 9251; 80 FR 65844, Public Notice 9329; and 80 FR 73865, Public Notice 9358).
On July 5, 2016, the United States Government published a notice announcing the imposition of measures including the following against Rosoboronexport (ROE) (Russia) and any successor, sub-unit, or subsidiary thereof: “No department or agency of the United States Government may procure or enter into any contract for the procurement of any goods, technology, or services from Rosoboronexport (ROE) (Russia) and any successor, sub-unit, or subsidiary thereof, except to the extent that the Secretary of State otherwise may determine. . . .” (See 81 FR 43696, Public Notice 9624).
The United States Government has decided to modify the measures described above against ROE and any successor, sub-unit, or subsidiary thereof as follows: The measures described above shall not apply to United States Government procurement of goods, technology, and services for the purchase, maintenance or sustainment of the Digital Electro Optical Sensor OSDCAM4060, to improve the U.S. ability to monitor and verify Russia's Open Skies Treaty compliance.
Such subcontracts include the purchase of spare parts, supplies, and related services.
This modification does not apply to any other measures imposed pursuant to the INKSNA and announced in Public Notice 9251 published on September 2, 2015 (80 FR 53222) or Public Notice 9624 published on July 5, 2016 (81 FR 43696).
In accordance with part 211 of Title 49 Code of Federal Regulations (CFR), this document provides the public notice that by a document dated November 14, 2016, The Beltway Railway of Chicago (BRC) has petitioned the Federal Railroad Administration (FRA) for a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR part 236. FRA assigned the petition Docket Number FRA-2016-0118. BRC seeks relief from the requirements of 49 CFR 236.109 Time releases, timing relays and timing devices. BRC requests relief from § 236.109 as it applies to variable timers within the program logic of the operating software of microprocessor-based equipment.
BRC states that timing devices contained within microprocessor-based equipment are typically non-variable and are within the program logic of the operating software. BRC notes, however, that some microprocessor-based equipment have variable timers. BRC is requesting relief from the requirement of checking the actual time interval of microprocessor-based variable timers. Such variable timers will use verification of the CRC/Check Sum/UCN of the existing location specific application logic to the previously tested version. A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
•
•
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•
Communications received by January 30, 2017 will be considered by FRA before final action is taken. Comments
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its processes. DOT posts these comments, without edit, including any personal information the commenter provides, to
In accordance with part 211 of Title 49 Code of Federal Regulations (CFR), this document provides the public notice that by a document dated November 28, 2016, CSX Transportation (CSX) has petitioned the Federal Railroad Administration (FRA) for a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR part 236. FRA assigned the petition Docket Number FRA-2016-0115.
CSX seeks relief from the requirements of 49 CFR 236.566,
1. Operations from Control Point (CP) 45 at Milepost (MP) OB44.5 on the Boston Subdivision, Albany Division, near Worcester, MA, to CP 92 at MP OB92.0 on the Berkshire Subdivision, Albany Division, near Springfield, MA, for the following operations with the condition that an absolute block be established in advance of each movement:
a. Engines used in switching and transfer service, with or without cars; work trains; wreck trains; ballast cleaners to and from work; engines and rail diesel cars moving to and from shops. All movements must operate at restricted speed, not exceeding 15 mph.
2. Operations from CP 92 at MP OB92.0 on the Berkshire Subdivision, Albany Division, near Springfield, MA, to CP 187 at MP OB187.4 on the Berkshire Subdivision, Albany Division, near Albany, NY.:
a. Engines used in switching and transfer service, with or without cars; Work trains; Wreck trains; Ballast Cleaners to and from work; Engines and Rail Diesel Cars moving to and from shops. All movements must operate at Restricted Speed, not exceeding 15 mph.
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
•
•
•
•
Communications received by January 30, 2017 will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable.
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its processes. DOT posts these comments, without edit, including any personal information the commenter provides, to
Issued in Washington, DC.
In accordance with part 211 of Title 49 of the Code of Federal Regulations (CFR), this document provides the public notice that by a document dated November 28, 2016, CSX Transportation (CSX) has petitioned the Federal Railroad Administration (FRA) for a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR part 236. FRA assigned the petition docket number FRA-2016-0116.
CSX seeks relief from the requirements of 49 CFR 236.60,
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
•
•
•
•
Communications received by January 30, 2017 will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable.
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its processes. DOT posts these comments, without edit, including any personal information the commenter provides, to
A.
B.
C.
D.
1. Qualified Issuer Applications submitted with Guarantee Applications will have priority for review over Qualified Issuer Applications submitted without Guarantee Applications. With the exception of the aforementioned prioritized review, all Qualified Issuer Applications and Guarantee Applications will be reviewed by the CDFI Fund on an ongoing basis, in the order in which they are received, or by such other criteria that the CDFI Fund may establish in its sole discretion.
2. Guarantee Applications that are incomplete or require the CDFI Fund to request additional or clarifying information may delay the ability of the CDFI Fund to move the Guarantee Application to the next phase of review. Submitting an incomplete Guarantee Application earlier than other applicants does not ensure first approval.
3. Qualified Issuer Applications and Guarantee Applications that were received in FY 2016 and that were neither withdrawn nor declined in FY 2016 will be considered under FY 2017 authority.
4. Pursuant to the Regulations at 12 CFR 1808.504(c), the Guarantor may limit the number of Guarantees issued
E.
1. CDFI Bond Guarantee Program Regulations. The regulations that govern the CDFI Bond Guarantee Program were published on February 5, 2013 (78 FR 8296; 12 CFR part 1808) (the Regulations) and provide the regulatory requirements and parameters for CDFI Bond Guarantee Program implementation and administration including general provisions, eligibility, eligible activities, applications for Guarantee and Qualified Issuer, evaluation and selection, terms and conditions of the Guarantee, Bonds, Bond Loans, and Secondary Loans.
2. Application materials. Details regarding Qualified Issuer Application and Guarantee Application content requirements are found in this NOGA and the respective application materials.
3. Program documentation. Interested parties should review template for the Bond Documents and Bond Loan documents that will be used in connection with each Guarantee. The template documents are posted on the CDFI Fund's Web site for review. Such documents include, among others:
a. The Agreement to Guarantee, which describes the roles and responsibilities of the Qualified Issuer, will be signed by the Qualified Issuer and the Guarantor and will include term sheets as exhibits that will be signed by each individual Eligible CDFI;
b. The Bond Trust Indenture, which describes responsibilities of the Master Servicer/Trustee in overseeing the Trust Estate and servicing of the Bonds and will be entered into by the Qualified Issuer and the Master Servicer/Trustee;
c. The Bond Loan Agreement, which describes the terms and conditions of Bond Loans and will be entered into by the Qualified Issuer and each Eligible CDFI that receives a Bond Loan;
d. The Bond Purchase Agreement, which describes the terms and conditions under which the Bond Purchaser will purchase the Bonds issued by the Qualified Issuer and will be signed by the Bond Purchaser, the Qualified Issuer, the Guarantor and the CDFI Fund; and
e. The Future Advance Promissory Bond, which will be signed by the Qualified Issuer as its promise to repay the Bond Purchaser. The template documents may be updated periodically, as needed, and will be tailored, as appropriate, to the terms and conditions of a particular Bond, Bond Loan, and Guarantee.
The Bond Documents and the Bond Loan documents reflect the terms and conditions of the CDFI Bond Guarantee Program and will not be substantially revised or negotiated prior to execution.
F.
G.
H.
I.
1. Award funds received under any other CDFI Fund Program cannot be used by any participant, including Qualified Issuers, Eligible CDFIs, and Secondary Borrowers, to pay principal, interest, fees, administrative costs, or issuance costs (including Bond Issuance Fees) related to the CDFI Bond Guarantee Program, or to fund the Risk-Share Pool for a Bond Issue.
2. Bond Proceeds may be combined with New Markets Tax Credits (NMTC) derived equity (
3. Enhancement, and/or assurances must be from a non-Federal source, remain in force during the entire seven-year NMTC compliance period, and comply with the Secondary Loan Requirements. These requirements may be included in the term sheet (which is an exhibit to the Agreement to Guarantee that must be signed by the Eligible CDFI) and the final Bond Loan terms.
4. Bond Proceeds may not be used to refinance a leveraged loan during the seven-year NMTC compliance period. However, Bond Proceeds may be used to refinance a QLICI after the seven-year NMTC compliance period has ended, so long as all other programmatic requirements are met.
5. The terms Qualified Equity Investment, Community Development Entity, and QLICI are defined in the NMTC Program's authorizing statute, 26 U.S.C. 45D.
J.
1. The CDFI Bond Guarantee Program underwriting process will include a comprehensive review of the Eligible CDFI's concentration of sources of funds available for debt service, including the concentration of sources from other Federal programs and level of reliance on said sources, to determine the Eligible CDFI's ability to service the additional debt.
2. In the event that the Eligible CDFI proposes to use other Federal funds to service Bond Loan debt or as Credit Enhancement, the CDFI Fund may require, in its sole discretion, that the Eligible CDFI provide written assurance from such other Federal program, in a form that is acceptable to the CDFI Fund and that the CDFI Fund may rely upon, that said use is permissible.
K.
L.
The following requirements apply to all Qualified Issuer Applications and Guarantee Applications submitted under this NOGA, as well as any Qualified Issuer Applications and Guarantee Applications submitted under the FY 2016 NOGA that were neither withdrawn nor declined in FY 2016.
A.
1. In general. By statute and regulation, the Qualified Issuer applicant must be either a Certified CDFI (an entity that has been certified by the CDFI Fund as meeting the CDFI certification requirements set forth in 12 CFR 1805.201) or an entity designated by a Certified CDFI to issue Bonds on its behalf. An Eligible CDFI must be a Certified CDFI as of the Bond Issue Date and must maintain its CDFI certification throughout the term of the corresponding Bond.
2. CDFI Certification requirements. Pursuant to the regulations that govern CDFI certification (12 CFR 1805.201), an entity may be certified if it is a legal entity (meaning, that it has properly filed articles of incorporation or other organizing documents with the State or other appropriate body in the jurisdiction in which it was legally established, as of the date the CDFI Certification Application is submitted) and meets the following requirements:
a. Primary mission requirement (12 CFR 1805.201(b)(1)): To be a Certified CDFI, an entity must have a primary mission of promoting community development, which mission must be consistent with its Target Market. In general, the entity will be found to meet the primary mission requirement if its incorporating documents or board-approved narrative statement (
b. Financing entity requirement (12 CFR 1805.201(b)(2)): To be a Certified CDFI, an entity must demonstrate that its predominant business activity is the provision of Financial Products and Financial Services, Development Services, and/or other similar financing.
i. On April 10, 2015, the CDFI Fund published a revision of 12 CFR 1805.201(b)(2), the section of the CDFI certification regulation that governs the “financing entity” requirement. The regulatory change creates a means for the CDFI Fund, in its discretion, to deem an Affiliate (meaning, in this case, an entity that is Controlled by a CDFI; see 12 CFR 1805.104(b)) to have met the financing entity requirement based on the financing activity or track record of the Controlling CDFI (Control is defined in 12 CFR 1805.104(q)), solely for the purpose of participating in the CDFI Bond Guarantee Program as an Eligible CDFI.
In order for the Affiliate to rely on the Controlling CDFI's financing track record, (A) the Controlling CDFI must be a Certified CDFI; (B) there must be an operating agreement that includes management and ownership provisions in effect between the two entities (prior to the submission of a CDFI Certification Application and in form and substance that is acceptable to the CDFI Fund); and (C) the Affiliate must submit a complete CDFI Certification Application to the CDFI Fund no later than March 3, 2017 in order it to be considered for CDFI certification and participation in the FY 2017 application round of the CDFI Bond Guarantee Program.
This regulatory revision affects only the Affiliate's ability to meet the financing entity requirement for purposes of CDFI certification: Said Affiliate must meet the other certification criteria in accordance with the existing regulations governing CDFI certification.
ii. The revised regulation also states that, solely for the purpose of participating in the CDFI Bond Guarantee Program, the Affiliate's provision of Financial Products and Financial Services, Development Services, and/or other similar financing transactions need not be arms-length in nature if such transaction is by and between the Affiliate and Controlling CDFI, pursuant to an operating agreement that includes management and ownership provisions and that is effective prior to the submission of a CDFI Certification Application and is in form and substance that is acceptable to the CDFI Fund.
iii. An Affiliate whose CDFI certification is based on the financing activity or track record of a Controlling CDFI is not eligible to receive financial or technical assistance awards or tax credit allocations under any other CDFI Fund program until such time that the Affiliate meets the financing entity requirement based on its own activity or track record.
iv. If an Affiliate elects to satisfy the financing entity requirement based on the financing activity or track record of a Controlling CDFI, and if the CDFI Fund approves such Affiliate as an Eligible CDFI for the purpose of participation in the CDFI Bond Guarantee Program, said Affiliate's CDFI certification will terminate if: (A) It does not enter into Bond Loan documents with its Qualified Issuer within one (1) year of the date that it signs the term sheet (which is an exhibit to the Agreement to Guarantee); (B) it ceases to be an Affiliate of the Controlling CDFI; or (C) it ceases to adhere to CDFI certification requirements.
v. An Affiliate electing to satisfy the financing entity requirement based on the financing activity or track record of a Controlling CDFI need not have completed any financing activities prior to the date the CDFI Certification Application is submitted or approved. However, the Affiliate and the Controlling CDFI must have entered into the operating agreement described in (b)(i) above, prior to such date, in form and substance that is acceptable to the CDFI Fund.
c. Target Market requirement (12 CFR 1805.201(b)(3)):
i. To be a Certified CDFI, an entity must serve at least one eligible Target Market (either an Investment Area or a Targeted Population) by directing at least 60% of all of its Financial Product activities to one or more eligible Target Market.
ii. Solely for the purpose of participation as an Eligible CDFI in the FY 2017 application round of the CDFI Bond Guarantee Program, an Affiliate of a Controlling CDFI may be deemed to meet the Target Market requirement by virtue of serving either:
(A) An Investment Area through “borrowers or investees” that serve the Investment Area or provide significant benefits to its residents (pursuant to 12 CFR 1805.201(b)(3)(ii)(F)). For purposes of this NOGA, the term “borrower” or “investee” includes a borrower of a loan originated by the Controlling CDFI that has been transferred to the Affiliate as lender (which loan must meet Secondary Loan Requirements), pursuant to an operating agreement with the Affiliate that includes ownership/investment and management provisions, which agreement must be in effect prior to the submission of a CDFI Certification Application and in form and substance that is acceptable to the CDFI Fund. Loans originated by the Controlling CDFI do not need to be transferred prior to application submission; however, such loans must be transferred before certification of the Affiliate is effective. If an Affiliate has more than one Controlling CDFI, it may meet this Investment Area requirement through one or more of such Controlling CDFIs' Investment Areas; or
(B) a Targeted Population “indirectly or through borrowers or investees that directly serve or provide significant benefits to such members” (pursuant to 12 CFR 1805.201(b)(3)(iii)(B)) if a loan originated by the Controlling CDFI has been transferred to the Affiliate as lender (which loan must meet Secondary Loan Requirements) and the Controlling CDFI's financing entity activities serve the Affiliate's Targeted Population pursuant to an operating agreement that includes ownership/investment and management provisions by and between the Affiliate and the Controlling CDFI, which agreement must be in effect prior to the submission of a CDFI Certification Application and in form and substance that is acceptable to the CDFI Fund. Loans originated by the Controlling CDFI do not need to be transferred prior to application submission; however, such loans must be transferred before certification of the Affiliate is effective. If an Affiliate has more than one Controlling CDFI, it may meet this Targeted Population requirement through one or more of such Controlling CDFIs' Targeted Populations.
An Affiliate that meets the Target Market requirement through paragraphs (ii) (1) or (2) above, is not eligible to receive financial or technical assistance awards or tax credit allocations under any other CDFI Fund program until such time that the Affiliate meets the Target Market requirements based on its own activity or track record.
iii. If an Affiliate elects to satisfy the target market requirement based on paragraphs (c)(ii)(1) or (2) above, the Affiliate and the Controlling CDFI must have entered into the operating agreement described above, prior to the date that the CDFI Certification Application is submitted, in form and substance that is acceptable to the CDFI Fund.
d. Development Services requirement (12 CFR 1805.201(b)(4)): To be a Certified CDFI, an entity must provide Development Services in conjunction with its Financial Products. Solely for the purpose of participation as an Eligible CDFI in the FY 2017 application round of the CDFI Bond Guarantee Program, an Affiliate of a Controlling CDFI may be deemed to meet this requirement if: (i) Its Development Services are provided by the Controlling CDFI pursuant to an operating agreement that includes management and ownership provisions with the Controlling CDFI that is effective prior to the submission of a CDFI Certification Application and in form and substance that is acceptable to the CDFI Fund and (ii) the Controlling CDFI must have provided Development Services in conjunction with the transactions that the Affiliate is likely to purchase, prior to the date of submission of the CDFI Certification Application.
e. Accountability requirement (12 CFR 1805.201(b)(5)): To be a Certified CDFI, an entity must maintain accountability to residents of its Investment Area or Targeted Population through representation on its governing board and/or advisory board(s), or through focus groups, community meetings, and/or customer surveys. Solely for the purpose of participation as an Eligible CDFI in the FY 2017 application round of the CDFI Bond Guarantee Program, an Affiliate of a Controlling CDFI may be deemed to meet this requirement only if it has a governing board and/or advisory board that has the same composition as the Controlling CDFI and such governing board or advisory board has convened and/or conducted Affiliate business prior to the date of submission of the CDFI Certification Application. If an Affiliate has multiple Controlling CDFIs, the governing board and/or advisory board may have a mixture of representatives from each Controlling CDFI so long as there is at least one representative from each Controlling CDFI.
f. Non-government entity requirement (12 CFR 1805.201(b)(6)): To be a Certified CDFI, an entity can neither be a government entity nor be controlled by one or more governmental entities.
g. For the FY 2017 application round of the CDFI Bond Guarantee Program, only one Affiliate per Controlling CDFI may participate as an Eligible CDFI. However, there may be more than one Affiliate participating as an Eligible CDFI in any given Bond Issue.
3. Operating agreement: An operating agreement between an Affiliate and its Controlling CDFI, as described above, must provide, in addition to the elements set forth above, among other items: (i) Conclusory evidence that the Controlling CDFI Controls the Affiliate, through investment and/or ownership; (ii) explanation of all roles, responsibilities and activities to be performed by the Controlling CDFI including, but not limited to, governance, financial management, loan underwriting and origination, record- keeping, insurance, treasury services, human resources and staffing, legal counsel, dispositions, marketing, general administration, and financial reporting; (iii) compensation arrangements; (iv) the term and termination provisions; (v) indemnification provisions; (vi) management and ownership provisions; and (vii) default and recourse provisions.
4. For more detailed information on CDFI certification requirements, please review the CDFI certification regulation (12 CFR 1805.201, as revised on April 10, 2015) and CDFI Certification Application materials/guidance posted on the CDFI Fund's Web site. Interested parties should note that there are specific regulations and requirements that apply to Depository Institution Holding Companies, Insured Depository Institutions, Insured Credit Unions, and State-Insured Credit Unions.
5. Uncertified entities, including an Affiliate of a Controlling CDFI, that wish to apply to be certified and designated as an Eligible CDFI in the FY 2017 application round of the CDFI Bond Guarantee Program must submit a CDFI Certification Application to the CDFI Fund by 5:00 p.m. ET, March 3, 2017. Any CDFI Certification Application received after such date and time, as well as incomplete applications that are not amended by the deadline, will not be considered for the FY 2017 application round of the CDFI Bond Guarantee Program.
6. In no event will the Secretary approve a Guarantee for a Bond from which a Bond Loan will be made to an entity that is not an Eligible CDFI. The Secretary must make FY 2017 Guarantee Application decisions, and the CDFI Fund must close the corresponding Bonds and Bond Loans, prior to the end of FY 2017 (September 30, 2017). Accordingly, it is essential that CDFI Certification Applications are submitted
B.
1. Electronic submission. All Qualified Issuer Applications and Guarantee Applications must be submitted electronically through the CDFI Fund's internet-based myCDFIFund portal, which is assessed via the Awards Management Information System (AMIS). Applications sent by mail, fax, or other form will not be permitted, except in circumstances that the CDFI Fund, in its sole discretion, deems acceptable. Please note that Applications will not be accepted through
2. Applicant identifier numbers. Please note that, pursuant to Office of Management and Budget (OMB) guidance (68 FR 38402), each Qualified Issuer applicant and Guarantee applicant must provide, as part of its Application, its Dun and Bradstreet Data Universal Numbering System (DUNS) number, as well as DUNS numbers for its proposed Program Administrator, its proposed Servicer, and each Certified CDFI that is included in the Qualified Issuer Application and Guarantee Application. In addition, each Application must include a valid and current Employer Identification Number (EIN), with a letter or other documentation from the IRS confirming the Qualified Issuer applicant's EIN, as well as EINs for its proposed Program Administrator, its proposed Servicer, and each Certified CDFI that is included in any Application. An Application that does not include such DUNS numbers, EINs, and documentation is incomplete and will be rejected by the CDFI Fund. Applicants should allow sufficient time for the IRS and/or Dun and Bradstreet to respond to inquiries and/or requests for the required identification numbers.
3. System for Award Management (SAM). Registering with SAM is required for each Qualified Issuer applicant, its proposed Program Administrator, its proposed Servicer, and each Certified CDFI that is included in any Application. The CDFI Fund will not consider any Applications that do not meet the requirement that each entity must be properly registered before the date of Application submission. Any entity that needs to create a new account or update its current registration must register for a user account in SAM. The CDFI Fund does not manage the SAM registration process, so entities must contact SAM directly for issues related to registration. The CDFI Fund strongly encourages all applicants to ensure that their SAM registration (and the SAM registration for their Program Administrators, Servicers and each Certified CDFI that is included in the Qualified Issuer Application and Guarantee Application) is updated and that their accounts have not expired. For information regarding SAM registration, please visit
4. AMIS accounts. Each Qualified Issuer applicant, its proposed Program Administrator, its proposed Servicer, and each Certified CDFI that is included in the Qualified Issuer Application or Guarantee Application must register User and Organization accounts in AMIS. Each such entity must be registered as an Organization and register at least one User Account in AMIS. As AMIS is the CDFI Fund's primary means of communication with applicants with regard to its programs, each such entity must make sure that it updates the contact information in its AMIS account before any Application is submitted. For more information on AMIS, please visit the AMIS Landing Page at
C.
1. As of the date of this NOGA, the Qualified Issuer Application, the Guarantee Application, and related application guidance may be found on the CDFI Bond Guarantee Program's page on the CDFI Fund's Web site at
2. Paperwork Reduction Act. Under the Paperwork Reduction Act (44 U.S.C. chapter 35), an agency may not conduct or sponsor a collection of information, and an individual is not required to respond to a collection of information, unless it displays a valid OMB control number. Pursuant to the Paperwork Reduction Act, the Qualified Issuer Application, the Guarantee Application, and the Secondary Loan Requirements have been assigned the following control number: 1559-0044.
3. Application deadlines. In order to be considered for the issuance of a Guarantee under FY 2017 program authority, Qualified Issuer Applications must be submitted by March 3, 2017 and Guarantee Applications must be submitted by March 17, 2017. Qualified Issuer Applications and Guarantee Applications received in FY 2016 that were neither withdrawn nor declined will be considered under FY 2017 authority. If applicable, CDFI Certification Applications must be received by the CDFI Fund by 5:00 p.m. ET, March 3, 2017.
4. Format. Detailed Qualified Issuer Application and Guarantee Application content requirements are found in the Applications and application guidance. The CDFI Fund will read only information requested in the Application and reserves the right not to read attachments or supplemental materials that have not been specifically requested in this NOGA, the Qualified Issuer, or the Guarantee Application. Supplemental materials or attachments such as letters of public support or other statements that are meant to bias or influence the Application review process will not be read.
5. Application revisions. After submitting a Qualified Issuer Application or a Guarantee Application, the applicant will not be permitted to revise or modify the Application in any way unless authorized or requested by the CDFI Fund.
6. Material changes.
a. In the event that there are material changes after the submission of a Qualified Issuer Application prior to the designation as a Qualified Issuer, the applicant must notify the CDFI Fund of such material changes information in a timely and complete manner. The CDFI Fund will evaluate such material changes, along with the Qualified Issuer Application, to approve or deny the designation of the Qualified Issuer.
b. In the event that there are material changes after the submission of a Guarantee Application (including, but not limited to, a revision of the Capital Distribution Plan or a change in the Eligible CDFIs that are included in the Application) prior to or after the designation as a Qualified Issuer or approval of a Guarantee Application or Guarantee, the applicant must notify the CDFI Fund of such material changes information in a timely and complete manner. The Guarantor will evaluate such material changes, along with the Guarantee Application, to approve or deny the Guarantee Application and/or determine whether to modify the terms and conditions of the Agreement to Guarantee. This evaluation may result in a delay of the approval or denial of a Guarantee Application.
D.
E.
F.
1. Pending resolution of noncompliance. If a Qualified Issuer applicant, its proposed Program Administrator, its proposed Servicer, or any of the Certified CDFIs included in the Qualified Issuer Application or Guarantee Application is a prior recipient or allocatee under any CDFI Fund program and (i) it has submitted reports to the CDFI Fund that demonstrate noncompliance with a previously executed agreement with the CDFI Fund, and (ii) the CDFI Fund has yet to make a final determination as to whether the entity is noncompliant with its previously executed agreement, the CDFI Fund will consider the Qualified Issuer Application or Guarantee Application pending full resolution, in the sole determination of the CDFI Fund, of the noncompliance.
2. Previous findings of noncompliance. If a Qualified Issuer applicant, its proposed Program Administrator, its proposed Servicer, or any of the Certified CDFIs included in the Qualified Issuer Application or Guarantee Application is a prior recipient or allocatee under any CDFI Fund program and the CDFI Fund has made a final determination that the entity is noncompliant with a previously executed agreement with the CDFI Fund, but has not notified the entity that it is ineligible to apply for future CDFI Fund program awards or allocations the CDFI Fund will consider the Qualified Issuer Application or Guarantee Application. However, it is strongly advised that the entity take action to address such noncompliance finding, as repeat findings of noncompliance may result in the CDFI Fund determining the entity ineligible to participate in future CDFI Fund program rounds during the period of review of the Application, the applicant and Applications may be deemed ineligible for further review. The CDFI Bond Guarantee Program staff cannot resolve compliance matters: Instead, please contact the CDFI Fund's Certification, Compliance Monitoring, and Evaluation Unit (CCME) if your organization has questions about its current compliance status or has been found not in compliance with a previously executed agreement with the CDFI Fund.
3. Ineligibility due to noncompliance. The CDFI Fund will not consider a Qualified Issuer Application or Guarantee Application if the applicant, its proposed Program Administrator, its proposed Servicer, or any of the Certified CDFIs included in the Qualified Issuer Application or Guarantee Application, is a prior recipient or allocatee under any CDFI Fund program and if, as of the date of Qualified Issuer Application or Guarantee Application submission, (i) the CDFI Fund has made a determination that such entity is noncompliant with a previously executed agreement and (ii) the CDFI Fund has provided written notification that such entity is ineligible to apply for any future CDFI Fund program awards or allocations. Such entities will be ineligible to submit a Qualified Issuer or Guarantee Application, or be included in such submission, as the case may be, for such time period as specified by the CDFI Fund in writing.
4. Undisbursed award funds. The CDFI Fund will not consider a Qualified Issuer Application or Guarantee Application, if the applicant, its proposed Program Administrator, its proposed Servicer, its Affiliate, or any Certified CDFI that is included in the Qualified Issuer Application or Guarantee Application, is a recipient under any CDFI Fund program and has undisbursed award funds (as defined below) as of the Qualified Issuer Application or Guarantee Application submission date. The CDFI Fund will include the combined undisbursed prior awards, as of the date of the Qualified Issuer Application submission, of the applicant, the proposed Program Administrator, the proposed Servicer, and any Certified CDFIs included in the application.
For purposes of the calculation of undisbursed award funds for the Bank Enterprise Award (BEA) Program, only awards made to the Qualified Issuer applicant, its proposed Program Administrator, its proposed Servicer, and any Certified CDFI included in the Qualified Issuer Application, three to five calendar years prior to the end of the calendar year of the Qualified Issuer Application submission date are included. For purposes of the calculation of undisbursed award funds for the CDFI Program, the Native American CDFI Assistance (NACA) Program, and the Capital Magnet Fund (CMF), only awards made to the Qualified Issuer applicant, its proposed Program Administrator, its proposed Servicer, and any Certified CDFI included in the Qualified Issuer Application, three to five calendar years prior to the end of the calendar year of the Qualified Issuer Application submission date are included.
Undisbursed awards cannot exceed five percent of the total includable awards for the Applicant's BEA/CDFI/NACA/CMF awards as of the date of submission of the Qualified Issuer Application. The calculation of undisbursed award funds does not
G.
H.
I.
J.
K.
A.
1. Qualified Issuer. The Qualified Issuer is a Certified CDFI, or an entity designated by a Certified CDFI to issue Bonds on its behalf, that meets the requirements of the Regulations and this NOGA, and that has been approved by the CDFI Fund pursuant to review and evaluation of its Qualified Issuer Application. The Qualified Issuer will, among other duties: (i) Organize the Eligible CDFIs that have designated it to serve as their Qualified Issuer; (ii) prepare and submit a complete and
2. Qualified Issuer Application. The Qualified Issuer Application is the document that an entity seeking to serve as a Qualified Issuer submits to the CDFI Fund to apply to be approved as a Qualified Issuer prior to consideration of a Guarantee Application.
3. Qualified Issuer Application evaluation, general. Each Qualified Issuer Application will be evaluated by the CDFI Fund and, if acceptable, the applicant will be approved as a Qualified Issuer, in the sole discretion of the CDFI Fund. The CDFI Fund's Qualified Issuer Application review and evaluation process is based on established procedures, which may include interviews of applicants and/or site visits to applicants conducted by the CDFI Fund. Through the Application review process, the CDFI Fund will evaluate Qualified Issuer applicants on a merit basis and in a fair and consistent manner. Each Qualified Issuer applicant will be reviewed on its ability to successfully carry out the responsibilities of a Qualified Issuer throughout the life of the Bond. The Applicant must currently meet the criteria established in the Regulations to be deemed a Qualified Issuer. Qualified Issuer Applications that are forward-looking or speculate as to the eventual acquisition of the required capabilities and criteria are unlikely to be approved. Qualified Issuer Application processing will be initiated in chronological order by date of receipt; however, Qualified Issuer Applications that are incomplete or require the CDFI Fund to request additional or clarifying information may delay the ability of the CDFI Fund to deem the Qualified Application complete and move it to the next phase of review. Submitting a substantially incomplete application earlier than other applicants does not ensure first approval.
B.
1. CDFI certification requirements. The Qualified Issuer applicant must be a Certified CDFI or an entity designated by a Certified CDFI to issue Bonds on its behalf.
2. Designation and attestation by Certified CDFIs. An entity seeking to be approved by the CDFI Fund as a Qualified Issuer must be designated as a Qualified Issuer by at least one Certified CDFI. A Qualified Issuer may not designate itself. The Qualified Issuer applicant will prepare and submit a complete and timely Qualified Issuer Application to the CDFI Fund in accordance with the requirements of the Regulations, this NOGA, and the Application. A Certified CDFI must attest in the Qualified Issuer Application that it has designated the Qualified Issuer to act on its behalf and that the information in the Qualified Issuer Application regarding it is true, accurate, and complete.
C.
1. Substantive review.
a. If the CDFI Fund determines that the Qualified Issuer Application is complete and eligible, the CDFI Fund will undertake a substantive review in accordance with the criteria and procedures described in the Regulations, this NOGA, the Qualified Issuer Application, and CDFI Bond Guarantee Program policies.
b. As part of the substantive evaluation process, the CDFI Fund reserves the right to contact the Qualified Issuer applicant (as well as its proposed Program Administrator, its proposed Servicer, and each designating Certified CDFI in the Qualified Issuer Application) by telephone, email, mail, or through on-site visits for the purpose of obtaining additional, clarifying, confirming, or supplemental application information. The CDFI Fund reserves the right to collect such additional, clarifying, confirming, or supplemental information from said entities as it deems appropriate. If contacted for additional, clarifying, confirming, or supplemental information, said entities must respond within the time parameters set by the CDFI Fund or the Qualified Issuer Application will be rejected.
2. Qualified Issuer criteria. In total, there are more than 60 individual criteria or sub-criteria used to evaluate a Qualified Issuer applicant and all materials provided in the Qualified Issuer Application will be used to evaluate the applicant. Qualified Issuer determinations will be made based on Qualified Issuer applicants' experience and expertise, in accordance with the following criteria:
a. Organizational capability.
i. The Qualified Issuer applicant must demonstrate that it has the appropriate expertise, capacity, experience, and qualifications to issue Bonds for Eligible Purposes, or is otherwise qualified to serve as Qualified Issuer, as well as manage the Bond Issue on the terms and conditions set forth in the Regulations, this NOGA, and the Bond Documents, satisfactory to the CDFI Fund.
ii. The Qualified Issuer applicant must demonstrate that it has the appropriate expertise, capacity, experience, and qualifications to originate, underwrite, service and monitor Bond Loans for Eligible Purposes, targeted to Low-Income Areas and Underserved Rural Areas.
iii. The Qualified Issuer applicant must demonstrate that it has the appropriate expertise, capacity, experience, and qualifications to manage the disbursement process set forth in the Regulations at 12 CFR 1808.302 and 1808.307.
b. Servicer. The Qualified Issuer applicant must demonstrate that it has (either directly or contractually through another designated entity) the appropriate expertise, capacity, experience, and qualifications, or is otherwise qualified to serve as Servicer. The Qualified Issuer Application must provide information that demonstrates that the Qualified Issuer's Servicer has the expertise, capacity, experience, and qualifications necessary to perform certain required administrative duties (including, but not limited to, Bond Loan servicing functions).
c. Program Administrator. The Qualified Issuer applicant must demonstrate that it has (either directly or contractually through another designated entity) the appropriate expertise, capacity, experience, and qualifications, or is otherwise qualified to serve as Program Administrator. The Qualified Issuer Application must provide information that demonstrates that the Qualified Issuer's Program Administrator has the expertise, capacity, experience, and qualifications necessary to perform certain required administrative duties (including, but not limited to, compliance monitoring and reporting functions).
d. Strategic alignment. The Qualified Issuer applicant will be evaluated on its strategic alignment with the CDFI Bond Guarantee Program on factors that include, but are not limited to: (i) Its
e. Experience. The Qualified Issuer applicant will be evaluated on factors that demonstrate that it has previous experience: (i) Performing the duties of a Qualified Issuer including issuing bonds, loan servicing, program administration, underwriting, financial reporting, and loan administration; (ii) lending in Low-Income Areas and Underserved Rural Areas; and (iii) indicating that the Qualified Issuer's current principals and team members have successfully performed the required duties, and that previous experience is applicable to the current principals and team members.
f. Management and staffing. The Qualified Issuer applicant must demonstrate that it has sufficiently strong management and staffing capacity to undertake the duties of Qualified Issuer. The applicant must also demonstrate that its proposed Program Administrator and its proposed Servicer have sufficiently strong management and staffing capacity to undertake their respective requirements under the CDFI Bond Guarantee Program. Strong management and staffing capacity is evidenced by factors that include, but are not limited to: (i) A sound track record of delivering on past performance; (ii) a documented succession plan; (iii) organizational stability including staff retention; and (iv) a clearly articulated, reasonable, and well-documented staffing plan.
g. Financial strength. The Qualified Issuer applicant must demonstrate the strength of its financial capacity and activities including, among other items, financially sound business practices relative to the industry norm for bond issuers, as evidenced by reports of Appropriate Federal Banking Agencies, Appropriate State Agencies, or auditors. Such financially sound business practices will demonstrate: (i) The financial wherewithal to perform activities related to the Bond Issue such as administration and servicing; (ii) the ability to originate, underwrite, close, and disburse loans in a prudent manner; (iii) whether the applicant is depending on external funding sources and the reliability of long-term access to such funding; (iv) whether there are foreseeable counterparty issues or credit concerns that are likely to affect the applicant's financial stability; and (v) a budget that reflects reasonable assumptions about upfront costs as well as ongoing expenses and revenues.
h. Systems and information technology. The Qualified Issuer applicant must demonstrate that it (as well as its proposed Program Administrator and its proposed Servicer) has, among other things: (i) A strong information technology capacity and the ability to manage loan servicing, administration, management, and document retention; (ii) appropriate office infrastructure and related technology to carry out the CDFI Bond Guarantee Program activities; and (iii) sufficient backup and disaster recovery systems to maintain uninterrupted business operations.
i. Pricing structure. The Qualified Issuer applicant must provide its proposed pricing structure for performing the duties of Qualified Issuer, including the pricing for the roles of Program Administrator and Servicer. Although the pricing structure and fees shall be decided by negotiation between market participants without interference or approval by the CDFI Fund, the CDFI Fund will evaluate whether the Qualified Issuer applicant's proposed pricing structure is feasible to carry out the responsibilities of a Qualified Issuer over the life of the Bond and sound implementation of the program.
j. Other criteria. The Qualified Issuer applicant must meet such other criteria as may be required by the CDFI Fund, as set forth in the Qualified Issuer Application or required by the CDFI Fund in its sole discretion, for the purposes of evaluating the merits of a Qualified Issuer Application. The CDFI Fund may request an on-site review of Qualified Issuer applicant to confirm materials provided in the written application, as well as to gather additional due diligence information. The on-site reviews are a critical component of the application review process and will generally be conducted for all applicants not regulated by an Appropriate Federal Banking Agency or Appropriate State Agency. The CDFI Fund reserves the right to conduct a site visit of regulated entities, in its sole discretion.
k. Third-party data sources. The CDFI Fund, in its sole discretion, may consider information from third-party sources including, but not limited to, periodicals or publications, publicly available data sources, or subscriptions services for additional information about the Qualified Issuer applicant, the proposed Program Administrator, the proposed Servicer, and each Certified CDFI that is included in the Qualified Issuer Application. Any additional information received from such third- party sources will be reviewed and evaluated through a systematic and formalized process.
D.
E.
A.
1. Guarantee Application.
a. The Guarantee Application is the application document that a Qualified Issuer (in collaboration with the Eligible CDFI(s) that seek to be included in the proposed Bond Issue) must submit to the CDFI Fund in order to apply for a Guarantee. The Qualified Issuer shall provide all required information in its Guarantee Application to establish that it meets all criteria set forth in the Regulations at 12 CFR 1808.501 and this NOGA and can carry out all CDFI Bond Guarantee Program requirements
b. The Guarantee Application comprises a Capital Distribution Plan and at least one Secondary Capital Distribution Plan, as well as all other requirements set forth in this NOGA or as may be required by the Guarantor and the CDFI Fund in their sole discretion, for the evaluation and selection of Guarantee applicants.
2. Guarantee Application evaluation, general. The Guarantee Application review and evaluation process will be based on established standard procedures, which may include interviews of applicants and/or site visits to applicants conducted by the CDFI Fund. Through the Application review process, the CDFI Fund will evaluate Guarantee applicants on a merit basis and in a fair and consistent manner. Each Guarantee applicant will be reviewed on its ability to successfully implement and carry out the activities proposed in its Guarantee Application throughout the life of the Bond. Eligible CDFIs must currently meet the criteria established in the Regulations to participate in the CDFI Bond Guarantee Program. Guarantee Applications that are forward-looking or speculate as to the eventual acquisition of the required capabilities and criteria by the Eligible CDFI(s) are unlikely to be approved. Guarantee Application processing will be initiated in chronological order by date of receipt; however, Guarantee Applications that are incomplete or require the CDFI Fund to request additional or clarifying information may delay the ability of the CDFI Fund to deem the Guarantee Application complete and move it to the next phase of review. Submitting a substantially incomplete application earlier than other applicants does not ensure first approval.
B.
1. Eligibility; CDFI certification requirements. If approved for a Guarantee, each Eligible CDFI must be a Certified CDFI as of the Bond Issue Date and must maintain its respective CDFI certification throughout the term of the corresponding Bond. For more information on CDFI Certification and the certification of affiliated entities, including the deadlines for submission of certification applications, see part II of this NOGA.
2. Qualified Issuer as Eligible CDFI. A Qualified Issuer may not participate as an Eligible CDFI within its own Bond Issue, but may participate as an Eligible CDFI in a Bond Issue managed by another Qualified Issuer.
3. Attestation by proposed Eligible CDFIs. Each proposed Eligible CDFI must attest in the Guarantee Application that it has designated the Qualified Issuer to act on its behalf and that the information pertaining to the Eligible CDFI in the Guarantee Application is true, accurate and complete. Each proposed Eligible CDFI must also attest in the Guarantee Application that it will use Bond Loan proceeds for Eligible Purposes and that Secondary Loans will be financed or refinanced in accordance with the applicable Secondary Loan Requirements.
C.
D.
1. Substantive review.
a. If the CDFI Fund determines that the Guarantee Application is complete and eligible, the CDFI Fund will undertake a substantive review in accordance with the criteria and procedures described in the Regulations at 12 CFR 1808.501, this NOGA, and the Guarantee Application. The substantive review of the Guarantee Application will include due diligence, underwriting, credit risk review, and Federal credit subsidy calculation, in order to determine the feasibility and risk of the proposed Bond Issue, as well as the strength and capacity of the Qualified Issuer and each proposed Eligible CDFI. Each proposed Eligible CDFI will be evaluated independently of the other proposed Eligible CDFIs within the proposed Bond Issue; however, the Bond Issue must then cumulatively meet all requirements for Guarantee approval. In general, applicants are advised that proposed Bond Issues that include a large number of proposed Eligible CDFIs are likely to substantially increase the review period.
b. As part of the substantive review process, the CDFI Fund may contact the Qualified Issuer (as well as the proposed Eligible CDFIs included in the Guarantee Application) by telephone, email, mail, or through an on-site visit for the sole purpose of obtaining additional, clarifying, confirming, or supplemental application information. The CDFI Fund reserves the right to collect such additional, clarifying, confirming or supplemental information as it deems appropriate. If contacted for additional, clarifying, confirming, or supplemental information, said entities must respond within the time parameters set by the CDFI Fund or the Guarantee Application will be rejected.
2. Guarantee Application criteria.
a. In general, a Guarantee Application will be evaluated based on the strength and feasibility of the proposed Bond Issue, as well as the creditworthiness and performance of the Qualified Issuer and the proposed Eligible CDFIs. Guarantee Applications must demonstrate that each proposed Eligible CDFI has the capacity for its respective Bond Loan to be a secured, general recourse obligation of the proposed Eligible CDFI and to deploy the Bond Loan proceeds within the required disbursement timeframe as described in the Regulations. Unless receiving significant third-party support, support from a Controlling CDFI, or Credit Enhancements, Eligible CDFIs should not request Bond Loans greater than their current total asset size or which would otherwise significantly impair their net asset or net equity position. In general, an applicant requesting a Bond Loan more than 50 percent of its total asset size should be prepared to clearly demonstrate that it has a reasonable plan to scale its operations prudently and in a manner that does not impair its net asset or net equity position. Further, an entity with a limited operating history or a history of operating losses is unlikely to meet the strength and feasibility requirements of the CDFI Bond Guarantee Program, unless it receives significant third-party support, support from a Controlling CDFI, or Credit Enhancements.
b. The Capital Distribution Plan must demonstrate the Qualified Issuer's comprehensive plan for lending, disbursing, servicing and monitoring each Bond Loan in the Bond Issue. It includes, among other information, the following components:
i. Statement of Proposed Sources and Uses of Funds: Pursuant to the requirements set forth in the Regulations at 12 CFR1808.102(bb) and
ii. Bond Issue Qualified Issuer cash flow model: The Qualified Issuer must provide a cash flow model displaying the orderly repayment of the Bond and the Bond Loans according to their respective terms. The cash flow model shall include disbursement and repayment of Bonds, Bond Loans, and Secondary Loans. The cash flow model shall match the aggregated cash flows from the Secondary Capital Distribution Plans of each of the underlying Eligible CDFIs in the Bond Issue pool. Such information must describe the expected distribution of asset classes to which each Eligible CDFI expects to disburse funds, the proposed disbursement schedule, quarterly or semi-annual amortization schedules, interest-only periods, maturity date of each advance of funds, and assumed net interest margin on Secondary Loans above the assumed Bond Loan rate;
iii. Organizational capacity: If not submitted concurrently, the Qualified Issuer must attest that no material changes have occurred since the time that it submitted the Qualified Issuer Application;
iv. Credit Enhancement (if applicable): The Qualified Issuer must provide information about the adequacy of proposed risk mitigation provisions designed to protect the financial interests of the Federal Government, either directly or indirectly through supporting the financial strength of the Bond Issue. This includes, but is not limited to, the amount and quality of any Credit Enhancements, terms and specific conditions such as renewal options, and any limiting conditions or revocability by the provider of the Credit Enhancement. For any third-party providing a Credit Enhancement, the Qualified Issuer must provide the most recent three years of audited financial statements and a brief analysis of the creditworthiness of such entity. Any Credit Enhancement must be pledged, as part of the Trust Estate, to the Master Servicer/Trustee for the benefit of the Federal Financing Bank;
v. Proposed Term Sheets: For each Eligible CDFI that is part of the proposed Bond Issue, the Qualified Issuer must submit a proposed Term Sheet using the template provided on the CDFI Fund's Web site. The proposed Term Sheet must clearly state all relevant and critical terms of the proposed Bond Loan including, but not limited to: Any requested prepayment provisions, unique conditions precedent, proposed covenants and exact amounts/percentages for determining the Eligible CDFI's ability to meet program requirements, and terms and exact language describing any Credit Enhancements. Terms may be either altered and/or negotiated by the CDFI Fund in its sole discretion, based on the proposed structure in the application, to ensure that adequate protection is in place for the Guarantor;
vi. Secondary Capital Distribution Plan(s): Each proposed Eligible CDFI must provide a comprehensive plan for financing, disbursing, servicing and monitoring Secondary Loans, address how each proposed Secondary Loan will meet Eligible Purposes, and address such other requirements listed below that may be required by the Guarantor and the CDFI Fund. For each proposed Eligible CDFI relying, for CDFI certification purposes, on the financing entity activity of a Controlling CDFI, the Controlling CDFI must describe how the Eligible CDFI and the Controlling CDFI, together, will meet the requirements listed below:
(A) Narrative and Statement of Proposed Sources and Uses of Funds: Each Eligible CDFI will: (1) Provide a description of proposed uses of funds, including the extent to which Bond Loans will serve Low-Income Areas or Underserved Rural Areas, and the extent to which Bond Loan proceeds will be used (i) to make the first monthly installment of a Bond Loan payment, (ii) pay Issuance Fees up to one percent of the Bond Loan, and (iii) finance Loan Loss Reserves related to Secondary Loans; (2) attest that 100 percent of Bond Loan proceeds designated for Secondary Loans will be used to finance or refinance Secondary Loans that meet Secondary Loan Requirements; (3) describe a plan for financing, disbursing, servicing, and monitoring Secondary Loans; (4) indicate the expected asset classes to which it will lend under the Secondary Loan Requirements; (5) indicate examples of previous lending and years of experience lending to a specific asset class, especially with regards to the number and dollar volume of loans made in the five years prior to application submission to the specific asset classes to which an Eligible CDFI is proposing to lend Bond Loan proceeds; (6) provide a table detailing specific uses and timing of disbursements, including terms and relending plans if applicable; and (7) a community impact analysis, including how the proposed Secondary Loans will address financing needs that the private market is not adequately serving and specific community benefit metrics;
(B) Eligible CDFI cash flow model: Each Eligible CDFI must provide a cash flow model of the proposed Bond Loan which: (1) Matches each Eligible CDFI's portion of the Qualified Issuer's cash flow model; and (2) tracks the flow of funds through the term of the Bond Issue and demonstrates disbursement and repayment of the Bond Loan, Secondary Loans, and any utilization of the Relending Fund, if applicable. Such information must describe: The expected distribution of asset classes to which each Eligible CDFI expects to disburse funds, the proposed disbursement schedule, quarterly or semi-annual amortization schedules, interest-only periods, maturity date of each advance of funds, and the assumed net interest margin on Secondary Loans above the assumed Bond Loan rate;
(C) Organizational capacity: Each Eligible CDFI must provide documentation indicating the ability of the Eligible CDFI to manage its Bond Loan including, but not limited to: (1) Organizational ownership and a chart of affiliates; (2) organizational documents, including policies and procedures related to loan underwriting and asset management; (3) management or operating agreement, if applicable; (4) an analysis by management of its ability to manage the funding, monitoring, and collection of loans being contemplated with the proceeds of the Bond Loan; (5) information about its board of directors; (6) a governance narrative; (7) description of senior management and employee base; (8) independent reports, if available; (9) strategic plan or related progress reports; and (10) a discussion of the management and information systems used by the Eligible CDFI;
(D) Policies and procedures: Each Eligible CDFI must provide relevant policies and procedures including, but not limited to: A copy of the asset-liability matching policy, if applicable; and loan policies and procedures which address topics including, but not limited to: Origination, underwriting, credit approval, interest rates, closing, documentation, asset management, and portfolio monitoring, risk-rating definitions, charge-offs, and loan loss reserve methodology;
(E) Financial statements: Each Eligible CDFI must provide information about the Eligible CDFI's current and future financial position, including but not limited to: (1) Most recent four years of audited financial statements; (2) current year-to-date or interim financial statement; (3) a copy of the current year's approved budget or projected budget if the entity's Board has not yet approved such budget; (4) a three year operating projection; and (5) a three year forecast of the statement of financial position or balance sheet, statement of activities or income statement, and statement of cash flows in the standardized template provided by the CDFI Fund;
(F) Loan portfolio information: Each Eligible CDFI must provide information including, but not limited to: (1) Loan portfolio quality report; (2) pipeline report; (3) portfolio listing; (4) a description of other loan assets under management; (5) loan products; (6) independent loan review report; (7) impact report case studies; and (8) a loan portfolio by risk rating and loan loss reserves; and
(G) Funding sources and financial activity information: Each Eligible CDFI must provide information including, but not limited to: (1) Current grant information; (2) funding projections; (3) credit enhancements; (4) historical investor renewal rates; (5) covenant compliance; (6) off-balance sheet contingencies; (7) earned revenues; and (8) debt capital statistics.
vii. Assurances and certifications that not less than 100 percent of the principal amount of Bonds will be used to make Bond Loans for Eligible Purposes beginning on the Bond Issue Date, and that Secondary Loans shall be made as set forth in subsection 1808.307(b); and
viii. Such other information that the Guarantor, the CDFI Fund and/or the Bond Purchaser may deem necessary and appropriate.
c. The CDFI Fund will use the information described in the Capital Distribution Plan and Secondary Capital Distribution Plan(s) to evaluate the feasibility of the proposed Bond Issue, with specific attention paid to each Eligible CDFI's financial strength and organizational capacity. For each proposed Eligible CDFI relying, for CDFI certification purposes, on the financing entity activity of a Controlling CDFI, the CDFI Fund will pay specific attention to the Controlling CDFI's financial strength and organizational capacity as well as the operating agreement between the proposed Eligible CDFI and the Controlling CDFI. All materials provided in the Guarantee Application will be used to evaluate the proposed Bond Issue. In total, there are more than 100 individual criteria or sub-criteria used to evaluate each Eligible CDFI. Specific criteria used to evaluate each Eligible CDFI shall include, but not be limited to, the following criteria below. For each proposed Eligible CDFI relying, for CDFI certification purposes, on the financing entity activity of a Controlling CDFI, the following specific criteria will also be used to evaluate both the proposed Eligible CDFI and the Controlling CDFI:
i. Historical financial ratios: Ratios which together have been shown to be predictive of possible future default will be used as an initial screening tool, including total asset size, net asset or Tier 1 Core Capital ratio, self-sufficiency ratio, non-performing asset ratio, liquidity ratio, reserve over nonperforming assets, and yield cost spread;
ii. Quantitative and qualitative attributes under the “CAMEL” framework: After initial screening, the CDFI Fund will utilize a more detailed analysis under the “CAMEL” framework, including but not limited to:
(A) Capital Adequacy: Attributes such as the debt-to-equity ratio, status, and significance of off-balance sheet liabilities or contingencies, magnitude, and consistency of cash flow performance, exposure to affiliates for financial and operating support, trends in changes to capitalization, and other relevant attributes;
(B) Asset Quality: Attributes such as the charge-off ratio, adequacy of loan loss reserves, sector concentration, borrower concentration, asset composition, security and collateralization of the loan portfolio, trends in changes to asset quality, and other relevant attributes;
(C) Management: Attributes such as documented best practices in governance, strategic planning and board involvement, robust policies and procedures, tenured and experienced management team, organizational stability, infrastructure and information technology systems, and other relevant attributes;
(D) Earnings and Performance: Attributes such as net operating margins, deployment of funds, self-sufficiency, trends in earnings, and other relevant attributes;
(E) Liquidity: Attributes such as unrestricted cash and cash equivalents, ability to access credit facilities, access to grant funding, covenant compliance, affiliate relationships, concentration of funding sources, trends in liquidity, and other relevant attributes;
iii. Forecast performance and other relevant criteria: The CDFI Fund will stress test each Eligible CDFI's forecasted performance under scenarios that are specific to the unique circumstance and attributes of the organization. Additionally, the CDFI Fund will consider other relevant criteria that have not been adequately captured in the preceding steps as part of the due diligence process. Such criteria may include, but not be limited to, the size and quality of any third-party Credit Enhancements or other forms of support.
(A) Overcollateralization: The commitment by an Eligible CDFI to over-collateralize a proposed Bond Loan with excess Secondary Loans is a criterion that may affect the viability of a Guarantee Application by decreasing the estimated net present value of the long-term cost of the Guarantee to the Federal Government, by decreasing the probability of default, and/or increasing the recovery rate in the event of default. An Eligible CDFI committing to overcollateralization may not be required to deposit funds in the Relending Account, subject to the maintenance of certain unique requirements that are detailed in the template Agreement to Guarantee and Bond Loan Agreement.
(B) Credit Enhancements: The provision of third-party Credit Enhancements, including any Credit Enhancement from a Controlling CDFI or any other affiliated entity, is a criterion that may affect the viability of a Guarantee Application by decreasing the estimated net present value of the long-term cost of the Guarantee to the Federal Government. Credit Enhancements are considered in the context of the structure and circumstances of each Guarantee Application.
(C) On-Site Review: The CDFI Fund may request an on-site review of an Eligible CDFI to confirm materials provided in the written application, as well as to gather additional due diligence information. The on-site reviews are a critical component of the application review process and will generally be conducted for all applicants not regulated by an Appropriate Federal Banking Agency or Appropriate State Agency. The CDFI Fund reserves the right to conduct a site visit of regulated entities, in its sole discretion.
(D) Secondary Loan Asset Classes: Eligible CDFIs that propose to use funds for new products or lines of business must demonstrate that they have the organizational capacity to manage such activities in a prudent manner. Failure
3. Credit subsidy cost. The credit subsidy cost is the net present value of the estimated long-term cost of the Guarantee to the Federal Government as determined under the applicable provisions of the Federal Credit Reform Act of 1990, as amended (FCRA). Treasury has not received appropriated amounts from Congress to cover the credit subsidy costs associated with the Guarantees issued pursuant to this NOGA. In accordance with FCRA, Treasury must consult with, and obtain the approval of, OMB for Treasury's calculation of the credit subsidy cost of each Guarantee prior to entering into any Agreement to Guarantee.
E.
1. The Guarantor, in the Guarantor's sole discretion, may approve a Guarantee, after consideration of the recommendation from the CDFI Bond Guarantee Program's Credit Review Board and/or based on the merits of the Guarantee Application. The Guarantor shall approve or deny a Guarantee Application no later than 90 days after the date the Guarantee Application was advanced for substantive review.
2. The Guarantor reserves the right to approve Guarantees, in whole or in part, in response to any, all, or none of the Guarantee Applications submitted in response to this NOGA. The Guarantor also reserves the right to approve any Guarantees in an amount that is less than requested in the corresponding Guarantee Application. Pursuant to the Regulations at 12 CFR 1808.504(c), the Guarantor may limit the number of Guarantees made per year to ensure that a sufficient examination of Guarantee Applications is conducted.
3. The CDFI Fund will notify the Qualified Issuer in writing of the Guarantor's approval or disapproval of a Guarantee Application. If approved for a Guarantee, the Qualified Issuer will enter into an Agreement to Guarantee, which will include a term sheet that will be signed by each Eligible CDFI.
4. Following the execution and delivery of the Agreement to Guarantee (and the respective term sheets), the parties will proceed to the Bond Issue Date, when the parties will sign and enter into the remaining Bond Documents and Bond Loan documents.
5. Please note that the most recently dated templates of Bond Documents and Bond Loan documents that are posted on the CDFI Fund's Web site will not be substantially revised or negotiated prior to closing of the Bond and Bond Loan and issuance of the corresponding Guarantee. If a Qualified Issuer or a proposed Eligible CDFI does not understand the terms and conditions of the Bond Documents or Bond Loan documents (including those listed in Section II.G., above), it should ask questions or seek technical assistance from the CDFI Fund. However, if a Qualified Issuer or a proposed Eligible CDFI disagrees or is uncomfortable with any term/condition, or if legal counsel to either cannot provide a legal opinion in substantially the same form and content of the required legal opinion, it should not apply for a Guarantee.
6. The Guarantee shall not be effective until the Guarantor signs and delivers the Guarantee.
F.
A.
B.
C.
D.
Eligible CDFIs must execute Secondary Loan documents (in the form of promissory notes) with Secondary Borrowers as follows: (i) No later than 12 months after the Bond Issue Date, Secondary Loan documents representing at least 50 percent of the Bond Loan proceeds allocated for Secondary Loans, and (ii) no later than 24 months after the Bond Issue Date, Secondary Loan documents representing 100 percent of the Bond Loan proceeds allocated for Secondary Loans. In the event that the Eligible CDFI does not comply with the foregoing requirements of clauses (i) or (ii) of this paragraph, the available Bond Loan proceeds at the end of the applicable period shall be reduced by an amount equal to the difference between the amount required by clauses (i) or (ii) for the applicable period minus the amount previously committed to the Secondary Loans in the applicable period. Secondary Loans shall carry loan maturities suitable to the loan purpose and be consistent with loan-to-value requirements set forth in the Secondary Loan Requirements. Secondary Loan maturities shall not exceed the corresponding Bond or Bond Loan maturity date. It is the expectation of the CDFI Fund that interest rates for the Secondary Loans will be reasonable based on the borrower and loan characteristics.
E.
1. The Regulations state that Secondary Loans must be secured by a first lien of the Eligible CDFI on pledged collateral, in accordance with the Regulations (at 12 CFR 1808.307(f)) and within certain parameters. Examples of acceptable forms of collateral may include, but are not limited to: Real property (including land and structures), leasehold mortgages, machinery, equipment and movables, cash and cash equivalents, accounts receivable, letters of credit, inventory, fixtures, contracted revenue streams from non-Federal counterparties, provided the Secondary Borrower pledges all assets, rights and interests necessary to generate such revenue stream, and a Principal Loss Collateral Provision. Intangible assets, such as customer relationships, intellectual property rights, and to-be- constructed real estate improvements, are not acceptable forms of collateral.
2. The Regulations require that Bond Loans must be secured by a first lien on a collateral assignment of Secondary Loans, and further that the Secondary Loans must be secured by a first lien or parity lien on acceptable collateral.
3. Valuation of the collateral pledged by the Secondary Borrower must be based on the Eligible CDFI's credit policy guidelines and must conform to the standards set forth in the Uniform Standards of Professional Appraisal Practice (USPAP) and the Secondary Loan Requirements.
4. Independent third-party appraisals are required for the following collateral: Real estate, leasehold interests, fixtures, machinery and equipment, movables stock valued in excess of $250,000, and contracted revenue stream from non-Federal creditworthy counterparties. Secondary Loan collateral shall be valued using the cost approach, net of depreciation and shall be required for the following: accounts receivable, machinery, equipment and movables, and fixtures.
F.
G.
1. In order to achieve the statutory zero-credit subsidy constraint of the CDFI Bond Guarantee Program and to avoid a call on the Guarantee, Eligible CDFIs are encouraged to include Credit Enhancements and Principal Loss Collateral Provisions structured to protect the financial interests of the Federal Government. Any Credit Enhancement or Principal Loss Collateral Provision must be pledged, as part of the Trust Estate, to the Master Servicer/Trustee for the benefit of the Federal Financing Bank.
2. Credit Enhancements may include, but are not limited to, payment guarantees from third parties or Affiliate(s), non-Federal capital, lines or letters of credit, or other pledges of financial resources that enhance the Eligible CDFI's ability to make timely
3. As distinct from Credit Enhancements, Principal Loss Collateral Provisions may be provided in lieu of pledged collateral and in addition to pledged collateral. A Principal Loss Collateral Provision shall be in the form of cash or cash equivalent guarantees from non-Federal capital in amounts necessary to secure the Eligible CDFI's obligations under the Bond Loan after exercising other remedies for default. For example, a Principal Loss Collateral Provision may include a deficiency guarantee whereby another entity assumes liability after other default remedies have been exercised, and covers the deficiency incurred by the creditor. The Principal Loss Collateral Provision shall, at a minimum, provide for the provision of cash or cash equivalents in an amount that is not less than the difference between the value of the collateral and the amount of the accelerated Bond Loan outstanding.
4. In all cases, acceptable Credit Enhancements or Principal Loss Collateral Provisions shall be proffered by creditworthy providers and shall provide information about the adequacy of the facility in protecting the financial interests of the Federal Government, either directly or indirectly through supporting the financial strength of the Bond Issue. This includes, but is not limited to, the amount and quality of any Credit Enhancements, the financial strength of the provider of the Credit Enhancement, the terms, specific conditions such as renewal options, and any limiting conditions or revocability by the provider of the Credit Enhancement.
5. For Secondary Loans benefitting from a Principal Loss Collateral Provision (
6. If the Principal Loss Collateral Provision is provided by a financial institution that is regulated by an Appropriate Federal Banking Agency or an Appropriate State Agency, the guaranteeing institution must demonstrate performance of financially sound business practices relative to the industry norm for providers of collateral enhancements as evidenced by reports of Appropriate Federal Banking Agencies, Appropriate State Agencies, and auditors, as appropriate.
H.
1. Reports.
a. General. As required pursuant to the Regulations at 12 CFR 1808.619, and as set forth in the Bond Documents and the Bond Loan documents, the CDFI Fund will collect information from each Qualified Issuer which may include, but will not be limited to: (i) Quarterly and annual financial reports and data (including an OMB single audit, as applicable) for the purpose of monitoring the financial health, ratios and covenants of Eligible CDFIs that include asset quality (nonperforming assets, loan loss reserves, and net charge-off ratios), liquidity (current ratio, working capital, and operating liquidity ratio), solvency (capital ratio, self-sufficiency, fixed charge, leverage, and debt service coverage ratios); (ii) annual reports as to the compliance of the Qualified Issuer and Eligible CDFIs with the Regulations and specific requirements of the Bond Documents and Bond Loan documents; (iii) monthly reports on uses of Bond Loan proceeds and Secondary Loan proceeds; (iv) Master Servicer/Trustee summary of program accounts and transactions for each Bond Issue; (v) Secondary Loan certifications describing Eligible CDFI lending, collateral valuation, and eligibility; (vi) financial data on Secondary Loans to monitor underlying collateral, gauge overall risk exposure across asset classes, and assess loan performance, quality, and payment history; (vii) annual certifications of compliance with program requirements; (viii) material event disclosures including any reports of Eligible CDFI management and/or organizational changes; (ix) annual updates to the Capital Distribution Plan (as described below); (x) supplements and/or clarifications to correct reporting errors (as applicable); (xi) project level reports to understand overall program impact and the manner in which Bond Proceeds are deployed for Eligible Community or Economic Development Purposes; and (xii) such other information that the CDFI Fund and/or the Bond Purchaser may require, including but not limited to racial and ethnic data showing the extent to which members of minority groups are beneficiaries of the CDFI Bond Guarantee Program, to the extent permissible by law.
b. Additional reporting by Qualified Issuers. A Qualified Issuer receiving a Guarantee shall submit annual updates to the approved Capital Distribution Plan, including an updated Proposed Sources and Uses of Funds for each Eligible CDFI, noting any deviation from the original baseline with regards to both timing and allocation of funding among Secondary Loan asset classes. The Qualified Issuer shall also submit a narrative, no more than five (5) pages in length for each Eligible CDFI, describing the Eligible CDFI's capacity to manage its Bond Loan. The narrative shall address any Notification of Material Events and relevant information concerning the Eligible CDFI's management information systems, personnel, executive leadership or board members, as well as financial capacity. The narrative shall also describe how such changes affect the Eligible CDFI's ability to generate impacts in Low-Income or Underserved Rural Areas.
c. Change of Secondary Loan asset classes. Any Eligible CDFI seeking to expand the allowable Secondary Loan asset classes beyond what was approved by the CDFI Bond Guarantee Program's Credit Review Board or make other deviations that could potentially result in a modification, as that term is defined in OMB Circulars A-11 and A-129, must receive approval from the CDFI Fund before the Eligible CDFI can begin to enact the proposed changes. The CDFI Fund will consider whether the Eligible CDFI possesses or has acquired the appropriate systems, personnel, leadership, and financial capacity to implement the revised Capital Distribution Plan. The CDFI Fund will also consider whether these changes assist the Eligible CDFI in generating impacts in Low-Income or Underserved Rural Areas. Such changes will be reviewed by the CDFI Bond Guarantee Program and presented to the Credit Review Board for approval, and appropriate consultation will be made with OMB to ensure compliance with OMB Circulars A-11 and A-129, prior to notifying the Eligible CDFI if such changes are acceptable under the terms of the Bond Loan Agreement. An Eligible CDFI may request such an update to its Capital Distribution Plan prior to Bond Issue Closing, and thereafter may only request such an update once per the Eligible CDFI's fiscal year.
d. Reporting by Affiliates and Controlling CDFIs. In the case of an Eligible CDFI relying, for CDFI certification purposes, on the financing entity activity of a Controlling CDFI, the CDFI Fund will require that the Affiliate and Controlling CDFI provide certain joint reports, including but not limited to those listed in subparagraph 1(a) above.
e. Detailed information on specific reporting requirements and the format, frequency, and methods by which this information will be transmitted to the CDFI Fund will be provided to
f. Reporting requirements will be enforced through the Agreement to Guarantee and the Bond Loan Agreement, and will contain a valid OMB control number pursuant to the Paperwork Reduction Act, as applicable.
g. Each Qualified Issuer will be responsible for the timely and complete submission of the annual reporting documents, including such information that must be provided by other entities such as Eligible CDFIs or Secondary Borrowers. If such other entities are required to provide annual report information or documentation, or other documentation that the CDFI Fund may require, the Qualified Issuer will be responsible for ensuring that the information is submitted timely and complete. Notwithstanding the foregoing, the CDFI Fund reserves the right to contact such entities and require that additional information and documentation be provided directly to the CDFI Fund.
h. Annual Assessments. Each Qualified Issuer and Eligible CDFI will be required to have an independent third-party conduct an Annual Assessment of its Bond Loan portfolio. The Annual Assessment is intended to support the CDFI Fund's annual monitoring of the Bond Loan portfolio and to collect financial health, internal control, investment impact measurement methodology information related to the Eligible CDFIs. This assessment is consistent with the program's requirements for Compliance Management and Monitoring (CMM) and Portfolio Management and Loan Monitoring (PMLM), and will be required pursuant to the Bond Documents and the Bond Loan documents. The assessment will also add to the Department of the Treasury's review and impact analysis on the use of Bond Loan proceeds in underserved communities and support the CDFI Fund in proactively managing portfolio risks and performance. The Annual Assessment criteria for Qualified Issuers and Eligible CDFIs is available on the CDFI Fund's Web site.
i. The CDFI Fund reserves the right, in its sole discretion, to modify its reporting requirements if it determines it to be appropriate and necessary; however, such reporting requirements will be modified only after notice to Qualified Issuers. Additional information about reporting requirements pursuant to this NOGA, the Bond Documents and the Bond Loan documents will be subject to the Paperwork Reduction Act, as applicable.
2. Accounting.
a. In general, the CDFI Fund will require each Qualified Issuer and Eligible CDFI to account for and track the use of Bond Proceeds and Bond Loan proceeds. This means that for every dollar of Bond Proceeds received from the Bond Purchaser, the Qualified Issuer is required to inform the CDFI Fund of its uses, including Bond Loan proceeds. This will require Qualified Issuers and Eligible CDFIs to establish separate administrative and accounting controls, subject to the applicable OMB Circulars.
b. The CDFI Fund will provide guidance to Qualified Issuers outlining the format and content of the information that is to be provided on an annual basis, outlining and describing how the Bond Proceeds and Bond Loan proceeds were used.
A.
B.
C.
The CDFI Fund may conduct webcasts, webinars, or information sessions for organizations that are considering applying to, or are interested in learning about, the CDFI Bond Guarantee Program. The CDFI Fund intends to provide targeted outreach to both Qualified Issuer and Eligible CDFI participants to clarify the roles and requirements under the CDFI Bond Guarantee Program. For further information, please visit the CDFI Fund's Web site at
Pub. L. 111-240; 12 U.S.C. 4701,
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (OFAC) is publishing the names of two individuals whose property and interests in property are blocked pursuant to Executive Order (E.O.) 13413, as amended by E.O. 13671, and whose names 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 December 12, 2016.
Associate Director for Global Targeting, tel.: 202/622-2420, Assistant Director for Sanctions Compliance & Evaluation, tel.: 202/622-2490, Assistant Director for Licensing, 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 (
On December 12, 2016, OFAC blocked the property and interests in property of the following two individuals pursuant to E.O. 13413, “Blocking Property of Certain Persons Contributing to the Conflict in the Democratic Republic of the Congo,” as amended:
1. MUTONDO, Kalev (a.k.a. KALEV KATANGA, Mutondo; a.k.a. KALEV, Motono; a.k.a. KALEV, Mutundo; a.k.a. MUTOID, Kalev; a.k.a. MUTOMBO, Kalev; a.k.a. MUTOND, Kalev; a.k.a. MUTONDO KATANGA, Kalev; a.k.a. MUTUND, Kalev), 24 Avenue Ma Campagne, Quartier Ma Campagne Commune De Ngaliema, Kinshasa 00243, Congo, Democratic Republic of the; DOB 03 Mar 1957; POB Kasaji, Democratic Republic of the Congo; alt. POB Likasi, Katanga, Democratic Republic of the Congo; nationality Congo, Democratic Republic of the; Gender Male; Passport DB0004470 (Congo, Democratic Republic of the) issued 08 Jun 2012 expires 07 Jun 2017; Agence Nationale de Renseignements General Administrator (individual) [DRCONGO].
2. BOSHAB, Evariste (a.k.a. BOSHAB MABUDJ MA BILENGE, Evariste; a.k.a. BOSHAB MABUDJ, Evariste; a.k.a. BOSHAB MABUDJ-MA-BILENGE, Evariste; a.k.a. BOSHAB MABUTSH, Evariste; a.k.a. BOSHAB, Evarist; a.k.a. MULUMBU BOSHAB, Evariste), Avenue du Rail 5, Ngaliema, Kinshasa, Congo, Democratic Republic of the; DOB 12 Jan 1956; POB Teke-Kalamba, Democratic Republic of the Congo; alt. POB Kasai Occidentale Province, Democratic Republic of the Congo; nationality Congo, Democratic Republic of the; Gender Male; Passport DB0007366 (Congo, Democratic Republic of the) issued 07 May 2014 expires 06 May 2019; Deputy Prime Minister, Vice Prime Minister, Minister of Interior and Security (individual) [DRCONGO].
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13, on or after the date of publication of this notice.
Comments should be received on or before January 17, 2017 to be assured of consideration.
Send comments regarding the burden estimates, or any other aspect of the information collections, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submissions may be obtained by emailing
Veterans Benefits Administration, Department of Veterans Affairs
Notice
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
VA Forms 21-0781 and 21-0781a are used to gather specific information about in-service stressors, so VA can assist claimants in obtaining credible supporting evidence that the claimed stressors occurred. In-service stressors reported by veterans must be verifiable. VA cannot thoroughly research military records and other sources of information for credible supporting evidence unless the veteran provides VA with specific information about the in-service stressors. The forms request information that is necessary to conduct meaningful research of records.
Written comments and recommendations on the proposed collection of information should be received on or before February 13, 2017.
Submit written comments on the collection of information through Federal Docket Management System
Nancy J. Kessinger at (202) 632-8924 or FAX (202) 632-8925.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-21), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Centers for Disease Control and Prevention, HHS.
Final rule.
In 2011 and 2012, the Secretary, Department of Health and Human Services (HHS), promulgated regulations designed to govern the World Trade Center (WTC) Health Program (Program), including the processes by which eligible responders and survivors may apply for enrollment in the Program, obtain health monitoring and treatment for WTC-related health conditions, and appeal enrollment and treatment decisions, as well as a process to add new conditions to the List of WTC-Related Health Conditions (List). After using the regulations for a number of years, the Administrator of the WTC Health Program identified potential improvements to certain existing provisions, including, but not limited to, appeals of enrollment, certification, and treatment decisions, as well as the procedures for the addition of health conditions for WTC Health Program coverage. He also identified the need to add new regulatory provisions, including, but not limited to, standards for the disenrollment of a WTC Health Program member and decertification of a certified WTC-related health condition. A notice of proposed rulemaking was published on August 17, 2016; this action addresses public comments received on that proposed rulemaking, as well as three interim final rules promulgated since 2011, and finalizes the proposed rule and three interim final rules.
This rule is effective on January 17, 2017.
Rachel Weiss, Program Analyst; 1090 Tusculum Ave., MS: C-46, Cincinnati, OH 45226; telephone (855) 818-1629 (this is a toll-free number); email
This preamble is organized as follows:
On August 17, 2016, the Secretary, HHS, and the Administrator of the WTC Health Program published a notice of proposed rulemaking proposing amendments to some provisions in part 88 in Title 42 and the addition of others (August 2016 NPRM).
In this action, the Administrator finalizes amendments to a number of existing sections in part 88, including provisions for appeals of enrollment decisions, appeals of certification, decertification, or treatment authorization decisions, and the addition of health conditions to the List of WTC-Related Health Conditions. Some existing language is moved into new sections for clarity. Finally, new language on disenrollment, decertification, appeals of reimbursement denials, and coordination of benefits and recoupment is added to part 88.
The revisions to part 88 proposed in the August 2016 NPRM and finalized in this action are expected to result in approximately $42,742 in costs to the WTC Health Program associated with updating existing Program policies and developing new policies. As explained below, the Program estimates that total costs of the WTC Health Program were $240.5 million in FY 2015 and may range from $265.5 to $388.6 million in FY 2025. Cumulative costs associated with WTC Health Program administration and monitoring and treatment services for all health conditions for fiscal years (FY) 2016 through 2025 are projected to range from $2.9 billion (7% discount rate) to $3.6 billion (3% discount rate).
Interested persons or organizations were invited to participate in the August 2016 NPRM by submitting written views, opinions, recommendations, and/or data on any topic related to the proposed rule. All communications received on or before the closing date for comments were fully considered by the Administrator of the WTC Health Program. The August 2016 NPRM as well as public comments received are available in the docket for this rulemaking. Public comments received on the three interim final rules are available in those respective dockets.
Submissions to the August 2016 NPRM docket were received from three commenters, including a labor organization, a joint labor/management trust fund, and the contractor providing care for survivors in the WTC Health Program.
This final rule includes the Administrator's response to public comments received on the August 2016 NPRM, as well as public comments received in response to three interim final rules (IFRs). The first IFR was published on July 1, 2011 to establish part 88 and implement the Program, and included all of the original sections establishing eligibility criteria and enrollment processes, health condition certification and treatment requirements, mechanisms to appeal Program decisions, and reimbursement
Title I of the James Zadroga 9/11 Health and Compensation Act of 2010 (Pub. L. 111-347, as amended by Pub. L. 114-113), added Title XXXIII to the Public Health Service Act (PHS Act), establishing the WTC Health Program within HHS. The WTC Health Program provides medical monitoring and treatment benefits to eligible firefighters and related personnel, law enforcement officers, and rescue, recovery, and cleanup workers who responded to the September 11, 2001, terrorist attacks in New York City, at the Pentagon, and in Shanksville, Pennsylvania (responders), and to eligible persons who were present in the dust or dust cloud on September 11, 2001, or who worked, resided, or attended school, childcare, or adult daycare in the New York City disaster area (survivors).
All references to the Administrator of the WTC Health Program (Administrator) in this notice mean the WTC Program Administrator, the Director of the National Institute for Occupational Safety and Health (NIOSH), or his or her designee. Section 3301(j) of the PHS Act authorizes the Administrator to promulgate such regulations as are necessary to administer the WTC Health Program.
This rule adopts and finalizes all amendments to 42 CFR part 88 promulgated by the July 2011, March 2013, and February 2014 IFRs and proposed in the August 2016 NPRM. Amendments to the regulatory text in part 88 are finalized in accordance with the discussion provided in the August 2016 NPRM
The Administrator revised pre-existing definitions and established new definitions for terms commonly used in the WTC Health Program in 42 CFR 88.1.
The Administrator also declines to amend “medically necessary treatment” because the medical treatment protocols developed by the Data Centers already include treatment modalities developed for children. The existing definition is sufficiently broad to include all types of patients treated by physicians affiliated with the Clinical Centers of Excellence (CCEs) or the Nationwide Provider Network (NPN). No changes are made to the regulatory text in response to these comments.
Finally, “New York City disaster area” is also defined in the PHS Act, at sec. 3306(7), and cannot be expanded in the regulatory definitions. No change is made to the regulatory text in response to the public comments.
The term “designated representative” is revised to clarify that an individual applying for enrollment in the WTC Health Program may designate a representative. A new definition of “WTC,” meaning “World Trade Center,” is added to this section; all existing definitions beginning with “World Trade Center” are revised accordingly to streamline the regulatory text.
This section establishes the appointment process for an applicant's or WTC Health Program member's designated representative and the parameters of the representative's authority.
No public comment was received on this section. No revisions are made to this section, although it is included in the regulatory text, below, for completeness.
This section establishes eligibility criteria for individuals who participated in response and recovery activities at the New York City area sites, at the Pentagon site, and at the Shanksville, Pennsylvania site.
This section describes the application process for individuals who participated in response and recovery activities at any of the three sites. Language from § 88.6(b), concerning notification of deficient applications, is moved into a new § 88.5(c). The word “shall” is replaced with “must” throughout the section, and “WTC Program Administrator” is replaced with “WTC Health Program.”
This section describes the basis for enrollment and enrollment denial decisions and explains the Program's notification procedures. Language from § 88.6(b), concerning notification of deficient applications, is moved into a new § 88.5(c) where it is better placed. A sentence is added to paragraph (d) to clarify that the 60-day time period for Program enrollment decisions will be tolled during any days in which the applicant is correcting deficiencies, as in § 88.10(a).
No public comment was received on this section. No revisions are made to this section, although it is included in the regulatory text, below, for completeness.
This section establishes eligibility criteria for individuals who do not meet the eligibility criteria for WTC responders.
This section describes the application process for individuals in the New York City disaster area who did not participate in response and recovery activities.
A new paragraph (a)(3), comprising language concerning the notification of deficiencies in an application, is moved from § 88.10(a). “Shall” is replaced with “must” throughout the section, and “WTC Program Administrator” is replaced with “WTC Health Program” in paragraph (b).
This section describes the basis for enrollment as a screening-eligible survivor and enrollment denial decisions, and explains the Program's notification procedures.
Language in paragraph (a) concerning notification of deficiencies in an application is moved to § 88.9(a)(3).
This section describes the initial health evaluation process for screening-eligible survivors.
This section describes the basis for enrollment as a certified-eligible survivor and enrollment denial decisions, and explains the Program's notification procedures.
This section clarifies the process for disenrolling a member from the WTC Health Program.
This section establishes procedures for the appeal of a WTC Health Program decision to deny enrollment of an applicant or disenroll a Program member.
This section contains the List previously placed in § 88.1 Definitions. No public comments were received on this section and no substantive revisions are made to the text. Some punctuation
This section establishes the process by which interested parties may petition the Administrator to add a health condition to the List. No public comments were received on this section and no revisions are made to the text.
This section establishes the basis for a CCE or NPN-affiliated physician's determination that a member has a health condition that can be certified. No public comments were received on this section and no revisions are made to the text.
This section establishes that the WTC Health Program will promptly assess physician determinations submitted by a CCE or NPN-affiliated physician and, if the Program concurs with the determination and decides that a health condition is a WTC-related health condition or a health condition medically associated with a WTC-related health condition, will certify the condition as eligible for coverage under the WTC Health Program.
This section clarifies the process for decertification of a WTC-related health condition or health condition medically associated with a WTC-related health condition.
This section describes the provision of medically necessary treatment.
This section establishes that a WTC Health Program member or the designated representative of such a member may appeal the Program's decision to deny certification of a health condition as WTC-related or medically associated with a WTC-related health condition, decertify a WTC-related health condition or medically associated health condition, or deny authorization of treatment for a certified health condition.
In response to public comment on § 88.14, concerning appeal of enrollment decisions, the Administrator agreed to extend enrollment appeal submission deadlines to 120 days. To maintain parity with that process, the deadline for the submission of appeals of certification, decertification, and treatment authorization decisions is also extended to 120 calendar days.
This section addresses the matter of coordination of benefits, including recoupment from workers' compensation settlements.
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, and 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 final rule has been determined to be a “significant regulatory action” under section 3(f) of Executive Order 12866.
This final rule includes changes proposed in the August 2016 NPRM and final revisions made in response to public comment and to clarify the Program's intent; it also finalizes three IFRs issued in July 2011, March 2013, and February 2014, respectively. This final rule includes revisions to §§ 88.14 and 88.21 (enrollment and medical appeals) and § 88.16 (addition of health conditions) that will result in necessary updates to several existing WTC Health Program policies; novel regulatory provisions in § 88.13 (disenrollment), § 88.19 (decertification), and § 88.23 (reimbursement appeals) will require the revision of existing policies or development of new policies. The Administrator estimates that amending the existing
In addition to the costs associated with the August 2016 NPRM, this rule also updates the regulatory impact analyses for the July 2011, March 2013, and February 2014 IFRs, which are all finalized in this action. In the original cost analysis conducted for the Part 88 WTC Health Program regulations,
The Program estimates that total cumulative costs associated with the WTC Health Program over the next 10 years will be $4,223,209,653, undiscounted (from $2,874,481,628 at 7 percent discount rate to $3,553,658,528 at 3 percent discount rate). The cost of the rule in FY 2025 is estimated to be $522,307,538 (present value between $265,514,667 and $388,645,860, at 7 percent and 3 percent discounts rates, respectively).
As of the end of FY 2015, WTC Health Program membership included 64,008 WTC responders and 9,144 screening- and certified-eligible survivors. Based on enrollment numbers since FY 2012, the first full year for which data are available, responders (including Pentagon and Shanksville responders) enroll at an approximate rate of 2,087 per year, screening- and certified-eligible survivors at an approximate rate of 1,077 per year. Table 2 displays the past annual enrollment of members, the projected enrollment over the 10 years between FY 2016 and FY 2025, and the projected total number of members by FY 2025.
The annual cost to the WTC Health Program of conducting administrative functions was approximately $96,414,964 in FY 2015. Given the aggregate rate of enrollment of WTC responders and screening- and certified-eligible survivors, a rise in operations costs by 1.7 percent and a rise in infrastructure costs of 3.3 percent, annual administrative costs for FY 2025 are expected to be $134,485,132. Such costs include program management, enrollment, certification of health conditions, pre-authorization of medical care, payment services, administration of appeals, education and outreach, administration of the advisory and steering committees, and infrastructure costs for the CCEs/NPN.
Infrastructure costs for the CCEs/NPN include the retention of participants, case management, medical review, benefits counseling, quality management, data transfer, interpreter services, and assisting with the development of treatment protocols.
In FY 2015, the total cost to the WTC Health Program for medical monitoring and treatment was $144,156,615, and the breakdown by type of service is shown in Table 1. Initial health evaluations are for WTC screening-eligible survivors only. Diagnostic evaluation and cancer screening is for WTC screening- and certified-eligible survivors and WTC responders. The other two categories of services are for WTC certified-eligible survivors and WTC responders. These costs are based on claims paid during FY 2015. The FY 2015 costs do not include costs associated with monitoring and treatment of new-onset COPD and WTC-related acute traumatic injury because the rulemaking adding those conditions to the List was not completed until July 2016.
For FY 2025, the WTC Health Program estimated the total cost for all health care service categories based on linear cost projections from prior fiscal years, with an adjustment (increase) to account conservatively for statistical uncertainty in the estimate. Also included in the estimate are increases for the treatment and monitoring of new-onset COPD and WTC-related acute traumatic injury, added to the List in July 2016. The FY 2025 total for all health care service categories is $387,822,406. This estimate accounts for an increase in enrollment, more members receiving health care benefits, higher-cost care related to cancer and complications of other illnesses, and general medical care cost increases. In order to determine the breakout by health care service category for FY 2025, the WTC Health Program calculated the percentage of the total cost in FY 2015 for each category and applied those percentages to the total estimate for FY 2025.
Through FY 2015, the last full year for which Program data are available, 35,523 members (49 percent) have been certified for at least one WTC-related health condition. The number of certifications of WTC-related health conditions identified in the categories of health conditions included in the List of WTC-Related Health Conditions is in Table 4, below. Based on the projected FY 2025 enrollment number of 104,354 and an increase of 3 percent annually of the number of members who are estimated to be certified, there would be 158,415 certifications for 68,103 Program members in FY 2025.
An evaluation of the health and quality of life improvements associated with medical treatment of several of the most commonly-certified health conditions is based on the prevalence of certified WTC-related health conditions. Quality-adjusted life year (QALY) is a common metric of expected treatment effectiveness for the health conditions evaluated. For the purpose of this evaluation, the Administrator assumes that each health condition will continue to be represented among new Program members at the same rate at which it occurs in current members. The health benefits provided by the WTC Health Program are compared with the effect of no Program at all.
The Administrator assumes that WTC Health Program members receive the best care available, as CCE and NPN providers are experts in treating the types of health conditions on the List eligible for certification. In order to compare the benefits provided by the WTC Health Program to a scenario with no WTC Health Program, the Administrator further assumes that the 9/11-exposed population of responders and survivors would instead receive some but not optimal treatment for their health conditions. Accordingly, the estimated benefits (QALYs) represent the incremental improvement in health that WTC Health Program members can expect from receiving the optimal treatment provided by the CCEs and NPN versus standard treatments that are commonly received outside of the Program.
Below are summarized QALY estimates for morbidity improvements for aero-digestive conditions, PTSD and depression, and cancer.
In the July 2011 IFR, an estimated 0.012 QALYs were gained per year per patient under treatment for GERD in the Program compared with patients treated outside the Program. Multiplying the WTC Health Program's GERD population for each year during FY 2016-2025 by 0.012 results in 3,311 total undiscounted QALYs gained. Discounting future health benefits at 3 and 7 percent results in 2,781 and 2,244 total QALYs gained, respectively.
In the July 2011 IFR, an estimated 0.0145 QALYs were gained per year per patient under treatment for chronic rhinosinusitis and other upper respiratory diseases in the Program compared with patients treated outside the Program. Assuming the same gain is achieved for patients treated for other upper respiratory diseases, treating patients for all upper respiratory diseases would result in 4,877 total undiscounted QALYs gained. Discounting future health benefits at 3 and 7 percent results in 4,095 and 3,304 total QALYs gained, respectively.
In the July 2011 IFR, an estimated 0.029 QALYs were gained per year per patient under treatment for asthma in the Program resulting in 6,002 total undiscounted QALYs gained. Discounting future benefits at a rate of 3 percent and 7 percent results in 5,040 and 4,066 total QALYs, respectively.
In the July 2011 IFR, an estimated 0.077 QALYs were gained per year per patient under treatment in the program for WTC-exacerbated COPD in the Program resulting in 3,320 total undiscounted QALYs gained. Discounting future health benefits at 3 and 7 percent results in 2,788 and 2,249 total QALYs gained, respectively.
In the July 2011 IFR, an estimated medical treatment similar to that for asthma was discussed for patients suffering from RADS. Assuming that treating one patient results in 0.029 QALYs gained and that treating all other aerodigestive conditions not examined above would also result in 0.029 QALYs gained would result in a total of 4,877 undiscounted QALYs gained. Discounting future health benefits at 3 and 7 percent, results in 4,094 and 3,204 total QALYs gained, respectively.
In the July 2011 IFR, an estimated 0.013 QALYs were gained per year per patient under treatment for PTSD and depression in the Program resulting in a total of 3,598 undiscounted QALYs gained. Discounting future health benefits at 3 and 7 percent results in 3,022 and 2,438 total QALYs gained, respectively.
It was assumed that all patients in FY 2016-2025 will live at a health-related quality of life level similar overall to that reported in Cutler and Richardson
Using the expected number of prevalent cancer cases for FY 2016-2025 and published information in Tengs and Wallace on the health-related quality of life of cancer patients who respond to treatment for their cancer, a rough estimate of 0.06 for the increase in patients' quality of life was estimated for cancers treated in the WTC Health Program compared to those not treated in the Program.
In summary, available information indicates the WTC Health Program is likely to provide substantial improvements in health to responders and survivors. The QALY estimates discussed above and summarized and annualized in Table 5 below are illustrative of these benefits.
The cost analysis above is subject to a number of limitations, some but not all of which have been identified by the Program. The enrollment, administrative, and medical monitoring and treatment cost estimates are based on historical cost experience from the first full year of the WTC Health Program (FY 2012) to the end of FY 2015 and do not anticipate the costs of WTC-related health conditions added to the List in the future. The annual rate of increase takes into account the growth of the Program's membership based on enrollment data from the start of the Program to present and does not consider natural population mortality and mortality due to the WTC-related health conditions. The medical monitoring and treatment cost estimates are based on a combination of linear regression analysis of aggregate medical costs and adjustments for factors described above.
The Program has also identified some, but not all, limitations in deriving the health benefits estimate. Some new Program members, if they have not received treatment for a certified WTC-related health condition prior to enrollment, may present in worse health and may benefit less from medical treatment than members who received more timely treatment in the Program. Furthermore, many Program members may have more than one concurrent certified WTC-related health condition for which they are receiving treatment in the Program, which can impact the effectiveness of medical treatment for any given condition.
This rule does not interfere with State, local, or Tribal governments in the exercise of their governmental functions.
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601
The Paperwork Reduction Act, 44 U.S.C. 3501
Data collection and recordkeeping requirements for the WTC Health Program are approved by OMB under “World Trade Center Health Program Enrollment, Appeals & Reimbursement” (OMB Control No. 0920-0891, exp. September 30, 2018). HHS has determined that substantive changes are needed to the information collection already approved by OMB. Accordingly, HHS has published a notice of the proposed changes to the existing approved information collection and invites comment from the public during the 60-day comment period. The 60-day notice, published in the
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The Program estimates that the total annual paperwork burden associated with this rulemaking, including the revised and new burden hour estimates, is 14,178.95 hours.
As required by Congress under the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 801
Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531
This final rule has been drafted and reviewed in accordance with Executive Order 12988, “Civil Justice Reform,” and will not unduly burden the Federal court system. This rule has been reviewed carefully to eliminate drafting errors and ambiguities.
The Administrator has reviewed this final rule in accordance with Executive Order 13132 regarding Federalism, and has determined that it does not have “Federalism implications.” The rule does 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.”
In accordance with Executive Order 13045, the Administrator has evaluated the environmental health and safety effects of this final rule on children. The Administrator has determined that the rule would have no environmental health and safety effect on children.
In accordance with Executive Order 13211, the Administrator has evaluated the effects of this final rule on energy supply, distribution or use, and has determined that the rule will not have a significant adverse effect.
Under Public Law 111-274 (October 13, 2010), executive Departments and Agencies are required to use plain language in documents that explain to the public how to comply with a requirement the Federal government administers or enforces. The Administrator has attempted to use plain language in promulgating the final rule consistent with the Federal Plain Writing Act guidelines and requests public comment on this effort.
Aerodigestive disorders, Appeal procedures, Health care, Mental health conditions, Musculoskeletal disorders, Respiratory and pulmonary diseases.
42 U.S.C. 300mm to 300mm-61, Pub. L. 111-347, 124 Stat. 3623, as amended by Pub. L. 114-113, 129 Stat. 2242.
(1) Uses an integrated, centralized health care provider approach to create a comprehensive suite of health services that are accessible to enrolled WTC responders, screening-eligible survivors, or certified-eligible survivors;
(2) Has experience in caring for WTC responders and screening-eligible survivors, or includes health care providers who have received WTC Health Program training;
(3) Employs health care provider staff with expertise that includes, at a minimum, occupational medicine, environmental medicine, trauma-related psychiatry and psychology, and social services counseling; and
(4) Meets such other requirements as specified by the Administrator of the WTC Health Program.
(1) Receive, analyze, and report to the Administrator of the WTC Health Program on data that have been collected and reported to the Data Center by the corresponding CCE(s);
(2) Develop monitoring, initial health evaluation, and treatment protocols with respect to WTC-related health conditions;
(3) Coordinate the outreach activities of the corresponding CCE;
(4) Establish criteria for credentialing of medical providers participating in the Nationwide Provider Network;
(5) Coordinate and administer the activities of the WTC Health Program Steering Committees; and
(6) Meet periodically with the corresponding CCE(s) to obtain input on the analysis and reporting of data and on development of monitoring, initial health evaluation, and treatment protocols.
(a)
(2) There may be only one designated representative at any time. After one designated representative has been properly appointed, the WTC Health Program will not recognize another individual as the designated representative until the appointment of the previously designated representative is withdrawn in a signed writing.
(3) A properly appointed designated representative who is recognized by the WTC Health Program may make a request or give direction to the WTC Health Program regarding the eligibility, certification, or any other administrative issue pertaining to the applicant or WTC Health Program member under the WTC Health Program, including appeals. Any notice requirement contained in this part or in the Act is fully satisfied if sent to the designated representative.
(4) An applicant or WTC Health Program member may authorize any individual to represent him or her in regard to the WTC Health Program, unless that individual's service as a representative would violate any applicable provision of law (such as 18 U.S.C. 205 or 18 U.S.C. 208) or is otherwise prohibited by WTC Health Program policies and procedures or contract provisions.
(5) A Federal employee may act as a representative only on behalf of the individuals specified in, and in the manner permitted by, 18 U.S.C. 203 and 18 U.S.C. 205.
(6) If an applicant or screening-eligible or certified-eligible survivor is a minor, a parent or guardian may act on his or her behalf.
(7) If an applicant or WTC Health Program member is a mentally incompetent adult, an individual authorized under state or other applicable law to act on the applicant's or member's behalf may act as his or her designated representative as described in this section.
(b)
(a) Responders who were identified as eligible for monitoring and treatment under the arrangements as in effect on January 2, 2011, between NIOSH and the consortium administered by Mount Sinai School of Medicine in New York City and the Fire Department, City of New York, are enrolled in the WTC Health Program.
(1) No individual who is determined to be a positive match to the terrorist watch list maintained by the Federal government will be considered to be enrolled in the WTC Health Program.
(2) [Reserved]
(b) WTC responders identified as enrolled under this section are not required to submit an application to the WTC Health Program.
(a) Responders to the New York City disaster area who have not been previously identified as eligible as provided for under § 88.3 of this part may apply for enrollment in the WTC Health Program on or after July 1, 2011. Such individuals must meet the criteria in one of the following categories to be considered eligible for enrollment:
(1) Firefighters and related personnel must meet the criteria specified in paragraph (a)(1)(i) or (ii) of this section:
(i) The individual was an active or retired member of the Fire Department, City of New York (whether firefighter or emergency personnel), and participated at least 1 day in the rescue and recovery effort at any of the former World Trade Center sites (including Ground Zero, the Staten Island Landfill, or the New York City Chief Medical Examiner's Office), during the period beginning on September 11, 2001, and ending on July 31, 2002; or
(ii) The individual is:
(A) A surviving immediate family member of an individual who was an active or retired member of the Fire Department, City of New York (whether firefighter or emergency personnel), who was killed at Ground Zero on September 11, 2001, and
(B) Received any treatment for a WTC-related mental health condition on or before September 1, 2008.
(2) Law enforcement officers and WTC rescue, recovery, and cleanup workers must meet the criteria specified in paragraph (a)(2)(i) or (ii) of this section:
(i) The individual worked or volunteered onsite in rescue, recovery, debris cleanup, or related support services in lower Manhattan (south of Canal Street), the Staten Island Landfill, or the barge loading piers, for at least:
(A) 4 hours during the period beginning on September 11, 2001, and ending on September 14, 2001; or
(B) 24 hours during the period beginning on September 11, 2001, and ending on September 30, 2001; or
(C) 80 hours during the period beginning on September 11, 2001, and ending on July 31, 2002.
(ii) The individual was an active or retired member of the New York City Police Department or an active or retired member of the Port Authority Police of the Port Authority of New York and
(A) 4 hours during the period beginning September 11, 2001, and ending on September 14, 2001, in lower Manhattan (south of Canal Street), including Ground Zero, the Staten Island Landfill, or the barge loading piers; or
(B) 1 day beginning on September 11, 2001, and ending on July 31, 2002, at Ground Zero, the Staten Island Landfill, or the barge loading piers; or
(C) 24 hours during the period beginning on September 11, 2001, and ending on September 30, 2001, in lower Manhattan (south of Canal Street); or
(D) 80 hours during the period beginning on September 11, 2001, and ending on July 31, 2002, in lower Manhattan (south of Canal Street).
(3) Office of the Chief Medical Examiner of New York City employee. The individual was an employee of the Office of the Chief Medical Examiner of New York City involved in the examination and handling of human remains from the WTC attacks, or other morgue worker who performed similar post-September 11 functions for such Office staff, during the period beginning on September 11, 2001, and ending on July 31, 2002.
(4) Port Authority Trans-Hudson Corporation Tunnel worker. The individual was a worker in the Port Authority Trans-Hudson Corporation Tunnel for at least 24 hours during the period beginning on February 1, 2002, and ending on July 1, 2002.
(5) Vehicle-maintenance worker. The individual was a vehicle-maintenance worker who was exposed to debris from the former World Trade Center while retrieving, driving, cleaning, repairing, and maintaining vehicles contaminated by airborne toxins from the September 11, 2001, terrorist attacks; and conducted such work for at least 1 day during the period beginning on September 11, 2001, and ending on July 31, 2002.
(b) Responders to the Pentagon site of the September 11, 2001, terrorist attacks, may apply for enrollment in the WTC Health Program on or after April 29, 2013. Individuals must meet the criteria below to be considered eligible for enrollment:
(1) The individual was an active or retired member of a fire or police department (fire or emergency personnel), worked for a recovery or cleanup contractor, or was a volunteer; and
(2) Performed rescue, recovery, demolition, debris cleanup, or other related services at the Pentagon site of the September 11, 2001, terrorist attacks, for at least 1 day beginning September 11, 2001, and ending on November 19, 2001.
(c) Responders to the Shanksville, Pennsylvania site of the September 11, 2001, terrorist attacks, may apply for enrollment in the WTC Health Program on or after April 29, 2013. Individuals must meet the criteria below to be considered eligible for enrollment:
(1) The individual was an active or retired member of a fire or police department (fire or emergency personnel), worked for a recovery or cleanup contractor, or was a volunteer; and
(2) Performed rescue, recovery, demolition, debris cleanup, or other related services at the Shanksville, Pennsylvania site of the September 11, 2001, terrorist attacks, for at least 1 day beginning September 11, 2001, and ending on October 3, 2001.
(d) [Reserved]
(e) The WTC Health Program will maintain a list of WTC responders.
(a) An application to the WTC Health Program based on the criteria in § 88.4 must be submitted with documentation of the applicant's employment affiliation (if relevant) and work activity during the dates, times, and locations specified in § 88.4
(1) Documentation may include but is not limited to a pay stub; official personnel roster; a written statement, under penalty of perjury by an employer; site credentials; or similar documentation.
(2) An applicant who is unable to submit the required documentation must instead offer a written explanation of how he or she tried to obtain proof of presence, residence, or work activity and why the attempt was unsuccessful. The applicant must attest, under penalty of perjury, that he or she meets the criteria specified in § 88.4.
(b) The application and supporting documentation must be submitted to the WTC Health Program for consideration.
(c) The WTC Health Program will notify the applicant in writing (or by email if an email address is provided by the applicant) of any deficiencies in the application or the supporting documentation.
(a)
(b)
(c)
(2) The WTC Health Program may deny enrollment of a responder who is otherwise eligible and qualified if the Act's numerical limitations for newly enrolled responders have been met.
(i) No more than 25,000 WTC responders, other than those enrolled pursuant to §§ 88.3 and 88.4(a)(1)(ii), may be enrolled at any time. The Administrator of the WTC Health Program may decide, based on the best available evidence, that sufficient funds are available under the WTC Health Program Fund to provide treatment and monitoring only for individuals who are already enrolled as WTC responders at that time.
(ii) [Reserved]
(3) No individual who is determined to be a positive match to the terrorist watch list maintained by the Federal government may qualify to be enrolled or be determined to be eligible for the WTC Health Program.
(d)
(2) If the WTC Health Program decides that an applicant is denied enrollment, the written notification will include an explanation, as appropriate, for the decision to deny enrollment and inform the applicant of the right to appeal the initial denial of eligibility and provide instructions on how to file an appeal.
(a) Survivors who have been identified as eligible for medical treatment and monitoring as of January 2, 2011, are considered certified-eligible in the WTC Health Program.
(1) No individual who is determined to be a positive match to the terrorist watch list maintained by the Federal government will be considered to be a certified-eligible survivor in the WTC Health Program.
(2) [Reserved]
(b) Survivors identified as certified-eligible under this section are not
(a) Criteria for status as a screening-eligible survivor. An individual who is not a WTC responder, claims symptoms of a WTC-related health condition, and who has not been previously identified as eligible under § 88.7 may apply to the WTC Health Program on or after July 1, 2011, for a determination of eligibility for an initial health evaluation.
(1) The WTC Health Program will determine an applicant's eligibility for an initial health evaluation based on one of the following criteria:
(i) The screening applicant was present in the dust or dust cloud in the New York City disaster area on September 11, 2001.
(ii) The screening applicant worked, resided, or attended school, childcare, or adult daycare in the New York City disaster area, for at least:
(A) 4 days during the period beginning on September 11, 2001, and ending on January 10, 2002; or
(B) 30 days during the period beginning on September 11, 2001, and ending on July 31, 2002.
(iii) The screening applicant worked as a cleanup worker or performed maintenance work in the New York City disaster area during the period beginning on September 11, 2001, and ending on January 10, 2002, and had extensive exposure to WTC dust as a result of such work.
(iv) The screening applicant:
(A) Was deemed eligible to receive a grant from the Lower Manhattan Development Corporation Residential Grant Program;
(B) Possessed a lease for a residence or purchased a residence in the New York City disaster area; and
(C) Resided in such residence during the period beginning on September 11, 2001, and ending on May 31, 2003.
(v) The screening applicant is an individual whose place of employment—
(A) At any time during the period beginning on September 11, 2001, and ending on May 31, 2003, was in the New York City disaster area; and
(B) Was deemed eligible to receive a grant from the Lower Manhattan Development Corporation WTC Small Firms Attraction and Retention Act program or other government incentive program designed to revitalize the lower Manhattan economy after the September 11, 2001, terrorist attacks.
(2) [Reserved]
(b) Criteria for status as a certified-eligible survivor. Survivors who have been determined to have screening-eligible status under § 88.10(a), may seek status as a certified-eligible survivor. Status as a certified-eligible survivor is based on a certification by the WTC Health Program that, pursuant to an initial health evaluation, the screening-eligible survivor has a WTC-related health condition and is eligible for follow-up monitoring and treatment.
(c) The WTC Health Program will maintain a list of screening-eligible and certified-eligible survivors.
(a)
(1) Documentation may include but is not limited to: Proof of residence, such as a lease or utility bill; attendance roster at a school or daycare; or pay stub, other employment documentation, or written statement, under penalty of perjury, by an employer indicating employment location during the relevant time period; or similar documentation. The applicant must also attest to symptoms of a WTC-related health condition.
(2) An applicant who is unable to submit the required documentation must instead offer a written explanation of how he or she tried to obtain proof of location, presence, or residence, and/or work activity and why the attempt was unsuccessful. The applicant must attest, under penalty of perjury, that he or she meets the criteria specified in § 88.8.
(3) The applicant will be notified of any deficiencies in the application or the supporting documentation.
(b)
(a) The WTC Health Program will decide if the applicant meets the screening-eligible survivor criteria pursuant to § 88.8(a) and is qualified, and notify the applicant of the enrollment decision in writing within 60 calendar days of the date of receipt of the application. The 60-day time period will not include any days during which the applicant is correcting deficiencies in the application or supporting documentation.
(b) If the WTC Health Program decides that an applicant is denied enrollment, the written notification will include an explanation for the decision to deny enrollment and inform the applicant of the right to appeal the enrollment denial and provide instructions on how to file an appeal.
(1) The WTC Health Program may deny screening-eligible survivor status if the applicant is ineligible under the criteria specified in § 88.8(a).
(2) The WTC Health Program may deny screening-eligible survivor status if the numerical limitation on certified-eligible survivors in § 88.12(b)(3)(i) has been met.
(3) No individual who is determined to be a positive match to the terrorist watch list maintained by the Federal government may qualify to be a screening-eligible survivor in the WTC Health Program.
(a) A CCE or an NPN-affiliated physician will provide the screening-eligible survivor an initial health evaluation to determine if the individual has a WTC-related health condition.
(b) The WTC Health Program will provide only one initial health evaluation per screening-eligible survivor. The individual may request additional health evaluations at his or her own expense.
(c) If the physician determines that the screening-eligible survivor has a WTC-related health condition, the physician will promptly transmit to the WTC Health Program his or her determination, consistent with the requirements of § 88.17(a).
(a) The WTC Health Program will prioritize certification requests in the order in which they are received.
(b) The WTC Health Program will review the physician's determination, render a decision regarding certification of the individual's WTC-related health condition, and notify the individual of the decision and the reason for the decision in writing, pursuant to §§ 88.17 and 88.18.
(1) If the individual is a screening-eligible survivor and the individual's condition is certified as a WTC-related health condition, the individual will automatically receive the status of a certified-eligible survivor.
(2) If a screening-eligible survivor's condition is not certified as a WTC-related health condition pursuant to §§ 88.17 and 88.18, the WTC Health Program will deny certified-eligible status. The screening-eligible survivor may appeal the decision to deny certification, as provided under § 88.21.
(3) The WTC Health Program may deny certified-eligible survivor status of an otherwise eligible and qualified screening-eligible survivor if the Act's numerical limitations for certified-eligible survivors have been met.
(i) No more than 25,000 individuals, other than those described in § 88.7, may be determined to be certified-eligible survivors at any time. The Administrator of the WTC Health Program may decide, based on the best available evidence, that sufficient funds are available under the WTC Health Program Fund to provide treatment and monitoring only for individuals who have already been certified as certified-eligible survivors at that time.
(ii) [Reserved]
(4) No individual who is determined to be a positive match to the terrorist watch list maintained by the Federal government may qualify to be a certified-eligible survivor in the WTC Health Program.
(a) The disenrollment of a WTC Health Program member may be initiated by the WTC Health Program in the following circumstances:
(1) The WTC Health Program mistakenly enrolled an individual under § 88.4 (WTC responders) or § 88.8 (screening-eligible survivors) who did not provide sufficient proof of eligibility consistent with the required eligibility criteria; or
(2) The WTC Health Program member's enrollment was based on incorrect or fraudulent information.
(b) The disenrollment of a WTC Health Program member may be initiated by the enrollee for any reason.
(c) A disenrolled WTC Health Program member will be notified in writing by the WTC Health Program of a disenrollment decision, provided an explanation, as appropriate, for the decision, and provided information on how to appeal the decision. A disenrolled WTC Health Program member disenrolled pursuant to paragraph (a) may appeal the disenrollment decision in accordance with § 88.14.
(d) A disenrolled WTC Health Program member who has been disenrolled in accordance with paragraphs (a) or (b) of this section may seek to re-enroll in the WTC Health Program using the application and enrollment procedures, provided that the application is supported by new information.
(a)
(b)
(2) A valid request for an appeal must:
(i) Be made in writing and signed;
(ii) Identify the denied applicant or disenrolled WTC Health Program member and designated representative (if applicable);
(iii) Describe the decision being appealed and state the reasons why the denied applicant, disenrolled WTC Health Program member, or designated representative believes the enrollment denial or disenrollment was incorrect and should be reversed. The appeal request may include relevant new information not previously considered by the WTC Health Program; and
(iv) Be sent to the WTC Health Program at the address specified in the notice of denial or disenrollment.
(3) Where the denial or disenrollment is based on information from the terrorist watch list, the appeal will be forwarded to the appropriate Federal agency.
(c)
(1) The Federal Official may consider additional relevant new information submitted by the denied applicant, disenrolled WTC Health Program member, or designated representative.
(2) The Federal Official will provide his or her recommendation regarding the disposition of the appeal, including his or her findings and any supporting materials, to the Administrator.
(d)
(1) The recommendation and findings made by the Federal Official as a result of the review;
(2) The Administrator's final decision on the appeal;
(3) An explanation of the reason(s) for the Administrator's final decision on the appeal; and
(4) Any administrative actions taken by the WTC Health Program in response to the Administrator's final decision.
WTC-related health conditions include the following disorders and conditions:
(a) Aerodigestive disorders:
(1) Interstitial lung diseases.
(2) Chronic respiratory disorder—fumes/vapors.
(3) Asthma.
(4) Reactive airways dysfunction syndrome (RADS).
(5) WTC-exacerbated and new-onset chronic obstructive pulmonary disease (COPD).
(6) Chronic cough syndrome.
(7) Upper airway hyperreactivity.
(8) Chronic rhinosinusitis.
(9) Chronic nasopharyngitis.
(10) Chronic laryngitis.
(11) Gastroesophageal reflux disorder (GERD).
(12) Sleep apnea exacerbated by or related to a condition described in preceding paragraphs (a)(1) through (11) of this section.
(b) Mental health conditions:
(1) Posttraumatic stress disorder (PTSD).
(2) Major depressive disorder.
(3) Panic disorder.
(4) Generalized anxiety disorder.
(5) Anxiety disorder (not otherwise specified).
(6) Depression (not otherwise specified).
(7) Acute stress disorder.
(8) Dysthymic disorder.
(9) Adjustment disorder.
(10) Substance abuse.
(c) Musculoskeletal disorders:
(1) WTC-related musculoskeletal disorder is a chronic or recurrent disorder of the musculoskeletal system caused by heavy lifting or repetitive strain on the joints or musculoskeletal system occurring during rescue or recovery efforts in the New York City disaster area in the aftermath of the September 11, 2001, terrorist attacks. For a WTC responder who received any treatment for a WTC-related musculoskeletal disorder on or before September 11, 2003, such a health condition includes:
(i) Low back pain.
(ii) Carpal tunnel syndrome (CTS).
(iii) Other musculoskeletal disorders.
(2) [Reserved].
(d) Cancers:
(1) Malignant neoplasms of the lip; tongue; salivary gland; floor of mouth; gum and other mouth; tonsil; oropharynx; hypopharynx; and other oral cavity and pharynx.
(2) Malignant neoplasm of the nasopharynx.
(3) Malignant neoplasms of the nose; nasal cavity; middle ear; and accessory sinuses.
(4) Malignant neoplasm of the larynx.
(5) Malignant neoplasm of the esophagus.
(6) Malignant neoplasm of the stomach.
(7) Malignant neoplasms of the colon and rectum.
(8) Malignant neoplasms of the liver and intrahepatic bile duct.
(9) Malignant neoplasms of the retroperitoneum and peritoneum; omentum; and mesentery.
(10) Malignant neoplasms of the trachea; bronchus and lung; heart, mediastinum and pleura; and other ill-defined sites in the respiratory system and intrathoracic organs.
(11) Mesothelioma.
(12) Malignant neoplasms of the peripheral nerves and autonomic nervous system; and other connective and soft tissue.
(13) Malignant neoplasms of the skin (melanoma and non-melanoma), including scrotal cancer.
(14) Malignant neoplasm of the female breast.
(15) Malignant neoplasm of the ovary.
(16) Malignant neoplasm of the prostate.
(17) Malignant neoplasm of the urinary bladder.
(18) Malignant neoplasm of the kidney.
(19) Malignant neoplasms of the renal pelvis; ureter; and other urinary organs.
(20) Malignant neoplasms of the eye and orbit.
(21) Malignant neoplasm of the thyroid.
(22) Malignant neoplasms of the blood and lymphoid tissues (including, but not limited to, lymphoma, leukemia, and myeloma).
(23)
(24)
(e) Acute traumatic injuries:
(1) WTC-related acute traumatic injury is physical damage to the body caused by and occurring immediately after a one-time exposure to energy, such as heat, electricity, or impact from a crash or fall, resulting from a specific event or incident. For a WTC responder or screening-eligible or certified-eligible survivors who received any medical treatment for a WTC-related acute traumatic injury on or before September 11, 2003, such a health condition includes:
(i) Eye injury.
(ii) Burn.
(iii) Head trauma.
(iv) Fracture.
(v) Tendon tear.
(vi) Complex sprain.
(vii) Other similar acute traumatic injuries.
(2) [Reserved]
(a) Any interested party may submit a request to the Administrator of the WTC Health Program to add a condition to the List of WTC-Related Health Conditions in § 88.15. The Administrator will evaluate the submission to decide whether it is a valid petition.
(1) Each valid petition must include the following:
(i) An explicit statement of an intent to petition the Administrator to add a health condition to the List of WTC-Related Health Conditions;
(ii) Name, contact information, and signature of the interested party petitioning for the addition;
(iii) Name and/or description of the condition(s) to be added;
(iv) Reasons for adding the condition(s), including the medical basis for the association between the September 11, 2001, terrorist attacks and the condition(s) to be added.
(2) Not later than 90 calendar days after the receipt of a valid petition, the Administrator will take one of the following actions:
(i) Request a recommendation of the WTC Health Program Scientific/Technical Advisory Committee;
(ii) Publish in the
(iii) Publish in the
(iv) Publish in the
(3) The 90-day time period will not include any days during which the Administrator is consulting with the interested party to clarify the submission.
(4) The Administrator may consider more than one petition simultaneously when the petitions propose the addition of the same health condition. Scientific/Technical Advisory Committee recommendations and
(5) The Administrator will be required to consider a submission for a health condition previously reviewed by the Administrator and found not to qualify for addition to the List of WTC-Related Health Conditions as a valid new petition only if the submission presents a new medical basis (
(b) The Administrator may propose to add a condition to the List of WTC-Related Health Conditions in § 88.15 of this part by publishing a proposed rule in the
(1) If the Administrator requests a recommendation from the WTC Health Program Scientific/Technical Advisory Committee, the Advisory Committee will submit its recommendation to the Administrator no later than 90 calendar days after the date of the transmission of the request or no later than a date specified by the Administrator (but not more than 180 calendar days after the request). The Administrator will publish a proposed rule or a decision not to publish a proposed rule in the
(2) Before issuing a final rule to add a health condition to the List of WTC-Related Health Conditions, the Administrator will provide for an independent peer review of the scientific and technical evidence that would be the basis for issuing such final rule.
(a) A physician affiliated with either a CCE or NPN will promptly transmit to the WTC Health Program a determination that a member's exposure to airborne toxins, any other hazard, or any other adverse condition resulting from the September 11, 2001, terrorist attacks is substantially likely to be a significant factor in aggravating, contributing to, or causing the illness or health condition, including a mental health condition. The transmission will also include the basis for such determination. The physician's determination will be made based on an assessment of the following:
(1) The individual's exposure to airborne toxins, any other hazard, or any other adverse condition resulting from the September 11, 2001, terrorist attacks.
(2) The type of symptoms experienced by the individual and the temporal sequence of those symptoms.
(b) For a health condition medically associated with a WTC-related health condition, the physician's determination must contain information establishing how the health condition has resulted from treatment of a previously certified WTC-related health condition or how it has resulted from progression of the certified WTC-related health condition.
(a)
(b)
(1) In the course of review, the WTC Health Program may seek a recommendation about certification from a physician panel with appropriate expertise for the condition.
(2) [Reserved]
(c)
(a) The decertification of a WTC Health Program member's certified WTC-related health condition or health condition medically associated with a WTC-related health condition may be initiated by the WTC Health Program in the following circumstances:
(1) The WTC Health Program finds that the member's exposure is inadequate or is otherwise not covered;
(2) The WTC Health Program finds that the member's certified WTC-related health condition was certified in error or erroneously considered to have been aggravated, contributed to, or caused by exposure to airborne toxins, any other hazard, or any other adverse condition resulting from the September 11, 2001, terrorist attacks, pursuant to § 88.17(a); or
(3) The WTC Health Program finds that the member's health condition was erroneously determined to be medically associated with a WTC-related health condition, pursuant to § 88.17(b).
(b) A WTC Health Program member will be notified in writing by the WTC Health Program of a decertification decision, provided an explanation, as appropriate, for the decision, and provided information on how to appeal the decision. A WTC Health Program member whose WTC-related health condition or health condition medically associated with a WTC-related health condition is decertified may appeal the decertification decision in accordance with § 88.21 of this part.
(a)
(b)
(c)
(a)
(1) To deny certification of a health condition as a WTC-related health condition;
(2) To deny certification of a health condition as medically associated with a WTC-related health condition;
(3) To decertify a WTC-related health condition or a health condition medically associated with a WTC-related health condition; or
(4) To deny authorization of treatment for a certified health condition based on a finding that the treatment is not medically necessary.
(b)
(2) A valid request for an appeal must:
(i) Be made in writing and signed;
(ii) Identify the member and designated representative (if applicable);
(iii) Describe the decision being appealed and the reason(s) why the member or designated representative believes the decision is incorrect and should be reversed. The description may include, but is not limited to, the following: Scientific or medical information correcting factual errors that may have been submitted to the WTC Health Program by the CCE or NPN; information demonstrating that the WTC Health Program did not correctly follow or apply relevant WTC Health Program policies or procedures; or any information demonstrating that the WTC Health Program's decision was not reasonable given the facts of the case. The basis provided in the appeal request must be sufficiently detailed and supported by information to permit a review of the appeal. Any new information not previously considered by the WTC Health Program must be included with the appeal request, unless later requested by the WTC Health Program; and
(iv) Be sent to the WTC Health Program at the address specified in the notice of denial.
(3) The appeal request may also state an intent to make a 15-minute oral statement by telephone. The WTC Health Program member or designated representative will have a second opportunity to schedule an oral statement after being contacted by the WTC Health Program regarding the appeal.
(c)
(1) In conducting his or her review, the Federal Official will review the case record, including any oral statement made by the WTC Health Program member or the member's designated representative, as well as additional relevant new information submitted with the appeal request or provided by the WTC Health Program member or the member's designated representative at the request of the WTC Health Program.
(2) The Federal Official may consult one or more qualified experts to review the WTC Health Program's decision and any additional information provided by the WTC Health Program member or the member's designated representative. The expert reviewer(s) will submit their findings to the Federal Official.
(3) The Federal Official will provide his or her recommendation regarding the disposition of the appeal, including his or her findings and any supporting materials (including the transcript of any oral statement and any expert reviewers' findings), to the Administrator.
(d)
(1) The recommendation and findings made by the Federal Official as a result of the review;
(2) The Administrator's final decision on the appeal;
(3) An explanation of the reason(s) for the Administrator's final decision on the appeal; and
(4) Any administrative actions taken by the WTC Health Program in response to the Administrator's final decision.
(a)
(b)
(i) The Administrator will reimburse a CCE or NPN-affiliated provider for treatment for which FECA rates have not been established pursuant to the applicable Medicare fee for service rate, as determined appropriate by the Administrator.
(ii) The Administrator will reimburse a CCE or NPN-affiliated provider for treatment for which neither FECA nor Medicare fee for service rates have been established, at rates as determined appropriate by the Administrator.
(2) If the treatment is determined not to be medically necessary or is inconsistent with WTC Health Program protocols, the Administrator will withhold reimbursement.
(c)
After exhausting procedural and/or contractual administrative remedies, a CCE or NPN medical director or affiliated provider may submit a written appeal of a WTC Health Program decision to withhold reimbursement or payment for treatment found to be not medically necessary or not in accordance with approved WTC Health Program medical treatment protocols pursuant to § 88.20 of this part. Appeal procedures are published on the WTC Health Program Web site.
The WTC Health Program will attempt to recover the cost of payment for treatment, including pharmacy benefits, for a WTC Health Program member's certified WTC-related health condition or health condition medically associated with a WTC-related health condition by coordinating benefits with any workers' compensation insurance
(a) Where a WTC Health Program member's WTC-related health condition or health condition medically associated with a WTC-related health condition is eligible for workers' compensation or another illness or injury benefit plan to which New York City is obligated to pay, the WTC Health Program is the primary payer.
(b) Where a WTC Health Program member has filed a workers' compensation claim for a WTC-related health condition or health condition medically associated with a WTC-related health condition and the claim is pending, the WTC Health Program is the primary payer; however, if the claim is ultimately accepted by the workers' compensation board, the workers' compensation insurer in question is responsible for reimbursing the WTC Health Program for any treatment provided and/or paid for during the pendency of the claim.
(c) Where a WTC Health Program member has filed a workers' compensation claim for a WTC-related health condition or health condition medically associated with a WTC-related health condition, but a final decision is issued denying the compensation for the claim, the WTC Health Program is the primary payer.
(d) Where a WTC Health Program member has filed a workers' compensation claim for a WTC-related health condition or health condition medically associated with a WTC-related health condition with a workers' compensation plan to which New York City is not obligated to pay, the workers' compensation insurer is the primary payer. The WTC Health Program is the secondary payer.
(1) If a WTC Health Program member settles a workers' compensation claim by entering into a settlement agreement that releases the employer or insurance carrier from paying for future medical care, the settlement must protect the interests of the WTC Health Program. This may include setting aside adequate funds to pay for future medical expenses, as required by the WTC Health Program, which would otherwise have been paid by workers' compensation. In such situations, the WTC Health Program may require reimbursement for treatment services of a WTC-related health condition or health condition medically associated with a WTC-related health condition directly from the member.
(2) The WTC Health Program will pay providers for treatment in accordance with § 88.22(b); to the extent that the workers' compensation insurance pays for treatment at a lower rate, the WTC Health Program will recoup treatment costs at the workers' compensation insurance rate.
(e) Where a WTC Health Program member's WTC-related health condition or health condition medically associated with a WTC-related health condition is not work-related, the WTC Health Program member's public or private health insurance plan is the primary payer. The WTC Health Program will pay costs not reimbursed by the public or private health insurance plan due to the application of deductibles, co-payments, co-insurance, other cost sharing arrangements, or payment caps up to and in accordance with the rates described in § 88.22(b).
(f) Any coordination of benefits or recoupment situation not described in paragraphs (a) through (e) of this section will be handled pursuant to WTC Health Program policies and procedures, as found on the WTC Health Program Web site.
At any time, and without regard to whether new evidence or information is provided or obtained, the Administrator of the WTC Health Program may reopen any final decision made by the WTC Health Program pursuant to the provisions of this part. The Administrator may affirm, vacate, or modify such decision, or take any other action he or she deems appropriate.
| 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 |