| Page Range | 9331-9739 | |
| FR Document |
| Page and Subject | |
|---|---|
| 81 FR 9737 - Modifying and Continuing the National Emergency With Respect to Cuba and Continuing To Authorize the Regulation of the Anchorage and Movement of Vessels | |
| 81 FR 9517 - National Science Board: Sunshine Act Meetings; Notice | |
| 81 FR 9576 - CSX Transportation, Inc.-Discontinuance of Service Exemption-in Hamilton County, Ohio | |
| 81 FR 9505 - Government in the Sunshine Act Meeting Notice | |
| 81 FR 9481 - Medicare and Medicaid Programs: Continued Approval of the American Association for Accreditation of Ambulatory Surgery Facilities Rural Health Clinic Accreditation Program | |
| 81 FR 9483 - Health Insurance MarketplaceSM | |
| 81 FR 9465 - Notification of a Public Meeting of the Science and Information Subcommittee | |
| 81 FR 9515 - Proposal Review Panel for Materials Research; Notice of Meeting | |
| 81 FR 9516 - Proposal Review Panel for Materials Research; Notice of Meeting | |
| 81 FR 9514 - Proposal Review Panel for Materials Research; Notice of Meeting | |
| 81 FR 9515 - Proposal Review Panel for Materials Research Meeting | |
| 81 FR 9516 - Proposal Review Panel for Materials Research Meeting | |
| 81 FR 9339 - Air Quality: Revision to the Regulatory Definition of Volatile Organic Compounds-Requirements for t-Butyl Acetate | |
| 81 FR 9493 - Homeland Security Science and Technology Advisory Committee Meeting | |
| 81 FR 9494 - Intent To Request Renewal From OMB of One Current Public Collection of Information: Pipeline Operator Security Information | |
| 81 FR 9498 - Final Supplementary Rules for Public Lands Managed by the Moab and Monticello Field Offices in Grand and San Juan Counties, UT | |
| 81 FR 9426 - Certain New Pneumatic Off-The-Road Tires From India, the People's Republic of China, and Sri Lanka: Postponement of Preliminary Determinations of Countervailing Duty Investigations | |
| 81 FR 9428 - Truck and Bus Tires From the People's Republic of China: Initiation of Countervailing Duty Investigation | |
| 81 FR 9460 - Proposed Collection; Comment Request | |
| 81 FR 9427 - Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China: Final Results of the Changed Circumstances Review | |
| 81 FR 9434 - Truck and Bus Tires From the People's Republic of China: Initiation of Antidumping Duty Investigation | |
| 81 FR 9467 - Notice of Proposals To Engage in or To Acquire Companies Engaged in Permissible Nonbanking Activities | |
| 81 FR 9462 - Privacy Act of 1974; System of Records | |
| 81 FR 9464 - Proposed Collection; Comment Request | |
| 81 FR 9485 - Agency Information Collection Activities; Submission to OMB for Review and Approval; Public Comment Request | |
| 81 FR 9487 - Agency Information Collection Activities; Submission to OMB for Review and Approval; Public Comment Request | |
| 81 FR 9486 - Agency Information Collection Activities; Submission to OMB for Review and Approval; Public Comment Request | |
| 81 FR 9380 - Special Local Regulations and Safety Zones; Recurring Marine Events Held in the Coast Guard Sector Northern New England Captain of the Port Zone | |
| 81 FR 9491 - Submission for OMB Review; 30-Day Comment Request; Impact of Clinical Research Training and Medical Education at the NIH Clinical Center on Physician Careers in Academia and Clinical Research (CC) | |
| 81 FR 9490 - Submission for OMB Review; 30-Day Comment Request; CareerTrac | |
| 81 FR 9575 - Notice of a Public Meeting | |
| 81 FR 9583 - Petition for Waiver of Compliance | |
| 81 FR 9464 - Environmental Management Site-Specific Advisory Board, Nevada | |
| 81 FR 9580 - Agency Information Collection Activities; Extension of a Currently-Approved Information Collection Request: Transportation of Household Goods; Consumer Protection | |
| 81 FR 9467 - Lupin Ltd., Gavis Pharmaceuticals LLC, and Novel Laboratories, Inc.; Analysis To Aid Public Comment | |
| 81 FR 9469 - Hikma Pharmaceuticals PLC and C.H. Boehringer Sohn AG & Co. KG; Analysis To Aid Public Comment | |
| 81 FR 9461 - Privacy Act of 1974; System of Records | |
| 81 FR 9459 - Proposed Collection; Comment Request | |
| 81 FR 9582 - Agency Information Collection Activities; Extension of a Currently-Approved Information Collection Request: Financial Responsibility for Motor Carriers of Passengers and Motor Carriers of Property | |
| 81 FR 9413 - Standardized Bycatch Reporting Methodology | |
| 81 FR 9485 - Developing an Evidentiary Standards Framework for Safety Biomarkers Qualification; Public Workshop | |
| 81 FR 9519 - Nuclear Regulatory Commission Insider Threat Program Policy Statement | |
| 81 FR 9419 - Notice of the Advisory Committee on Biotechnology and 21st Century Agriculture Meeting | |
| 81 FR 9505 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Extension Without Change, of a Previously Approved Collection; Law Enforcement Officers Killed or Assaulted | |
| 81 FR 9518 - Clarification of Licensee Actions in Support of Enforcement Guidance for Tornado-Generated Missiles | |
| 81 FR 9561 - Securities Investor Protection Corporation | |
| 81 FR 9586 - Proposed Collection; Comment Request for Regulation Project | |
| 81 FR 9588 - Proposed Collection; Comment Request for Regulation Project | |
| 81 FR 9517 - Stepan Company | |
| 81 FR 9587 - Proposed Collection; Comment Request for Form 1045 | |
| 81 FR 9587 - Proposed Information Collection; Comment Request | |
| 81 FR 9495 - Endangered Species Recovery Permit Applications | |
| 81 FR 9576 - Grenada Railroad, LLC-Lease and Operation Exemption-Illinois Central Railroad Company | |
| 81 FR 9474 - Agency Forms Undergoing Paperwork Reduction Act Review | |
| 81 FR 9476 - Agency Forms Undergoing Paperwork Reduction Act Review | |
| 81 FR 9475 - Agency Forms Undergoing Paperwork Reduction Act Review | |
| 81 FR 9338 - Drawbridge Operation Regulation; Mantua Creek, Paulsboro, NJ | |
| 81 FR 9458 - Proposed Collection; Comment Request | |
| 81 FR 9440 - Mid-Atlantic Fishery Management Council (MAFMC); Meeting | |
| 81 FR 9338 - Drawbridge Operation Regulation; Chester River, Chestertown, MD | |
| 81 FR 9333 - Amendments to the Low-Income Housing Credit Compliance-Monitoring Regulations | |
| 81 FR 9379 - Amendments to the Low-Income Housing Credit Compliance-Monitoring Regulations | |
| 81 FR 9509 - Notice of Determinations Regarding Eligibility To Apply for Worker Adjustment Assistance | |
| 81 FR 9507 - Investigations Regarding Eligibility To Apply for Worker Adjustment Assistance | |
| 81 FR 9506 - Simpson Lumber Company LLC, John's Prairie Operations Division, Shelton, Washington; Simpson Lumber Company LLC Sawmill and Mill #5, Including On-Site Leased Workers of Express Employment Services, Shelton, Washington; Interfor Corporation, NW Region-Tacomas; F/K/A Simpson Lumber Company, Inc.; Including On-Site Leased Workers From Almond and Associates and Optistaff; Including Workers Whose Unemployment Insurance (UI) Wages Are Reported Through Simpson Lumber Company, Inc.; Tacoma Washington; Amended Certification Regarding Eligibility To Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance | |
| 81 FR 9497 - Endangered Species; Receipt of Applications for Permit | |
| 81 FR 9440 - Takes of Marine Mammals Incidental to Specified Activities; St. George Reef Light Station Restoration and Maintenance at Northwest Seal Rock, Del Norte County, California | |
| 81 FR 9447 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to a Dock Replacement Project | |
| 81 FR 9363 - Special Conditions: Lufthansa Technik AG; Boeing Model 747-8 Series Airplanes, Large Non-Structural Glass in the Passenger Compartment | |
| 81 FR 9365 - Special Conditions: L-3 Communications Integrated Systems; Boeing Model 747-8 Series Airplanes, Large Non-Structural Glass in the Passenger Compartment | |
| 81 FR 9491 - National Institute of Allergy and Infectious Diseases; Notice of Closed Meeting | |
| 81 FR 9492 - National Institute on Aging; Notice of Closed Meetings | |
| 81 FR 9493 - National Institute of General Medical Sciences; Notice of Closed Meeting | |
| 81 FR 9488 - Center for Scientific Review; Notice of Closed Meetings | |
| 81 FR 9492 - National Human Genome Research Institute; Notice of Closed Meeting | |
| 81 FR 9491 - Government-Owned Inventions; Availability for Licensing | |
| 81 FR 9473 - Disease, Disability, and Injury Prevention and Control Special Emphasis Panel (SEP): Initial Review | |
| 81 FR 9481 - Disease, Disability, and Injury Prevention and Control Special Emphasis Panel (SEP): Initial Review | |
| 81 FR 9506 - 180th Meeting of the Advisory Council on Employee Welfare and Pension Benefit Plans Notice of Meeting | |
| 81 FR 9513 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Provider Enrollment Form | |
| 81 FR 9513 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Health Insurance Claim Form | |
| 81 FR 9578 - Petition for Exemption; Summary of Petition Received; Liberty Mutual Insurance Company | |
| 81 FR 9577 - Petition for Exemption; Summary of Petition Received; SEESPAN, Inc. | |
| 81 FR 9422 - Submission for OMB Review; Comment Request | |
| 81 FR 9579 - Petition for Exemption; Summary of Petition Received; Helicopters West Aerospace LLC | |
| 81 FR 9580 - Petition for Exemption; Summary of Petition Received; Gulfstream Aerospace Corporation | |
| 81 FR 9578 - Government/Industry Aeronautical Charting Forum Meeting | |
| 81 FR 9520 - Product Change-First-Class Package Service Negotiated Service Agreement | |
| 81 FR 9420 - Office of the Chief Financial Officer; Submission for OMB Review; Comment Request | |
| 81 FR 9423 - Submission for OMB Review; Comment Request | |
| 81 FR 9521 - Product Change-First-Class Package Service Negotiated Service Agreement | |
| 81 FR 9433 - Proposed Information Collection; Comment Request; Interim Procedures for Considering Requests From the Public for Textile and Apparel Safeguard Actions on Imports From Panama | |
| 81 FR 9432 - Proposed Information Collection; Comment Request; Interim Procedures for Considering Requests Under the Commercial Availability Provision of the United States-Panama Trade Promotion Agreement (U.S.-Panama TPA) | |
| 81 FR 9520 - Product Change-Priority Mail Negotiated Service Agreement | |
| 81 FR 9577 - Petition for Exemption; Summary of Petition Received; M3 Consulting Group, LLC | |
| 81 FR 9585 - Agency Information Collection Activities: Information Collection Renewal; Submission for OMB Review; Interagency Appraisal Complaint Form | |
| 81 FR 9584 - Agency Information Collection Activities: Information Collection Renewal; Comment Request; Disclosure of Financial and Other Information by National Banks | |
| 81 FR 9465 - Notice of Issuance of Statement of Federal Financial Accounting Standards 48 | |
| 81 FR 9579 - Petition for Exemption; Summary of Petition Received; Leading Edge Associates, Inc. | |
| 81 FR 9472 - Federal Management Regulation; Redesignation of Federal Building | |
| 81 FR 9563 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending the NYSE Listed Company Manual To Adopt a Requirement That Listed Foreign Private Issuers Must, at a Minimum, Submit a Form 6-K to the Securities and Exchange Commission Containing Semi-Annual Unaudited Financial Information | |
| 81 FR 9573 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Rule 7.31P(a)(2)(C) Relating to Repricing Events | |
| 81 FR 9550 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing of a Proposed Rule Change To Reduce the Synchronization Tolerance for Computer Clocks That Are Used To Record Events in NMS Securities and OTC Equity Securities | |
| 81 FR 9533 - Self-Regulatory Organizations; C2 Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 8.2 | |
| 81 FR 9424 - Proposed Information Collection; Comment Request; 2017 Economic Census, Industry Classification Report | |
| 81 FR 9360 - Television Market Modification; Statutory Implementation | |
| 81 FR 9410 - Cost Standards and Procedures; Property Acquisition and Management Manual | |
| 81 FR 9557 - Self-Regulatory Organizations; BOX Options Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the Fee Schedule To Eliminate Certain Fees Which Relate to the Series 56 Examination and To Include Certain Fees Which Relate to Series 57 Examination and Continuing Education | |
| 81 FR 9575 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Designation of a Longer Period for Commission Action on Proposed Rule Change, as Modified by Amendment Nos. 1 and 2 Thereto, Relating to the Listing and Trading of the Shares of the First Trust RiverFront Dynamic Europe ETF, First Trust RiverFront Dynamic Asia Pacific ETF, First Trust RiverFront Dynamic Emerging Markets ETF, and First Trust RiverFront Dynamic Developed International ETF of First Trust Exchange-Traded Fund III | |
| 81 FR 9559 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Nasdaq Rule 5940 To Adopt Entry and Annual Fees for NextShares | |
| 81 FR 9570 - Self-Regulatory Organizations; EDGA Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change to Rule 11.6, Definitions, To Amend the Operation of Orders With a Non-Displayed Instruction and Orders With Reserve Quantity | |
| 81 FR 9571 - Self-Regulatory Organizations; EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change to Rule 11.6, Definitions, To Amend the Operation of Orders With a Non-Displayed Instruction and Orders With Reserve Quantity | |
| 81 FR 9568 - Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change to Rule 11.13(b)(3)(H), Order Execution and Routing, To Amend the Operation of Non-Displayed Orders and Reserve Orders | |
| 81 FR 9556 - Self-Regulatory Organizations; BATS Y-Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change to Rule 11.13(b)(3)(H), Order Execution and Routing, To Amend the Operation of Non-Displayed Orders and Reserve Orders | |
| 81 FR 9531 - Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to Partnerships | |
| 81 FR 9532 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Designation of a Longer Period for Commission Action on a Proposed Rule Change, as Modified by Amendment Nos. 1 and 2, To List and Trade of Shares of RiverFront Dynamic Unconstrained Income ETF and RiverFront Dynamic Core Income ETF Under NYSE Arca Equities Rule 8.600 | |
| 81 FR 9535 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change To List and Trade Shares of RiverFront Dynamic US Dividend Advantage ETF and RiverFront Dynamic US Flex-Cap ETF Under NYSE Arca Equities Rule 8.600 | |
| 81 FR 9543 - Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change to Rules 8.15, Imposition of Fines for Minor Violation(s) of Rules, and 25.3, Penalty for Minor Rule Violations, To Amend the Minor Rule Violation Plan | |
| 81 FR 9566 - Self-Regulatory Organizations; EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change to Rules 8.15, Imposition of Fines for Minor Violation(s) of Rules, and 25.3, Penalty for Minor Rule Violations, Amending the Exchange's Minor Rule Violation Plan | |
| 81 FR 9545 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing of a Proposed Rule Change To Amend FINRA Rules 7410 (Definitions) and 7440 (Recording of Order Information) | |
| 81 FR 9521 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change Relating to Listing and Trading of Shares of the JPMorgan Diversified Alternative ETF Under NYSE Arca Equities Rule 8.600 | |
| 81 FR 9466 - Order Declares Ocean Technology Limited's International Section 214 Authorization Terminated | |
| 81 FR 9425 - Regulations and Procedures Technical Advisory Committee; Notice of Partially Closed Meeting | |
| 81 FR 9426 - President's Export Council; Subcommittee on Export Administration; Notice of Open Meeting | |
| 81 FR 9472 - Request for Nominations of Candidates To Serve on the World Trade Center Health Program Scientific/Technical Advisory Committee (the STAC or the Committee), Centers for Disease Control and Prevention, Department of Health and Human Services | |
| 81 FR 9480 - World Trade Center Health Program Scientific/Technical Advisory Committee (WTCHP STAC or Advisory Committee), National Institute for Occupational Safety and Health (NIOSH) | |
| 81 FR 9479 - Request for Nominations of Candidates To Serve on the Board of Scientific Counselors, Office of Public Health Preparedness and Response (BSC, OPHPR) | |
| 81 FR 9477 - National Center for Health Statistics (NCHS), Classifications and Public Health Data Standards Staff, Announces the Following Meeting | |
| 81 FR 9477 - Healthcare Infection Control Practices Advisory Committee (HICPAC) | |
| 81 FR 9478 - Advisory Board on Radiation and Worker Health (ABRWH or Advisory Board), National Institute for Occupational Safety and Health (NIOSH) | |
| 81 FR 9481 - Clinical Laboratory Improvement Advisory Committee, Centers for Disease Control and Prevention: Notice of Charter Renewal | |
| 81 FR 9463 - Judicial Proceedings Since Fiscal Year 2012 Amendments Panel (Judicial Proceedings Panel); Notice of Federal Advisory Committee Meeting | |
| 81 FR 9494 - National Infrastructure Advisory Council | |
| 81 FR 9482 - Agency Information Collection Activities: Proposed Collection; Comment Request; Correction | |
| 81 FR 9425 - Proposed Information Collection; Comment Request; BIS Program Evaluation | |
| 81 FR 9353 - Triclopyr; Pesticide Tolerances | |
| 81 FR 9397 - Approval and Promulgation of Air Quality Implementation Plans; State of Missouri; Emissions Inventory and Emissions Statement for the Missouri Portion of the St. Louis MO-IL Ozone Nonattainment Area | |
| 81 FR 9346 - Approval and Promulgation of Air Quality Implementation Plans; State of Missouri; Emissions Inventory and Emissions Statement for the Missouri Portion of the St. Louis MO-IL Ozone Nonattainment Area | |
| 81 FR 9343 - Approval and Promulgation of Air Quality Implementation Plans; State of Utah; Revisions to the Utah Division of Administrative Rules, R307-300 Series; Area Source Rules for Attainment of Fine Particulate Matter Standards | |
| 81 FR 9398 - Approval and Promulgation of Implementation Plans; North Carolina; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standard | |
| 81 FR 9391 - Air Plan Approval; Indiana; Removal of Stage II Gasoline Vapor Recovery Requirements | |
| 81 FR 9395 - Air Plan Approval; Indiana; Commissioner's Orders for A.B. Brown and Clifty Creek | |
| 81 FR 9331 - Airworthiness Directives; MD Helicopters Inc., Helicopters | |
| 81 FR 9421 - Land Between The Lakes Advisory Board | |
| 81 FR 9407 - Clarification of Requirements for Method 303 Certification Training | |
| 81 FR 9350 - Clarification of Requirements for Method 303 Certification Training | |
| 81 FR 9592 - Establishing Paid Sick Leave for Federal Contractors | |
| 81 FR 9374 - Airworthiness Directives; Airbus Airplanes | |
| 81 FR 9367 - Airworthiness Directives; The Boeing Company Airplanes | |
| 81 FR 9370 - Airworthiness Directives; The Boeing Company Airplanes | |
| 81 FR 9446 - National Sea Grant Advisory Board | |
| 81 FR 9421 - Ketchikan Resource Advisory Committee | |
| 81 FR 9674 - Resource Management Planning |
Forest Service
National Agricultural Statistics Service
Rural Business-Cooperative Service
Rural Utilities Service
Census Bureau
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Army Department
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Food and Drug Administration
National Institutes of Health
Coast Guard
Transportation Security Administration
Fish and Wildlife Service
Land Management Bureau
Employee Benefits Security Administration
Employment and Training Administration
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
Comptroller of the Currency
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.thefederalregister.org and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for MD Helicopters, Inc. (MDHI), Model 369A, 369D, 369E, 369FF, 369HE, 369HM, 369HS, 500N, and 600N helicopters with a certain part-numbered main rotor blade attach pin (pin) installed. This AD requires ensuring the life limit of the pin as listed in the Airworthiness Limitations section of aircraft maintenance records and Instructions for Continued Airworthiness (ICA). If the hours time-in-service (TIS) of a pin is unknown, or if a pin has exceeded its life limit, this AD requires removing the affected pin from service. This AD was prompted by a report from an operator who purchased pins that did not have life limit documentation. These actions are intended to document the life limit to prevent a pin remaining in service beyond its fatigue life, which could result in failure of a pin, failure of a main rotor blade, and subsequent loss of control of the helicopter.
This AD is effective March 31, 2016.
For service information identified in this final rule, contact Aerometals, 3920 Sandstone Dr., El Dorado Hills, CA 95762, telephone (916) 939-6888, fax (916) 939-6555,
You may examine the AD docket on the Internet at
Galib Abumeri, Aviation Safety Engineer, Los Angeles Aircraft Certification Office, Transport Airplane Directorate, FAA, 3960 Paramount Blvd., Lakewood, California 90712; telephone (562) 627-5324; email
On September 2, 2015, at 80 FR 53028, the
Aerometals produces pin P/N 369X1004-5 under a parts manufacturer approval as a replacement pin for MDHI P/N 369A1004-5. The NPRM was prompted by a report from an operator who purchased Aerometals' pins P/N 369X1004-5 without life limit documentation. The FAA inadvertently approved the pins without a life limit in the Airworthiness Limitations section and without a restriction for parts that are interchanged between models with different life limits. A total of 5,133 affected pins were sold by Aerometals without any indication that the parts were life-limited. The proposed requirements were intended to correct the failure of these parts to have a documented life limit to prevent a pin remaining in service beyond its fatigue life, which could result in failure of a pin, failure of a main rotor blade, and subsequent loss of control of the helicopter.
After our NPRM (80 FR 53028, September 2, 2015) was published, we received a comment from one commenter supporting the NPRM.
We have reviewed the relevant information and determined that an unsafe condition exists and is likely to exist or develop on other products of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed.
Aerometals has issued Aero-ICA-1001 Supplemental Instructions for Continued Airworthiness, Revision NC, dated May 22, 2014, and Service Bulletin Aero-SB-1103, dated July 2, 2014. The service bulletin specifies determining whether the helicopter has pins P/N 369X1004-5 installed and then reviewing the aircraft maintenance records to determine if the pins have a life limit identified. If the life limit is not the same as that listed in the ICA,
We estimate that this AD will affect 118 helicopters of U.S. Registry. We estimate that operators may incur the following costs in order to comply with this AD. Labor costs are estimated at $85 per work-hour. We estimate 1/2 work-hour to inspect and record any update for a total of $42.50 per helicopter and $5,015 for the U.S. fleet. If required, we estimate 1 work-hour per helicopter to replace 10 pins because each blade has 2 pins and each helicopter has 5 blades. Required parts are $445 for each pin. Based on these estimates, it will cost $4,535 per helicopter to replace 10 pins if the pins have exceeded their life limit.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866;
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD applies to Model 369A, 369D, 369E, 369FF, 369HE, 369HM, 369HS, 500N, and 600N helicopters with an Aerometals main rotor blade attach pin (pin) part number (P/N) 369X1004-5 installed, certificated in any category.
This AD defines the unsafe condition as a pin remaining in service beyond its fatigue life. This condition could result in failure of a pin, loss of a main rotor blade, and subsequent loss of control of the helicopter.
This AD becomes effective March 31, 2016.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
(1) Within 100 hours time-in-service (TIS) or during the next annual inspection, whichever occurs first:
(i) Review the maintenance records and determine the hours TIS of each pin P/N 369X1004-5 and whether there is a pin life limit listed in the Airworthiness Limitations Section of the applicable maintenance manual or Instructions for Continued Airworthiness (ICA). If the hours TIS on a pin is unknown, remove the pin from service.
(ii) For Model 369A, 369HE, 369HM, and 369HS helicopters, if there is no pin life limit, establish a new life limit of 5,760 hours TIS for each pin P/N 369X1004-5 by making pen-and-ink changes or by inserting a copy of this AD into the Airworthiness Limitations Section of the maintenance manual or the ICA. Remove from service any pin that has 5,760 or more hours TIS.
(iii) For Model 369D, 369E, 369FF, 500N, and 600N helicopters, if there is no pin life limit, establish a new life limit of 7,600 hours TIS for each pin P/N 369X1004-5 by making pen-and-ink changes or by inserting a copy of this AD into the Airworthiness Limitations Section of the maintenance manual or the ICA. Remove from service any pin that has 7,600 or more hours TIS.
(iv) For all model helicopters, add the following statement to the Airworthiness Limitations Section of the maintenance manual or the ICA by making pen-and-ink changes or by inserting a copy of this AD: If interchanged between different model helicopters, the life limit of pin P/N 369X1004-5 must be restricted to the lowest life limit indicated for the helicopter models and serial numbers affected.
(2) Do not install a pin P/N 369X1004-5 on any helicopter before the requirements of this AD have been accomplished.
(1) The Manager, Los Angeles Aircraft Certification Office, FAA, may approve AMOCs for this AD. Send your proposal to: Galib Abumeri, Aviation Safety Engineer, Transport Airplane Directorate, FAA, 3960 Paramount Blvd., Lakewood, California 90712; telephone (562) 627-5324 or email at
(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC.
Aerometals Service Bulletin Aero-SB-1103, dated July 2, 2014, and Aerometals Aero-ICA-101 Supplemental Instructions for Continued Airworthiness, Revision NC, dated May 22, 2014, which are not incorporated by reference, contain additional information about the subject of this final rule. For service information identified in this final rule, contact Aerometals, 3920 Sandstone Dr., El Dorado Hills, CA 95762, telephone (916) 939-6888, fax (916) 939-6555,
Joint Aircraft Service Component (JASC) Code: 6210 Main Rotor Blades.
Internal Revenue Service (IRS), Treasury.
Final and temporary regulations.
This document contains final and temporary regulations relating to the compliance-monitoring duties of a State or local housing credit agency for purposes of the low-income housing credit. The final and temporary regulations revise and clarify the requirement to conduct physical inspections and review low-income certifications and other documentation. The final and temporary regulations will affect State or local housing credit agencies. The text of these temporary regulations also serves as the text of the proposed regulations (REG-150349-12) set forth in the notice of proposed rulemaking on this subject in the Proposed Rules section in this issue of the
Jian H. Grant, (202) 317-4137, and Martha M. Garcia, (202) 317-6853 (not toll-free numbers).
This document amends 26 CFR part 1 to revise and clarify rules relating to section 42 of the Internal Revenue Code (Code). On March 5, 2012, the Treasury Department and the IRS published Notice 2012-18, 2012-10 IRB 438. Notice 2012-18 informed State and local housing credit agencies participating in a physical inspections pilot program of an alternative method for satisfying certain inspection and review responsibilities under § 1.42-5(c)(2) for projects for which the Department of Housing and Urban Development (HUD) conducted physical inspections.
This document also updates the authority citation of 26 CFR part 1. The Omnibus Budget Reconciliation Act of 1989 (Pub. L. 101-239) re-designated section 42(m) of the Code as section 42(n). The updates in this document reflect that re-designation.
Section 42 provides rules for determining the amount of the low-income housing credit, which section 38 allows as a credit against income tax. Section 42(a) provides that the amount of the low-income housing credit for any taxable year in the credit period is an amount equal to the applicable percentage of the qualified basis of each qualified low-income building. Section 42(c)(2) defines a qualified low-income building as any building that is part of a qualified low-income housing project at all times during the compliance period (the period of 15 taxable years beginning with the first taxable year of the credit period).
Section 42(g)(1) defines a qualified low-income housing project as any project for residential rental property if the project meets one of the following tests, as elected by the taxpayer:
(A) At least 20 percent of the residential units in the project are rent-restricted and occupied by individuals whose income is 50 percent or less of area median gross income; or
(B) At least 40 percent of the residential units in the project are rent-restricted and occupied by individuals whose income is 60 percent or less of area median gross income.
In general, under section 42(i)(3)(A), a low-income unit is a residential unit that is rent-restricted and the occupants of which meet the applicable income limit elected by the taxpayer as described in section 42(g)(1)(A) or (B).
Under section 42(i)(3)(B)(i), a unit is not treated as a low-income unit unless it is suitable for occupancy and used other than on a transient basis. Under section 42(i)(3)(B)(ii), the suitability of a unit for occupancy must be determined under regulations prescribed by the Secretary taking into account local health, safety, and building codes. Failure of one or more units to qualify as low-income units may result in a project's ineligibility for the low-income housing credit, reduction in the amount of the credit, and/or recapture of previously allowed credits.
Under section 42(m)(1), the owners of an otherwise-qualifying building are not entitled to low-income housing credits that are allocated to the building unless, among other requirements, the allocation is pursuant to a qualified allocation plan (QAP). A QAP provides standards by which a State or local housing credit agency or its Authorized Delegate within the meaning of § 1.42-5(f)(1) (“Agency”) will make these allocations. A QAP also provides a procedure that an Agency must follow in monitoring for compliance with the provisions of section 42. A plan fails to be a QAP unless, in addition to other requirements, it—
Section 1.42-5 (the compliance-monitoring regulations) describes some of the provisions that must be part of any QAP. As part of its compliance-monitoring responsibilities, an Agency must perform physical inspections and low-income certification review.
The compliance-monitoring regulations specifically provide that, for each low-income housing project, an Agency must conduct on-site inspections of all buildings by the end of the second calendar year following the year the last building in the project is placed in service (the all-buildings requirement). In addition, prior to the amendments in this document, the regulations provided that, for at least 20 percent of the project's low-income units (the 20-percent rule), the Agency must both inspect the units and review the low-income certifications, the documentation supporting the certifications, and the rent records for the tenants in those same units (the same-units requirement). The
Notice 2012-18 asked whether the 20-percent rule for both physical inspections and low-income certification review is appropriate, including whether this percentage appropriately balances the IRS's compliance concerns against the desirability of reducing the inspection burden on Agencies, tenants, and building owners; whether the percentage should vary depending on the type of inspection the Agencies are performing; and whether the percentage should vary with the number of units in a building.
Notice 2012-18 also asked whether the regulations should provide an exception from the inspection provisions of § 1.42-5(d) for inspections done under the HUD Real Estate Assessment Center protocol (REAC protocol) similar to the exception under § 1.42-5(d)(3) for inspections performed by the Rural Housing Service under the section 515 program. Notice 2012-18 had permitted use of the REAC protocol by participants in an inter-Departmental physical inspections pilot program that sought to align the section 42 physical inspection requirements with the physical inspection requirements under HUD programs.
Several commenters asserted that the 20-percent rule is appropriate. Others claimed that it is overly burdensome for larger properties (30 units or more). Several commenters suggested that the regulations permit an Agency to satisfy the physical inspection requirement by using the REAC protocol. These commenters generally suggested that availability of the REAC protocol for physical inspections would promote flexibility and lessen burden. Allowing an Agency to use the REAC protocol for purposes of the section 42 physical inspection requirements would eliminate the need for multiple Federal inspections on the same property if the property also benefits from HUD programs. Additionally, for larger properties, the minimum number of low-income units that an Agency must inspect under the REAC protocol may be fewer than under the 20-percent rule.
In response to the comments received, the final and temporary regulations authorize the IRS to specify in guidance published in the Internal Revenue Bulletin the minimum number of low-income units for which an Agency must conduct physical inspections and low-income certification review. Rev. Proc. 2016-15, which is being issued concurrently with these regulations, provides that, in a low-income housing project, the minimum number of low-income units that must undergo physical inspection is the lesser of 20 percent of the low-income units in the project, rounded up to the nearest whole number of units, or the number of low-income units set forth in the Low-Income Housing Credit Minimum Unit Sample Size Reference Chart in the revenue procedure. The revenue procedure applies the same rule to determine the minimum number of units that must undergo low-income certification review. An Agency is free to conduct physical inspections or low-income certification review on a larger number of low-income units if it believes that to be appropriate.
The Treasury Department and the IRS, however, are concerned about application of this 20 percent rule in some situations. For projects with a relatively smaller number of low-income units, physical inspection or low-income certification review of a randomly chosen 20 percent of those units may not produce a sufficiently accurate estimate of the remaining units' overall compliance with habitability or low-income requirements. Accordingly, not later than when these temporary regulations are finalized, the Treasury Department and the IRS intend to consider whether Rev. Proc. 2016-15 should be replaced with a revenue procedure that does not permit use of the 20 percent rule in those circumstances.
In response to Notice 2012-18's request for comments on whether the IRS should provide an exception from the inspection provisions of § 1.42-5(d) for inspections done under the REAC protocol, commenters generally supported creating such an exception. The final and temporary regulations, however, do not fully adopt this suggestion. Instead, the regulations authorize the IRS to provide in guidance published in the Internal Revenue Bulletin exceptions from, or alternative means of satisfying, the inspection provisions of § 1.42-5(d). Rev. Proc. 2016-15 provides that the REAC protocol is among the inspection protocols that satisfy both § 1.42-5(d) and the physical inspection requirements of § 1.42-5T(c)(2)(ii) and (iii). The revenue procedure contains a rigorous definition of which inspection regimes it will treat as being the REAC protocol for this purpose. Comments are requested on all aspects of the provisions in the revenue procedure that define “performed under the REAC protocol” for purposes of satisfying §§ 1.42-5(d) and 1.42-5T(c)(2)(ii) and (iii).
Because vacant low-income units contribute to a building's qualified basis, both occupied and vacant low-income units in a low-income housing project must be included in the population of units from which units are selected for inspection. This is the case even if the vacant unit or units may be temporarily unsuitable for occupancy as a result of work that is being done to repair or rehabilitate the unit or units. See § 1.42-5(e)(4). Potential inspection of vacant units is the rule for all compliance-monitoring inspections that do not use the REAC protocol, and Rev. Proc. 2016-15 therefore requires similar treatment when an Agency conducts a physical inspection under the REAC protocol.
Some commenters recommended using a risk-based assessment model in place of the 20-percent rule. Such a model would determine the frequency of inspections and the number of low-income units to inspect based on the probability of noncompliance of a low-income housing project. The probability of noncompliance would be determined for this purpose by the degree of compliance of the project over one or more prior years. The final and temporary regulations do not adopt this approach. However, in response to the request for comments on these temporary regulations, commenters wishing to renew this suggestion should provide both greater detail regarding the suggested risk-based procedure and a thorough justification for that procedure, including why a multi-year approach fits within the compliance requirements of section 42.
Several commenters suggested modifying the 20-percent rule by requiring more units for the initial physical inspection than for the subsequent physical inspections on the ground that a comprehensive initial physical inspection establishes a baseline of compliance for a low-income housing project. By contrast, some commenters suggested requiring more units for the subsequent physical inspections, asserting that the quality of compliance of a low-income housing project often decreases after the initial physical inspection. These comments, however, did not provide sufficient analysis to justify increasing the number of units to be inspected in either the initial or a subsequent inspection. Without a reasonable basis for doing so, requiring more units for either the initial or subsequent inspections would unreasonably increase the administrative burden on Agencies, owners, and tenants of low-income housing projects. The final and temporary regulations, therefore, do not adopt these suggestions. Commenters wishing to renew either of these suggestions should provide both greater detail and a thorough justification for the suggestion.
On the question of whether the required percentage of low-income units should vary depending on the type of compliance review (physical inspection or low-income certification review), one commenter recommended against a varying percentage, stating that there is no compelling reason for the required percentage to vary. A second commenter suggested that, in order to assess tenant eligibility, an Agency should review more than 20 percent of the low-income certifications because noncompliance relating to tenant eligibility may be harder to detect than noncompliance relating to habitability. The final and temporary regulations adopt the first commenter's suggestion. Just as an Agency may always physically inspect more than the minimum number of units, if an Agency deems it appropriate, the Agency may always review more than the minimum number of low-income certifications in a project to assess tenant eligibility. Commenters wishing to renew comments on this issue should provide both greater detail and a thorough justification for their suggestion.
Two commenters suggested that the regulations not impose an all-buildings requirement for physical inspection, but merely require an Agency to apply the physical inspection and low-income certification review requirements on a project-wide basis. According to these commenters, an all-buildings requirement can make the inspection process overly burdensome, particularly in rural areas where projects often consist of small buildings such as single-unit buildings, duplexes, or triplexes. The final and temporary regulations do not fully adopt this suggestion. The regulations continue to require that Agencies comply with the all-buildings requirement unless guidance published in the Internal Revenue Bulletin pursuant to § 1.42-5T(a)(iii) provides otherwise.
Rev. Proc. 2016-15 does provide for such an exception. Under Rev. Proc. 2016-15, the all-buildings requirement does not apply to an Agency that uses the REAC protocol, under HUD oversight, to satisfy the physical inspection requirement (although the REAC protocol itself may require inspection of all buildings in certain cases). The rigor with which Rev. Proc. 2016-15 defines the REAC protocol justifies this exception. Among the requirements set forth in the revenue procedure is the requirement that a physical inspection performed under the REAC protocol utilize the standards adopted, and inspectors certified, by HUD. Inspections performed under the REAC protocol or by the Rural Housing Service under the section 515 program require federal agency oversight. Thus, such oversight substitutes for an all-buildings requirement for inspection. Similar to inspections performed by the Rural Housing Service under the section 515 program, inspections performed under the REAC protocol are not subject to an all-buildings requirement. A physical inspection that the revenue procedure treats as being performed under the REAC protocol also involves the use of the most recent REAC UPCS inspection software, which has a strong statistical basis. Therefore, under the revenue procedure, the REAC protocol is an acceptable method for satisfying both § 1.42-5(d) and the physical inspection requirement of § 1.42-5T(c)(2)(ii) and (iii). If, in the future, the Treasury Department and the IRS become persuaded that there are one or more additional suitable alternatives to the all-buildings requirement, they may provide one or more additional exceptions to that requirement.
A commenter suggested that the regulations permit an Agency to treat multiple buildings with a common owner and plan of financing as a single low-income housing project, regardless of whether the owner has elected this treatment under section 42(g)(3)(D). The final and temporary regulations do not adopt this suggestion. Section 42(c)(2)(A) defines a “qualified low-income building” as, in part, any building that is part of a qualified low-income housing project at all times throughout the compliance period. Section 42(g) defines a “qualified low-income housing project” as any project for residential rental property if the project meets the requirements of section 42(g)(1)(A) or (B), whichever is elected by the taxpayer. The scope of the term “qualified low-income housing project” for purposes of physical inspections should be the same as for other purposes under section 42.
Notice 2012-18 asked for comments on whether permitting physical inspection and low-income certification review of different low-income units (that is, ending the same-units requirement) would simplify the inspection process. The notice also asked for comments on whether ending the requirement would impair the value of the data obtained. One commenter asserted that the current rule of requiring physical inspection and low-income certification review of the same low-income units is effective in finding noncompliance on a particular unit. Most commenters, however, believed that decoupling of the physical inspection and low-income certification review requirements would reduce the administrative burden, better preserve the surprise element, and likely increase the coverage of compliance-monitoring.
In response to these comments, the final and temporary regulations end the same-units requirement by decoupling the physical inspection and low-income certification review. Therefore, an Agency is no longer required to conduct physical inspection and low-income certification review on the same units. Because the units no longer need to be the same, an Agency may choose a different number of units for physical inspection and for low-income certification review, provided the Agency chooses at least the minimum number of low-income units in each case. If an Agency chooses to select different low-income units for physical inspections and low-income certification review, the Agency must select the units for physical inspection or low-income certification review separately and in a random manner.
Further, because the units no longer need to be the same, an Agency may choose to conduct physical inspection and low-income certification review at different times. For example, if HUD requires a physical inspection only two years after a joint HUD/low-income
In addition, to make meaningful the physical inspection and low-income certification review, the final and temporary regulations retain the random-selection rule and strengthen the no-notice rule. Accordingly, if an agency decides to decouple the physical inspection and low-income certification review, the Agency may not allow selection of a low-income unit for physical inspection (or low-income certification review) to influence the likelihood that the same unit will be selected (or will not be selected) for low-income certification review (or physical inspection).
Whether or not an Agency is selecting the same units for inspection and for low-income certification review, the Agency may give an owner reasonable notice that an inspection of the building and low-income units or review of low-income certifications will occur. This notice enables the owner to notify tenants of the inspection or to assemble low-income certifications for review. The regulations provide that reasonable notice is generally no more than 30 days, but they also provide a very limited extension for certain extraordinary circumstances beyond an Agency's control such as natural disasters and severe weather conditions.
Thus, under the final and temporary regulations, if an Agency chooses to select the same units for physical inspections and low-income certification review, the Agency may conduct physical inspections and low-income certification review either at the same time or separately. However, once the Agency informs the owner of the identity of the units for which physical inspections or low-income certification review will occur, the Agency must conduct the physical inspections and low-income certification review within the reasonable-notice time frame described in the preceding paragraph.
Comments are requested on these aspects of the regulations. For example, comments are requested on whether the same maximum amount of notice is reasonable for physical inspections and low-income certification review. Comments are also requested on whether, for physical inspections, the reasonable-notice time frame should be shortened. For example, under the REAC protocol, an inspector provides a 15-day notice of an upcoming HUD inspection to the owner and/or manager of the building and same-day notice of which units are to be inspected.
The Treasury Department and the IRS believe the methods in Rev. Proc. 2016-15 reasonably balance the burden on Agencies, tenants, and building owners while adequately monitoring compliance. However, additional comments may be submitted on other possible methods, including stratified sampling procedures and estimation methodologies. To be useful, any such comments should include substantial detail regarding the procedures to be adopted and should provide thorough justification as to whether the suggested methods effectively reduce burden without negatively impacting the confidence that can be placed in the results obtained from the resulting samples.
The final and temporary regulations revise the rules currently in § 1.42-5(c)(3) to clarify that a monitoring procedure must require that the owner certifications in § 1.42-5(c)(1) be made to and reviewed by the Agency at least annually covering each year of the 15-year compliance period.
The temporary regulations apply on February 25, 2016 and expire on February 22, 2019. Agencies using the REAC protocol as part of the physical inspections pilot program may rely on the temporary regulations for on-site inspections and low-income certification review occurring between January 1, 2015 and February 25, 2016.
IRS Revenue Procedures, Revenue Rulings notices, notices and other guidance cited in this document are published in the Internal Revenue Bulletin (or Cumulative Bulletin) and are available from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402, or by visiting the IRS Web site at
Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because these regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, these regulations have been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.
The principal authors of these regulations are Jian H. Grant and Martha M. Garcia, Office of the Associate Chief Counsel (Passthroughs and Special Industries). However, other personnel from the Treasury Department and the IRS participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is amended as follows:
26 U.S.C. 7805 * * *
Section 1.42-1T also issued under 26 U.S.C. 42(n).
Section 1.42-2 also issued under 26 U.S.C. 42(n).
Section 1.42-5T also issued under 26 U.S.C. 42(n).
The additions and revisions read as follows:
(a) * * *
(2) * * *
(iii) [Reserved]. For further guidance, see § 1.42-5T(a)(2)(iii).
(c) * * *
(2) * * *
(ii) [Reserved]. For further guidance, see § 1.42-5T(c)(2)(ii).
(iii) [Reserved]. For further guidance, see § 1.42-5T(c)(2)(iii).
(3) [Reserved]. For further guidance, see § 1.42-5T(c)(3).
(h)
(2) [Reserved]. For further guidance, see § 1.42-5T(h)(2).
(i) [Reserved]. For further guidance, see § 1.42-5T(i).
(a)(1) through (a)(2)(ii) [Reserved]. For further guidance, see § 1.42-5(a)(1) through (a)(2)(ii).
(iii)
(A) Exceptions to the requirements referred to in § 1.42-5(a)(2)(i) and the requirements described in this section; or
(B) Alternative means of satisfying those requirements.
(b) through (c)(2)(i) [Reserved]. For further guidance, see § 1.42-5(b) through (c)(2)(i).
(ii) Require that, with respect to each low-income housing project, the Agency conduct on-site inspections and review low-income certifications (including in that term the documentation supporting the low-income certifications and the rent records for tenants).
(iii) Require that the on-site inspections that the Agency must conduct satisfy both the requirements of § 1.42-5(d) and the requirements in paragraph (c)(2)(iii)(A) through (D) of this section, and require that the low-income certification review that the Agency must perform satisfies the requirements in paragraphs (c)(2)(iii)(A) through (D) of this section. Paragraph (c)(2)(iii)(A) through (D) of this section provides rules determining how these on-site inspection requirements and how these low-income certification review requirements may be satisfied by an inspection or review, as the case may be, that includes only a sample of the low-income units.
(A)
(
(
(B)
(C)
(
(
(
(D)
(3)
(c)(4) through (h)(1) [Reserved]. For further guidance, see § 1.42-5(c)(4) through (h)(1).
(2)
(i)
Coast Guard, DHS.
Notice of deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the S213 (MD213) Bridge across the Chester River, mile 26.8, at Chestertown, MD. This deviation is necessary to perform bridge maintenance and repairs.
This deviation is effective without actual notice from February 25, 2016 through 6 p.m. on June 1, 2016. For the purposes of enforcement, actual notice will be used from February 22, 2016 at 9 a.m., until February 25, 2016.
The docket for this deviation, [USCG-2016-0112] is available at
If you have questions on this temporary deviation, call or email Mr. Hal R. Pitts, Bridge Administration Branch Fifth District, Coast Guard, telephone 757-398-6222, email
The Maryland Department of Transportation State Highway Administration, that owns and operates the S213 (MD213) Bridge, has requested a temporary deviation from the current operating regulations to perform a bridge stringer replacement project. The bridge is a bascule draw bridge and has a vertical clearance in the closed position of 12 feet above mean high water.
The current operating schedule is open on signal if at least six hours notice is given as set out in 33 CFR 117.551. Under this temporary deviation, the bridge will remain in the closed-to-navigation position from 6 a.m. on February 22, 2016 to 6 p.m. on June 1, 2016.
The Chester River is used by a variety of vessels including small U.S. government and public vessels, small commercial vessels, and recreational vessels. The Coast Guard has carefully considered the nature and volume of vessel traffic on the waterway in publishing this temporary deviation.
During the closure times there will be limited opportunity for vessels able to safely pass through the bridge in the closed position to do so. Vessels able to safely pass through the bridge in the closed position may do so, after receiving confirmation from the bridge tender that it is safe to transit through the bridge. The bridge will be able to open for emergencies if at least six hours notice is given and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transit to minimize any impact caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Notice of deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the CONRAIL Railroad Bridge across the Mantua Creek, mile 1.4, at Paulsboro, NJ. This deviation is necessary to complete bridge construction. This deviation allows the bridge to remain in the closed-to-navigation position.
This deviation is effective from midnight on March 1, 2016 to midnight on April 1, 2016.
The docket for this deviation, [USCG-2016-0114] is available at
If you have questions on this temporary deviation, call or email Mr. Hal R. Pitts, Bridge Administration Branch Fifth District, Coast Guard, telephone 757-398-6222, email
CONRAIL, that owns and operates the CONRAIL Railroad Bridge, has requested a temporary deviation from the current operating regulations to complete construction of the new bridge and the remote operating system. The bridge is a vertical lift drawbridge and has a vertical clearance in the closed position of 2.5 feet above mean high water.
The current operating schedule is set out in 33 CFR 117.729(a). Under this temporary deviation, the bridge will remain in the closed-to-navigation position from midnight on March 1, 2016 to midnight on April 1, 2016 and will open on signal if at least four hours notice is given by telephone at (856) 231-2282.
The Mantua Creek is used by a variety of vessels including small U. S. government and public vessels, small commercial vessels, tug and barge traffic and recreational vessels. The Coast Guard has carefully considered the nature and volume of vessel traffic on the waterway in publishing this temporary deviation.
Vessels able to safely pass through the bridge in the closed position may do so at any time. The bridge will be able to open for emergencies if at least four hours notice is given by telephone at (856) 231-2282 and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transit to minimize any impact caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is amending the EPA's regulatory definition of volatile organic compounds (VOC) under the Clean Air Act (CAA). The regulatory definition of VOC currently excludes t-butyl acetate (also known as tertiary butyl acetate or TBAC; CAS Number: 540-88-5) for purposes of VOC emissions limitations or VOC content requirements on the basis that it makes a negligible contribution to tropospheric ozone formation. However, the current definition includes TBAC as a VOC for purposes of all recordkeeping, emissions reporting, photochemical dispersion modeling and inventory requirements which apply to VOC. This final action removes the recordkeeping, emissions reporting, photochemical dispersion modeling and inventory requirements related to the use of TBAC as a VOC.
This final rule is effective on April 25, 2016.
The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2013-0795. All documents in the docket are listed on the
Ms. Souad Benromdhane, Office of Air Quality Planning and Standards, Health and Environmental Impacts Division, Mail Code C539-07, Environmental Protection Agency, Research Triangle Park, NC 27711; telephone: (919) 541-4359; fax number: (919) 541-5315; email address:
Entities affected by this final rule include, but are not necessarily limited to, state and local air pollution control agencies that prepare VOC emission inventories and ozone attainment demonstrations for state implementation plans (SIPs). These agencies are relieved of the requirements to separately inventory emissions of TBAC. This final action may also affect manufacturers, distributors and users of TBAC and TBAC-containing products, which may include paints, inks and adhesives. This action allows state air agencies to no longer require these entities to report emissions of TBAC.
In addition to being available in the docket, an electronic copy of this final rule will also be available on the Worldwide Web (WWW) through the Technology Transfer Network (TTN). Following the Administrator's signature, a copy of this final rule will be posted on the TTN's policy and guidance page for promulgated rules at the following address:
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the District of Columbia Circuit Court within 60 days from the date the final action is published in the
Tropospheric ozone, commonly known as smog, is formed when VOC and nitrogen oxides (NO
The CAA requires the regulation of VOC for various purposes. Section 302(s) of the CAA specifies that the EPA has the authority to define the meaning of “VOC,” and hence what compounds shall be treated as VOC for regulatory purposes. The policy of excluding negligibly reactive compounds from the regulatory definition of VOC was first laid out in the “Recommended Policy on Control of Volatile Organic Compounds” (42 FR 35314, July 8, 1977) and was supplemented subsequently with the “Interim Guidance on Control of Volatile Organic Compounds in Ozone State Implementation Plans” (70 FR 54046, September 13, 2005) (from here forward referred to as the 2005 Interim Guidance). The EPA uses the reactivity of ethane as the threshold for determining whether a compound has negligible reactivity. Compounds that are less reactive than, or equally reactive to, ethane under certain assumed conditions may be deemed negligibly reactive and, therefore, suitable for exemption by the EPA from the regulatory definition of VOC. Compounds that are more reactive than ethane continue to be considered VOC for regulatory purposes and, therefore, are subject to control requirements. The selection of ethane as the threshold compound was based on a series of smog chamber experiments that underlay the 1977 policy.
The EPA uses two different metrics to compare the reactivity of a specific compound to that of ethane: (1) The reaction rate constant (known as k
On January 17, 1997, ARCO Chemical Company (now known as and from here forward referred to as LyondellBasell) submitted a petition to the EPA, which requested that the EPA add TBAC to the list of compounds that are designated negligibly reactive in the regulatory definition of VOC at 40 CFR 51.100(s). The materials submitted in support of this petition are contained in Docket EPA-HQ-OAR-2003-0084. LyondellBasell's case for TBAC being less reactive than ethane was based primarily on the use of relative incremental reactivity factors set forth in a 1997 report by Carter,
On September 30, 1999, the EPA proposed to revise the regulatory definition of VOC to exclude TBAC, relying on the comparison of MIR factors expressed on a mass basis to conclude that TBAC is negligibly reactive (64 FR 52731, September 30, 1999). However, in the final rule, the EPA concluded at that time that even “negligibly reactive” compounds may contribute significantly to ozone formation if present in sufficient quantities and that emissions of these compounds need to be represented accurately in photochemical modeling analyses. In addition to these general concerns about the potential cumulative impacts of negligibly reactive compounds, the need to maintain recordkeeping and reporting requirements for TBAC was further justified by the potential for widespread use of TBAC, the fact that its relative reactivity falls close to the borderline of what has been considered negligibly reactive, and continuing efforts to assess long-term health risks.
In the 2004 Final Rule, the EPA argued that the recordkeeping and reporting requirements were not new requirements for TBAC as industry and states were already subject to such requirements to report TBAC as a VOC prior to the exemption. However, in practice, the rule created a new, distinct recordkeeping and reporting burden by requiring that TBAC be “uniquely identified” in emission reports, rather than aggregated with other compounds as VOC. The final rule explained that the EPA was in the process of reviewing its overall VOC exemption policy and that the potential for retaining recordkeeping and reporting requirements for compounds exempted from the definition of VOC in the future would be considered in that process. That process led to the development of the 2005 Interim Guidance, which encouraged the development of speciated inventories for highly reactive compounds and identified the voluntary submission of emissions estimates for exempt compounds as an option for further consideration, but did not recommend mandatory reporting requirements associated with future exemptions. Thus, TBAC was the only compound that was excluded from the VOC definition for purposes of emission controls but was still considered a VOC for purposes of recordkeeping and reporting requirements.
The EPA received a petition from LyondellBasell in December 2009,
In most cases, when a negligibly reactive VOC is exempted from the definition of VOC, emissions of that compound are no longer recorded, collected, or reported to states or the EPA as part of VOC emissions. When the EPA exempted TBAC from the VOC definition for purposes of control requirements in the 2004 Final Rule, the EPA created a new category of compounds and a new reporting requirement that required that emissions of TBAC be reported separately by states and, in turn, by industry. However, the EPA did not issue any guidance on how TBAC emissions should be tracked and reported, and implementation of this requirement by states has been inconsistent. A few states have modified their rules and emissions inventory processes to track TBAC emissions separately and provide that information to the EPA. Others have included TBAC with other undifferentiated VOC in their emissions inventories. Thus, the data that have been reported to date as a result of these requirements are incomplete and inconsistent. In addition, the EPA has not established protocols for receiving and analyzing TBAC emissions data collected under the requirements of the 2004 Final Rule.
Although the reactivity of TBAC and other negligibly reactive compounds is low, if emitted in large quantities, they could still contribute significantly to ozone formation in some locations. However, without speciated emissions estimates or extensive speciated hydrocarbon measurements, it is difficult to assess the impacts of any one exempted compound or even the cumulative impact of all of the exempted compounds.
In the 2004 Final Rule, the EPA stated the primary objective of the recordkeeping and reporting requirements for TBAC was to address these cumulative impacts of “negligibly reactive” compounds and suggested that future exempt compounds may also be subject to such requirements. However, such requirements have not been included in any other proposed or final VOC exemptions since the TBAC decision. Having high quality data on TBAC emissions alone is unlikely to be very useful in assessing the cumulative impacts of these compounds on ozone formation. Thus, the requirements are not achieving their primary objective to inform more accurate photochemical modeling in support of SIP submissions.
In the 2004 Final Rule, EPA also noted that recordkeeping and reporting requirements were justified in light of the continuing efforts to characterize long-term health risks associated with TBAC and its metabolite tertiary-butyl alcohol (TBA). Since the rule was finalized, those efforts have resulted in at least two studies regarding the long-term health risks associated with TBAC and TBA. LyondellBasell performed additional toxicity testing and a health risk assessment and submitted the peer-consultation results to the EPA in 2009.
The EPA received five comments on the proposed rule referenced above from industry in support of this final action. No adverse comments were received.
The EPA is removing the recordkeeping, emissions reporting, photochemical dispersion modeling and inventory requirements for TBAC.
There is no evidence that TBAC is being used at levels that would cause concern for ozone formation. Additionally, the EPA believes these requirements, which are unique among all VOC-exempt compounds, are of limited utility because they do not provide sufficient information to judge the cumulative impacts of exempted compounds, and because the data have not been consistently collected and reported. Because these requirements are not addressing any of the concerns as they were intended, the EPA is removing the requirements for TBAC to relieve industry and states of the associated information collection burden.
This final action removes recordkeeping, emissions reporting, photochemical dispersion modeling and inventory requirements related to the use of TBAC. This action does not affect the existing exclusion of TBAC from the regulatory definition of VOC for purposes of emission limits and control requirements.
We note that removal of the recordkeeping and reporting requirements does not indicate that the EPA has reached final conclusions about all aspects of the health effects posed by the use of TBAC or its metabolite TBA. The EPA is currently awaiting completion of the IRIS assessment on the potential risks involved with TBA and its toxicity. If it becomes clear that action is warranted due to the health risks of direct exposure to TBA or TBAC, the EPA will consider the range of authorities at its disposal to mitigate these risks appropriately.
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. It does not contain any new recordkeeping or reporting requirements. This action removes recordkeeping, emissions reporting, photochemical dispersion modeling and inventory requirements related to use of TBAC.
After considering the economic impacts of the TBAC final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. This action removes recordkeeping, emissions reporting, photochemical dispersion modeling and inventory requirements related to use of TBAC. We have, therefore, concluded that this action will relieve regulatory burden for all directly regulated small entities.
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. In fact, this should reduce the burden on states.
This action does not have tribal implications, as specified in Executive Order 13175. This final action removes existing emission inventory reporting and other requirements that uniquely apply to TBAC among all VOC-exempt compounds. 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 the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This action removes recordkeeping, emissions reporting, photochemical dispersion modeling and inventory requirements related to use of TBAC. It does not affect the existing exclusion of TBAC from the regulatory definition of VOC for purposes of emission limits and control requirements.
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
The EPA believes the human health or environmental risk addressed by this action will not have disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations. The EPA did not conduct an environmental analysis for this rule because the EPA does not believe that removing the unique reporting requirements will lead to substantial and predictable changes in the use of TBAC in and near particular communities.
This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Environmental protection, Administrative practice and procedure, Air pollution control, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
For the reasons stated in the preamble, title 40, chapter I, part 51 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401, 7411, 7412, 7413, 7414, 7470-7479, 7501-7508, 7601, and 7602.
The addition reads as follows:
(s)(1) This includes any such organic compound other than the following, which have been determined to have negligible photochemical reactivity: methane; ethane; methylene chloride (dichloromethane); 1,1,1-trichloroethane (methyl chloroform); 1,1,2-trichloro-1,2,2-trifluoroethane (CFC-113); trichlorofluoromethane (CFC-11); dichlorodifluoromethane (CFC-12); chlorodifluoromethane (HCFC-22); trifluoromethane (HFC-23); 1,2-dichloro 1,1,2,2-tetrafluoroethane (CFC-114); chloropentafluoroethane (CFC-115); 1,1,1-trifluoro 2,2-dichloroethane (HCFC-123); 1,1,1,2-tetrafluoroethane (HFC-134a); 1,1-dichloro 1-fluoroethane (HCFC-141b); 1-chloro 1,1-difluoroethane (HCFC-142b); 2-chloro-1,1,1,2-tetrafluoroethane (HCFC-124); pentafluoroethane (HFC-125); 1,1,2,2-tetrafluoroethane (HFC-134); 1,1,1-trifluoroethane (HFC-143a); 1,1-difluoroethane (HFC-152a); parachlorobenzotrifluoride (PCBTF); cyclic, branched, or linear completely methylated siloxanes; acetone; perchloroethylene (tetrachloroethylene); 3,3-dichloro-1,1,1,2,2-pentafluoropropane (HCFC-225ca); 1,3-dichloro-1,1,2,2,3-pentafluoropropane (HCFC-225cb); 1,1,1,2,3,4,4,5,5,5-decafluoropentane (HFC 43-10mee); difluoromethane (HFC-32); ethylfluoride (HFC-161); 1,1,1,3,3,3-hexafluoropropane (HFC-236fa);
(5) [Reserved]
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is finalizing approval and finalizing the conditional approval of portions of the fine particulate matter (PM
This final rule is effective on March 28, 2016.
EPA has established a docket for this action under Docket ID No. EPA-R08-OAR-2014-0369. All documents in the docket are listed on the
Crystal Ostigaard, Air Program, EPA, Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6602,
On October 17, 2006 (71 FR 61144), EPA strengthened the level of the 24-hour PM
On August 25, 2015 (80 FR 51499), EPA proposed to approve or conditionally approve a number of RACM components in the PM
A previous rule, Rule R307-340 Surface Coating Processes, was replaced in these submittals by the specific rules for coatings listed above. Utah correspondingly repealed R307-340. In addition, Rule R307-342, Adhesives and Sealants, replaces an unrelated rule, R307-342 Qualifications of Contractors and Test Procedures for Vapor Recovery Systems for Gasoline Delivery Tanks. The removal of the previous version of R307-342 is addressed by the State's February 2, 2012 submittal, which repeals R307-342 and amends R307-328, Gasoline Transfer and Storage, to account for the repeal of R307-342.
These rule submissions, except for revisions to R307-101-2, R307-103, and R307-328, and the repeal of R307-342, were requested for approval as RACM components of the PM
For details of our evaluation of these rules, see the proposed notice and associated TSD.
EPA did not receive any comments on our proposed action.
For the reasons stated in our proposed notice and associated TSD, EPA is finalizing approval of revisions to Administrative Rule R307-101-2, along with the additions/revisions/repeals in R307-300 Series; Requirements for Specific Locations (Within Nonattainment and Maintenance Areas), R307-303, R307-307, R307-335, R307-340 (repealed), R307-342 (repealed and replaced), R307-343, R307-344, R307-345, R307-346, R307-347, R307-348, R307-349, R307-350, R307-351, R307-352, R307-353, R307-354, R307-355, R307-356, R307-357, and R307-361 for incorporation into the Utah SIP as submitted by the State of Utah on May 9, 2013, June 8, 2013, February 18, 2014, April 17, 2014, May 20, 2014, July 10, 2014, August 6, 2014, and December 9, 2014. We are also finalizing approval of Utah's determination that the above rules in R307-300 Series; Requirements for Specific Locations (Within Nonattainment and Maintenance Areas) constitute RACM for the Utah PM
EPA is finalizing the conditional approval of revisions for R307-312 found in the May 9, 2013 submittal and for R307-328 found in the February 2, 2012 submittal. Additionally, EPA is finalizing the conditional approval of Utah's determination that R307-312 constitutes RACM for the Utah PM
EPA is not finalizing our proposed approval of R307-103, Administrative Procedures. The State informed us that they did not intend for R307-103 to be submitted for incorporation into the SIP. As the administrative procedures in R307-103 are unrelated to PM
Finally, EPA is finalizing approval of the repeal of R307-342, Qualification of Contractors and Test Procedures for Vapor Recovery Systems for Gasoline Delivery Tanks, submitted by DAQ on February 2, 2012.
In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Utah Department of Air Quality rules promulgated in the DAR, R307-300 Series as discussed in section III, Final Action, of this preamble. EPA has made, and will continue to make, these documents generally available electronically through
Under the Clean Air Act, 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 action merely approves of state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this final action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described
• 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).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 25, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organization compounds.
42 U.S.C. 7401
This document was received for publication by the Office of the Federal Register on February 19, 2016.
40 CFR part 52 is amended to read as follows:
42 U.S.C. 7401
(c) * * *
(83) On February 2, 2012, May 9, 2013, June 8, 2013, February 18, 2014, April 17, 2014, May 20, 2014, July 10, 2014, August 6, 2014, and December 9, 2014, the Governor submitted revisions to the Utah State Implementation Plan (SIP) rules. The EPA is approving the repeal of R307-340 and R307-342. The EPA is approving the submitted revisions and associated nonsubstantive changes to the following rules: R307-307, R307-351-2, R307-351-4, and R307-355-5. The EPA is conditionally approving the submitted revisions to the following rules: R307-101 (including nonsubstantive changes to R307-101-2), R307-312-5(2)(a), and R307-328-4(6). The EPA is approving the submitted revisions to the following rules: R307-303, R307-307, R307-312 (except R307-312-5(2)(a) which is conditionally approved), R307-328 (except R307-328-4(6) which is conditionally approved), R307-335, R307-342, R307-343, R307-344, R307-345, R307-346, R307-347, R307-348, R307-349, R307-350, R307-351 (except R307-351-2 which is approved with nonsubstantive changes), R307-352, R307-353, R307-354, R307-355 (except R307-355-5 which is approved with nonsubstantive changes), R307-356, R307-357, R307-357-4, and R307-361.
(i)
(A) Title R307 of the Utah Administrative Code,
(B) Title R307 of the Utah Administrative Code,
(C) Title R307 of the Utah Administrative Code,
(D) Title R307 of the Utah Administrative Code,
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(H) Title R307 of the Utah Administrative Code,
(I) Title R307 of the Utah Administrative Code,
(J) Title R307 of the Utah Administrative Code,
(K) Title R307 of the Utah Administrative Code,
(L) Title R307 of the Utah Administrative Code,
(M) Title R307 of the Utah Administrative Code,
(N) Title R307 of the Utah Administrative Code,
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is taking direct final action to approve revisions to the State Implementation Plan (SIP) for the state of Missouri. The revisions address base year Emissions Inventory (EI) and emissions statement requirements of the Clean Air Act (CAA) for the Missouri portion of the St. Louis marginal ozone nonattainment area (“St. Louis area”). The Missouri counties comprising the St. Louis area are Franklin, Jefferson, St. Charles, and St. Louis along with the City of St. Louis. EPA is taking final action to approve the SIP revisions because they satisfy the CAA section 182 requirements for the 2008 8-hour ozone National Ambient Air Quality Standards (NAAQS). EPA is approving the revisions pursuant to section 110 and part D of the CAA and EPA's regulations. EPA will consider and take action on the Illinois submission for its portion of the St. Louis area in a separate action.
This direct final rule will be effective April 25, 2016, without further
Submit your comments, identified by Docket ID No. EPA-R07-OAR-2015-0438, to
Publicly available docket materials are available either electronically at
Lachala Kemp, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551-7214 or by email at
Throughout this document “we,” “us,” or “our” refer to EPA.
Ground-level ozone is a gas that is formed by the reaction of volatile organic compounds (VOCs) and oxides of nitrogen (NO
On March 12, 2008, EPA promulgated a revised NAAQS for ozone based on 8-hour average concentrations. The level of the 2008 8-Hour ozone NAAQS (hereafter the 2008 O
CAA sections 172(c)(3) and 182(a)(1) require states to develop and submit as a SIP revision a comprehensive, accurate, current emissions inventory (EI) for all areas designated as nonattainment for the O
The primary CAA requirements are found in sections 110(l), and 182(a). CAA section 110(l) requires that a SIP revision submitted to EPA be adopted after reasonable notice and public hearing. Section 110(l) also requires that EPA not approve a SIP if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the CAA. CAA section 182(a) requires states with areas designated nonattainment for the ozone NAAQS to submit a SIP revision that contains a comprehensive, accurate, current inventory of actual emissions from all sources.
On September 9, 2014, the State of Missouri submitted a SIP revision containing the base year emissions inventory and emissions statement requirements related to the 2008 8-hour ozone NAAQS for the Missouri portion of the St. Louis area.
Missouri selected 2011 as its base year inventory, as suggested by EPA in its final SIP requirements Rule which is the year corresponding with the first triennial inventory required under 40 CFR part 51, subpart A. This base year is one of the three years of ambient air quality data used to designate the area nonattainment. Missouri's emissions inventory for its portion of the St. Louis area provides 2011 actual emissions of the pollutants that contribute to ozone formation for the nonattainment area: VOCs, NO
Table 1 displays the 2011 anthropogenic emissions inventory summary for the Missouri portion of the 2008 St. Louis ozone nonattainment area in tons per ozone season day. The anthropogenic source categories include point, area, onroad mobile, and nonroad sources. Table 2 displays the 2011 emissions inventory summary for the biogenic and wildfire (event) source categories in the Missouri portion of the 2008 St. Louis ozone nonattainment area in tons per ozone season day. Event emissions include wild fire emissions, prescribed burning and agricultural burning; however, when annual emissions from these three event source categories are temporally allocated to ozone season day emissions, only wild fire emissions are projected to occur during the high ozone season.
Missouri's inventory contains point sources, nonpoint, onroad mobile, and nonroad sources. The state developed the point source emissions inventory using actual emissions directly reported by electric generating unit (EGU) and non EGU sources in the area. Point sources are large, stationary, identifiable sources of emissions that release pollutants into the atmosphere. The point source emissions inventory for Missouri's portion of the St. Louis area was developed using facility-specific emissions data, and is included in the docket for this action.
Nonpoint sources are small emission stationary sources which due to their large number, collectively have significant emissions. Emissions from these sources were estimated by
Biogenic emissions sources are emissions that come from natural sources. The biogenic source emissions were extracted from the EPA's 2011 National Emissions Inventory (NEI) for the counties located in the nonattainment area. A detailed account of biogenic source emissions by county can be found in appendix A of the state's submission.
For the reasons discussed above, EPA has determined that Missouri's emissions inventory is complete, accurate, and comprehensive and meets the requirements under CAA section 182(a)(1) and the SIP Requirements Rule for the 2008 ozone NAAQs.
Pursuant to section 182(a)(3)(B), states with Marginal ozone nonattainment areas must require annual emission statements from owners or operators of each NO
EPA is approving the SIP revision submitted by Missouri on September 9, 2014, addressing the base year emissions inventory and emissions statement requirements for their portion of the St. Louis area. EPA has concluded that the state's submission meets the requirements of sections 110 and 182 of the CAA. We are publishing this direct final rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. However, in the “Proposed Rules” section of this
If EPA receives adverse comment, we will publish a timely withdrawal in the
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 action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 25, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
For the reasons stated in the preamble, EPA amends 40 CFR part 52 as set forth below:
42 U.S.C. 7401
(e) * * *
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is taking direct final action to better define the requirements associated with conducting Method 303 training courses. Method 303 is an air pollution test method used to determine the presence of visible emissions (VE) from coke ovens. This action adds language that further clarifies the criteria used by the EPA to determine the competency of Method 303 training providers, but does not change the requirements for conducting the test method. These changes will help entities interested in conducting the required training courses by clearly defining the requirements necessary to do so.
This rule is effective on April 25, 2016 without further notice, unless the EPA receives adverse comment by March 28, 2016. If the EPA receives adverse comment, we will publish a timely withdrawal in the
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2014-0492, to the
For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit
Ms. Kim Garnett, U.S. EPA, Office of Air Quality Planning and Standards, Air Quality Assessment Division, Measurement Technology Group (Mail Code: E143-02), Research Triangle Park, NC 27711; telephone number: (919) 541-1158; fax number: (919) 541-0516; email address:
The EPA is publishing this rule without a prior proposed rule because
However, in the “Proposed Rules” section of today's
This action applies to you if you are a potential provider of Method 303 training services, someone seeking training to conduct Method 303, or a facility subject to Method 303.
(1)
(2)
• Identify the rulemaking by docket number and other identifying information (subject heading,
• Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a CFR part or section number.
• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
• Make sure to submit your comments by the comment period deadline identified.
In addition to being available in the docket, an electronic copy of this rule will also be available on the Worldwide Web (www) through the Technology Transfer Network (TTN) Web site. Following publication, the EPA will post the
Under section 307(b)(1) of the Clean Air Act (CAA), judicial review of this direct final rule is available by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit by April 25, 2016. Under section 307(d)(7)(B) of the CAA, only an objection to this direct final rule that was raised with reasonable specificity during the period for public comment can be raised during judicial review. Moreover, under section 307(b)(2) of the CAA, the requirements that are the subject of this direct final rule may not be challenged later in civil or criminal proceedings brought by the EPA to enforce these requirements.
On October 27, 1993, we published Method 303 for determining VE from coke ovens (58 FR 57898). Method 303 is applicable for the determination of VE from the following by-product coke oven battery sources: Charging systems during charging; doors, topside port lids and offtake systems on operating coke ovens; and collecting mains. Method 303 is also applicable to qualifying observers for visually determining the presence of VE from by-product coke ovens. The EPA received inquiries from state/local agencies seeking the specifics of the procedures used to qualify observers. As a result of these inquiries, the EPA is revising Method 303 to provide more detail to better explain the requirements necessary to qualify observers and, therefore, assist those entities who seek to understand what is needed in order to conduct and maintain an Administrator-approved training program. Additionally, we are removing the statement indicating that these courses be conducted by or under the sanction of the EPA. Instead, Administrator-approved training providers will be allowed to conduct Method 303 training and certification. We are, therefore, revising Method 303 to define the administrative and recordkeeping requirements that must be followed by Method 303 training providers. This action: (1) Defines Administrator approval of Method 303 training providers, clarifies the minimum training course requirements, and details the recordkeeping requirements that the training provider must follow in order to attain Administrator approval (section 10.1); (2) adds language to clarify that VE readers must demonstrate a perfect score on the recertification exam (section 10.1.2); (3) updates and expands the criteria used to determine who is qualified to participate on the proficiency test panel (section 10.1.3); (4) adds criteria for training certificates, submittal of this information, and recordkeeping (sections 10.1.4-10.1.6); and (5) defines conditions for suspension of the training provider's approval by the Administrator (section 10.1.7). There are no changes to the requirements for conducting the test method.
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. These changes do not add information collection requirements beyond those currently required under the applicable regulations.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This action better defines the requirements associated with conducting Method 303 training courses
This action does not contain any unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local or tribal governments, or the private sector.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications, as specified in Executive Order 13175. This action adds additional language that clarifies the criteria used by the EPA to determine the competency of Method 303 training providers, but does not change the requirements for conducting the test method. Thus, Executive Order 13175 does not apply to this action.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.
This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations. This action does not relax the control measures on sources regulated by the rule and, therefore, will not cause emissions increases from these sources.
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Air pollution control, Test method.
For the reasons stated in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
The revisions and additions read as follows.
5.2 Safety Training. Because coke oven batteries have hazardous environments, the training materials and the field training (Section 10.0) shall cover the precautions required to address health and safety hazards.
10.1 Certification Procedures. This method requires only the determination of whether VE occur and does not require the determination of opacity levels; therefore, observer certification according to Method 9 in appendix A to Part 60 of this chapter is not required to obtain certification under this method. However, in order to receive Method 303 observer certification, the first-time observer (trainee) shall have attended the lecture portion of the Method 9 certification course. In addition, the trainee shall successfully complete the Method 303 training course, satisfy the field observation requirement, and demonstrate adequate performance and sufficient knowledge of Method 303. The Method 303 training provider and course shall be approved by the Administrator and shall consist of classroom instruction, field training, and a proficiency test. In order to apply for approval as a Method 303 training provider, an applicant must submit their credentials and the details of their Method 303 training course to Group Leader, Measurement Technology Group (E143-02), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, NC 27711. Those details should include, at a minimum:
(a) A detailed list of the provider's credentials.
(b) An outline of the classroom and the field portions of the class.
(c) Copies of the written training and lecture materials, to include:
(1) The classroom audio-visual presentation(s).
(2) A classroom course manual with instructional text and practice questions and problems for each of the elements of the Method 303 inspection (
(3) A copy of the Method 303 demonstration video, if not using the one available on the EPA Web site:
(4) Multiple-choice certification tests, with questions sufficient to demonstrate knowledge of the method, as follows: One (1) initial certification test and three (3) third-year recertification tests (the questions on any one recertification test must be at least 25 percent different from those on the other recertification tests).
(5) A field certification checklist and inspection forms for each of the elements of the Method 303 inspection (
(6) The criteria used to determine proficiency.
(7) The panel members to be utilized (see Section 10.1.3) along with their qualifications.
(8) An example certificate of successful course completion.
10.1.1 A trainee must verify completion of at least 12 hours of field observation prior to attending the Method 303 certification course. Trainees shall observe the operation of a coke oven battery as it pertains to Method 303, including topside operations, and shall also practice conducting Method 303 or similar methods. During the field observations, trainees unfamiliar with coke battery operations shall receive instruction from an experienced coke oven observer who is familiar with Method 303 or similar methods and with the operation of coke batteries.
10.1.2 The classroom instruction shall familiarize the trainees with Method 303 through lecture, written training materials, and a Method 303 demonstration video. Successful completion of the classroom portion of the Method 303 training course shall be demonstrated by a perfect score on the initial certification test. Those attending the course for third-year recertification must complete one of the recertification tests selected at random.
10.1.3 All trainees must demonstrate proficiency in the application of Method 303 to a panel of three certified Method 303 observers, including an ability to differentiate coke oven emissions from condensing water vapor and smoldering coal. The panel members will be EPA, state or local agency personnel, or industry contractors listed in 59 FR 11960 (March 15, 1994) or qualified as part of the training provider approval process of Section 10.1 of this method.
Each panel member shall have at least 120 days experience in reading visible emissions from coke ovens. The visible emissions inspections that will satisfy the experience requirement must be inspections of coke oven battery fugitive emissions from the emission points subject to emission standards under subpart L of this part (
The panel shall observe the trainee in a series of training runs and a series of certification runs. There shall be a minimum of 1 training run for doors, topside port lids, and offtake systems, and a minimum of 5 training runs (
10.1.4 Those successfully completing the initial certification or third-year recertification requirements shall receive a certificate showing certification as a Method 303 observer and the beginning and ending dates of the certification period.
10.1.5 The training provider will submit to the EPA or its designee the following information for each trainee successfully completing initial certification or third-year recertification training: Name, employer, address, telephone, cell and/or fax numbers, email address, beginning and ending dates of certification, and whether training was for 3-year certification or 1-year recertification. This information must be submitted within 30 days of the course completion.
10.1.6 The training provider will maintain the following records, to be made available to EPA or its designee on request (within 30 days of a request):
(a) A file for each Method 303 observer containing the signed certification checklists, certification forms and test results for their initial certification, and any subsequent third-year recertifications. Initial certification records must also include documentation showing successful completion of the training prerequisites. Testing results from any interim recertifications must also be included, along with any relevant communications.
(b) A searchable master electronic database of all persons for whom initial certification, third-year recertification or interim recertification has been provided. Information contained therein must include: The observer's name, employer, address, telephone, cell and fax numbers and email address, along with the beginning and ending dates for each successfully completed initial, third-year and interim recertification.
10.1.7 Failure by the training provider to submit example training course materials and/or requested training records to the Administrator may result in suspension of the approval of the provider and course.
10.2 Observer Certification/Recertification. The coke oven observer certification is valid for 1 year. The observer shall recertify annually by reviewing the training material, viewing the training video and answering all of the questions on the recertification test correctly. Every 3 years, an observer shall be required to pass the proficiency test in Section 10.1.3 in order to be certified. The years between proficiency tests are referred to as interim years.
Environmental Protection Agency (EPA).
Final rule.
This regulation amends the tolerances for residues of triclopyr in milk and livestock commodities which are identified and discussed later in this document, and amends the tolerance expressions to include triclopyr choline salt. Dow AgroSciences, LLC requested these tolerance changes under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective February 25, 2016. Objections and requests for hearings must be received on or before April 25, 2016, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The dockets for this action, identified by docket identification (ID) numbers EPA-HQ-OPP-2014-0314 and EPA-HQ-OPP-2014-0489, are available at
Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify by docket ID numbers EPA-HQ-OPP-2014-0314 and EPA-HQ-OPP-2014-0489 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before April 25, 2016. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID numbers EPA-HQ-OPP-2014-0314 and EPA-HQ-OPP-2014-0489, by one of the following methods:
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Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
In the
The documents referenced summaries of the petitions prepared by Dow AgroSciences, LLC, the registrant, which are available in the dockets at
Based upon review of the data supporting the petitions, EPA has (1) determined that a tolerance for milk fat is not required; (2) increased the proposed tolerances for the fat and meat of cattle, goat, hog, horse, and sheep; (3) decreased the proposed tolerances for the meat byproducts of cattle, goat, hog, horse, and sheep; and (4) determined that the current tolerances for kidney, liver, and meat byproducts except kidney and liver of cattle, goat, hog, horse, and sheep are not required.
EPA is also revising the tolerance expressions to correct the nomenclature of the chemical name, clarify the chemical moieties that are covered by the tolerances, and specify how compliance will be measured. The reasons for these changes are explained in Unit IV.C.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for triclopyr including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with triclopyr follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
The bioequivalence of the three chemical forms of triclopyr (acid, triethylamine salt, and butoxyethyl ester) has been addressed through a variety of special studies with the salt and ester forms, including data on comparative disposition, plasma half-life, tissue distribution, and hydrolytic cleavage. Those studies were found to adequately address the issue of bioequivalence amongst these forms of triclopyr. Additionally, the currently available information supports the bioequivalence of triclopyr and triclopyr choline salt. Therefore, studies conducted with any one form of triclopyr have been used to support the toxicology database for triclopyr as a whole.
Triclopyr has been classified as having low acute toxicity via the oral, dermal, and inhalation routes. It is minimally-irritating (butoxyethyl ester) to corrosive (triethylamine salt) to the eye. It is a dermal sensitizer but not a dermal irritant.
Overall, effects in the triclopyr database were indicative of kidney and liver toxicity in rats and dogs, respectively. The primary effect observed in rats was degeneration of the proximal tubule of the kidney, which was seen at approximately the same dose in the subchronic oral and 2-generation reproduction toxicity studies. Body-weight decreases in rats were observed in the subchronic neurotoxicity and immunotoxicity studies at doses approximately ten times higher than doses resulting in kidney effects. In dogs, liver toxicity was evidenced by increased liver enzymes, increased liver weights, and liver histopathology at a similar dose as kidney effects in the rat. Changes in hematological parameters (decreased packed-cell volume, decreased hemoglobin, and decreased red blood cell count) were also observed in dogs at the same dose.
There is evidence of increased qualitative susceptibility to offspring from triclopyr exposure in the rat 2-generation reproduction study, based on increased incidence of rare pup malformations observed in the presence of parental toxicity. There is also potential qualitative susceptibility in the rat developmental toxicity study; however, the evidence was not as conclusive as the reproduction toxicity study. Concern is low since effects are well-characterized with clearly established no-observed adverse-effect level/lowest-observed adverse-effect level (NOAEL/LOAEL) values, effects were seen in the presence of parental toxicity, and selected endpoints are protective of the observed effects.
Triclopyr has been classified as a “Group D Chemical—unable to be classified as to human carcinogenicity.” Although there was marginal evidence of carcinogenicity in animal studies (adrenal tumors in male rats and mammary gland tumors in female rats and mice), EPA has determined that the chronic reference dose (cRfD) will adequately account for all chronic effects, including carcinogenicity, likely to result from exposure to triclopyr. The Agency reached this conclusion employing a weight-of-evidence (WOE) approach after considering the following factors: (1) A lack of statistical significance at the high dose in pair-wise tests for all the tumors of concern; (2) for the adrenal tumors, there was a lack of dose-response and any pre-neoplastic lesions in the adrenal glands, along with evidence that the tumors were mainly benign; (3) for the mammary gland tumors, incidence in the concurrent control mice was at the low end of the historical control range; and (4) the chronic RfD is approximately 700-fold lower than the dose that induced the mammary gland tumors in female rats.
Acceptable subchronic neurotoxicity and immunotoxicity studies have been submitted and show no evidence of neurotoxicity or immunotoxicity.
Specific information on the studies received and the nature of the adverse effects caused by triclopyr as well as the NOAEL and the LOAEL from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which the NOAEL and the LOAEL are identified. Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for triclopyr used for human health risk assessment is shown in Table 1 of this unit.
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iv.
Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require pursuant to FFDCA section
2.
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Triclopyr is currently registered for the following uses that could result in residential exposures: Aquatic and turf areas. EPA assessed residential exposure using the following assumptions: Handler inhalation exposure from spot applications to turf for adults, post-application inhalation and ingestion exposures of water from swimming for children 3 to <6 years old, and post-application incidental oral exposure to turf for children 1 to <2 years old. The dermal route of exposure is not quantitatively assessed because there is no dermal hazard. Short-term residential handler exposure, and short- and intermediate-term residential post-application exposures are expected. Chronic exposures are not expected. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at
4.
Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to triclopyr and any other substances.
3,5,6-trichloro-2-pyridinol, commonly known as TCP, is a metabolite of triclopyr, chlorpyrifos, and chlorpyrifos-methyl. Risk assessment of TCP was conducted in 2002, and the previous conclusions that the acute and chronic dietary aggregate exposure estimates are below EPA's level of concern (LOC) are still valid since the tolerances changes will not have a noticeable effect on dietary exposures to TCP. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
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i. The toxicity database for triclopyr is adequate for characterizing triclopyr toxicity and quantification of hazard exposures. For assessing risks associated with inhalation exposures, the FQPA SF is retained at 10X to incorporate the database uncertainty factor (UF
ii. There is no indication that triclopyr is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.
iii. There is evidence of increased qualitative susceptibility to offspring from triclopyr exposure. However, the concern is low since effects are well-characterized with clearly established NOAEL/LOAEL values, effects were seen in the presence of parental toxicity, and selected endpoints, which are protective of the effects in adult animals, are protective of the observed effects.
iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues for all crops except milk commodities and drinking water in which anticipated residues were used. EPA used conservative assumptions to assess post-application exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by triclopyr.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
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Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in an aggregate MOE of 120 for children 1 to <2 years old (dietary exposure with post-application incidental oral exposure from turf use). Because EPA's level of concern for triclopyr is a MOE of 100 or below, this MOE is not of concern.
For adults and children 3 to <6 years old, an aggregate risk index (ARI) is used since the POD for the oral and inhalation routes of exposure are the same, but the LOC values for oral (MOE<100) and inhalation (MOE<1000) exposures are different. The ARIs are 3.6 for children 3 to <6 years old (dietary exposure with post-application inhalation and ingestion from aquatic use), and 1.4 for adults (dietary exposure with handler inhalation exposure from turf use). Since EPA's level of concern is an ARI below 1, these ARIs are not of concern.
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Adequate enforcement methodologies (Methods ACR 77.2 and ACR 77.4, using gas chromatography with electron-capture detection (GC/ECD); Method GRM 97.02 using gas chromatography with mass-spectrometry detection (GC/MS)) are available to enforce the tolerance expression. The Food and Drug Administration (FDA) PESTDATA database dated 1/94 (Pesticide Analytical Manual (PAM) Vol. I, Appendix I) indicates that triclopyr is completely recovered (>80%) using multi-residue method PAM Vol. I Section 402. Data pertaining to multi-residue methods testing of triclopyr and its metabolites through Protocols B, C, D, and E have been submitted and forwarded to FDA.
The methods may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level. The Codex has not established any MRL for triclopyr.
Based on the available residue chemistry data, EPA has determined that a tolerance for milk fat is not required. Also, EPA is increasing the proposed tolerances for fat (0.09 ppm) and meat (0.08 ppm) of cattle, goat, hog, horse, and sheep to 0.10 ppm, and decreasing the proposed tolerances for meat byproducts of cattle, goat, hog, horse, and sheep from 0.7 ppm to 0.50 ppm in order to harmonize with established Canadian MRLs. The current tolerances for kidney (0.5 ppm), liver (0.5 ppm), and meat byproducts except kidney and liver (0.05 ppm) of cattle, goat, hog, horse, and sheep are being removed and replaced by establishing tolerances for meat byproducts of cattle, goat, hog, horse, and sheep at 0.50 ppm.
EPA is also revising the chemical name of triclopyr in the tolerance expressions to reflect the preferred Chemical Abstract Service (CAS) nomenclature. Lastly, in accordance with Agency guidance on tolerance expressions, the tolerance expressions for triclopyr are revised by clarifying that the tolerances cover “residues of the herbicide triclopyr, including its metabolites and degradates as well as how residues of triclopyr are to be measured.”
Several comments were received in both dockets, EPA-HQ-OPP-2014-0314 and EPA-HQ-OPP-2014-0489, containing general comments disapproving of the use and EPA's approval of pesticides, and two similar comments stating that triclopyr should be banned due to its toxic effects on aquatic animals and its soil half-life. EPA understands these commenters' concerns and recognizes that some individuals believe that pesticides should be banned on agricultural crops. However, the existing legal framework provided by Section 408 of the FFDCA states that tolerances may be set when persons seeking such tolerances or exemptions have demonstrated that the pesticide meets the safety standard imposed by that statute. These comments appear to be directed at the underlying statute and not EPA's implementation of it; the commenters have made no contention that EPA has acted in violation of the statutory framework. In addition, some of the
Therefore, tolerances are established for residues of triclopyr, 2-[(3,5,6-trichloro-2-pyridinyl)oxy]acetic acid, in or on cattle, meat byproducts at 0.50 ppm; goat, meat byproducts at 0.50 ppm; hog, meat byproducts at 0.50 ppm; horse, meat byproducts at 0.50 ppm; sheep, meat byproducts at 0.50 ppm; amended for milk at 0.60 ppm; cattle, fat at 0.10 ppm; cattle, meat at 0.10 ppm; goat, fat at 0.10 ppm; goat, meat at 0.10 ppm; hog, fat at 0.10 ppm; hog, meat at 0.10 ppm; horse, fat at 0.10 ppm; horse, meat at 0.10 ppm; sheep, fat at 0.10 ppm; and sheep, meat at 0.10 ppm.
The following livestock tolerances for “kidney,” “liver,” and “meat byproducts, except kidney and liver” are removed since these commodities will be combined under the “meat byproducts” tolerances: Cattle, kidney at 0.5 ppm; cattle, liver at 0.5 ppm; cattle, meat byproducts, except kidney and liver at 0.05 ppm; goat, kidney at 0.5 ppm; goat, liver at 0.5 ppm; goat, meat byproducts, except kidney and liver at 0.05 ppm; hog, kidney at 0.5 ppm; hog, liver at 0.5 ppm; hog, meat byproducts, except kidney and liver at 0.05 ppm; horse, kidney at 0.5 ppm; horse, liver at 0.5 ppm; horse, meat byproducts, except kidney and liver at 0.05 ppm; sheep, kidney at 0.5 ppm; sheep, liver at 0.5 ppm; and sheep, meat byproducts, except kidney and liver at 0.05 ppm.
This action amends and establishes tolerances under FFDCA section 408(d) in response to petitions submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a)
(2) Tolerances are established for residues of the herbicide triclopyr, including its metabolites and degradates, in or on the commodities in the table below resulting from the application of the butoxyethyl ester of triclopyr, triethylamine salt of triclopyr, or choline salt of triclopyr. Compliance with the tolerance levels specified below is to be determined by measuring the combined residues of triclopyr, 2-[(3,5,6-trichloro-2-pyridinyl)oxy]acetic acid, and its metabolite 3,5,6-trichloro-2-pyridinol (TCP), calculated as the stoichiometric equivalent of triclopyr.
Federal Communications Commission.
Final rule; announcement of effective date.
In this document, the Commission announces that the Office of Management and Budget (OMB) has approved, for a period of three years, the information collection associated with the Commission's
The amendments to 47 CFR 76.59(a) and (b), published at 80 FR 59635, October 2, 2015, are effective February 25, 2016.
For additional information contact Cathy Williams,
This document announces that, on February 18, 2016 and February 19, 2016, OMB approved the information collection requirements contained in the Commission's
To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received OMB approval on February 18, 2016 and February 19, 2016, for the new information collection requirements contained in the Commission's rules at 47 CFR 76.59(a)-(b) and 76.66(d)(6).
Under 5 CFR 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.
No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Numbers are 3060-0546 and 3060-0980.
The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.
The total annual reporting burdens and costs for the respondents are as follows:
Section 76.59(a) of the Commission's Rules authorizes the filing of market modification petitions and governs who may file such a petition. With respect to cable market modification petitions, a commercial TV broadcast station and cable system operator may file a market modification petition to modify the local television market of a particular
Section 338(l)(3) of the Communications Act provides that “[a] market determination . . . shall not create additional carriage obligations for a satellite carrier if it is not technically and economically feasible for such carrier to accomplish such carriage by means of its satellites in operation at the time of the determination.” If a satellite carrier opposes a market modification petition because the resulting carriage would be technically or economically infeasible pursuant to Section 338(l)(3), the carrier must provide specific evidence in its opposition or response to a pre-filing coordination request (see below) to demonstrate its claim of infeasibility. If the satellite carrier is claiming infeasibility based on insufficient spot beam coverage, then the carrier may instead provide a detailed certification submitted under penalty of perjury. Although the Commission will not require satellite carriers to provide supporting documentation as part of their certification, the Commission may decide to look behind any certification and require supporting documentation when it deems it appropriate, such as when there is evidence that the certification may be inaccurate. In the event that the Commission requires supporting documentation, it will require a satellite carrier to provide its “satellite link budget” calculations that were created for the new community. Because the Commission may determine in a given case that supporting documentation should be provided to support a detailed certification, satellite carriers are required to retain such “satellite link budget” information in the event that the Commission determines further review by the Commission is necessary. Satellite carriers must retain such information throughout the pendency of Commission or judicial proceedings involving the certification and any related market modification petition. If satellite carriers have concerns about providing proprietary and confidential information underlying their analysis, they may request confidentiality.
The Report and Order establishes a “pre-filing coordination” process that will allow a prospective petitioner for market modification (
If the carrier is claiming spot beam coverage infeasibility, then the certification provided by the carrier must be the same type of detailed certification that would be required in response to a market modification petition. For any other claim of infeasibility, the carrier's feasibility certification must explain in detail the basis of such infeasibility and must be prepared to provide documentation in support of its claim, in the event the prospective petitioner decides to seek a Commission determination about the validity of the carrier's claim. If carriage is feasible, a statement to that effect must be provided in the certification. To obtain a Commission determination about the validity of the carrier's claim of infeasibility, a prospective petitioner must either file a (separate) petition for special relief or its market modification petition.
47 CFR Section 76.66(d)(6) addresses satellite carriage after a market modification is granted by the Commission. The rule states that television broadcast stations that become eligible for mandatory carriage with respect to a satellite carrier (pursuant to § 76.66) due to a change in the market definition (by operation of a market modification pursuant to § 76.59) may, within 30 days of the effective date of the new definition, elect retransmission consent or mandatory carriage with respect to such carrier.
A satellite carrier shall commence carriage within 90 days of receiving the carriage election from the television
Federal Aviation Administration (FAA), DOT.
Notice of proposed special conditions.
This action proposes special conditions for the Boeing Model 747-8 airplane. This airplane, as modified by Lufthansa Technik AG, will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport-category airplanes. This design feature is large, non-structural glass panels in the passenger compartment. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
Send your comments on or before March 16, 2016.
Send comments identified by docket number FAA-2015-7689 using any of the following methods:
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Jayson Claar, FAA, Airframe and Cabin Safety, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone 425-227-2194; facsimile 425-227-1320.
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.
On March 8, 2012, Lufthansa Technik AG applied for a supplemental type certificate for large, non-structural glass panels in the passenger compartment in a Boeing Model 747-8 airplane. The Model 747-8 airplane is a derivative of the Boeing Model 747-400 airplane currently approved under type certificate no. A20WE. The airplane, as modified by Lufthansa Technik AG, is a four-engine, jet-transport airplane that will have a maximum takeoff weight of 970,000 lbs, capacity for 24 crewmembers, and taxi, takeoff, and landing seating for 143 passengers.
The certification basis for the Boeing Model 747-8 airplane, as defined in type certificate no. A20WE, is title 14, Code of Federal Regulations (14 CFR) part 25 as amended by amendments 25-1 through 25-120, with exceptions for structures and systems that were unchanged from the 747-400 design.
Under the provisions of § 21.101, Lufthansa Technik AG must show that the Model 747-8 airplane, as changed, continues to meet the applicable provisions of the regulations listed in type certificate no. A20WE, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.
The regulations listed in the type certificate are commonly referred to as the “original type certification basis.”
In addition, the certification basis includes certain special conditions, exemptions, or later amended sections of the applicable part that are not relevant to these special conditions.
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the Model 747-8 airplane must comply with the fuel-vent and
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.
Lufthansa Technik AG is modifying a Boeing Model 747-8 airplane to install a head-of-state interior arrangement. This airplane, as modified, will have a novel or unusual design feature associated with the installation of large, non-structural glass panels in the cabin area of an executive interior occupied by passengers and crew. The installation of these glass items in the passenger compartment, which can be occupied during taxi, takeoff, and landing, is a novel or unusual design feature with respect to the material being installed. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature.
The use of glass has resulted in trade-offs between the one unique characteristic of glass—its capability for undistorted or controlled light transmittance, or transparency—and the negative aspects of the material, such as extreme notch-sensitivity, low fracture resistance, low modulus of elasticity, and highly variable properties. While reasonably strong, glass is nonetheless not a desirable material for traditional airplane applications because it is heavy (about the same density as aluminum), and when it fails, it breaks into extremely sharp fragments that have the potential for injury and have been known to be lethal. Thus the use of glass traditionally has been limited to windshields, and instrument and display transparencies. The regulations for certification of transport-category airplanes only address, thus only recognize, the use of glass in windshield or window applications. These regulations do address the adverse properties of glass, but even so, pilots are occasionally injured from shattered glass windshields. FAA policy allows glass on instruments and display transparencies.
Other installations of large, non-structural glass items have included the following:
• Glass panels integrated onto a stairway handrail closeout.
• Glass panels mounted in doors to allow visibility through the door when desired.
• Glass doors on some galley compartments containing small amounts of service items.
No specific regulations address the design and installation of large glass components in airplane passenger cabins. Existing requirements, such as §§ 25.561, 25.562, 25.601, 25.603, 25.613, 25.775, and 25.789, in the Boeing Model 747-8 airplane certification basis applicable to this supplemental type certificate project, provide some design standards appropriate for large glass component installations. However, additional design standards for non-structural glass augmenting the existing design are needed to complement the existing requirements. The addition of glass involved in this installation, and the potentially unsafe conditions caused by damage to such components from external sources, necessitate assuring that adequate safety standards are applied to the design and installation of the feature in Boeing Model 747-8 airplanes.
For purposes of these special conditions, a large glass component is defined as a glass component weighing 4 kg (9 lbs) or more. Groupings of glass items that individually weigh less than 4 kg, but collectively weigh 4 kg or more, also would need to be included. The proposed special conditions also apply when showing compliance with the applicable performance standards in the regulations for the installation of these components. For example, heat-release and smoke-density testing must not result in fragmentation of the component.
These proposed special conditions will reduce the hazards from breakage, or from these panels' potential separation from the cabin interior. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
As discussed above, these special conditions are applicable to Boeing Model 747-8 series airplanes. Should Lufthansa Technik AG apply at a later date for a supplemental type certificate to modify any other model included on type certificate no. A20WE to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well.
This action affects only certain novel or unusual design features on one model series of airplane. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
For large glass components installed in a cabin occupied by passengers or crew who are not otherwise protected from the injurious effects of failure of the glass installations, the Lufthansa Technik AG glass installations on this Boeing 747-8 airplane must meet the following conditions:
1. Material: The glass used must be tempered or otherwise treated to ensure that when fractured, it breaks into small pieces with relatively dull edges. This must be demonstrated by testing to failure.
2. Fragmentation: The glass-component installation must control the fragmentation of the glass to minimize the danger from flying glass shards or pieces. This must be demonstrated by impact and puncture testing to failure.
3. Component Strength: The glass component must be strong enough to meet the load requirements for all flight and landing loads, including any of the applicable emergency-landing conditions in subparts C & D of 14 CFR part 25. In addition, glass components that are located such that they are not protected from contact with cabin occupants must not fail due to abusive loading, such as impact from occupants stumbling into, leaning against, sitting on, or performing other intentional or unintentional forceful contact with the glass component. The effect of design details such as geometric discontinuities or surface finish,
4. Component Retention: The glass component, as installed in the airplane, must not come free of its restraint or mounting system in the event of an emergency landing. Both the directional loading and rebound conditions must be assessed. The effect of design details such as geometric discontinuities or surface finish,
5. Instructions for Continued Airworthiness: The instructions for continued airworthiness must reflect the method used to fasten the panel to the cabin interior and must ensure the reliability of the methods used,
Federal Aviation Administration (FAA), DOT.
Notice of proposed special conditions.
This action proposes special conditions for the Boeing Model 747-8 airplane. This airplane, as modified by L-3 Communications Integrated Systems, will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport-category airplanes. This design feature is large, non-structural glass panels in the passenger compartment. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
Send your comments on or before March 28, 2016.
Send comments identified by docket number FAA-2015-3324 using any of the following methods:
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•
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Jayson Claar, FAA, Airframe and Cabin Safety, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington, 98057-3356; telephone 425-227-2194; facsimile 425-227-1320.
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.
On May 10, 2011, L-3 Communications Integrated Systems applied for a supplemental type certificate for large, non-structural glass panels in the passenger compartment in Boeing Model 747-8 airplanes. The Model 747-8 airplane is a derivative of the Boeing Model 747-400 airplane currently approved under type certificate no. A20WE. The airplane, as modified by L-3 Communications Integrated Systems, is a four-engine, jet-transport airplane that will have a maximum takeoff weight of 970,000 lbs, capacity for 24 crewmembers, and taxi, takeoff, and landing seating for 143 passengers.
The certification basis for the Boeing Model 747-8 airplane, as defined in type certificate no. A20WE, is title 14, Code of Federal Regulations (14 CFR) part 25 as amended by amendments 25-1 through 25-120, with exceptions for structures and systems that were unchanged from the 747-400 design.
Under the provisions of § 21.101, L-3 Communications Integrated Systems must show that the Model 747-8 airplane, as changed, continues to meet the applicable provisions of the regulations listed in type certificate no. A20WE, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.
The regulations listed in the type certificate are commonly referred to as the “original type certification basis.”
In addition, the certification basis includes certain special conditions, exemptions, or later amended sections of the applicable part that are not relevant to these special conditions.
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the Model 747-8 airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34 and the noise-certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.
L-3 Communications Integrated Systems is modifying a Boeing Model 747-8 airplane to install a head-of-state interior arrangement. This airplane, as modified, will have a novel or unusual design feature associated with the installation of large, non-structural glass panels in the cabin area of an executive interior occupied by passengers and crew. The installation of these glass items in the passenger compartment, which can be occupied during taxi, takeoff, and landing, is a novel or unusual design feature with respect to the material being installed. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature.
The use of glass has resulted in trade-offs between the one unique characteristic of glass—its capability for undistorted or controlled light transmittance, or transparency—and the negative aspects of the material, such as extreme notch-sensitivity, low fracture resistance, low modulus of elasticity, and highly variable properties. While reasonably strong, glass is nonetheless not a desirable material for traditional airplane applications because it is heavy (about the same density as aluminum), and when it fails, it breaks into extremely sharp fragments that have the potential for injury and have been known to be lethal. Thus the use of glass traditionally has been limited to windshields, and instrument or display transparencies. The regulations only address, and thus only recognize, the use of glass in windshield or window applications. These regulations do address the adverse properties of glass, but even so, pilots are occasionally injured from shattered glass windshields. FAA policy allows glass on instruments and display transparencies.
Other installations of large, non-structural glass items have included the following:
• Glass panels integrated onto a stairway handrail closeout.
• Glass panels mounted in doors to allow visibility through the door when desired.
• Glass doors on some galley compartments containing small amounts of service items.
No specific regulations address the design and installation of large glass components in airplane passenger cabins. Existing requirements, such as §§ 25.561, 25.562, 25.601, 25.603, 25.613, 25.775, and 25.789, in the Boeing Model 747-8 airplane certification basis applicable to this supplemental type certificate project, provide some design standards appropriate for large glass component installations. However, additional design standards for non-structural glass augmenting the existing design are needed to complement the existing requirements. The addition of glass involved in this installation, and the potentially unsafe conditions caused by damage to such components from external sources, necessitate assuring that adequate safety standards are applied to the design and installation of the feature in Boeing Model 747-8 airplanes.
For purposes of these special conditions, a large glass component is defined as a glass component weighing 4 kg (9 lbs) or more. Groupings of glass items that individually weigh less than 4 kg, but collectively weigh 4 kg or more, also would need to be included. The proposed special conditions also apply when showing compliance with the applicable performance standards in the regulations for the installation of these components. For example, heat-release and smoke-density testing must not result in fragmentation of the component.
These proposed special conditions will reduce the hazards from breakage, or from these panels' potential separation from the cabin interior. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
As discussed above, these special conditions are applicable to Boeing Model 747-8 series airplanes. Should L-3 Communications Integrated Systems apply at a later date for a supplemental type certificate to modify any other model included on type certificate no. A20WE to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well.
This action affects only certain novel or unusual design features on one model series of airplane. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
For large glass components installed in a cabin occupied by passengers or crew who are not otherwise protected from the injurious effects of failure of the glass installations, the L-3 Communications Integrated Systems glass installations on this Boeing 747-8 airplane must meet the following conditions:
1. Material: The glass used must be tempered or otherwise treated to ensure that when fractured, it breaks into small pieces with relatively dull edges. This must be demonstrated by testing to failure.
2. Fragmentation: The glass-component installation must control the fragmentation of the glass to minimize the danger from flying glass shards or pieces. This must be demonstrated by impact and puncture testing to failure.
3. Component Strength: The glass component must be strong enough to meet the load requirements for all flight and landing loads, including any of the applicable emergency-landing conditions in subparts C & D of 14 CFR part 25. In addition, glass components that are located such that they are not protected from contact with cabin occupants must not fail due to abusive loading, such as impact from occupants stumbling into, leaning against, sitting on, or performing other intentional or unintentional forceful contact with the glass component. The effect of design details such as geometric discontinuities or surface finish,
4. Component Retention: The glass component, as installed in the airplane, must not come free of its restraint or mounting system in the event of an emergency landing. Both the directional loading and rebound conditions must be assessed. The effect of design details such as geometric discontinuities or surface finish,
5. Instructions for Continued Airworthiness: The instructions for continued airworthiness must reflect the method used to fasten the panel to the cabin interior and must ensure the reliability of the methods used,
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Proposed rule; withdrawal.
The FAA withdraws a notice of proposed rulemaking (NPRM) that proposed a new airworthiness directive (AD), which would have applied to certain The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes. For certain airplanes, the NPRM would have required a one-time inspection for damage of the hydraulic actuator rod ends and actuator attach fittings on the thrust reversers, and repair or replacement if necessary. For all airplanes, the NPRM would have required repetitive inspections for damage of the hydraulic actuator rod ends, attach bolts, and nuts; repetitive inspections for damage of fitting assemblies, wear spacers, and actuator attach fittings on the thrust reverser; repetitive measurements of the wear spacer; and corrective actions if necessary. Since the NPRM was issued, the manufacturer notified us that an assumption regarding a failure mode of the rod ends or attachment fittings for the thrust reverser actuator used in the original safety assessment was incorrect. A new safety analysis was conducted and we determined that this issue is no longer a safety concern. Accordingly, the NPRM is withdrawn.
As of February 25, 2016, the proposed rule, which was published in the
You may examine the AD docket on the Internet at
Tak Kobayashi, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6499; fax: 425-917-6590; email:
We proposed to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) with a notice of proposed rulemaking (NPRM) for a new AD for certain The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes. The NPRM published in the
The NPRM was prompted by reports of in-service damage of the attachment fittings for the thrust reverser actuator. The proposed actions were intended to detect and correct such damage, which could result in actuator attach fitting failure, loss of the thrust reverser auto restow function, and consequent loss of control of the airplane.
Since we issued the NPRM, the manufacturer has notified us that an assumption regarding a failure mode of the attachment fittings for the thrust reverser actuator used in the original safety assessment was incorrect. It was originally assumed that all hydraulic actuators attached to the thrust reverser have the failure mode (failure of the hydraulic actuator rod end or attach fitting due to severe wear-out) addressed in the NPRM. Based on field reports and design review, the manufacturer found that certain hydraulic actuators do not have this failure mode. Based on this new manufacturer finding, a new safety analysis was conducted and we determined that this issue is no longer a safety concern.
Upon further consideration, we have determined that the safety concern identified in the NPRM does not affect The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes identified in the NPRM. Accordingly, the NPRM is withdrawn.
Withdrawal of the NPRM does not preclude the FAA from issuing another related action or commit the FAA to any course of action in the future.
Since this action only withdraws an NPRM, it is neither a proposed nor a final rule and therefore is not covered under Executive Order 12866, the Regulatory Flexibility Act, or DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979).
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, we withdraw the NPRM, Docket No. FAA-2011-0254, Directorate Identifier 2010-NM-180-AD, which was published in the
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain The Boeing Company Model 767-200, -300, and -400ER series airplanes. This proposed AD was prompted by an evaluation by the design approval holder (DAH) indicating that the skin lap splice is subject to widespread fatigue damage (WFD). This proposed AD would require repetitive external detailed and surface high frequency eddy current (HFEC) inspections of the outer skin for cracking around fastener heads common to the inboard fastener row of the skin lap splice. We are proposing this AD to detect and correct fatigue cracking of the skin lap splice, which, if not detected, could grow and result in possible rapid decompression and reduced structural integrity of the airplane.
We must receive comments on this proposed AD by April 11, 2016.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
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•
•
•
For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone: 206-544-5000, extension 1; fax: 206-766-5680; Internet
You may examine the AD docket on the Internet at
Wayne Lockett, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6447; fax: 425-917-6590; email:
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
Structural fatigue damage is progressive. It begins as minute cracks, and those cracks grow under the action of repeated stresses. This can happen because of normal operational conditions and design attributes, or because of isolated situations or incidents such as material defects, poor fabrication quality, or corrosion pits, dings, or scratches. Fatigue damage can occur locally, in small areas or structural design details, or globally. Global fatigue damage is general degradation of large areas of structure with similar structural details and stress levels. Multiple-site damage is global damage that occurs in a large structural element such as a single rivet line of a lap splice joining two large skin panels. Global damage can also occur in multiple elements such as adjacent frames or stringers. Multiple-site-damage and multiple-element-damage cracks are typically too small initially to be reliably detected with normal inspection methods. Without intervention, these cracks will grow, and eventually compromise the structural integrity of the airplane, in a condition known as WFD. As an airplane ages, WFD will likely occur, and will certainly occur if the airplane is operated long enough without any intervention.
The FAA's WFD final rule (75 FR 69746, November 15, 2010) became effective on January 14, 2011. The WFD rule requires certain actions to prevent structural failure due to WFD throughout the operational life of certain existing transport category airplanes and all of these airplanes that will be certificated in the future. For existing and future airplanes subject to the WFD rule, the rule requires that DAHs establish a limit of validity (LOV) of the engineering data that support the structural maintenance program. Operators affected by the WFD rule may not fly an airplane beyond its LOV, unless an extended LOV is approved.
The WFD rule (75 FR 69746, November 15, 2010) does not require identifying and developing maintenance actions if the DAHs can show that such actions are not necessary to prevent WFD before the airplane reaches the LOV. Many LOVs, however, do depend on accomplishment of future maintenance actions. As stated in the WFD rule, any maintenance actions necessary to reach the LOV will be mandated by ADs through separate rulemaking actions.
In the context of WFD, this action is necessary to enable DAHs to propose LOVs that allow operators the longest operational lives for their airplanes, and still ensure that WFD will not occur. This approach allows for an implementation strategy that provides flexibility to DAHs in determining the timing of service information development (with FAA approval), while providing operators with certainty regarding the LOV applicable to their airplanes.
We have received an evaluation by the DAH indicating that the skin lap splice is subject to WFD. As a result of WFD analysis, the stringer S-2R skin lap splice from station (STA) 368 to STA 434 requires additional supplemental inspection beyond the inspections specified in the Boeing Model 767 airplane maintenance planning document. This condition, if not corrected, could result in cracking of the skin lap splice, which could grow and result in possible rapid
We reviewed Boeing Alert Service Bulletin 767-53A0260, dated August 26, 2014. The service information describes procedures for a detailed inspection and a surface HFEC inspection at section 41, stringer S-2R skin lap splice from STA 368 to STA 434, for any cracking, and repair. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between this Proposed AD and the Service Information.” For information on the procedures and compliance times, see this service information at
The phrase “corrective actions” is used in this proposed AD. “Corrective actions” are actions that correct or address any condition found. Corrective actions in an AD could include, for example, repairs.
We estimate that this proposed AD affects 356 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by April 11, 2016.
None.
This AD applies to the Boeing Company Model 767-200, -300, and -400ER series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 767-53A0260, dated August 26, 2014.
Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by an evaluation by the design approval holder indicating that the skin lap splice is subject to widespread fatigue damage. We are issuing this AD to detect and correct fatigue cracking of this skin lap splice, which, if not detected, could grow and result in possible rapid decompression and reduced structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
At the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 767-53A0260, dated August 26, 2014, except as required by paragraph (h) of this AD: Do a detailed inspection and a surface high frequency eddy current (HFEC) inspection at section 41, stringer S-2R skin lap splice from body station (STA) 368 to STA 434, for any cracking, and do all applicable corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert
Where Boeing Alert Service Bulletin 767-53A0260, dated August 26, 2014, specifies a compliance time “after the original issue date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.
(1) The Manager, Seattle ACO, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (i) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes ODA that has been authorized by the Manager, Seattle ACO, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(4) Except as required by paragraph (h) of this AD: For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (i)(4)(i) and (i)(4)(ii) apply.
(i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. An AMOC is required for any deviations to RC steps, including substeps and identified figures.
(ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.
(1) For more information about this AD, contact Wayne Lockett, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6447; fax: 425-917-6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone: 206-544-5000, extension 1; fax: 206-766-5680; Internet
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede Airworthiness Directive (AD) 2013-24-12, which applies to all The Boeing Company Model 747-8 and 747-8F airplanes. AD 2013-24-12 currently requires repetitive ultrasonic or dye penetrant inspections for cracking of the barrel nuts and bolts on each forward engine mount, and related investigative and corrective actions if necessary. Since we issued AD 2013-24-12, we have determined that it is necessary to mandate the installation of new barrel nuts or new inspections to adequately address the unsafe condition. This proposed AD would retain the requirements of AD 2013-24-12 and add requirements to install new barrel nuts at the forward engine mounts; or identify the part number of the barrel nuts, inspect affected barrel nuts for gaps of the strut bulkhead and forward engine mount, and do related investigative and corrective actions if necessary. This proposed AD would also remove airplanes from the applicability. We are proposing this AD to detect and correct cracked barrel nuts on a forward engine mount, which could result in reduced load capacity of the forward engine mount, separation of an engine under power from the airplane, and consequent loss of control of the airplane.
We must receive comments on this proposed AD by April 11, 2016.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone: 206-544-5000, extension 1; fax: 206-766-5680; Internet
You may examine the AD docket on the Internet at
Nathan Weigand, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6428; fax: 425-917-6590; email:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On November 19, 2013, we issued AD 2013-24-12, Amendment 39-17686 (78 FR 71989, December 2, 2013) (“AD 2013-24-12”), for all The Boeing Company Model 747-8 and 747-8F airplanes. AD 2013-24-12 requires repetitive ultrasonic or dye penetrant inspections for cracking of the barrel nuts and bolts, as applicable, on each forward engine mount, and related investigative and corrective actions if necessary. AD 2013-24-12 resulted from a report of cracked barrel nuts found on a forward engine mount. We issued AD 2013-24-12 to detect and correct cracked barrel nuts on a forward engine mount, which could result in reduced load capacity of the forward engine mount, separation of an engine under power from the airplane, and consequent loss of control of the airplane.
The preamble to AD 2013-24-12 explains that we considered the requirements “interim action” and were considering further rulemaking. We now have determined that further rulemaking is indeed necessary, and this proposed AD follows from that determination.
We reviewed the following service information:
• Boeing Service Bulletin 747-71A2329, Revision 1, dated May 28, 2015. The service information describes procedures for inspecting for cracked bolts and barrel nuts on the forward engine mounts, replacing cracked bolts and barrel nuts, and sending the inspection results and cracked parts to Boeing.
• Boeing Special Attention Service Bulletin 747-71-2332, Revision 1, dated May 28, 2015. The service information describes procedures for installing new barrel nuts, inspecting the barrel nuts at the forward engine mount to determine the part number (P/N), inspecting for gaps of the strut bulkhead and forward engine mount, and doing applicable related investigative and corrective actions.
• 747-8/-8F Airworthiness Limitation (AWL), Document Number D011U721-02-01, dated September 2015, which includes a limitation for Structurally Significant Item (SSI) 54-50-003c, which describes procedures for structural inspections.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would retain all requirements of AD 2013-24-12. This proposed AD would also require accomplishing the actions specified in Boeing Special Attention Service Bulletin 747-71-2332, Revision 1, dated May 28, 2015, described previously, except as discussed under “Differences Between Proposed AD and Service Information.” For information on the procedures and compliance times, see this service information at
The phrase “related investigative actions” is used in this proposed AD. “Related investigative actions” are follow-on actions that (1) are related to the primary action, and (2) further investigate the nature of any condition found. Related investigative actions in an AD could include, for example, inspections.
The phrase “corrective actions” is used in this proposed AD. “Corrective actions” are actions that correct or address any condition found. Corrective actions in an AD could include, for example, repairs.
Boeing Special Attention Service Bulletin 747-71-2332, Revision 1, dated May 28, 2015, specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions in one of the following ways:
• In accordance with a method that we approve; or
• Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.
We estimate that this proposed AD affects 7 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We have received no definitive data that would enable us to provide cost estimates for the bootstrap installation specified in this proposed AD. We estimate the following costs to do other necessary related investigative and corrective actions that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need these actions:
According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.
A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid Office of Management and Budget (OMB) control number. The control number for the collection of information required by this AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW., Washington, DC 20591. ATTN: Information Collection Clearance Officer, AES-200.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety,
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this AD action by April 11, 2016.
This AD replaces AD 2013-24-12, Amendment 39-17686 (78 FR 71989, December 2, 2013).
This AD applies to The Boeing Company Model 747-8F and 747-8 airplanes, certificated in any category, as identified in Boeing Service Bulletin 747-71A2329, Revision 1, dated May 28, 2015.
Air Transport Association (ATA) of America Code 71, Powerplant.
This AD was prompted by a report of cracked barrel nuts found on a forward engine mount, and by the determination that additional actions are necessary to address the unsafe condition. We are issuing this AD to detect and correct cracked barrel nuts on a forward engine mount, which could result in reduced load capacity of the forward engine mount, separation of an engine under power from the airplane, and consequent loss of control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the actions required by paragraph (g) of AD 2013-24-12, Amendment 39-17686 (78 FR 71989, December 2, 2013) (“AD 2013-24-12”), with revised service information: Except as required by paragraph (h)(1) of this AD, at the time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-71A2329, dated September 27, 2013: Do the inspection specified in paragraph (g)(1) or (g)(2) of this AD, and do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-71A2329, dated September 27, 2013; or Boeing Service Bulletin 747-71A2329, Revision 1, dated May 28, 2015. Do all applicable related investigative and corrective actions before further flight. Repeat the inspection thereafter at the times specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-71A2329, dated September 27, 2013. As of the effective date of this AD, use only Boeing Service Bulletin 747-71A2329, Revision 1, dated May 28, 2015.
(1) Ultrasonic inspection for cracking of the barrel nuts on each forward engine mount, except as required by paragraph (h)(2) of this AD.
(2) Dye penetrant inspection for cracking of the bolts and barrel nuts. Whenever a dye penetrant inspection is done, all the bolts and barrel nuts on that engine mount must be removed and replaced with new or serviceable parts.
(1) Where Boeing Alert Service Bulletin 747-71A2329, dated September 27, 2013; or Boeing Service Bulletin 747-71A2329, Revision 1, dated May 28, 2015; specify a compliance time “after the original issue date of this service bulletin,” this AD requires compliance within the specified compliance time after December 17, 2013 (the effective date of AD 2013-24-12).
(2) Where Appendix B of Boeing Alert Service Bulletin 747-71A2329, dated September 27, 2013, and Appendix B of Boeing Service Bulletin 747-71A2329, Revision 1, dated May 28, 2015, state that alternate instruments and transducers can be used, this AD requires that only equivalent instruments and transducers can be used.
(3) Where Appendix A of Boeing Alert Service Bulletin 747-71A2329, dated September 27, 2013, and Appendix A of Boeing Service Bulletin 747-71A2329, Revision 1, dated May 28, 2015, state to record flight hours and flight cycles, record the flight hours and flight cycles on the airplane and the flight hours and flight cycles for each engine since change or removal.
After any inspection required by paragraph (g) of this AD: Submit a report of the inspection results (both positive and negative), and return all cracked bolts and barrel nuts, at the applicable time specified in paragraph (i)(1) or (i)(2) of this AD. The report must include the information requested in Appendix A of Boeing Alert Service Bulletin 747-71A2329, dated September 27, 2013, or Appendix A of Boeing Service Bulletin 747-71A2329, Revision 1, dated May 28, 2015, except as required by paragraph (h)(3) of this AD. Both the report and all cracked bolts and barrel nuts must be sent to the address specified in Appendix A of Boeing Alert Service Bulletin 747-71A2329, dated September 27, 2013, or Appendix A of Boeing Service Bulletin 747-71A2329, Revision 1, dated May 28, 2015.
(1) For airplanes on which an ultrasonic inspection was done and no cracking was found, do the required actions at the time specified in paragraph (i)(1)(i) or (i)(1)(ii) of this AD, as applicable.
(i) If the inspection was done on or after December 17, 2013 (the effective date of AD 2013-24-12): Submit the report within 10 days after the inspection.
(ii) If the inspection was done before December 17, 2013 (the effective date of AD 2013-24-12): Submit the report within 10 days after December 17, 2013 (the effective date of AD 2013-24-12).
(2) For airplanes on which a dye penetrant inspection was done, do the required actions at the time specified in paragraph (i)(2)(i) or (i)(2)(ii) of this AD, as applicable.
(i) If the inspection was done on or after December 17, 2013 (the effective date of AD 2013-24-12): Submit the report and return all cracked bolts and barrel nuts within 10 days after replacing the bolts and barrel nuts with new or serviceable bolts and barrel nuts in accordance with Part 2 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-71A2329, dated September 27, 2013; or Boeing Service Bulletin 747-71A2329, Revision 1, dated May 28, 2015.
(ii) If the inspection was done before December 17, 2013 (the effective date of AD 2013-24-12): Submit the report and return all cracked bolts and barrel nuts within 10 days after December 17, 2013 (the effective date of AD 2013-24-12).
A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid Office of Management and Budget (OMB) Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 5 minutes per response, including the time for reviewing instructions, completing and reviewing the collection of information. All responses to this collection of information are mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at: 800 Independence Ave. SW., Washington, DC 20591, Attn: Information Collection Clearance Officer, AES-200.
At the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 747-71-2332, Revision 1, dated May 28, 2015, except as required by paragraph (o)(1) of this AD: Do the actions specified in paragraph (k)(1) or (k)(2) of this AD, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 747-71-2332, Revision 1, dated May 28, 2015, except as required by paragraph (o)(2) of this AD.
(1) Install new barrel nuts using the bootstrap installation method identified in Part 1 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 747-71-2332, Revision 1, dated May 28, 2015.
(2) Do a general visual inspection to determine the part number (P/N) of the barrel nuts at the forward engine mount. If any barrel nut P/N SL4081C14SP1 is installed, before further flight, do a general visual inspection for gaps of the strut bulkhead and forward engine mount to determine if the nut-by-but method identified in Part 4 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 747-71-2332, Revision 1, dated May 28, 2015, can be used, and do all applicable related investigative and corrective actions. Do all applicable related investigative and corrective actions before further flight, including the nut-by-nut replacement identified in Part 4 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 747-71-2332, Revision 1, dated May 28, 2015. If the nut-by-nut replacement identified in Part 4 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 747-71-2332, Revision 1, dated May 28, 2015 cannot be accomplished, install new nuts, in accordance with paragraph (k)(1) of this AD.
Within 30 days after accomplishment of the actions required by paragraph (k) of this AD, or within 30 days after the effective date of this AD, whichever occurs later: Revise the maintenance or inspection program, as applicable, to incorporate the 747-8/-8F Airworthiness Limitation (AWL), Document Number D011U721-02-01, Structurally Significant Item (SSI) 54-50-003c.
Accomplishment of the actions required by paragraphs (k) and (l) of this AD terminate the requirements of paragraphs (g) and (i) of this AD.
As of the effective date of this AD, no person may install or reinstall any barrel nut P/N SL4081C14SP1 at the forward engine mount assembly on any airplane, and only P/N SL4750NA may be installed.
(1) Where Boeing Special Attention Service Bulletin 747-71-2332, Revision 1, dated May 28, 2015, specifies a compliance time “after the original issue date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.
(2) Where Boeing Special Attention Service Bulletin 747-71-2332, Revision 1, dated May 28, 2015, specifies to contact Boeing for appropriate action: Before further flight, repair using a method approved in accordance with the procedures specified in paragraph (r) of this AD.
After the maintenance or inspection program has been revised as required by paragraph (l) of this AD, no alternative actions (
This paragraph provides credit for the actions specified in paragraph (k) of this AD, if those actions were performed before the effective date of this AD using Boeing Special Attention Service Bulletin 747-71-2332, dated May 30, 2014, which is not incorporated by reference in this AD.
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (s)(1) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(4) AMOCs approved for AD 2013-24-12 are approved as AMOCs for the corresponding provisions of this AD.
(5) Except as required by paragraph (o)(2) of this AD: For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (r)(5)(i) and (r)(5)(ii) of this AD apply.
(i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. An AMOC is required for any deviations to RC steps, including substeps and identified figures.
(ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.
(1) For more information about this AD, contact Nathan Weigand, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6428; fax: 425-917-6590; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone: 206-544-5000, extension 1; fax: 206-766-5680; Internet
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede Airworthiness Directive (AD) 2013-25-08, for all Airbus Model A330-200, -200 Freighter, and -300 series airplanes; and Model A340-200 and -300 series airplanes. AD 2013-25-08 currently requires a repetitive inspection program on certain check valves in the hydraulic systems that includes, among other things, inspections for lock wire presence and integrity, traces of seepage or black deposits, proper torque, alignment of the check valve and manifold, installation of new lock wire, and corrective actions if needed. Since we issued AD 2013-25-08, Airbus has developed an improved check valve. This proposed AD would add airplanes to the applicability, and require modifying the green, blue and yellow high pressure hydraulic manifolds by replacing certain check valves with improved check valves, which would terminate the repetitive inspections required by this proposed AD. We are proposing this AD to detect and correct hydraulic check valve loosening; loosened valves could result in hydraulic leaks, possibly leading to the loss of all three hydraulic systems and consequent loss of control of the airplane.
We must receive comments on this proposed AD by April 11, 2016.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Airbus SAS—Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email
You may examine the AD docket on the Internet at
Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1138; fax 425-227-1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On November 26, 2013, we issued AD 2013-25-08, Amendment 39-17704 (78 FR 78694, December 27, 2013) (“AD 2013-25-08”). AD 2013-25-08 requires actions intended to address an unsafe condition on all Airbus Model A330-200 and -300 series airplanes; and Model A340-200 and -300 series airplanes.
Since we issued AD 2013-25-08, which superseded AD 2009-24-09 Amendment 39-16068 (74 FR 62208, November 27, 2009), the European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2015-0009, dated January 16, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition. The MCAI states:
You may examine the MCAI in the AD docket on the Internet at
Airbus has issued Service Bulletin A330-29-3125, Revision 01, including Appendixes 01 and 02, dated July 30, 2015; and Service Bulletin A340-29-4096, Revision 01, including Appendixes 01 and 02, dated July 30, 2015. This service information describes procedures for modifying the green, blue, and yellow high pressure hydraulic manifolds by replacing each check valve having part number (P/N) CAR401 with an improved check valve having P/N CAR402. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs.
Paragraph (t)(1)(iii) of this proposed AD states that AMOC ANM-116-14-429 is not approved as an AMOC for the corresponding provisions of this AD. This AMOC defines a terminating action when Airbus Modification 203972 is introduced in production or when the Airbus Service Bulletin A330-29-3125, dated August 8, 2014, is embodied in service. This proposed AD will exclude from the applicability airplanes with Airbus Modification 203972 and will mandate actions in accordance with Airbus Service Bulletin A330-29-3125, Revision 01, including Appendixes 01 and 02, dated July 30, 2015.
We estimate that this proposed AD affects 88 airplanes of U.S. registry.
The actions required by AD 2013-25-08, and retained in this proposed AD take about 10 work-hours per product, at an average labor rate of $85 per work-hour. Based on these figures, the estimated cost of the actions that are required by AD 2013-25-08 is $850 per product.
We also estimate that it would take about 32 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $239,360, or $2,720 per product.
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD. We have no way of determining the number of aircraft that might need these actions.
According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all available costs in our cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by April 11, 2016.
This AD replaces AD 2013-25-08, Amendment 39-17704 (78 FR 78694, December 27, 2013).
This AD applies to Airbus airplanes, certificated in any category, as identified in paragraphs (c)(1) and (c)(2) of this AD.
(1) Model A330-201, -202, -203, -223, -223F, -243, -243F, -301, -302, -303, -321, -322, -323, -341, -342, and -343 airplanes; all manufacturer serial numbers except those on which Airbus modification 203972 has been embodied in production.
(2) Model A340-211, -212, -213, -311, -312, and -313 airplanes; all manufacturer serial numbers.
Air Transport Association (ATA) of America Code 29, Hydraulic power.
This AD was prompted by multiple reports of hydraulic line check valves loosening. We are issuing this AD to detect and correct hydraulic check valve loosening, which could result in hydraulic leaks, possibly leading to the loss of all three hydraulic systems and consequent loss of control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the requirements of paragraph (g) of AD 2013-25-08, Amendment 39-17704 (78 FR 78694, December 27, 2013), with no changes. Except for Model A330-223F and A330-243F airplanes: Do the actions required by paragraphs (g)(1) and (g)(2) of this AD.
(1) For airplanes that do not have Airbus Modification 54491 embodied in production, or Airbus Service Bulletin A330-29-3101 or Airbus Service Bulletin A340-29-4078 embodied in service: Within 100 flight cycles or 28 days after December 14, 2009 (the effective date of AD 2009-24-09, Amendment 39-16068 (74 FR 62208, November 27, 2009)), whichever occurs first, inspect the check valves on the blue, green, and yellow hydraulic systems to identify their part numbers (P/Ns), in accordance with the instructions of Airbus All Operators Telex (AOT) A330-29A3111, Revision 1, dated October 8, 2009 (for Model A330-200 and -300 series airplanes); or AOT A340-29A4086, Revision 1, dated October 8, 2009
(i) If check valves having P/N CAR401 are installed on all three hydraulic systems, before further flight, do the actions specified in paragraph (g)(2)(i) of this AD. After accomplishing the actions required by paragraph (g)(2)(i) of this AD, do the actions specified in paragraphs (g)(2)(ii) and (g)(2)(iii) of this AD at the applicable compliance times specified in those paragraphs. Accomplishment of the inspection required by paragraph (i) of this AD terminates the requirements of this paragraph.
(ii) If check valves having P/N CAR401 are not installed on all three hydraulic systems, no further action is required by this paragraph until any check valve having P/N CAR400 is replaced with a check valve having P/N CAR401. If any check valve having P/N CAR400 is replaced by a check valve having P/N CAR401, before further flight, do the inspection specified in paragraph (g)(1) of this AD to determine if all three hydraulic systems are equipped with check valves having P/N CAR401. Accomplishment of the inspection required by paragraph (h) of this AD terminates the requirements of this paragraph.
(2) For airplanes on which Airbus Modification 54491 was embodied in production, or Airbus Service Bulletin A330-29-3101; or Airbus Service Bulletin A340-29-4078 was embodied in service, do the actions specified in paragraphs (g)(2)(i), (g)(2)(ii), and (g)(2)(iii) of this AD.
(i) Except as required by paragraph (g)(1)(i) of this AD, at the applicable times specified in paragraphs (g)(2)(i)(A) and (g)(2)(i)(B) of this AD, as applicable: Do the inspection program (detailed inspection of the lock wire for presence and integrity, a detailed inspection for traces of seepage or black deposits, and an inspection for proper torque) on yellow and blue high pressure manifolds, install new lock wires, and do all applicable corrective actions, in accordance with the instructions of paragraph 4.1.1 of Airbus AOT A330-29A3111, Revision 1, dated October 8, 2009 (for Model A330-200 and -300 series airplanes); or AOT A340-29A4086, Revision 1, dated October 8, 2009 (for Airbus Model A340-200 and -300 series airplanes). Do all applicable corrective actions before further flight. Accomplishment of the inspection required by paragraph (h)(1) of this AD terminates the requirements of this paragraph.
(A) For airplanes on which Airbus Modification 54491 has been embodied in production: At the later of the times specified in paragraphs (g)(2)(i)(A)(
(
(
(B) For airplanes on which Airbus Service Bulletin A330-29-3101 or A340-29-4078 was embodied in service: At the later of the times specified in paragraphs (g)(2)(i)(B)(
(
(
(ii) Within 900 flight hours after accomplishment of paragraph (g)(2)(i) of this AD, do the inspection program (detailed inspection of the lock wire for presence and integrity, a detailed inspection for traces of seepage or black deposits, and an inspection for proper torque) and install a new lock wire on the green high pressure manifold; and do an inspection (detailed inspection for traces of seepage or black deposits, and detailed inspection to determine alignment of the check valve and manifold) on the yellow and blue high pressure manifolds, and do all applicable corrective actions; in accordance with the instructions of paragraph 4.1.2 of Airbus AOT A330-29A3111, Revision 1, dated October 8, 2009 (for Model A330-200 and -300 series airplanes); or AOT A340-29A4086, Revision 1, dated October 8, 2009 (for Model A340-200 and -300 series airplanes). Do all applicable corrective actions before further flight. Accomplishment of the inspection program required by paragraph (i) of this AD terminates the requirements of this paragraph.
(iii) Within 900 flight hours after accomplishment of paragraph (g)(2)(ii) of this AD, and thereafter at intervals not to exceed 900 flight hours, do the inspection program (detailed inspection for traces of seepage or black deposits, and detailed inspection to determine alignment of the check valve and manifold) on the green, yellow, and blue high pressure manifolds, and do all applicable corrective actions, in accordance with the instructions of paragraph 4.1.3 of Airbus AOT A330-29A3111, Revision 1, dated October 8, 2009 (for Model A330-200 and -300 series airplanes); or AOT A340-29A4086, Revision 1, dated October 8, 2009 (for Model A340-200 and -300 series airplanes). Do all applicable corrective actions before further flight. Accomplishment of the inspection program required by paragraph (i) of this AD terminates the requirements of this paragraph.
This paragraph restates the requirements of paragraph (h) of AD 2013-25-08, Amendment 39-17704 (78 FR 78694, December 27, 2013, with no changes. For airplanes equipped with check valves having P/N CAR400; and for airplanes equipped with check valves having P/N CAR401, except for airplanes on which Airbus Modification 201384 has been embodied during production, or on which Airbus Service Bulletin A330-29-3119 (for Model A330-200, -200F, and -300 series airplanes) or Airbus Service Bulletin A340-29-4091 (for Model A340-200 and -300 series airplanes) has been embodied in service: Within 900 flight hours after January 31, 2014 (the effective date of AD 2013-25-08, Amendment 39-17704 (78 FR 78694, December 27, 2013)), inspect the check valves on the blue, green, and yellow hydraulic systems to identify their part numbers, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-29-3111, Revision 02, dated June 23, 2011 (for Model A330-200, -200F and -300 series airplanes); or Airbus Service Bulletin A340-29-4086, Revision 02, dated June 23, 2011 (for Model A340-200 and -300 series airplanes). Accomplishment of the actions required by this paragraph terminates the requirements specified in paragraphs (g)(1) and (g)(1)(ii) of this AD.
(1) If check valves having P/N CAR401 are installed on all three hydraulic systems: Before further flight, do the inspection program (detailed inspection for red mark presence and alignment integrity of the check valve and manifold, a detailed inspection for traces of seepage or black deposits, and an inspection for proper torque) on yellow and blue high pressure manifolds, and do all applicable corrective actions, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-29-3111, Revision 02, dated June 23, 2011 (for Model A330-200, -200F, and -300 series airplanes); or Airbus Service Bulletin A340-29-4086, Revision 02, dated June 23, 2011 (for Model A340-200 and -300 series airplanes). Accomplishment of the actions required by this paragraph terminates the requirements specified in paragraph (g)(2)(i) of this AD.
(2) If check valves having P/N CAR401 are not installed on all three hydraulic systems, no further action is required by this paragraph until any check valve having P/N CAR400 is replaced with a check valve having P/N CAR401. If any check valve having P/N CAR400 is replaced by a check valve having P/N CAR401: Before further flight after such replacement, do the actions specified in paragraph (h) of this AD, to determine if all three hydraulic systems are equipped with check valves having P/N CAR401. If check valves having P/N CAR401 are installed on all three hydraulic systems: Before further flight, do the actions specified in paragraphs (h)(1) and (i) of this AD.
This paragraph restates the requirements of paragraph (i) of AD 2013-25-08, Amendment 39-17704 (78 FR 78694, December 27, 2013), with no changes. Within 900 flight hours after accomplishment of paragraph (h)(1) of this AD, do the inspection program (detailed inspection for red mark presence and alignment integrity of the check valve and manifold, a detailed inspection for traces of seepage or black deposits, and an inspection for proper torque) on the green, yellow, and blue system check valves, and do all applicable corrective actions, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-29-3111, Revision 02, dated June 23, 2011 (for Model A330-200, -200F, and -300 series airplanes);
This paragraph restates the requirements of paragraph (j) of AD 2013-25-08, Amendment 39-17704 (78 FR 78694, December 27, 2013), with no changes. For airplanes equipped with check valves having P/N CAR401 and on which Airbus Modification 201384 has been embodied during production, or on which Airbus Service Bulletin A330-29-3119 (for Model A330-200, -200F, and -300 series airplanes); or Airbus Service Bulletin A340-29-4091 (for Model A340-200 and -300 series airplanes) has been embodied in service: Within 1,000 flight hours after January 31, 2014 (the effective date of AD 2013-25-08, Amendment 39-17704 (78 FR 78694, December 27, 2013)), do a general visual inspection of the green, yellow, and blue high pressure manifolds and check valves having P/N CAR401 for any sign of rotation of the check valve head, and for any signs of hydraulic fluid leakage or seepage (including black deposits), in accordance with the instructions of Airbus Alert Operators Transmission A29L001-12, dated October 11, 2012. Repeat the inspection thereafter at interval not to exceed 900 flight hours.
This paragraph restates the requirements of paragraph (k) of AD 2013-25-08, Amendment 39-17704 (78 FR 78694, December 27, 2013), with no changes. If, during any inspection required by paragraph (j) of this AD, any sign of rotation of the check valve head is found, or any sign of hydraulic fluid leakage or seepage (including black deposits) is found: Before further flight, do all applicable corrective actions, in accordance with the instructions of Airbus Alert Operators Transmission A29L001-12, dated October 11, 2012.
This paragraph restates the provisions of paragraph (l) of AD 2013-25-08, Amendment 39-17704 (78 FR 78694, December 27, 2013), with no changes. Accomplishment of the corrective actions required by this AD does not constitute terminating action for the repetitive inspections required by this AD.
This paragraph restates the requirements of paragraph (m) of AD 2013-25-08, Amendment 39-17704 (78 FR 78694, December 27, 2013), with no changes. As of January 31, 2014 (the effective date of AD 2013-25-08, Amendment 39-17704 (78 FR 78694, December 27, 2013)), at each replacement of a check valve with a check valve having P/N CAR401, apply a torque of 141 to 143 newton meter (N.m) (103.98 to 105.45 pounds-foot (lbf.ft)) during installation.
This paragraph restates the provisions of paragraph (n) of AD 2013-25-08, Amendment 39-17704 (78 FR 78694, December 27, 2013), with no changes.
(1) This paragraph provides credit for actions required by paragraph (g)(2)(i) of this AD, if those actions were performed before December 14, 2009 (the effective date of AD 2009-24-09, Amendment 39-16068 (74 FR 62208, November 27, 2009)), using the applicable service information specified in paragraphs (n)(1)(i) and (n)(1)(ii) of this AD.
(i) Airbus AOT A330-29A3111, dated September 2, 2009 (for Model A330-200 and -300 series airplanes), which is not incorporated by reference in this AD.
(ii) Airbus AOT A340-29A4086, dated September 2, 2009 (for Model A340-200 and -300 series airplanes), which is not incorporated by reference in this AD.
(2) This paragraph provides credit for actions required by paragraph (h) of this AD, if those actions were performed before January 31, 2014 (the effective date of AD 2013-25-08, Amendment 39-17704 (78 FR 78694, December 27, 2013)) using the applicable service information specified in paragraphs (n)(2)(i) through (n)(2)(iv) of this AD.
(i) Airbus AOT A330-29A3111, dated September 2, 2009 (for Model A330-200 and -300 series airplanes), which is not incorporated by reference in this AD.
(ii) Airbus AOT A330-29A3111, Revision 1, dated October 8, 2009 (for Model A330-200 and -300 series airplanes).
(iii) Airbus AOT A340-29A4086, dated September 2, 2009, (for Model A340-200 and -300 series airplanes), which is not incorporated by reference in this AD.
(iv) Airbus AOT A340-29A4086, Revision 1, dated October 8, 2009 (for Model A340-200 and -300 series airplanes).
This paragraph restates the provisions of paragraph (o) of AD 2013-25-08, Amendment 39-17704 (78 FR 78694, December 27, 2013), with no changes. Although the service information specified in paragraphs (o)(1) through (o)(5) of this AD specifies to submit certain information to the manufacturer, this AD does not include that requirement.
(1) Airbus Alert Operators Transmission A29L001-12, dated October 11, 2012.
(2) Airbus Mandatory Service Bulletin A330-29-3111, Revision 02, dated June 23, 2011.
(3) Airbus Mandatory Service Bulletin A340-29-4086, Revision 02, dated June 23, 2011.
(4) Airbus AOT A330-29A3111, Revision 1, dated October 8, 2009.
(5) Airbus AOT A340-29A4086, Revision 1, dated October 8, 2009.
Within 36 months after the effective date of this AD, modify the green, blue, and yellow high pressure hydraulic manifolds by replacing each check valve having P/N CAR401 with an improved check valve having P/N CAR402, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-29-3125, Revision 01, including Appendixes 01 and 02, dated July 30, 2015; or Airbus Service Bulletin A340-29-4096, Revision 01, including Appendixes 01 and 02, dated July 30, 2015; as applicable.
Modification of an airplane, as required by paragraph (p) of this AD, constitutes terminating action for the repetitive inspections required by this AD.
(1) For an airplane that, as of the effective date of this AD, has a check valve having P/N CAR401 installed, after modification of an airplane as required by paragraph (p) of this AD, no person may install a check valve having P/N CAR401, on that airplane.
(2) For an airplane that does not have a check valve having P/N CAR401 installed, as of the effective date of this AD, no person may install a check valve having P/N CAR401, on that airplane.
This paragraph provides credit for actions required by paragraph (p) of this AD, if those actions were performed before the effective date of this AD using Airbus Service Bulletin A330-29-3125, dated August 8, 2014; or Airbus Service Bulletin A340-29-4096, dated August 8, 2014; as applicable; which are not incorporated by reference in this AD.
The following provisions also apply to this AD:
(1)
(i) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.
(ii) AMOC ANM-116-14-180 R1, dated February 21, 2014, is approved as an AMOC for the corresponding provisions of this AD.
(iii) AMOC ANM-116-14-429, dated September 25, 2014, is not approved as an AMOC for the corresponding provisions of this AD.
(2)
(3)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2015-0009, dated January 16, 2015, for related information. This MCAI may be found in the AD docket on the Internet at
(2) Service information identified in this AD that is not incorporated by reference may be obtained at Airbus SAS—Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email
(3) For service information identified in this AD, contact Airbus SAS—Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking by cross-reference to temporary regulations.
In the Rules and Regulations section of this issue of the
Comments and requests for a public hearing must be received by May 25, 2016.
Send submissions to: CC:PA:LPD:PR (REG-150349-12), room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to: CC:PA:LPD:PR (REG-150349-12), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC. Submissions may also be sent electronically via the Federal eRulemaking Portal at
Concerning the regulations, Jian H. Grant, (202) 317-4137, and Martha M. Garcia, (202) 317-6853 (not toll-free numbers); concerning submission of comments, the hearing, and/or to be placed on the building access list to attend the hearing, Oluwafunmilayo Taylor at (202) 317-6901 (not a toll-free number).
Final and temporary regulations in the Rules and Regulations section of this issue of the
Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.
Before these proposed regulations are adopted as final regulations, consideration will be given to any comments that are submitted timely to the IRS as prescribed in this preamble under the “ADDRESSES” heading. The Treasury Department and the IRS request comments on all aspects of the proposed rules. All comments will be available at
The principal authors of these regulations are Jian H. Grant and Martha M. Garcia, Office of the Associate Chief Counsel (Passthroughs and Special Industries). However, other personnel from the IRS and the Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
(a) * * *
(2) * * *
(iii) [The text of proposed amendments to § 1.42-5(a)(2)(iii) is the same as the text of § 1.42-5T(a)(2)(iii) published elsewhere in this issue of the
(c) * * *
(2) * * *
(ii) [The text of proposed amendments to § 1.42-5(c)(2)(ii) is the same as the text of § 1.42-5T(c)(2)(ii) published elsewhere in this issue of the
(iii) [The text of proposed amendments to § 1.42-5(c)(2)(iii) is the same as the text of § 1.42-5T(c)(2)(iii) published elsewhere in this issue of the
(3) [The text of proposed amendments to § 1.42-5(c)(3) is the same as the text of § 1.42-5T(c)(3) published elsewhere in this issue of the
(h) * * *
[The text of the proposed addition to § 1.42-5(h) is the same as the text of the first two sentences of § 1.42-5T(h)(1) published elsewhere in this issue of the
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to update special local regulations and permanent safety zones in the Coast Guard Sector Northern New England Captain of the Port Zone for annual recurring marine events. When enforced, these proposed special local regulations and safety zones would restrict vessels from portions of water areas during certain annually recurring events. The proposed special local regulations and safety zones are intended to expedite public notification and ensure the protection of the maritime public and event participants from the hazards associated with certain maritime events. We invite your comments on this proposed rulemaking.
Comments and related material must be received by the Coast Guard on or before April 25, 2016.
You may submit comments identified by docket number USCG-2015-1052 the Federal eRulemaking Portal
If you have questions about this proposed rulemaking, call or email Chief Marine Science Technician Chris Bains, Waterways Management Division at Coast Guard Sector Northern New England, telephone (207) 347-5003, or email
Swim events, fireworks displays, and marine events are held on an annual recurring basis on the navigable waters within the Coast Guard Sector Northern New England COTP Zone. In the past, the Coast Guard has established special local regulations, regulated areas, and safety zones for these annual recurring events on a case by case basis to ensure the protection of the maritime public and event participants from the hazards associated with these events. As mentioned above, the Coast Guard has not received public comments or concerns regarding the impact to waterway traffic from the Coast Guard's regulations associated with these annually recurring events. In the past year, events were assessed for their likelihood to recur in subsequent years or to discontinue, and were added to or deleted from the tables accordingly. In addition, minor changes to existing events were made to ensure the accuracy of event details.
The purpose of this rulemaking is to reduce administrative overhead, expedite public notification of events, and ensure the protection of the maritime public during marine events in the Sector Northern New England area. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.
The proposed rule would update the tables of annual recurring events in the existing regulation for the Coast Guard Sector Northern New England COTP Zone. The tables provide the event name, sponsor, and type, as well as approximate times, dates, and locations of the events. Advanced public notification of specific times, dates, regulated areas, and enforcement periods for each event will be provided through appropriate means, which may include, but are not limited to, the Local Notice to Mariners, Broadcast Notice to Mariners, or a Notice of Enforcement published in the
We developed this proposed rule after considering numerous statutes and executive orders (E.O.s) related to rulemaking. Below we summarize our analyses based on a number of these statutes and E.O.s, and we discuss First Amendment rights of protestors.
E.O.s 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This NPRM has not been designated a “significant regulatory action,” under E.O. 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget.
We expect the economic impact of this proposed rule to be minimal. Although this regulation may have some impact on the public, the potential impact will be minimized for the
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above this proposed rule would not have a significant economic impact on any vessel owner or operator.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under E.O. 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in E.O. 13132.
Also, this proposed rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves water activities including swimming events and fireworks displays and maybe categorically excluded from further review under paragraph 34(g) (Safety Zones) and (34)(h) (Special Local Regulations) of Figure 2-1 of Commandant Instruction M16475.lD. A preliminary environmental analysis checklist supporting this is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Marine safety, Navigation (water), Reporting and record-keeping requirements, Waterways.
Harbors, Marine Safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to
33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve, as a revision to the State Implementation Plan (SIP), a submittal by the Indiana Department of Environmental Management (IDEM) on April 27, 2015 and September 10, 2015. The submittal concerns the state's Stage II vapor recovery (Stage II) program for Clark and Floyd counties in southern Indiana as part of the Louisville, Kentucky ozone nonattainment area, and Lake and Porter counties in northwest Indiana as part of the Chicago ozone nonattainment area. The submittal removes Stage II requirements from both nonattainment areas, as a component of the Indiana ozone SIP. The submittal also includes a demonstration under the Clean Air Act (CAA) that addresses emission impacts associated with the removal of the Stage II program.
Comments must be received on or before March 28, 2016.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2015-0315 at
Francisco J. Acevedo, Mobile Source Program Manager, Control Strategies Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6061,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
Stage II and onboard refueling vapor recovery (ORVR) are two types of emission control systems that capture fuel vapors from vehicle gas tanks during refueling. Stage II systems are specifically installed at gasoline dispensing facilities (GDF) and capture the refueling fuel vapors at the gasoline pump nozzle. The system carries the vapors back to the underground storage tank at the GDF to prevent the vapors from escaping to the atmosphere. ORVR systems are carbon canisters installed directly on automobiles to capture the fuel vapors evacuated from the gasoline tank before they reach the nozzle. The fuel vapors captured in the carbon canisters are then combusted in the engine when the automobile is in operation.
Both Stage II and ORVR were required by the 1990 Amendments to the CAA under sections 182(b)(3) and 202(a)(6), respectively. In some areas, Stage II has been in place for over 25 years. It was not, however, widely implemented by the states until the early to mid-1990s as a result of the CAA requirements for “moderate,” “serious,” “severe,” and “extreme” ozone nonattainment areas, classified under section 181 of the CAA, and for states in the Northeast Ozone Transport Region (OTR) under section 184(b)(2) of the CAA.
Under section 202(a)(6) of the CAA, Congress required EPA to promulgate regulations for ORVR for light-duty vehicles (passenger cars). EPA adopted these requirements in 1994, at which point moderate ozone nonattainment areas were no longer subject to the section 182(b)(3) Stage II requirement. See 59 FR 16262 (April 6, 1994). However, some moderate areas retained Stage II requirements to provide a control method to comply with rate-of-progress emission reduction targets. ORVR equipment has been phased in for new passenger vehicles beginning with model year 1998, and starting in 2001 for light-duty trucks and most heavy-duty gasoline-powered vehicles. ORVR equipment has been installed on nearly all new gasoline-powered light-duty vehicles, light-duty trucks and heavy-duty vehicles since 2006. During the phase-in of ORVR controls, Stage II has provided volatile organic compound (VOC) reductions in ozone nonattainment areas and certain attainment areas of the OTR. Under section 202(a)(6) of the CAA, Congress recognized that ORVR and Stage II could eventually become largely redundant technologies, and provided authority to the EPA to allow states to remove Stage II from their SIPs after EPA finds that ORVR is in widespread use. On May 16, 2012, EPA determined that ORVR was in widespread nationwide use for control of gasoline emissions during refueling of vehicles at GDFs (77 FR 28772).
In 2012, more than 75 percent of gasoline refueling nationwide occurred with ORVR-equipped vehicles, so Stage II programs have become largely redundant control systems and Stage II systems achieve an ever declining emissions benefit as more ORVR-equipped vehicles continue to enter the on-road motor vehicle fleet.
On that date, EPA also exercised its authority under section 202(a)(6) of the CAA to waive certain Federal statutory requirements for Stage II at GDFs. This decision exempted all new ozone nonattainment areas classified serious or above from the requirement to adopt Stage II control programs. Similarly, any state currently implementing Stage II programs was authorized to submit SIP revisions that, once approved by EPA, would allow for the phase-out of Stage II control systems.
To assist states in the development of SIP revisions to remove Stage II requirements from their SIPs, EPA issued its “Guidance on Removing Stage II Gasoline Vapor Control Programs from State Implementation Plans and Assessing Comparable Measures” (EPA-457/B-12-001) on August 7, 2012. In that document, EPA provided both technical and policy recommendations to states and local areas on how to develop and submit and approvable SIP revision seeking to phase out an existing Stage II program.
Indiana originally submitted a SIP revision request to EPA on February 25, 1994, to satisfy the requirements of section 182(b)(3) of the CAA. The submission applied to Clark and Floyd counties Indiana as part of the Louisville, Kentucky ozone nonattainment area and Lake and Porter counties Indian as part of the Chicago ozone nonattainment area. EPA fully approved Indiana's Stage II program on April 28, 1994 (59 FR 10111), including the program's legal authority and administrative requirements found in Section 8-4-6 of Title 326 of the Indiana Administrative Code (326 IAC).
In January 2013, IDEM issued a Nonrule Policy Document, Air-036 (NPD), addressing EPA's May 16, 2012 determination. In the NPD, IDEM stated that it would not enforce the requirements for Stage II at new and modified GDFs in Clark, Floyd, Lake and Porter counties. At the same time Indiana also initiated a rulemaking process to revise its SIP to remove Stage II requirements for all facilities in Clark, Floyd, Lake and Porter counties. As part of that process, Indiana completed a state-specific analysis following EPA's recommended methodology. In that analysis, Indiana concluded that, during calendar year 2016, ORVR would be in widespread use in Indiana and that there would no remaining emissions reduction benefit from Stage II requirements beyond the benefits from ORVR.
On April 27, 2015 and September 10, 2015, IDEM submitted rules as SIP revision requests of amendments to 326 IAC 8-4-6 and 326 IAC 8-4-1. These amendments would remove Stage II requirements from the Indiana ozone SIP and allow GDFs currently implementing Stage II in the four program counties to decommission their systems. To support the removal of the Stage II requirements, the revised rules included copies of 326 IAC 8-4-1 and 326 IAC 8-4-6, as published in the Indiana Register on March 4, 2015; a summary of state-specific calculations
Revisions to SIP-approved control measures must meet the requirements of section 110(l) of the CAA in order to be approved by EPA. Section 110(l) states:
“The Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 171), or any other applicable requirement of this Act.”
EPA evaluates each section 110(l) non-interference demonstration on a case-by-case basis considering the circumstances of each SIP revision. EPA interprets section 110(l) to apply to all requirements of the CAA and to all areas of the country, whether attainment, nonattainment, unclassifiable, or maintenance for one or more of the six criteria pollutants. EPA also interprets section 110(l) to require a demonstration addressing all criteria pollutants whose emissions and/or ambient concentrations may change as a result of the SIP revision. The degree of analysis focused on any particular national ambient air quality standards (NAAQS) in a non-interference demonstration varies depending on the nature of the emissions associated with the proposed SIP revision.
In the absence of an attainment demonstration, to demonstrate no interference with any applicable NAAQS or requirement of the CAA under section 110(l), EPA believes it is appropriate to allow states to substitute equivalent emissions reductions to compensate for any change to a SIP-approved program, as long as actual emissions in the air are not increased. “Equivalent” emissions reductions mean reductions which are equal to or greater than those reductions achieved by the control measure approved in the SIP. To show that compensating emissions reductions are equivalent, modeling or adequate justification must be provided. The compensating, equivalent reductions must represent actual, new emissions reductions achieved in a contemporaneous time frame to the change of the existing SIP control measure, in order to preserve the status quo level of emissions in the air. In addition to being contemporaneous, the equivalent emissions reductions must also be permanent, enforceable, quantifiable, and surplus to be approved into the SIP.
The implementation of the Stage II program in Indiana has resulted in reductions of VOC emissions. VOCs contribute to the formation of ground-level ozone. Thus the potential increase in VOC needs to be offset with equivalent (or greater) emissions reductions from another control measure in order to demonstrate non-interference with the 8-hour ozone NAAQS. The Indiana Stage II SIP revision includes a 110(l) demonstration for both areas that uses equivalent emissions reductions to compensate for emission reduction losses between 2013 and 2015 resulting from the removal of Stage II systems at a number of GDFs before ORVR is in widespread use as allowed by Indiana's NPD. IDEM has calculated that by 2016, ORVR will be in widespread use in both areas and the absence of the Indiana Stage II program after 2016 would not result in a net VOC emissions increase compared to the continued utilization of this emissions control technology. The emission reduction losses resulting from removing Stage II before 2016 are transitional and relatively small since ORVR-equipped vehicles will continue to phase into the fleet over the coming years. IDEM's calculation indicates a maximum potential loss of 0.02317 tons per summer day (tpsd) in Lake and Porter counties and 0.00408 tpsd in Clark and Floyd counties from 2013 through 2015.
For Lake and Porter Counties, IDEM is proposing the use of VOC emission reductions associated with the shutdown of the State Line Energy Generating Plant (State Line Energy) formerly located in Lake County, Indiana to offset the 0.02317 tpsd increase in those counties. State Line ceased operations in March 31, 2012 and its operating permit has been revoked. The expiration and revocation of this source's permit enables the state to use the VOC emission credits associated with this facility for other purposes under the SIP and makes such credits permanent and enforceable. Using the last three full years of operations (2009-2011) State Line Energy averaged 0.215 tpsd of VOC of emissions offsets. Table 1 shows the increase of emissions associated with the removal of Stage II systems at facilities in Lake and Porter counties, as well as offset emissions associated with State Line Energy. In the table, the number of facilities removing Stage II equipment for 2013 represents the actual number of facilities that sought an exemption from implementing the Stage II requirements. For 2014 and 2015, the number of facilities removing Stage II equipment is a conservative estimate.
As illustrated in Table 1, and documented in Indiana's SIP revision, for Lake and Porter counties, for each year prior to the widespread use of ORVR in Indiana (2016), the VOC emissions increase associated with the removal of Stage II systems is more than offset by the VOC emission reductions
For Clark and Floyd counties, IDEM is proposing the use of offsets generated by the Architectural and Industrial Maintenance (AIM) coatings rule adopted by Indiana at 326 IAC 8-14. Indiana's AIM coatings rule goes above and beyond the Federal AIM rule by adopting a rule that is similar to the Ozone Transport Commission (OTC) model rule. According to a 2006 Lake Michigan Air Directors Consortium (LADCO) white paper, the OTC model rule provides a 31% to 48.4% (depending on the AIM coatings category) reduction in VOC emissions compared to uncontrolled 2002 base case emissions while the Federal AIM rule alone only provides a 20% reduction compared to base case.
The Indiana AIM rule was approved into the SIP on August 30, 2012 (77 FR 52606). Indiana was not required to adopt an AIM coatings rule but did so as a multi-state effort to help reduce ozone levels at the regional level. Indiana did not adopt the AIM rule to comply with any Indiana SIP planning requirements and has not taken credit for it in air quality plans, nor has it been included in maintenance year horizons or rate of further progress (RFP) inventories. Therefore, these SIP approved AIM limits can be used as offsets for other purposes, such as this SIP revision. Offsets of 0.234 tpsd of VOC are available based on calculations derived using the 2011 National Emissions Inventory data. Table 2 shows the increase of VOC emission associated with the removal of Stage II systems at facilities in Clark and Floyd between 2013 and 2015, as well as offset emissions associated with AIM coatings. In the table, the number of facilities removing Stage II equipment for 2013 represents the actual number of facilities that have sought an exemption from implementing the Stage II requirements. For 2014 and 2015, the number of facilities removing Stage II equipment is a conservative estimate.
As illustrated in Table 2, and documented in Indiana's SIP revision, for Clark and Floyd counties, for each year prior to the widespread use of ORVR in Indiana (2016), the VOC emissions increase associated with the removal of Stage II systems is more than offset by the VOC emission reductions attributed to reductions in AIM coatings emissions. For both the Clark and Floyd counties and Lake and Porter counties analyses, Indiana is requesting to use only the portion of the emissions offsets necessary to offset the emissions increase due to the removal of Stage II systems before Indiana's 2016 widespread use timeframe. Indiana retains the right to utilize any remaining emissions offsets in the future.
Based on the use of permanent, enforceable, contemporaneous, surplus emissions reductions achieved through the shutdown of the previously permitted State Line Energy facility in Lake and Porter counties and the offsets from VOC reductions in AIM coatings emissions in Clark and Floyd counties, EPA believes that the removal of the Indiana Stage II program does not interfere with southeast Indiana's ability to demonstrate compliance with the 8-hour ozone NAAQS.
EPA also examined whether the removal of Stage II program requirements in both areas will interfere with attainment of other air quality standards. Lake and Porter counties are designated attainment for all standards other than ozone, including sulfur dioxide and nitrogen dioxide. Clark and Floyd counties are designated attainment for all standards other than ozone and particulate matter.
Based on the above discussion and the state's section 110(l) demonstration, EPA believes that removal of the Stage II program will not interfere with attainment or maintenance of any of the NAAQS in both the Chicago and Louisville, Kentucky ozone nonattainment areas and would not interfere with any other applicable requirement of the CAA, and thus, are approvable under CAA section 110(l).
EPA is proposing to approve, as a revision to the Indiana ozone SIP, regulations submitted by IDEM on April 27, 2015 and September 10, 2015. EPA finds that the revisions will not interfere with any applicable CAA requirement.
In this rulemaking, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference Indiana rules 326 IAC 8-4-1 “Applicability” and 326 IAC 8-4-6 “Gasoline dispensing facilities”, effective March 5, 2015. EPA has made, and will continue to make, these documents generally available through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Ozone, Volatile organic compounds.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve revisions to the Indiana State Implementation Plan (SIP) submitted by the Indiana Department of Environmental Management (IDEM) to EPA on January 27, 2016, and February 5, 2016, for parallel processing. The submittal consists of orders issued by the Commissioner of IDEM that require more stringent sulfur dioxide (SO
Comments must be received on or before March 28, 2016.
Submit your comments, identified by Docket ID Nos. EPA-R05-OAR-2016-0075 for A.B. Brown or EPA-R05-OAR-2016-0090 for Clifty Creek at
Jenny Liljegren, Physical Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6832,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
On January 27, 2016, and February 5, 2016, IDEM submitted for parallel processing draft revisions to its SIP consisting of orders issued by IDEM's Commissioner that establish more stringent SO
On June 3, 2010, pursuant to section 109 of the Clean Air Act (CAA), EPA revised the primary (health-based) SO
On August 5, 2013, EPA published a final rule establishing air quality designations for 29 areas in the United States for the 2010 SO
Following the initial August 5, 2013, designations, three lawsuits were filed against EPA in different U.S. District Courts, alleging EPA had failed to perform a nondiscretionary duty under the CAA by not designating all portions of the country by the June 2013 deadline. In an effort intended to resolve the litigation in one of those cases, plaintiffs Sierra Club and the Natural Resources Defense Council and EPA filed a proposed consent decree with the U.S. District Court for the Northern District of California. On March 2, 2015, the court entered the consent decree and issued an enforceable order for EPA to complete the area designations according to the court-ordered schedule.
By no later than July 2, 2016, (16 months from the court's order), EPA must designate two groups of areas: (1) Areas that have newly monitored violations of the 2010 SO
A.B. Brown and Clifty Creek each meet the second criterion for the July 2, 2016, deadline. That is, neither has been “announced for retirement” and both emitted in 2012 either (i) more than 16,000 tons of SO
IDEM has requested that EPA approve Commissioner's Order 2016-01 for A.B. Brown and Commissioner's Order 2016-02 for Clifty Creek into Indiana's SIP. EPA's approval of the new SO
EPA cannot take final action to approve the orders into Indiana's SIP until the state completes its public comment process and submits the final orders to EPA as SIP revision requests. In the meantime, Indiana requested that EPA “parallel process” the SIP revision to expedite action on the Commissioner's orders. Under this procedure, the state submitted a copy of the proposed revisions to EPA before completing its public comment process. EPA is publishing this proposed rulemaking in the
For A.B. Brown, Indiana issued Commissioner's Order 2016-01 on January 11, 2016, with a compliance date of April 19, 2016. This order established two new limits for A.B. Brown: One limit for Unit 1 when running alone and one limit for Units 1 and 2 when running simultaneously. The emissions limits are 0.855 lbs of SO
For Clifty Creek, Indiana issued Commissioner's Order 2016-02 on February 1, 2016, with a compliance date of April 19, 2016. This order established a combined emission limit for the six coal-fired boilers (Units No. 1 through No. 6) located at Clifty Creek of 2,624.5 lbs of SO
EPA is evaluating this revision on the basis of whether it strengthens Indiana's SIP. Prior to Commissioner's Order 2016-01, A.B. Brown had an SO
The adequacy of these limits for providing for attainment is not a prerequisite for approval of these limits. Nevertheless, the purpose of these limits is to provide for attainment, and EPA is working with Indiana to assure a proper analysis of the adequacy of these limits for this purpose. If these limits become SIP-approved and thereby federally enforceable in a timely fashion, formal evaluation of the adequacy of these limits to provide for attainment will be conducted as part of the process of rulemaking on the 2010 SO
EPA is proposing to approve the SO
In this rule, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference Commissioner's Order No. 2016-01 issued to Vectren's A. B. Brown Generating Station, effective January 11, 2016, and Commissioner's Order No. 2016-02 issued to Indiana-Kentucky Electric Corporation's Clifty Creek Generating Station, effective February 1, 2016. EPA has made, and will continue to make, these documents generally available electronically through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, 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, Reporting and recordkeeping requirements, Sulfur oxides.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve revisions to the State Implementation Plan (SIP) for the state of Missouri. The revisions address base year Emissions Inventory (EI) and emissions statement requirements of the Clean Air Act (CAA) for the Missouri portion of the St. Louis marginal ozone nonattainment area (“St. Louis area”). The Missouri counties comprising the St. Louis area are Franklin, Jefferson, St. Charles, and St. Louis along with the City of St. Louis. EPA is proposing to approve the SIP revisions because they satisfy the CAA section 182 requirements for the 2008 8-hour ozone National Ambient Air Quality Standards (NAAQS). EPA is proposing the revisions pursuant to section 110 and part D of the CAA and EPA's regulations. EPA will consider and take action on the Illinois submission for its portion of the St. Louis area in a separate action.
Comments on this proposed action must be received in writing by March 28, 2016.
Submit your comments, identified by Docket ID No. EPA-R07-OAR-2015-0438, to
Publicly available docket materials are available either electronically at
Lachala Kemp, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551-7214 or by email at
In the final rules section of this
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve portions of the State Implementation Plan (SIP) submission, submitted by the State of North Carolina, through the Department of Environment and Natural Resources (NC DENR), Division of Air Quality (NC DAQ), on March 18, 2014, for inclusion into the North Carolina SIP. This proposal pertains to the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2010 1-hour sulfur dioxide (SO
Written comments must be received on or before March 28, 2016.
Submit your comments, identified by Docket ID No. EPA-R04-OAR-2015-0150 at
Michele Notarianni, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Ms. Notarianni can be reached via electronic mail at
On June 22, 2010 (75 FR 35520), EPA promulgated a revised primary SO
Today's action is proposing to approve portions of North Carolina's infrastructure SIP submission for the applicable requirements of the 2010 1-hour SO
Section 110(a) of the CAA requires states to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains.
More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for “infrastructure” SIP requirements related to a newly established or revised NAAQS. As mentioned above, these requirements include basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. The requirements that are the subject of this proposed rulemaking are summarized below and in EPA's September 13, 2013, memorandum entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act sections 110(a)(1) and 110(a)(2).”
EPA is acting upon the SIP submission from North Carolina that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2010 1-hour SO
EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA, “regional haze SIP” submissions required by EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review permit program submissions to address the permit requirements of CAA, title I, part D.
Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.
The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that “each” SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of title I of the Act, which specifically address nonattainment SIP requirements.
Another example of ambiguity within sections 110(a)(1) and 110(a)(2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action.
Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS.
EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) requires that attainment plan SIP submissions required by part D have to meet the “applicable requirements” of section 110(a)(2). Thus, for example, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the PSD program required in part C of title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others.
Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way. Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS.
Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements.
As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submissions. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure SIP submissions to ensure that the state's implementation plan appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on the structure of an individual state's permitting or enforcement program (
As another example, EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and new source review (NSR) pollutants, including greenhouse gases. By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 fine particulate matter (PM
For other section 110(a)(2) elements, however, EPA's review of a state's infrastructure SIP submission focuses on assuring that the state's implementation plan meets basic structural requirements. For example, section 110(a)(2)(C) includes,
With respect to certain other issues, EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing
EPA's approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in 110(a)(2) as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP submission. EPA believes that a better approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors.
For example, EPA's 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II).
Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.
The North Carolina infrastructure submission addresses the provisions of sections 110(a)(1) and (2) as described below.
1. 110(a)(2)(A):
In this action, EPA is not proposing to approve or disapprove any existing State provisions with regard to excess emissions during start up, shut down, and malfunction (SSM) operations at a facility. EPA believes that a number of states have SSM provisions which are contrary to the CAA and existing EPA guidance, “State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown” (September 20, 1999), and the Agency is addressing such state regulations in a separate action.
Additionally, in this action, EPA is not proposing to approve or disapprove any existing state rules with regard to director's discretion or variance provisions. EPA believes that a number of states have such provisions which are contrary to the CAA and existing EPA guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to take action in the future to address such state regulations. In the meantime, EPA encourages any state having a director's discretion or variance provision which is contrary to the CAA and EPA guidance to take steps to correct the deficiency as soon as possible.
2. 110(a)(2)(B)
Annually, states develop and submit to EPA for approval statewide ambient monitoring network plans consistent with the requirements of 40 CFR parts 50, 53, and 58. The annual network plan involves an evaluation of any proposed changes to the monitoring network, and includes the annual ambient monitoring network design plan and a certified evaluation of the agency's ambient monitors and auxiliary support equipment.
NCGS 143-215.107(a)(2), EPA regulations, along with North Carolina's Ambient Air Monitoring Network Plan, provide for the establishment and operation of ambient air quality monitors, the compilation and analysis of ambient air quality data, and the submission of these data to EPA upon request. EPA has made the preliminary determination that North Carolina's SIP and practices are adequate for the ambient air quality monitoring and data system related to the 2010 1-hour SO
3. 110(a)(2)(C)
In this action, EPA is proposing to approve North Carolina's infrastructure SIP for the 2010 1-hour SO
EPA has made the preliminary determination that North Carolina's SIP is adequate for enforcement of control measures and regulation of minor sources and modifications related to the 2010 1-hour SO
4. 110(a)(2)(D)(i)(I) and (II)
5. 110(a)(2)(D)(ii)
6. 110(a)(2)(E)
To satisfy the requirements of sections 110(a)(2)(E)(i) and (iii), North Carolina's infrastructure SIP submission cites several regulations. Rule 15A NCAC 2Q. 0200 “
In addition, the requirements of 110(a)(2)(E)(i) and (iii) are met when EPA performs a completeness determination for each SIP submittal. This determination ensures that each submittal provides evidence that adequate personnel, funding, and legal authority under state law has been used to carry out the state's implementation plan and related issues. NC DAQ's authority is included in all prehearings and final SIP submittal packages for approval by EPA. NC DAQ is responsible for submitting all revisions to the North Carolina SIP to EPA for approval.
As further evidence of the adequacy of NC DAQ's resources, EPA submitted a letter to North Carolina on March 9, 2015, outlining 105 grant commitments and the current status of these commitments for fiscal year 2014. The letter EPA submitted to North Carolina can be accessed at
With respect to North Carolina's infrastructure SIP submission related to the state board requirements of section 110(a)(2)(E)(ii), EPA is not proposing any action today as the Agency has already approved this portion of the submission in a separate action.
Stationary sources are required to submit periodic emissions reports to the State by Rule 15A NCAC 2Q .0207 “Annual Emissions Reporting.” North Carolina is also required to submit emissions data to EPA for purposes of the National Emissions Inventory (NEI). The NEI is EPA's central repository for air emissions data. EPA published the Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified the requirements for collecting and reporting air emissions data.
8. 110(a)(2)(G)
9. 110(a)(2)(H)
10. 110(a)(2)(J)
11. 110(a)(2)(K)
12. 110(a)(2)(L)
To satisfy these requirements, North Carolina's infrastructure SIP submission cites Regulation 15A NCAC 2Q .0200
13. 110(a)(2)(M)
EPA is proposing to approve that portions of NC DAQ's infrastructure SIP submission, submitted March 18, 2014, for the 2010 1-hour SO
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations.
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
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.
The Environmental Protection Agency (EPA) is proposing revisions to better define the requirements associated with conducting Method 303 training courses. In the “Rules and Regulations” section of this issue of the
Written comments must be received by March 28, 2016.
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2014-0492, to the
For additional submission methods, the full EPA public comment policy, information about CBI or multimedia
Ms. Kim Garnett, U.S. EPA, Office of Air Quality Planning and Standards, Air Quality Assessment Division, Measurement Technology Group (Mail Code: E143-02), Research Triangle Park, NC 27711; telephone number: (919) 541-1158; fax number: (919) 541-0516; email address:
This document proposes to take action on the requirements associated with conducting Method 303 training courses. Method 303 is an air pollution test method used to determine the presence of visible emissions (VE) from coke ovens. We have published a direct final rule approving the revisions to Method 303 in the “Rules and Regulations” section of this issue of the
If we receive no adverse comment, we will not take further action on this proposed rule. If we receive adverse comment, we will withdraw the direct final rule, and it will not take effect. We would address all public comments in any subsequent final rule based on this proposed rule.
We do not intend to institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information, please see the information provided in the
This action applies to you if you are a potential provider of Method 303 training services, someone seeking training to conduct Method 303, or a facility subject to Method 303.
Method 303 is applicable for the determination of VE from the following by-product coke oven battery sources: Charging systems during charging; doors, topside port lids, and offtake systems on operating coke ovens; and collecting mains. This method is also applicable for qualifying observers for visually determining the presence of VE. This action adds language that further clarifies the criteria used by the EPA to determine the competency of Method 303 training providers, but does not change the requirements for conducting the test method.
The EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This rulemaking does not relax the control measures on sources regulated by the proposed rule and, therefore, will not cause emissions increases from these sources.
This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.
This action does not impose an information collection burden under the PRA. This action better defines the requirements associated with conducting Method 303 training courses and does not impose additional regulatory requirements on sources.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This action better defines the requirements associated with conducting Method 303 training courses and does not impose additional regulatory requirements on sources.
This action does not contain an unfunded mandate of $100 million or more for as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local or tribal governments or the private sector. This action adds additional language that clarifies the criteria used by the EPA to determine the competency of training providers, but does not change the requirements for conducting the test method.
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 clarifies the criteria used by the EPA to determine the competency of training providers, but does not change the requirements for conducting the test method.
This action does not have tribal implications, as specified in Executive Order 13175. This action clarifies the criteria used by the EPA to determine the competency of training providers, but does not change the requirements for conducting the test method. Thus, Executive Order 13175 does not apply to this action.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.
This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations. The results of this evaluation are contained in the
Environmental protection, Air pollution control, Test methods.
For the reasons stated in the preamble, the EPA proposes to amend title 40, chapter I of the Code of Federal Regulations as follows:
42 U.S.C. 7401
The revisions and additions read as follows.
5.2 Safety Training. Because coke oven batteries have hazardous environments, the training materials and the field training (section 10.0) shall cover the precautions required to address health and safety hazards.
10.1 Certification Procedures. This method requires only the determination of whether VE occur and does not require the determination of opacity levels; therefore, observer certification according to Method 9 in appendix A to part 60 of this chapter is not required to obtain certification under this method. However, in order to receive Method 303 observer certification, the first-time observer (trainee) shall have attended the lecture portion of the Method 9 certification course. In addition, the trainee shall successfully complete the Method 303 training course, satisfy the field observation requirement, and demonstrate adequate performance and sufficient knowledge of Method 303. The Method 303 training provider and course shall be approved by the Administrator and shall consist of classroom instruction, field training, and a proficiency test. In order to apply for approval as a Method 303 training provider, an applicant must submit their credentials and the details of their Method 303 training course to Group Leader, Measurement Technology Group (E143-02), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, NC 27711. Those details should include, at a minimum:
(a) A detailed list of the provider's credentials.
(b) An outline of the classroom and the field portions of the class.
(c) Copies of the written training and lecture materials, to include:
(1) The classroom audio-visual presentation(s).
(2) A classroom course manual with instructional text and practice questions and problems for each of the elements of the Method 303 inspection (
(3) A copy of the Method 303 demonstration video, if not using the one available on the EPA Web site:
(4) Multiple-choice certification tests, with questions sufficient to demonstrate knowledge of the method, as follows: One (1) initial certification test and three (3) third-year recertification tests (the questions on any one recertification test must be at least 25 percent different from those on the other recertification tests).
(5) A field certification checklist and inspection forms for each of the elements of the Method 303 inspection (
(6) The criteria used to determine proficiency.
(7) The panel members to be utilized (see Section 10.1.3) along with their qualifications.
(8) An example certificate of successful course completion.
10.1.1 A trainee must verify completion of at least 12 hours of field observation prior to attending the Method 303 certification course. Trainees shall observe the operation of a coke oven battery as it pertains to Method 303, including topside operations, and shall also practice conducting Method 303 or similar methods. During the field observations, trainees unfamiliar with coke battery operations shall receive instruction from an experienced coke oven observer who is familiar with Method 303 or similar methods and with the operation of coke batteries.
10.1.2 The classroom instruction shall familiarize the trainees with Method 303 through lecture, written training materials, and a Method 303 demonstration video. Successful completion of the classroom portion of the Method 303 training course shall be demonstrated by a perfect score on the initial certification test. Those attending the course for third-year recertification must complete one of the recertification tests selected at random.
10.1.3 All trainees must demonstrate proficiency in the application of Method 303 to a panel of three certified Method 303 observers, including an ability to differentiate coke oven emissions from condensing water vapor and smoldering coal. The panel members will be EPA, state or local agency personnel, or industry contractors listed in 59 FR 11960 (March 15, 1994) or qualified as part of the training provider approval process of Section 10.1 of this method.
Each panel member shall have at least 120 days experience in reading visible emissions from coke ovens. The visible emissions inspections that will satisfy the experience requirement must be inspections of coke oven battery fugitive emissions from the emission points subject to emission standards under subpart L of this part (
The panel shall observe the trainee in a series of training runs and a series of certification runs. There shall be a minimum of 1 training run for doors, topside port lids, and offtake systems,
10.1.4 Those successfully completing the initial certification or third-year recertification requirements shall receive a certificate showing certification as a Method 303 observer and the beginning and ending dates of the certification period.
10.1.5 The training provider will submit to the EPA or its designee the following information for each trainee successfully completing initial certification or third-year recertification training: Name, employer, address, telephone, cell and/or fax numbers, email address, beginning and ending dates of certification, and whether training was for 3-year certification or 1-year recertification. This information must be submitted within 30 days of the course completion.
10.1.6 The training provider will maintain the following records, to be made available to EPA or its designee on request (within 30 days of a request):
(a) A file for each Method 303 observer containing the signed certification checklists, certification forms and test results for their initial certification, and any subsequent third-year recertifications. Initial certification records must also include documentation showing successful completion of the training prerequisites. Testing results from any interim recertifications must also be included, along with any relevant communications.
(b) A searchable master electronic database of all persons for whom initial certification, third-year recertification or interim recertification has been provided. Information contained therein must include: The observer's name, employer, address, telephone, cell and fax numbers and email address, along with the beginning and ending dates for each successfully completed initial, third-year and interim recertification.
10.1.7 Failure by the training provider to submit example training course materials and/or requested training records to the Administrator may result in suspension of the approval of the provider and course.
10.2 Observer Certification/Recertification. The coke oven observer certification is valid for 1 year. The observer shall recertify annually by reviewing the training material, viewing the training video and answering all of the questions on the recertification test correctly. Every 3 years, an observer shall be required to pass the proficiency test in Section 10.1.3 in order to be certified. The years between proficiency tests are referred to as interim years.
Legal Services Corporation.
Notice of rulemaking workshops, request for expressions of interest in participating in the rulemaking workshops, initiation of open comment period.
The Operations and Regulations Committee (Committee) of the Board of Directors for the Legal Services Corporation (LSC) is conducting three rulemaking workshops (Workshops) and is requesting public comments on revising LSC's Cost Standards and Procedures rule, 45 CFR part 1630, and LSC's Property Acquisition and Management Manual (PAMM). The discussions in the Workshops and the other comments received will be considered in connection with rulemaking by LSC. LSC is soliciting expressions of interest in participating as a panelist in the Workshops from LSC grantees and other interested stakeholders with relevant experience, such as other funders of civil legal aid programs.
Expressions of interest in participating in the Rulemaking Workshops for Part 1630 and the PAMM must be received by 5:30 p.m. EST on March 17, 2016. The dates of the Workshops are:
1. April 20, 2016, 1:30 p.m. to 4:30 p.m. EST, Washington, DC.
2. May 18, 2016, 1:30 p.m. to 4:30 p.m. EST, Washington, DC.
3. June 15, 2016, 1:30 p.m. to 4:30 p.m. EST, Washington, DC.
See the
Expressions of interest may be submitted by any of the following methods:
Stefanie K. Davis, Assistant General Counsel, Legal Services Corporation, 3333 K St. NW., Washington, DC 20007; (202) 295-1563 (phone); 202-337-6519 (fax); or
On July 16, 2015, LSC management (Management) presented the Committee with a Justification Memorandum recommending publication of an advance notice of proposed rulemaking (ANPRM) to seek public comment on possible revisions to 45 CFR part 1630—Cost Standards and Procedures, and LSC's Property Acquisition and Management Manual (PAMM). Management stated that collecting input from LSC funding recipients through an ANPRM would aid LSC significantly in determining the scope of the rulemaking and in developing a more accurate understanding of the potential costs and benefits of certain revisions. The Committee voted to recommend that the Board approve Management's recommendation and authorize LSC to open rulemaking for Part 1630 and the PAMM. On July 18, 2015, the LSC Board authorized rulemaking and approved the preparation of an ANPRM to revise Part 1630 and the PAMM. On October 9, 2015, LSC published an ANPRM seeking public comment on the proposed changes to Part 1630 and the PAMM. 80 FR 61142, Oct. 9, 2015. The comment period closed on December 8, 2015.
LSC received comments from the National Legal Aid and Defender Association (NLADA), Colorado Legal Services (CLS), and the Northwest Justice Project (NJP). The comments generally expressed concerns about the following: The disparity and potential conflict between LSC's proposed changes and the requirements imposed by recipients' other funders; expanding the prior approval requirements of 45 CFR 1630.5 and Section 3 of the PAMM to include aggregate purchases exceeding a certain dollar threshold; and the proposal to regulate the awarding of service contracts and the disposition of real and personal property by organizations that receive LSC funds. Additionally, NLADA recommended that LSC engage its grantees in additional discussions about the impact that the proposed changes would have on the grantees' operations before drafting a proposed rule.
LSC's Rulemaking Protocol contemplates using rulemaking workshops or negotiated rulemaking when one of those vehicles is appropriate to help LSC gather additional information before drafting a proposed rule. LSC believes that rulemaking workshops will provide an opportunity for LSC funding recipients to more effectively share their views on LSC's proposed changes to part 1630 and the PAMM and to elaborate on the comments received in response to the ANPRM. On January 28, 2016, the Committee voted to approve rulemaking workshops for LSC's rulemaking on Part 1630 and the PAMM.
The following three topics will be addressed during the Workshops. Each Workshop will focus on one of the topics and may use any or all of the potential items for discussion to direct the discussion.
Topic 1: Requirements of Other Funders. How do LSC's proposed changes to its cost standards and procedures and property acquisition and disposition requirements interact with the requirements imposed by recipients' other funders, including the requirements governing intellectual property created using various sources of funding?
Potential Items for Discussion on Topic 1:
• Generally, do other funders require recipients to provide notice and/or seek prior approval for the acquisition and disposition of real property and personal property? If so, what processes and documentation do the funders require?
• Do LSC's proposed changes to Part 1630 and the PAMM directly conflict with the requirements of other funders? If so, how?
• Do other funders require recipients to seek prior approval for procurements of goods and services? If so, what procedures must recipients follow to seek approval?
• Do other funders require recipients to seek prior approval for purchases of single items above a certain threshold amount? If so, what is that threshold amount?
• Do other funders require recipients to seek prior approval for purchases of multiple items when the aggregate cost of the items exceeds a certain dollar threshold? If so, what is that threshold amount?
• How can LSC structure its prior approval process to more closely align with the requirements imposed by other funders?
• What are the requirements of other funders with respect to the use and ownership of products, data, or intellectual property developed with their funds? For example, do other funders reserve rights in intellectual property developed with their funds, or require recipients to display the funder's identity on products such as Web sites or brochures?
• How do LSC's cost standards compare and interact with cost standards imposed by recipients' other funders?
Topic 2: LSC's Proposals. In the ANPRM, LSC proposed to regulate services contracts. LSC also proposed to require recipients to seek prior approval of aggregate purchases of personal property, acquisitions of personal and real property purchased or leased using LSC funds, and disposal of real or personal property purchased or leased using LSC funds.
Potential Items for Discussion on Topic 2:
• What are the administrative costs (in terms of dollars, time, and resources) of obtaining prior approval from LSC with respect to property acquisition and disposition? How can LSC revise its prior approval process to lessen these administrative costs?
• How can LSC clarify when recipients must seek prior approval to acquire and dispose of real and personal property?
• If LSC raises the threshold amount at which single purchases of personal property require prior approval, what other changes, if any, should LSC make to part 1630 to accompany this increase?
• Should LSC adopt a separate and distinct prior approval threshold amount for aggregate purchases of personal property?
• If LSC proposes to require prior approval for purchases of multiple items whose aggregate value exceeds a certain dollar amount threshold, should LSC limit the types of purchases subject to this prior approval requirement? For example, should LSC require recipients to seek prior approval for purchases of multiple computers, printers, or pieces of furniture exceeding a certain dollar amount, but not require recipients to seek prior approval for multiple purchases of units of printer paper or similar office supplies?
• Should LSC require recipients to seek instructions for disposition of real or personal property if the fair market value of the property exceeds a certain dollar threshold? If so, what should the threshold be?
• Should LSC require recipients to seek disposition instructions from LSC before disposing of personal or real property acquired with LSC funds? If so, what factors should LSC consider when establishing such instructions?
Topic 3: Establishing Standards based on the Office of Management and Budget's (OMB) Uniform Guidance. LSC proposed to establish minimum standards for recipients' procurement policies based on the OMB Uniform Guidance. LSC also proposed to revise part 1630 for consistency with the Uniform Guidance, where appropriate.
Potential Items for Discussion on Topic 3:
• Generally, what are the existing procurement policies that recipients currently have in place to maintain internal controls regarding purchases and compliance with LSC's rules in part 1630 and the PAMM?
• Do recipients have different procurement policies for real property, personal property, and services?
• Should LSC establish minimum standards for procurement policies for recipients to use for acquisitions of personal property when the acquisition costs exceed a certain threshold amount?
• What changes would recipients have to make to their policies if LSC adopted minimum standards for recipients' procurement policies based on OMB's Uniform Guidance in 2 CFR part 200? If LSC were to model its revised procurement standards based on the standards in the OMB Uniform Guidance, would LSC's policy conflict with the requirements of other funders?
Rulemaking workshops enable LSC to meet with interested parties to discuss, but not negotiate, proposed LSC rules
LSC will host three Rulemaking Workshops at its headquarters, 3333 K Street NW., Washington, DC 20007. The first Workshop will be held on April 20, 2016, and will focus on the first topic for discussion. The second workshop will be held on May 18, 2016 and will focus on the second topic for discussion. The third Workshop will be held on June 15, 2016 and will focus on the third topic for discussion. LSC will consider accommodating panelists who are unable to attend in person electronically via telephone or webinar. LSC will publish additional details regarding the time, webinar and call-in information, and agenda for each Workshop at least one week prior to the scheduled date of the Workshop.
The Workshops will be in the form of a panel discussion consisting of Committee members, LSC staff members, Office of Inspector General (OIG) staff members, and a select number of interested stakeholders selected by LSC. LSC will select participants for each workshop to participate as members of the Workshop panel. LSC will seek to select panelists to create diversity in terms of organizational size, service area and geographic location, funding sources, and percentage of funding received from LSC. Some participants may be selected to participate in more than one workshop. Interested persons should submit an expression of interest according to the instructions outlined below.
LSC is inviting expressions of interest in participating on Workshop panels from its grantees and other stakeholders with relevant experience. LSC is particularly interested receiving expressions of interest from Executive Directors and accounting and finance personnel of LSC funding recipients. Panelists should have experience in handling procurements for LSC funding recipients and applying LSC's cost standards and procedures. Additionally, LSC is interested in receiving expressions of interest from other funders of civil legal aid programs, including private foundations and federal, state, and local governments, to participate in the first workshop. Persons interested in participating as panelists should submit expressions of interest including, at a minimum: (1) A brief biographical statement, (2) a brief statement of relevant experience in applying and/or implementing the requirements of part 1630 and the PAMM, and (3) the specific workshop(s) in which the prospective panelist is interested in attending.
Expressions of interest in participating as a panelist should be submitted, in writing, to Stefanie K. Davis, Assistant General Counsel, Legal Services Corporation; via email to
Prior to each meeting, those selected as panelists will be asked to register with LSC to ensure that sufficient arrangements can be made for their participation. Panelists are expected to cover their own expenses (travel, lodging, etc.). LSC may consider providing financial assistance to a panelist for whom travel costs would represent a significant hardship and barrier to participation. Any such person should so note in his/her expression of interest for LSC's consideration. LSC will also consider allowing interested applicants who cannot attend the Workshops in person to participate on the panel remotely.
In addition to the panel, LSC encourages observation and participation by all interested individuals and organizations. The Workshops will be open to public observation, and portions of the Workshop will be open for public comment from in-person, webinar, and telephone participants. The meeting agenda will include opportunities for individuals in attendance who are not members of the panel to participate in person, by webinar, or via telephone, as well as incorporating previously submitted written comments by those unable to attend. LSC will transcribe the meetings and make the webinar available on its Web site.
Through this notice, LSC is also opening a written comment period. LSC welcomes written comments during the comment period and will consider the comments received in the rulemaking process. Written comments received prior to the Workshops may be addressed in the Workshops. Written comments are requested by the following dates:
1. April 8, 2016 for LSC to consider including in the first Workshop discussion.
2. May 6, 2016 for LSC to consider including in the second Workshop discussion.
3. June 3, 2016 for LSC to consider including in the third Workshop discussion. All other written comments must be received by July 15, 2016. Written comments submitted to LSC must be in .pdf format (if submitted electronically) and sent to
Information received in response to this Notice of Rulemaking Workshops and Request for Expressions of Interest in Participation in the Rulemaking Workshops may be published or summarized by LSC without acknowledgement of or permission from you or your organization. Furthermore, your responses may be releasable to the public under the LSC's adoption of the Freedom of Information Act (FOIA), 42 U.S.C. 2996d, and the LSC FOIA regulation, 45 CFR part 1602. LSC, at its discretion, may request individual commenters to elaborate on information in their written comments.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
The National Marine Fisheries Service proposes a rule to implement the requirement under the Magnuson-Stevens Fishery Conservation and Management Act that all fishery management plans (FMPs) establish a standardized reporting methodology to assess the amount and type of bycatch occurring in a fishery. The proposed rule provides guidance to regional fishery management councils and the Secretary of Commerce regarding the development, documentation, and review of such methodologies, commonly referred to as Standardized Bycatch Reporting Methodologies (SBRMs).
Comments must be received by April 25, 2016.
You may submit comments on this document, identified by NOAA-NMFS-2016-0002, by either of the following methods:
•
•
Karen Abrams 301-427-8508.
Section 303(a) of the Magnuson-Stevens Fishery Conservation and Management Act (MSA) (16 U.S.C. 1853(a)) describes 15 required provisions of any fishery management plan (FMP) prepared by a regional fishery management council or the Secretary of Commerce with respect to any fishery (hereafter “Council” includes the regional fishery management councils and the Secretary of Commerce, as appropriate (
Section 303(a)(11) was added to the MSA by the Sustainable Fisheries Act of 1996 (SFA). All FMPs have been amended to reflect the SBRM requirement. The SFA also added a definition for “bycatch” (section 3(2), 16 U.S.C. 1802(2)) and National Standard 9 (section 301(a)(9), 16 U.S.C. 1851(a)(9)). The MSA defines “bycatch” as fish which are harvested in a fishery, but which are not sold or kept for personal use, and as including economic discards and regulatory discards. The definition of bycatch does not include fish released alive under a recreational catch and release fishery management program. The MSA does not define “standardized reporting methodology” or any of the words contained within the phrase. Similar to section 303(a)(11), National Standard 9 (16 U.S.C. 1851(a)(9)) requires that conservation and management measures “shall, to the extent practicable, (A) minimize bycatch and (B) to the extent bycatch cannot be avoided, minimize the mortality of such bycatch.” However, National Standard 9 does not address SBRM. NMFS has never issued regulations that set forth the agency's interpretation of the SBRM provision.
To implement the 1996 SFA Amendments, NMFS developed advisory guidelines for National Standard 9 (guidelines) in 1998, and further amended the guidelines in 2008. The guidelines provide several clarifications about bycatch requirements under the MSA, but do not directly address SBRM. For example, the guidelines explain that “bycatch” includes the discard of whole fish at sea but does not include legally-retained fish kept for personal, tribal or cultural use (50 CFR 600.350(c)). In addition, to facilitate the evaluation of conservation and management measures consistent with National Standard 9, the guidelines call for the development of a database on bycatch and bycatch mortality in the fishery to the extent practicable. The guidelines note that, to comply with National Standard 9 and MSA sections 303(a)(11) (SBRM) and (12) (catch and release), a review and, where necessary, improvement of data collection methods, data sources and applications must be initiated for each fishery to assess bycatch and bycatch mortality.
In 2004, NMFS published
This proposed rule, which is promulgated pursuant to MSA section 305(d) (16 U.S.C. 1855(d)), is intended to establish national requirements and
NMFS has never issued regulations that set forth the basic requirements of the SBRM provision of section 303(a)(11). Although the National Standard 9 guidelines and
In addition, since the 1996 SFA amendments, there have been legal challenges to the SBRMs established in some FMPs. Court decisions have focused largely on the specific allegations and records before the courts, and have addressed only certain aspects of the SBRM provision and the agency's implementation of that provision. Therefore, NMFS believes that a comprehensive analysis of the MSA requirements in section 303(a)(11) through a rulemaking action is necessary in order to prevent inconsistent implementation of the provision, on a region-by-region basis in response to fact-specific litigation.
Finally, public concern about bycatch and public expectations for accessing bycatch information and estimates continues to grow, while concerns from the regulated community about the costs for fishery monitoring and reporting requirements also continues to increase. NMFS intends to address some of these concerns in this action.
As described in detail below, this proposed rule explains the purpose of a standardized bycatch reporting methodology (SBRM), and clarifies the activities associated with the phrase “standardized reporting methodology” and the meaning of the term “standardized.” This action would require that a standardized reporting methodology be appropriate for a particular fishery, and would provide required and discretionary factors for the Councils to consider when establishing or reviewing a methodology. Recognizing that there may be a future need to adjust how an SBRM is implemented, NMFS also proposes requirements for an adjustment process, if a Council is interested in exploring such a process. Finally, this proposed rule would provide for periodic review of existing SBRMs.
Proposed section 600.1600 states that the purpose of a standardized reporting methodology is to inform the assessment of the amount and type of bycatch occurring in the fishery for use in developing conservation and management measures that, to the extent practicable, minimize bycatch and bycatch mortality.
An SBRM could include one or a combination of data collection and reporting programs, such as observer programs, electronic monitoring and reporting technologies, and self-reported mechanisms (
The distinction between data collecting, reporting, etc., and developing management measures is reflected in part in the fact that section 303(a)(11) requires the establishment of SBRMs, and separately, section 303(a)(11) and National Standard 9 requires that FMPs include conservation and management measures that, to the extent practicable, minimize bycatch and bycatch mortality. As a practical matter, there are multiple steps leading to the development of conservation and management measures that address bycatch. First, bycatch data are collected, recorded, and reported pursuant to an SBRM. The
One source of confusion in
While defining “standardized reporting methodology” as something different than bycatch assessment and management measures, NMFS recognizes the interconnectedness of these steps. This proposed rule addresses the interrelation between these steps by explaining the purpose of SBRM (proposed section 600.1600) and requiring that data resulting from the methodology be useful, in conjunction with other relevant sources of data, in meeting the purpose of the SBRM and fishery-specific bycatch objectives (proposed section 600.1610((a)(2)(i)). (
The proposed rule also clarifies that “standardized” does not mean that reporting methodologies must be standardized at a regional or national level. Proposed section 600.1605(a) explains that a standardized reporting methodology may vary from one fishery to another (including among fisheries managed in the same FMP). However, the methodology must provide a consistent approach for collecting, recording, and reporting bycatch data within a fishery. For example, a reporting methodology that relies on self-reported logbook data may be appropriate for one fishery, while at-sea observer coverage may be more appropriate for other fisheries. As long as the reporting methodology for a fishery provides for a consistent approach for collecting, recording, and reporting bycatch data for all the participants in that fishery, then the methodology would be considered “standardized” under the proposed rule's definition.
This proposed rule acknowledges that whether a methodology is appropriate for a fishery will depend on the specific circumstances of the fishery. This proposed rule frames policy choices associated with establishing an SBRM by providing “required factors” for establishing or reviewing an SBRM (proposed section 600.1610(a)(2)(i)), and by recommending additional factors that may be considered by the Councils (proposed section 600.1610(a)(2)(ii)).
Proposed section 600.1610(a)(2)(i) states that data resulting from the methodology must be useful, in conjunction with other relevant sources of data, in meeting the purpose of the methodology as described in section 600.1600 and fishery-specific bycatch objectives. This requies a Council, when establishing or reviewing a methodology, to consider the conservation and management objectives of the fishery with respect to bycatch, the data quality associated with the methodology, and information about the characteristics of bycatch in the fishery, when available (such as the amount of bycatch occurring in the fishery, the importance or bycatch in estimating the total mortality of fish stocks, and the importance of bycatch to related ecosystems). Because data resulting from an SBRM will be used, along with other relevant information, to inform the assessment of the amount and type of bycatch occurring in a fishery, a Council should consult with its scientific and statistical committee, advisory panels, and the NOAA science centers, as appropriate, on data elements, reporting frequency, and other design and methodology factors (proposed section 600.1610(b)). Another required consideration when establishing or reviewing a methodology is its feasibility, from cost, technical, and operational perspectives. In addition, the proposed rule requires that each SBRM be designed to be implemented within available funding.
The proposed rule also recognizes that other factors may be relevant to establishing an SBRM. Therefore, proposed section 600.1610(a)(2)(ii) provides that Councils may also consider the overall magnitude and/or economic impact of the fishery, and the scientific methods and techniques available to collect and report bycatch data that could improve the quality of the bycatch estimates.
NMFS recognizes that a court decision held that operational constraints (such as funding) are not an excuse for failing to “establish” an SBRM. (
Proposed section 600.1610(a)(2)(i) requires that data resulting from the methodology be useful, in conjunction with other relevant sources of data, in meeting the purpose of the methodology as described in section 600.1600 and fishery-specific bycatch objectives. However, proposed section 600.1610(a)(2)(i) does not include specific standards regarding the precision or accuracy of bycatch estimates, as NMFS does not believe that section 303(a)(11) requires that an SBRM produce data that will generate estimates to a particular standard of statistical accuracy or precision. (
Some courts have addressed bycatch estimates or the quality of data in the context of particular FMPs or amendments. (
NMFS clarifies that the
While observer programs may be included as part of an SBRM, the MSA does not require their inclusion in every SBRM. (
To document that an SBRM is “established,” proposed section 1600.1610(a)(1) requires that every FMP contain a description of the required bycatch data collection, recording, and reporting procedures that constitute the SBRM for each fishery managed under it. The description must also provide a statement explaining why the methodology is appropriate for the fishery as guided by mandatory and discretionary factors described in proposed section 1600.1610(a)(2). The explanation required by proposed section 1600.1610(a)(1) must be based on a thorough analysis of all the factors evaluated in establishing a standardized reporting methodology. The explanation must be contained in the FMP, but it may incorporate by reference analyses in FMPs, FMP amendments, Stock Assessment and Fishery Evaluation (SAFE) reports or other documents. The description and explanation of the SBRM will clarify for the public and interested stakeholders the policy choices that the Council considered in establishing the SBRM.
With this proposed rule, NMFS also seeks to ensure that the Councils have sufficient flexibility to adjust implementation of an established SBRM in a way that is clear to the public, but that does not necessarily require an FMP amendment. This proposed rule provides that, if a Council anticipates that adjustments will be necessary to implement the methodology, the Council may, consistent with the requirements of the MSA and other applicable law, consider adopting a process in an FMP to adjust implementation of the methodology. A Council may consider adopting such a process based on factors, which include, but are not limited to, available funding, management contingencies, or scientific priorities. If such a process is adopted, the FMP must describe the process by which the Councils or NMFS plan to implement the desired adjustments to an SBRM. (
Proposed section 600.1610(d) provides that all FMPs must be consistent with this rule within 5 years of finalizing the rule. To verify consistency with this rule, Councils should conduct a review of their existing SBRMs. The review should provide information to determine whether or not an FMP needs to be amended. The analysis and conclusions from the review should be documented but do not need to be contained in an FMP.
There are several potential outcomes of the review. A review could find that there are FMPs with existing SBRMs that are consistent with this rule, in which case no FMP amendments are necessary. Other FMPs may define SBRMs more expansively than the definition in this proposed rule. For example, they may contain components that are consistent with this proposed rule, along with additional components
After the initial review, Councils should periodically review standardized reporting methodologies to verify continued compliance with the MSA and this rule. Such a review should be conducted at least once every 5 years. Proposed section 600.1610(d) is consistent with the review and improvement of data collection methods, data sources, and applications described under the National Standard 9 guidelines at 50 CFR 600.350(d)(1).
NMFS has made a preliminary determination to apply a Categorical Exclusion to this action under the National Environmental Policy Act due to the procedural nature of this action. If and when the provisions of this proposed rule are applied to specific FMPs, the Councils and/or the Secretary would prepare an Environmental Impact Statement (EIS) or Environmental Assessment (EA), as appropriate. NMFS solicits comments on this preliminary determination to use a categorical exclusion.
Pursuant to section 305(d) of the Magnuson-Stevens Act (16 U.S.C. 1855(d)), the NMFS Assistant Administrator has determined that this proposed rule is consistent with the other provisions of the Magnuson-Stevens Act and other applicable laws, subject to further consideration after public comment.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination is as follows.
The purpose of the action is to articulate an interpretation of the basic requirements of the SBRM provision of section 303(a)(11) of the MSA through a rulemaking to promote transparency and consistency. Key components of the proposed rule include:
(1) A definition of “standardized reporting methodology” as applicable only to the definition of “bycatch” in the MSA and pertaining only to data collection, reporting and recording activities (not bycatch assessment and estimation);
(2) clarified procedures for establishing, documenting, and reviewing SBRMs under the MSA; and
(3) an option for adaptable implementation to allow for operational flexibility.
The proposed rule defines a standardized reporting methodology as an established procedure or procedures used to collect, record, and report bycatch data in a fishery or subset of a fishery. It would clarify that the purpose of the methodology is to provide data that will inform the assessment of the amount and type of bycatch occurring in a fishery for use in developing conservation and management measures that, to the extent practicable, minimize bycatch and bycatch mortality. However, the phrase “standardized reporting methodology” in section 303(a)(11) refers only to bycatch data collection, recording, and reporting procedures.
The action proposes a set of factors to help frame policy choices in establishing or reviewing an SBRM. Data resulting from the methodology must be useful, in conjunction with other relevant sources of data, in meeting the purpose of the SBRM and fishery-specific bycatch objectives. This would require Councils to consider conservation and management objectives related to bycatch for a fishery, the quality of the data associated with the methodology, and information about the characteristics of bycatch in the fishery, when available (such as the amount of bycatch occurring in the fishery, the importance of bycatch in estimating the total mortality of fish stocks, and the importance of bycatch to related ecosystems). The proposed rule also would require that an SBRM be feasible and designed to be implemented with available funding, and addresses the need for an SBRM to be adaptable in response to changes in funding levels or other circumstances. Finally, the proposed rule provides that existing SBRMs should be reviewed at least once every five years. The proposed rule does not require that an SBRM be designed to achieve a particular performance standard or precision goal.
Small entities include “small businesses,” “small organizations,” and “small governmental jurisdictions.” The Small Business Administration (SBA) has established size standards for all major industry sectors in the United States, including commercial finfish harvesters (NAICS code 114111), commercial shellfish harvesters (NAICS code 114112), other commercial marine harvesters (NAICS code 114119), for-hire businesses (NAICS code 487210), marinas (NAICS code 713930), seafood dealers/wholesalers (NAICS code 424460), and seafood processors (NAICS code 311710). A business primarily involved in finfish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $20.5 million for all its affiliated operations worldwide. For commercial shellfish harvesters, the other qualifiers apply, and the receipts threshold is $5.5 million. For other commercial marine harvesters, for-hire businesses, and marinas, the other qualifiers apply, and the receipts threshold is $7.5 million. A business primarily involved in seafood processing is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual employment not in excess of 500 employees for all its affiliated operations worldwide. For seafood dealers/wholesalers, the other qualifiers apply, and the employment threshold is 100 employees. A small organization is any not-for-profit enterprise that is independently owned and operated and is not dominant in its field. Small governmental jurisdictions are governments of cities, counties, towns, townships, villages, school districts, or special districts, with populations of less than 50,000.
All FMPs have established SBRMs according to the requirements in 303(a)(11). This proposed rule would provide national guidance and improved clarity about implementing the existing requirements. The proposed rule would provide the Councils and the Secretary a five-year period within which to review FMPs to make any necessary amendments.
Because the proposed rule would clarify existing requirements for FMPs and is procedural in nature, it would not directly regulate a particular fishery and will not directly alter the behavior of any entities operating in federally managed fisheries. Thus, no direct economic effects on commercial harvesting businesses, for-hire businesses, marinas, seafood dealers/wholesalers, or seafood processors are expected to result from this action. Therefore, no small entities would be directly affected by this rule.
As a result of the information above, a reduction in profits for a substantial
No duplicative, overlapping, or conflicting Federal rules have been identified. This rule would not establish any new reporting or record-keeping requirements.
Administrative practice and procedure, Bycatch, Fisheries, Standardized Reporting Methodology.
For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 600 as follows:
5 U.S.C. 561 and 16 U.S.C. 1801
Section 303(a)(11) of the Magnuson-Stevens Act requires any fishery management plan to establish a standardized bycatch reporting methodology. 16 U.S.C. 1853(a)(11). The purpose of a standardized reporting methodology is to inform the assessment of the amount and type of bycatch occurring in the fishery for use in developing conservation and management measures that, to the extent practicable, minimize bycatch and bycatch mortality. This subpart sets forth requirements for and guidance on establishing and reviewing a standardized reporting methodology.
(a)
(b)
(a)
(2)
(i)
(ii)
(b)
(c)
(1) Describe the process under which the implementation of a methodology will be adjusted;
(2) Specify what adjustments (
(3) Explain why the adjustments may be needed;
(4) Describe how and when the adjustments will be made;
(5) Describe the limits to the adjustments; and
(6) Describe how the Council will determine that a reevaluation of the established methodology is warranted.
(d)
Office of the Under Secretary, Research, Education, and Economics, Agricultural Research Service, USDA.
Notice of public meeting.
Pursuant to the Federal Advisory Committee Act, 5 U.S.C. App. 2, the United States Department of Agriculture announces a meeting of the Advisory Committee on Biotechnology and 21st Century Agriculture (AC21). The committee is being convened to: Consider work of the three
The meeting will be held on Monday-Tuesday, March 14-15, 2016, 8:30 a.m. to 5:00 p.m. each day. This meeting is open to the public. On March 14, 2016, if time permits, reasonable provision will be made for oral presentations of no more than five minutes each in duration, starting at 3:30 p.m. Members of the public who wish to make oral statements should also inform Dr. Schechtman in writing or via Email at the indicated addresses below at least three business days before the meeting.
Room 107A, USDA Jamie L. Whitten Federal Building, 12th and Independence Avenue SW., Washington, DC 20250.
General information about the committee can also be found at
The AC21 has been established to provide information and advice to the Secretary of Agriculture on the broad array of issues related to the expanding dimensions and importance of agricultural biotechnology. The committee is charged with examining the long-term impacts of biotechnology on the U.S. food and agriculture system and USDA, and providing guidance to USDA on pressing individual issues, identified by the Office of the Secretary, related to the application of biotechnology in agriculture. In recent years, the work of the AC21 has centered on the issue of coexistence among different types of agricultural production systems. The AC21 consists of members representing the biotechnology industry, the organic food industry, farming communities, the seed industry, food manufacturers, state government, consumer and community development groups, as well as academic researchers and a medical doctor. In addition, representatives from the Department of Commerce, the Department of Health and Human Services, the Environmental Protection Agency, the Council on Environmental Quality, and the Office of the United States Trade Representative serve as “ex officio” members.
In its last report, issued on November 17, 2012, entitled “Enhancing Coexistence: A Report to the Secretary of Agriculture,” and available on the Web site listed below, the AC21 offered a diverse package of recommendations, among which was a recommendation that “. . . USDA should facilitate development of joint coexistence plans by neighboring farmers,” and that in a pilot program, USDA should, among other things, offer incentives for the development of such plans.
At its last meeting, on December 14-15, 2015, USDA offered a specific new charge to the AC21 building on its previous work. Recognizing that USDA currently lacks the legal authority to offer any such incentives, the committee has been charged with considering the following two questions: Is there an approach by which farmers could be encouraged to work with their neighbors to develop joint coexistence plans at the State or local level? If so, how might the Federal government assist in that process?
In devising an approach to respond to this charge, the AC21 has established 3
The three objectives for the meeting are:
• To consider work of the three
• to listen to presentations from outside experts on topics relevant to the work of the AC21; and
• to continue overall discussions on the committee charge and planning subsequent work.
Background information regarding the work and membership of the AC21 is available on the USDA Web site at
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; (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 March 28, 2016 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725 17th Street NW., Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such person are not required to respond to the collection of information unless it displays a currently valid OMB control number.
During fiscal years 2012-2014, similar provisions were not uniform across the government. For USDA, one set of provisions applied to all agencies and staff offices except the Forest Service and a second set of slightly different provisions applied only to the Forest Service. To facilitate compliance with the appropriations restrictions, USDA created two sets of forms—one for use by all USDA agencies and staff offices (Forms AD-3030-Y and AD-3031-Y and one for use only by the Forest Service (Forms AD-3030 FS and AD-3031 FS). In FY 2015 Congress enacted slightly different government-wide provisions for all agencies and departments. In response, USDA created a new set of forms that adhered to the change for use by all of its agencies and staff offices including the Forest Service (Forms AD-3030 and AD-3031).
USDA must also comply with prior year provisions issued between FY 2012-2014 to the extent that carry over/no year funds provided by those years' appropriations were used in awards or award adjustments.
Forms AD-3030, AD-3030-Y and AD-3030-FS will effectuate compliance with the appropriations restrictions by requiring all corporate applicants to represent, at the time of application for a non-procurement program, whether they have tax delinquencies or felony convictions that would prevent USDA from doing business with them. Corporations include, but are not limited to, any entity that has filed articles of incorporation in one of the 50 States, the District of Columbia, or the various territories of the United States. Corporations include both for profit and non-profit entities. Forms AD-3031, AD-3031-Y and AD-3031-FS require an affirmative representation, at the time of the award, that corporate awardees for non-procurement transactions do not have tax delinquencies or felony convictions that would prevent USDA from doing business with them. If the application and award process are a single step, the agency or staff office may require both forms to be filed simultaneously. Collection of this information is necessary to ensure that USDA agencies and staff offices comply with the appropriations restrictions prohibiting the Government from doing business with corporations with tax delinquencies or felony convictions.
The burden for each form will be accounted for within the individual USDA agency and staff office collection packages using the forms. The time required to complete this information collection is estimated to average 0.25 minutes per response, per form, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
USDA's Office of the Chief Financial Officer (OCFO) is requesting approval for one respondent and a one hour place holder for the forms. The total estimated burden for the OCFO's use of the forms is thus one hour, which will allow it to distribute the approved forms to USDA agencies and staff offices. USDA agencies and staff offices using the forms will reflect the approved OMB control number of the package and account for the burden within their individual collection packages when they seek Office of Management and Budget approval or re-authorization.
Forest Service, USDA.
Notice of meeting.
The Land Between The Lakes Advisory Board (Board) will meet in Golden Pond, Kentucky. The Board is authorized under Section 450 of the Land Between The Lakes Protection Act of 1998 (Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the Board is to advise the Secretary of Agriculture on the means of promoting public participation for the land and resource management plan for the recreation area; and environmental education. Board information can be found at the following Web site:
The meeting will be held at 9:00 a.m. on March 17, 2016.
All Board meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under
The meeting will be held at the Land Between The Lakes Administration Building, 100 Van Morgan Drive, Golden Pond, Kentucky.
Written comments may be submitted as described under
Christine Bombard, Board Coordinator, by phone at 270-924-2002 or via email at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
The purpose of the meeting is to:
1. Discuss Environmental Education; and
2. Effectively communicate future land management plan activities.
The meeting is open to the public. Board discussion is limited to Forest Service staff and Board members. Written comments are invited and should be sent to Tina Tilley, Area Supervisor, Land Between The Lakes, 100 Van Morgan Drive, Golden Pond, Kentucky 42211; and must be received by March 1, 2016, in order for copies to be provided to the members for this meeting. Board members will review written comments received, and at their request, oral clarification may be requested for a future meeting.
Forest Service, USDA.
Notice of meeting.
The Ketchikan Resource Advisory Committee (RAC) will meet in Ketchikan, Alaska. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of
The meeting will be held on March 16, 2016, at 3:00 p.m.
All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under For Further Information Contact.
The meeting will be held at the Ketchikan Misty Fiords Ranger District, 3031 Tongass Avenue, Ketchikan, Alaska. A conference line is set up for those who would like to listen in by telephone. For the conference call number, please contact the person listed under For Further Information Contact.
Written comments may be submitted as described under Supplementary Information. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at Ketchikan Misty Fiords Ranger District. Please call ahead to facilitate entry into the building.
Diane L. Olson, RAC Coordinator, by phone at 907-228-4105 or via email at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
The purpose of the meeting is to:
1. Update members on past RAC projects, and
2. Propose new RAC projects.
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 March 4, 2016, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time to make oral comments must be sent to Diane L. Olson, RAC Coordinator, Ketchikan Misty Fiords Ranger District, 3031 Tongass Avenue, Ketchikan, Alaska 99901; by email to
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; (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 March 28, 2016 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725 17th Street NW., Washington, DC 20503. Commenters are encouraged to submit their comments to OMB via email to:
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for
Comments regarding this information collection received by March 28, 2016 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725 17th Street NW., Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The Department of Agriculture has submitted the following information collection requirement(s) to Office of Management and Budget (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; (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 March 28, 2016 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725 17th Street NW., Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
U.S. Census Bureau, Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
To ensure consideration, written comments must be submitted on or before April 25, 2016.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Scott Handmaker, Chief, Classifications Processing Branch, U.S. Census Bureau, 8K149, Washington, DC 20233, Telephone: 301-763-7107; Email:
It is important to have a complete North American Industry Classification System (NAICS) based code for each establishment in the Census Bureau's business register prior to the economic census. The economic census, conducted under authority of Title 13 U.S.C., Section 131 is the primary source of facts about the structure and functioning of the Nation's economy and features unique industry and geographic detail. Economic census statistics serve as part of the framework for the national accounts and provide essential information for government, business, and the general public.
The Industry Classification Report collects data from establishments in all NAICS sectors that are covered by the economic census with the purpose of assigning an accurate 8-digit NAICS based code for use in the 2017 Economic Census. The Industry Classification Report collects data about businesses in such areas as: Primary business activity, class of customer (if the establishment is a wholesaler or retailer), and primary goods sold or services provided. This survey, conducted in fiscal years 2016 and 2017, samples approximately 120,000 businesses each year.
The Census Bureau will select establishments to receive this survey from the Census Bureau's business register. The Census Bureau will mail a letter to establishments that have been assigned a partial NAICS code by administrative records or are unclassified in the business register. Additionally, other categories of administrative records may be identified.
Collecting this classification information will ensure the mailing list for the targeted sectors is complete and accurate prior to the mailing of the 2017 Economic Census. The information gathered will also be used to determine whether an establishment will be included in the data collection for the 2017 Economic Census, and if so, what are the appropriate North American Product Classification System (NAPCS) product lines to be displayed for that establishment on their 2017 Economic Census questionnaire. Many businesses are small and will not be asked to participate in the 2017 Economic Census. This survey is the only way to obtain an accurate 8-digit NAICS-based code for these small businesses, represented in the census through the use of administrative data only. In other cases, the Census Bureau produces sample estimates. The results of this collection will be used to select a statistically reliable and efficient sample, minimizing the reporting burden on sampled sectors. Proper NAICS classification data ensures high quality economic statistics while reducing respondent burden and overall processing costs. Failure to collect this data will have an adverse effect on the quality and usefulness of economic information provided by the Census Bureau.
There are no new questions on this survey since it was last conducted in preparation for the 2012 Economic Census. However, there will no longer be a paper form on which to report. Respondents can report over the Internet or by telephone. We will work with individual respondents if reporting on the Internet or by telephone presents difficulties.
Minimal changes will be made to the wording and organization of existing questions and instructions.
We will collect this information over the Internet and by telephone. Respondents will receive a letter directing them to the Internet to report their information. Follow up letters will be mailed for establishments that have not responded by a certain date. Throughout the survey, telephone assistance will be available for respondents with questions and for those that cannot report over the Internet.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
The Regulations and Procedures Technical Advisory Committee (RPTAC) will meet March 23, 2016, 9:00 a.m., Room 3884, in the Herbert C. Hoover Building, 14th Street between Constitution and Pennsylvania Avenues NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration on implementation of the Export Administration Regulations (EAR) and provides for continuing review to update the EAR as needed.
The open session will be accessible via teleconference to 25 participants on a first come, first serve basis. To join the conference, submit inquiries to Ms. Yvette Springer at
A limited number of seats will be available for the public session. Reservations are not accepted. To the extent that time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate the distribution of public presentation materials to the Committee members, the Committee suggests that presenters forward the public presentation materials prior to the meeting to Ms. Springer via email.
For more information, call Yvette Springer at (202) 482-2813.
Bureau of Industry and Security.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before April 25, 2016.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Mark Crace, BIS ICB Liaison, (202) 482-8093,
This collection of information is necessary to obtain feedback from seminar participants. This information helps BIS determine the effectiveness of its programs and identifies areas for improvement. The gathering of performance measures on the BIS seminar program is also essential in meeting the agency's responsibilities under the Government Performance and Results Act (GPRA).
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
The President's Export Council Subcommittee on Export Administration (PECSEA) will meet on March 16, 2016, 10:00 a.m., at the U.S. Department of Commerce, Herbert C. Hoover Building, Room 3884, 14th Street between Pennsylvania and Constitution Avenues NW., Washington, DC. The PECSEA provides advice on matters pertinent to those portions of the Export Administration Act, as amended, that deal with United States policies of encouraging trade with all countries with which the United States has diplomatic or trading relations and of controlling trade for national security and foreign policy reasons.
The open session will be accessible via teleconference to 20 participants on a first come, first served basis. To join the conference, submit inquiries to Ms. Yvette Springer at
A limited number of seats will be available for the public session. Reservations are not accepted. To the extent time permits, members of the public may present oral statements to the PECSEA. Written statements may be submitted at any time before or after the meeting. However, to facilitate distribution of public presentation materials to PECSEA members, the PECSEA suggests that public presentation materials or comments be forwarded before the meeting to Ms. Yvette Springer.
For more information, contact Yvette Springer on 202-482-2813.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Spencer Toubia at (202) 482-0123 (India); Laurel LaCivita at (202) 482-4243 (the People's Republic of China (PRC)); and Elizabeth Eastwood at (202) 482-3874 (Sri Lanka), AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.
On February 3, 2016, the Department of Commerce (Department) initiated countervailing duty investigations (CVD) on certain new pneumatic off-the-road tires from India, the PRC, and Sri Lanka.
Section 703(b)(1) of the Tariff Act of 1930, as amended (the Act), requires the Department to issue the preliminary determination in a CVD investigation within 65 days after the date on which the Department initiated the investigation. However, if the petitioner makes a timely request for a postponement, section 703(c)(1)(A) of the Act allows the Department to postpone making the preliminary determination until no later than 130 days after the date on which the Department initiated the investigation.
On February 12, 2016, the petitioners
This notice is issued and published pursuant to section 703(c)(2) of the Act and 19 CFR 351.205(f)(1).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On October 21, 2015, the Department of Commerce (the “Department”) published a notice of preliminary results of a changed circumstance review (“CCR”) of the antidumping duty (“AD”) order on crystalline silicon photovoltaic cells, whether or not assembled into modules (“solar cells”), from the People's Republic of China (“PRC”).
Erin Kearney, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-0167.
The Department initiated this CCR on March 18, 2015, and published the
As explained in the memorandum from the Acting Assistant Secretary for Enforcement and Compliance, the Department has exercised its discretion to toll all administrative deadlines due to the recent closure of the Federal Government. All deadlines in this segment of the proceeding have been extended by four business days. The revised deadline for the final results of this review is now February 18, 2016.
The merchandise covered by this order is crystalline silicon photovoltaic cells, and modules, laminates, and panels, consisting of crystalline silicon photovoltaic cells, whether or not partially or fully assembled into other products, including, but not limited to, modules, laminates, panels and building integrated materials. Merchandise covered by this order is currently classified in the Harmonized Tariff System of the United States (“HTSUS”) under subheadings 8501.61.0000, 8507.20.80, 8541.40.6020, 8541.40.6030, and 8501.31.8000. These HTSUS subheadings are provided for convenience and customs purposes; the written description of the scope of this order is dispositive. A complete description of the scope of the order is contained in the Issues and Decision Memorandum.
All issues raised by interested parties in the case briefs are addressed in the Issues and Decision Memorandum. A list of the issues addressed in the Issues and Decision Memorandum is appended to this notice.
Upon review of the comments received, the Department continues to find based upon the totality of the circumstances that material changes occurred after DelSolar Taiwan merged with, and became part of, Neo Solar, including significant changes in management, the board of directors, and ownership and, further, that Neo Solar did not demonstrate that its operations, with respect to the subject merchandise, were materially similar to the operations of DelSolar Taiwan pertaining to supplier relationships and customer base, as discussed in the
As a result of this determination, the Department finds that Neo Solar is subject to the cash deposit rate currently assigned to the PRC-wide entity with respect to the subject merchandise (
This notice is the only reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the disposition 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.
The Department is issuing and publishing these results in accordance with sections 751(b)(1) and 777(i) of the Tariff Act of 1930, as amended, and 19 CFR 351.216 and 19 CFR 351.221(c)(3)(i).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Jennifer Shore 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) 482-2778, or (202) 482-1293, respectively.
On January 29, 2016, the Department of Commerce (the Department) received a countervailing duty (CVD) petition concerning imports of certain truck and bus tires from the People's Republic of China (the PRC), filed in proper form by the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC (USW) (USW or the petitioner).
In accordance with section 702(b)(1) of the Tariff Act of 1930, as amended (the Act), the petitioner alleges that producers/exporters of truck and bus tires in the PRC received countervailable subsidies within the meaning of sections 701 and 771(5) of the Act, and that imports from these producers/exporters are materially injuring, or threatening material injury to, an industry in the United States. Also, consistent with section 702(b)(1) of the Act, the Petition is accompanied by information reasonably available to the petitioner in support of its allegations.
The Department finds that the petitioner filed the petition on behalf of the domestic industry because the petitioner is an interested party as defined in section 771(9)(D) of the Act, and has demonstrated sufficient industry support with respect to the initiation of the CVD investigation that it is requesting.
The period of investigation (POI) is calendar year 2015, in accordance with 19 CFR 351.204(b)(2).
The product covered by this investigation is truck and bus tires from the PRC. For a full description of the scope of the investigation,
During our review of the petition, we issued questions to, and received responses from, the petitioner pertaining to the proposed scope in order to ensure that the language of the scope is an accurate reflection of the products for which the domestic industry is seeking relief.
All submissions to the Department must be filed electronically using Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). An electronically filed document must be received successfully in its entirety no later than 5:00 p.m. ET on the date specified by the Department. Documents excepted from the electronic submission requirements must be filed manually (
Pursuant to section 702(b)(4)(A)(i) of the Act, the Department notified representatives of the Government of the People's Republic of China (GOC) of the receipt of the Petition. Also, in accordance with section 702(b)(4)(A)(ii) of the Act, the Department provided representatives of the GOC the opportunity for consultations with respect to the CVD petition. The GOC provided a document titled “Consultations Points of the GOC,” in lieu of holding consultations.
Section 702(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 702(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 702(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the “industry.”
Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product,
Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation” (
With regard to the domestic like product, the petitioner does not offer a definition of the domestic like product distinct from the scope of the investigation. Based on our analysis of the information submitted on the record, we have determined that truck and bus tires constitute a single domestic like product and we have analyzed industry support in terms of that domestic like product.
In determining whether the petitioner has standing under section 702(c)(4)(A) of the Act, we considered the industry support data contained in the Petition with reference to the domestic like product as defined in the “Scope of the Investigation,” in Appendix I of this notice. To establish industry support, the petitioner estimated the 2015 production for each U.S. producer of truck and bus tires, by plant. The petitioner based its estimates of 2015 truck and bus tire production by plant on daily plant-specific production capacity data published in
Our review of the data provided in the Petition, General Issues Supplement, and other information readily available to the Department indicates that the petitioner has established industry support.
The Department finds that the petitioner filed the Petition on behalf of the domestic industry because it is an interested party as defined in section 771(9)(D) of the Act and it has demonstrated sufficient industry support with respect to the CVD investigation that it is requesting the Department initiate.
Because the PRC is a “Subsidies Agreement Country” within the meaning of section 701(b) of the Act, section 701(a)(2) of the Act applies to these investigations. Accordingly, the ITC must determine whether imports of the subject merchandise from the PRC materially injure, or threaten material injury to, a U.S. industry.
The petitioner alleges that imports of the subject merchandise are benefitting from countervailable subsidies and that such imports are causing, or threaten to cause, material injury to the U.S. industry producing the domestic like product. In addition, the petitioner alleges that subject imports exceed the negligibility threshold provided for under section 771(24)(A) of the Act.
The petitioner contends that the industry's injured condition is illustrated by reduced market share; underselling and price depression or suppression; decline in shipments; shift in the domestic industry's sales from the U.S. market to lower priced export markets; potential declines in capacity utilization, employment, and profitability; lost sales and revenues; and adverse impact on union contract negotiations.
Section 702(b)(1) of the Act requires the Department to initiate a CVD investigation whenever an interested party files a CVD petition on behalf of an industry that: (1) Alleges the elements necessary for an imposition of a duty under section 701(a) of the Act; and (2) is accompanied by information reasonably available to the petitioner supporting the allegations.
The petitioner alleges that producers/exporters of truck and bus tires in the PRC benefit from countervailable subsidies bestowed by the GOC. The Department examined the Petition on truck and bus tires from the PRC and finds that it complies with the requirements of section 702(b)(1) of the Act. Therefore, in accordance with section 702(b)(1) of the Act, we are initiating a CVD investigation to determine whether producers/exporters of truck and bus tires in the PRC receive countervailable subsidies. For a discussion of evidence supporting our initiation determination,
On June 29, 2015, the President of the United States signed into law the Trade Preferences Extension Act of 2015, which made numerous amendments to the AD and CVD law.
Based on our review of the Petition, we find that there is sufficient information to initiate a CVD investigation of 38 of the 39 alleged programs. For a full discussion of the basis of our decision to initiate or not initiate on each program,
In accordance with section 703(b)(1) of the Act and 19 CFR 351.205(b)(1), unless postponed, we will make our preliminary determination no later than 65 days after the date of this initiation.
Following standard practice in CVD investigations, the Department intends to select respondents based on U.S. Customs and Border Protection (CBP) data for U.S. imports of truck and bus tires during the period of investigation under the appropriate Harmonized Tariff Schedule of the U.S. numbers listed in the scope of Appendix I, below. We intend to release CBP data under Administrative Protective Order (APO) to all parties with access to information protected by APO within five business days of publication of this
Interested parties wishing to comment regarding the CBP data and/or respondent selection must do so within seven calendar days after the placement of the CBP data on the record of this investigation. Parties wishing to submit rebuttal comments should submit those comments five calendar days after the deadline for the initial comments. An electronically-filed document must be received successfully in its entirety by the Department's electronic records system, ACCESS, by 5:00 p.m. ET by the date noted above. We intend to make our decision regarding respondent selection within 20 days of publication of this notice.
In accordance with section 702(b)(4)(A)(i) of the Act, and 19 CFR 351.202(f), a copy of the petition, which is publicly available in its entirety, has been provided to the Government of the PRC via ACCESS. To the extent practicable, we will attempt to provide a copy of the Petition to each exporter named in the Petition, as provided under 19 CFR 351.203(c)(2).
We will notify the ITC of our initiation, as required by section 702(d) of the Act.
The ITC will preliminarily determine, within 45 days after the date on which the Petition was filed, whether there is a reasonable indication that imports of truck and bus tires from the PRC are materially injuring, or threatening material injury to, a U.S. industry.
Factual information is defined in 19 CFR 351.102(b)(21) as: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by the Department; and (v) evidence other than factual information described in (i)-(iv). Any party, when submitting factual information, must specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted
Parties may request an extension of time limits before the expiration of a time limit established under 19 CFR 351, or as otherwise specified by the Secretary. In general, an extension request will be considered untimely if it is filed after the expiration of the time limit established under 19 CFR 351 expires. For submissions that are due from multiple parties simultaneously, an extension request will be considered untimely if it is filed after 10:00 a.m. ET on the due date. Under certain circumstances, we may elect to specify a different time limit by which extension requests will be considered untimely for submissions which are due from multiple parties simultaneously. In such a case, we will inform parties in the letter or memorandum setting forth the deadline (including a specified time) by which extension requests must be filed to be considered timely. An extension request must be made in a separate, stand-alone submission; under limited circumstances we will grant untimely-filed requests for the extension of time limits.
Any party submitting factual information in an AD or CVD proceeding must certify to the accuracy and completeness of that information.
Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305. On January 22, 2008, the Department published
This notice is issued and published pursuant to section 777(i) of the Act and 19 CFR 351.203(c).
The scope of the investigation covers truck and bus tires. Truck and bus tires are new pneumatic tires, of rubber, with a truck or bus size designation. Truck and bus tires covered by this investigation may be tube-type, tubeless, radial, or non-radial.
Subject tires have, at the time of importation, the symbol “DOT” on the
TR—Identifies tires for service on trucks or buses to differentiate them from similarly sized passenger car and light truck tires;
MH—Identifies tires for mobile homes; and
HC—Identifies a 17.5 inch rim diameter code for use on low platform trailers.
All tires with a “TR,” “MH,” or “HC” suffix in their size designations are covered by this investigation regardless of their intended use.
In addition, all tires that lack one of the above suffix markings are included in the scope, regardless of their intended use, as long as the tire is of a size that is among the numerical size designations listed in the “Truck-Bus” section of the
Truck and bus tires, whether or not mounted on wheels or rims, are included in the scope. However, if a subject tire is imported mounted on a wheel or rim, only the tire is covered by the scope. Subject merchandise includes truck and bus tires produced in the subject country whether mounted on wheels or rims in the subject country or in a third country. Truck and bus tires are covered whether or not they are accompanied by other parts,
Specifically excluded from the scope of this investigation are the following types of tires: (1) Pneumatic tires, of rubber, that are not new, including recycled and retreaded tires; and (2) non-pneumatic tires, such as solid rubber tires.
The subject merchandise is currently classifiable under Harmonized Tariff Schedule of the United States (HTSUS) subheadings: 4011.20.1015 and 4011.20.5020. Tires meeting the scope description may also enter under the following HTSUS subheadings: 4011.99.4520, 4011.99.4590, 4011.99.8520, 4011.99.8590, 8708.70.4530, 8708.70.6030, and 8708.70.6060.
While HTSUS subheadings are provided for convenience and for customs purposes, the written description of the subject merchandise is dispositive.
International Trade Administration.
Notice.
On behalf of the Committee for the Implementation of Textile Agreements (CITA), the Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before April 25, 2016.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Laurie Mease, Office of Textiles and Apparel, Telephone: 202-482-2043, Email:
Title II, Section 203(o) of the United States-Panama Trade Promotion Agreement Implementation Act (the “Act”) [Pub. L. 112-43] implements the commercial availability provision provided for in Article 3.25 of the United States-Panama Trade Promotion Agreement (the “Agreement”). The Agreement entered into force on October 31, 2012. Subject to the rules of origin in Annex 4.1 of the Agreement, pursuant to the textile provisions of the Agreement, fabric, yarn, and fiber produced in Panama or the United States and traded between the two countries are entitled to duty-free tariff treatment. Annex 3.25 of the Agreement also lists specific fabrics, yarns, and fibers that the two countries agreed are not available in commercial quantities in a timely manner from producers in Panama or the United States. The items listed in Annex 3.25 are commercially unavailable fabrics, yarns, and fibers. Articles containing these items are entitled to duty-free or preferential treatment despite containing inputs not produced in Panama or the United States.
The list of commercially unavailable fabrics, yarns, and fibers may be changed pursuant to the commercial availability provision in Chapter 3, Article 3.25, Paragraphs 4-6 of the Agreement. Under this provision, interested entities from Panama or the United States have the right to request that a specific fabric, yarn, or fiber be added to, or removed from, the list of commercially unavailable fabrics, yarns, and fibers in Annex 3.25 of the Agreement.
Pursuant to Chapter 3, Article 3.25, paragraph 6 of the Agreement, which requires that the President publish procedures for parties to exercise the right to make these requests, Section 203(o)(4) of the Act authorizes the President to establish procedures to modify the list of fabrics, yarns, or fibers not available in commercial quantities in a timely manner in either the United States or Panama as set out in Annex 3.25 of the Agreement. The President delegated the responsibility for publishing the procedures and administering commercial availability requests to the Committee for the Implementation of Textile Agreements (“CITA”), which issues procedures and acts on requests through the U.S. Department of Commerce, Office of Textiles and Apparel (“OTEXA”) (See Proclamation No. 8894, 77 FR 66507, November 5, 2012).
The intent of the U.S.-Panama TPA Commercial Availability Procedures is to foster the use of U.S. and regional products by implementing procedures that allow products to be placed on or removed from a product list, on a timely basis, and in a manner that is consistent with normal business practice. The procedures are intended to facilitate the transmission of requests; allow the market to indicate the availability of the supply of products that are the subject of requests; make available promptly, to interested entities and the public, information regarding the requests for products and offers received for those products; ensure wide participation by interested entities and parties; allow for careful review and consideration of information provided to substantiate requests and responses; and provide timely public dissemination of information used by CITA in making commercial availability determinations.
CITA must collect certain information about fabric, yarn, or fiber technical
Participants in a commercial availability proceeding must submit public versions of their Requests, Responses or Rebuttals electronically (via email) for posting on OTEXA's Web site. Confidential versions of those submissions which contain business confidential information must be delivered in hard copy to the Office of Textiles and Apparel (OTEXA) at the U.S. Department of Commerce.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
International Trade Administration (ITA).
Notice.
On behalf of the Committee for the Implementation for Textile Agreements (CITA), the Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before April 25, 2016.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Laurie Mease, Office of Textiles and Apparel, U.S. Department of Commerce, Telephone: 202-482-2043, Email:
Title III, Subtitle B, Section 321 through Section 328 of the United States-Panama Trade Promotion Agreement Implementation Act (the “Act”) [Pub. L. 112-43] implements the textile and apparel safeguard provisions, provided for in Article 3.24 of the United States-Panama Trade Promotion Agreement (the “Agreement”). This safeguard mechanism applies when, as a result of the elimination of a customs duty under the Agreement, a Panamanian textile or apparel article is being imported into the United States in such increased quantities, in absolute terms or relative to the domestic market for that article, and under such conditions as to cause serious damage or actual threat thereof to a U.S. industry producing a like or directly competitive article. In these circumstances, Article 3.24 permits the United States to increase duties on the imported article from Panama to a level that does not exceed the lesser of the prevailing U.S. normal trade relations (NTR)/most-favored-nation (MFN) duty rate for the article or the U.S. NTR/MFN duty rate in effect on the day the Agreement entered into force.
The Statement of Administrative Action accompanying the Act provides that the Committee for the Implementation of Textile Agreements (CITA) will issue procedures for requesting such safeguard measures, for making its determinations under Section 322(a) of the Act, and for providing relief under section 322(b) of the Act.
In Proclamation No. 8894 (77 FR 66507, November 5, 2012), the President delegated to CITA his authority under Subtitle B of Title III of the Act with respect to textile and apparel safeguard measures.
CITA must collect information in order to determine whether a domestic textile or apparel industry is being adversely impacted by imports of these products from Panama, thereby allowing CITA to take corrective action to protect the viability of the domestic textile industry, subject to section 322(b) of the Act.
Pursuant to Section 321(a) of the Act and Paragraph (7) of Presidential Proclamation 8894, an interested party in the U.S. domestic textile and apparel industry may file a request for a textile and apparel safeguard action with CITA. Consistent with longstanding CITA practice in considering textile safeguard actions, CITA will consider an interested party to be an entity (which may be a trade association, firm, certified or recognized union, or group of workers) that is representative of either: (A) A domestic producer or producers of an article that is like or directly competitive with the subject Panamanian textile or apparel article; or (B) a domestic producer or producers of a component used in the production of an article that is like or directly competitive with the subject Panamanian textile or apparel article.
In order for a request to be considered, the requestor must provide the following information in support of a claim that a textile or apparel article from Panama is being imported into the United States in such increased quantities, in absolute terms or relative to the domestic market for that article, and under such conditions as to cause serious damage or actual threat thereof, to a U.S. industry producing an article that is like or directly competitive with the imported article: (1) Name and description of the imported article concerned; (2) import data
If CITA determines that the request provides the information necessary for it to be considered, CITA will publish a notice in the
CITA will make a determination on any request it considers within 60 calendar days of the close of the comment period. If CITA is unable to make a determination within 60 calendar days, it will publish a notice in the
If a determination under Section 322(a) of the Act is affirmative, CITA may provide tariff relief to a U.S. industry to the extent necessary to remedy or prevent serious damage or actual threat thereof and to facilitate adjustment by the domestic industry to import competition. The import tariff relief is effective beginning on the date that CITA's affirmative determination is published in the
Entities submitting requests, responses or rebuttals to CITA may submit both a public and confidential version of their submissions. If the request is accepted, the public version will be posted on the dedicated U.S.-Panama Trade Promotion Agreement textile safeguards section of the Office of Textile and Apparel (OTEXA) Web site. The confidential version of the request, responses or rebuttals will not be shared with the public as it may contain business confidential information. Entities submitting responses or rebuttals may use the public version of the request as a basis for responses.
When an interested party files a request for a textile and apparel safeguard action with CITA, ten copies of any such request must be provided in a paper format. If business confidential information is provided, two copies of a non-confidential version must also be provided. If CITA determines that the request provides the necessary information to be considered, it will publish a
To the extent business confidential information is provided, a non-confidential version must also be provided. Any interested party may submit information to rebut, clarify, or correct public comments submitted by any interested party.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Yang Jin Chun or Andre Gziryan, AD/CVD Operations Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-5760 and (202) 482-2201, respectively.
On January 29, 2016, the Department of Commerce (the Department) received an antidumping duty (AD) petition concerning imports of truck and bus tires from the People's Republic of China (the PRC) officially filed in proper form on behalf of the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC (USW or the petitioner).
In accordance with section 732(b) of the Tariff Act of 1930, as amended (the Act), the petitioner alleges that imports of truck and bus tires from the PRC are being, or are likely to be, sold in the United States at less than fair value within the meaning of section 731 of the Act, and that such imports are materially injuring, or threatening material injury to, an industry in the United States. Also, consistent with section 732(b)(1) of the Act, the Petition is accompanied by information reasonably available to the petitioner in support of its allegations.
The Department finds that the petitioner filed the petition on behalf of the domestic industry because the petitioner is an interested party as defined in section 771(9)(D) of the Act, and has demonstrated sufficient industry support with respect to the initiation of the AD investigation that it is requesting.
Because the petition was filed on January 29, 2016, the period of investigation (POI) is July 1, 2015, through December 31, 2015.
The product covered by this investigation is truck and bus tires from the PRC. For a full description of the scope of the investigation,
During our review of the petition, we issued questions to, and received responses from, the petitioner pertaining to the proposed scope in order to ensure that the language of the scope is an accurate reflection of the products for which the domestic industry is seeking relief.
All submissions to the Department must be filed electronically using Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). An electronically filed document must be received successfully in its entirety no later than 5:00 p.m. ET on the date specified by the Department. Documents excepted from the electronic submission requirements must be filed manually (
The Department requests comments from interested parties regarding the appropriate physical characteristics of truck and bus tires to be reported in response to the Department's AD questionnaire. This information will be used to identify the key physical characteristics of the subject merchandise in order to report the relevant factors of production accurately, as well as to develop appropriate product-comparison criteria.
Interested parties may provide any information or comments that they believe are relevant to the development of an accurate list of physical characteristics. Specifically, interested parties may provide comments as to which characteristics are appropriate to use as: (1) General product characteristics and (2) product-comparison criteria. It is not always appropriate to use all product characteristics as product-comparison criteria. We base product-comparison criteria on meaningful commercial differences among products. In other words, while there may be some physical product characteristics manufacturers used to describe truck and bus tires, it may be that only a select few product characteristics take into account commercially meaningful physical characteristics. In addition, interested parties may comment on the order in which the physical characteristics should be used in matching products. Generally, the Department attempts to list the most important physical characteristics first and the least important characteristics last.
In order to consider the suggestions of interested parties in developing and issuing the AD questionnaire, we must receive comments on product characteristics no later than March 9, 2016. Rebuttal comments must be received no later than March 16, 2016. All comments and submissions to the
Section 732(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 732(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 732(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the “industry.”
Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product,
Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation” (
With regard to the domestic like product, the petitioner does not offer a definition of the domestic like product distinct from the scope of the investigation. Based on our analysis of the information submitted on the record, we have determined that truck and bus tires constitute a single domestic like product and we have analyzed industry support in terms of that domestic like product.
In determining whether the petitioner has standing under section 732(c)(4)(A) of the Act, we considered the industry support data contained in the Petition with reference to the domestic like product as defined in the “Scope of the Investigation,” in the Appendix of this notice. To establish industry support, the petitioner estimated the 2015 production for each U.S. producer of truck and bus tires, by plant. The petitioner based its estimates of 2015 off truck and bus tire production by plant on daily plant-specific production capacity data published in
Our review of the data provided in the Petition, General Issues Supplement, and other information readily available to the Department indicates that the petitioner has established industry support.
The Department finds that the petitioner filed the Petition on behalf of the domestic industry because it is an interested party as defined in section 771(9)(D) of the Act and it has demonstrated sufficient industry support with respect to the AD investigation that it is requesting the Department initiate.
The petitioner alleges that the U.S. industry producing the domestic like product is being materially injured, or is threatened with material injury, by reason of the imports of the subject merchandise sold at less than normal value (NV). In addition, the petitioner alleges that subject imports exceed the negligibility threshold provided for under section 771(24)(A) of the Act.
The petitioner contends that the industry's injured condition is illustrated by reduced market share; underselling and price depression or suppression; decline in shipments; shift in the domestic industry's sales from the U.S. market to lower priced export markets; potential declines in capacity utilization, employment, and profitability; lost sales and revenues; and adverse impact on union contract negotiations.
The following is a description of the allegation of sales at less than fair value upon which the Department based its decision to initiate an investigation of imports of truck and bus tires from the PRC. The sources of data for the deductions and adjustments relating to U.S. price and NV are discussed in greater detail in the AD Initiation Checklist.
The petitioner based export price (EP) on import data obtained from the U.S. Department of Commerce's Foreign Trade Division Merchandise Imports database and the ITC Dataweb (collectively import database) for truck and bus tires. The petitioner calculated the average unit values (AUVs) per tire for U.S. imports of truck and bus tires from the PRC entered during the POI under two Harmonized Tariff Schedule of the United States (HTSUS) subheadings that cover truck and bus tires.
The petitioner states that the Department has treated the PRC as a non-market economy (NME) country in every proceeding in which the PRC has been involved.
The petitioner contends that Thailand is the appropriate surrogate country for the PRC because: (1) It is at a level of economic development comparable to that of the PRC; (2) it is a significant producer of comparable merchandise; and (3) the data for Thailand for valuing factors of production are available and reliable.
The petitioner calculated NV using the Department's NME methodology as required by 19 CFR 351.202(b)(7)(i)(C) and 19 CFR 351.408. As the petitioner is a union representing workers in the domestic industry producing truck and bus tires and is not a domestic producer, the petitioner contends it does not have access to the proprietary information on the FOPs necessary to make truck and bus tires. Therefore, the petitioner based NV on publicly available information regarding the standard direct materials used to manufacture truck and bus tires from a number of publications.
The petitioner valued the FOPs for direct materials (except natural rubber) using reasonably available, public surrogate country data, specifically, Thai import data from the Global Trade Atlas (GTA) for the period July through December 2015.
The petitioner calculated the average labor hours required to make one tire using the employment and production information from the financial statements of three PRC tire manufacturers (GITI Tire, Doublestar Tyre, and Guizhou Tyre Co., Ltd.).
The petitioner calculated financial ratios (
Based on the data the petitioner provided, there is reason to believe that imports of truck and bus tires from the PRC are being, or are likely to be, sold in the United States at less than fair value. Based on the comparison of net U.S. price to NV for the same or similar truck and bus tires in accordance with section 773(c) of the Act, the petitioner's estimated margins for truck and bus tires are 19.91 percent and 22.57 percent.
Based on our examination of the petition on truck and bus tires from the PRC, the Department finds that the petition meets the requirements of section 732 of the Act. Therefore, we are initiating an AD investigation to determine whether imports of truck and bus tires from the PRC are being, or likely to be, sold in the United States at less than fair value. In accordance with section 733(b)(1)(A) of the Act and 19 CFR 351.205(b)(1), unless postponed, we will make our preliminary determination no later than 140 days after the date of this initiation. For a discussion of evidence supporting our initiation determination,
On June 29, 2015, the President of the United States signed into law the Trade Preferences Extension Act of 2015, which made numerous amendments to the AD and CVD law.
In accordance with our standard practice for respondent selection in AD investigations involving NME countries, we intend to issue quantity and value questionnaires to producers/exporters of merchandise subject to this investigation
Exporters and producers of truck and bus tires from the PRC that do not receive quantity and value questionnaires via mail may still submit a response to the quantity and value questionnaire available at the Enforcement and Compliance Web site. The Department will establish an exact deadline by which quantity and value responses must be submitted in the questionnaire itself, as subsequently released to potential respondents and posted to the Enforcement and Compliance Web site. All quantity and value responses must be filed electronically using ACCESS.
In order to obtain separate rate status in an NME AD investigation, exporters and producers must submit a separate rate application.
The Department will calculate combination rates for certain respondents that are eligible for a separate rate in an NME investigation. The Separate Rates and Combination Rates Bulletin states:
In accordance with section 732(b)(3)(A) of the Act, and 19 CFR 351.202(f), a copy of the petition, which is publicly available in its entirety, has been provided to the Government of the PRC
We will notify the ITC of our initiation, as required by section 732(d) of the Act.
The ITC will preliminarily determine, within 45 days after the date on which the Petition was filed, whether there is a reasonable indication that imports of truck and bus tires from the PRC are materially injuring, or threatening material injury to, a U.S. industry.
Factual information is defined in 19 CFR 351.102(b)(21) as: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by the Department; and (v) evidence other than factual information described in (i)-(iv). Any party, when submitting factual information, must specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted
Parties may request an extension of time limits before the expiration of a time limit established under 19 CFR part 351, or as otherwise specified by the Secretary. In general, an extension request will be considered untimely if it is filed after the expiration of the time limit established under 19 CFR part 351 expires. For submissions that are due from multiple parties simultaneously, an extension request will be considered untimely if it is filed after 10:00 a.m. ET on the due date. Under certain circumstances, we may elect to specify a different time limit by which extension requests will be considered untimely for submissions which are due from multiple parties simultaneously. In such a case, we will inform parties in the letter or memorandum setting forth the deadline (including a specified time) by which extension requests must be filed to be considered timely. An extension request must be made in a separate, stand-alone submission; under limited circumstances we will grant untimely-filed requests for the extension of time limits.
Any party submitting factual information in an AD or CVD proceeding must certify to the accuracy and completeness of that information.
Interested parties must submit applications for disclosure under administrative protective order (APO) in accordance with 19 CFR 351.305. On January 22, 2008, the Department published
This notice is issued and published pursuant to section 777(i) of the Act and 19 CFR 351.203(c).
The scope of the investigation covers truck and bus tires. Truck and bus tires are new pneumatic tires, of rubber, with a truck or bus size designation. Truck and bus tires covered by this investigation may be tube-type, tubeless, radial, or non-radial.
Subject tires have, at the time of importation, the symbol “DOT” on the sidewall, certifying that the tire conforms to applicable motor vehicle safety standards. Subject tires may also have one of the following suffixes in their tire size designation, which also appear on the sidewall of the tire:
TR—Identifies tires for service on trucks or buses to differentiate them from similarly sized passenger car and light truck tires;
MH—Identifies tires for mobile homes; and
HC—Identifies a 17.5 inch rim diameter code for use on low platform trailers.
All tires with a “TR,” “MH,” or “HC” suffix in their size designations are covered by this investigation regardless of their intended use.
In addition, all tires that lack one of the above suffix markings are included in the scope, regardless of their intended use, as long as the tire is of a size that is among the numerical size designations listed in the “Truck-Bus” section of the
Truck and bus tires, whether or not mounted on wheels or rims, are included in the scope. However, if a subject tire is imported mounted on a wheel or rim, only the tire is covered by the scope. Subject merchandise includes truck and bus tires produced in the subject country whether mounted on wheels or rims in the subject country or in a third country. Truck and bus tires are covered whether or not they are
Specifically excluded from the scope of this investigation are the following types of tires: (1) Pneumatic tires, of rubber, that are not new, including recycled and retreaded tires; and (2) non-pneumatic tires, such as solid rubber tires.
The subject merchandise is currently classifiable under Harmonized Tariff Schedule of the United States (HTSUS) subheadings: 4011.20.1015 and 4011.20.5020. Tires meeting the scope description may also enter under the following HTSUS subheadings: 4011.99.4520, 4011.99.4590, 4011.99.8520, 4011.99.8590, 8708.70.4530, 8708.70.6030, and 8708.70.6060. While HTSUS subheadings are provided for convenience and for customs purposes, the written description of the subject merchandise is dispositive.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Scientific and Statistical Committee (SSC) of the Mid-Atlantic Fishery Management Council (Council) will hold a meeting.
The meeting will be held on Tuesday and Wednesday, March 15-16, 2016, beginning at 10 a.m. on March 15 and conclude by 3 p.m. on March 16. For agenda details, see
The meeting will at the Royal Sonesta Harbor Court, 550 Light Street, Baltimore, MD 21202; telephone: 410-234-0550.
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.
Agenda items to be discussed at the SSC meeting include: Review fishery performance reports and multi-year ABC specifications for
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526-5251, at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental harassment authorization.
In accordance with the Marine Mammal Protection Act (MMPA) implementing regulations, NMFS, we, hereby give notice that we have issued an Incidental Harassment Authorization (Authorization) to the St. George Reef Lighthouse Preservation Society (Society) to take four species of marine mammals, by harassment incidental to conducting aircraft operations, lighthouse renovation, and light maintenance activities on the St. George Reef Light Station on Northwest Seal Rock in the northeast Pacific Ocean from February 19, 2016 through February 18, 2017.
Effective February 19, 2016, through February 18, 2017.
An electronic copy of the final Authorization, the Society's application, and NMFS' environmental assessment are available by writing to Jolie Harrison, Division Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910; by telephoning the contacts listed here, or by visiting the Internet at:
Jeannine Cody, NMFS, Office of Protected Resources, NMFS (301) 427-8401.
Sections 101(a)(5)(A) and (D) of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
An Authorization for incidental takings for marine mammals shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring, and reporting of such taking are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
On October 1, 2015, the Society requested that we issue an Authorization for the take of marine mammals, incidental to conducting restoration activities on the St. George Reef Light Station (Station) located on Northwest Seal Rock offshore of Crescent City, California in the northeast Pacific Ocean. NMFS determined the application complete and adequate on October 7, 2015 and published a notice of proposed Authorization on October 26, 2015 (80 FR 65201). The notice afforded the public a 30-day comment period on the proposed MMPA Authorization.
The Society proposes to conduct aircraft operations, lighthouse renovation, and periodic maintenance on the Station's optical light system on a monthly basis. The proposed activity would occur on a monthly basis over one weekend, February 2016 through February 2017. The Society would not conduct the proposed activities between May 1 and October 31, 2016. The following specific aspects of the proposed activities would likely to result in the take of marine mammals: (1) Helicopter landings/takeoffs; (2) noise generated during restoration activities (
To date, NMFS has issued four Authorizations to the Society for the conduct of the same activities from 2010 to 2015 (75 FR 4774, January 29, 2010; 76 FR 10564, February 25, 2011; 77 FR 8811, February 15, 2012; and 79 FR 6179, February 3, 2014). This is the Society's fifth request for an annual Authorization as their last Authorization expired on April 10, 2015.
The Station, listed in the National Park Service's National Register of Historic Places, is located on Northwest Seal Rock offshore of Crescent City, California in the northeast Pacific Ocean. The Station, built in 1892, rises 45.7 meters (m) (150 feet (ft)) above sea level. The structure consists of hundreds of granite blocks topped with a cast iron lantern room and covers much of the surface of the islet. The purpose of the project is to restore the lighthouse and to conduct annual and emergency maintenance on the Station's optical light system.
The Society proposes to conduct the activities (aircraft operations, lighthouse restoration, and maintenance activities) at a maximum frequency of one session per month. The proposed duration for each session would last no more than three days (
The Station is located on Northwest Seal Rock, a small rocky islet (41°50′24″ N., 124°22′06″ W.) approximately nine kilometers (km) (6.0 miles (mi)) in the northeast Pacific Ocean, offshore of Crescent City, California (Latitude: 41°46′48″ N.; Longitude: 124°14′11″ W.). Northwest Seal Rock is approximately 91.4 m (300 ft) in diameter that peaks at 5.18 m (17 ft) above mean sea level.
We outlined the purpose of the Society's activities in a previous notice for the proposed Authorization (80 FR 65201, October 26, 2015). The proposed activities have not changed between the notice for the proposed Authorization and this notice announcing the issuance of the Authorization. For a more detailed description of the authorized action, we refer the reader to the Detailed Description of Activities section in the notice for the proposed Authorization (80 FR 65201, October 26, 2015).
A notice of receipt of the Society's application and NMFS' proposal to issue an Authorization to the Society published in the
The marine mammals most likely to be harassed incidental to the Society's helicopter operations, lighthouse restoration, and lighthouse maintenance on Northwest Seal Rock are primarily Steller and California sea lions and to a lesser extent the Pacific harbor seal and the eastern Pacific stock of northern fur seal.
Table 1 provides the following information: All marine mammal species with possible or confirmed occurrence in the proposed activity area; information on those species' regulatory status under the MMPA and the Endangered Species Act of 1973 (16 U.S.C. 1531
NMFS refers the public to the 2015 draft NMFS Marine Mammal Stock Assessment Report available online at:
California (southern) sea otters (
This section of the notice for the proposed Authorization (80 FR 65201, October 26, 2015) included a summary and discussion of the ways that components of the specified activity (
Acoustic and visual stimuli generated by: (1) Helicopter landings/takeoffs; (2) noise generated during restoration activities (
We provided detailed information on these potential effects notice for the proposed Authorization (80 FR 65201, October 26, 2015). The information presented in that notice has not changed.
The only habitat modification associated with the proposed activity is the restoration of a light station which would occur on the upper levels of Northwest Seal Rock which are not used by marine mammals. Thus, NMFS does not expect that the authorized activity would have any effect on marine mammal habitat and NMFS expects that there will be no long- or short-term physical impacts to pinniped habitat on Northwest Seal Rock.
The Society would remove all waste, discarded materials and equipment from the island after each visit. The proposed activities will not result in any permanent impact on habitats used by marine mammals, including prey species and foraging habitat. The main impact associated with the proposed activity will be temporarily elevated noise levels and the associated direct effects on marine mammals (
In order to issue an incidental take authorization under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (where relevant).
Since the most severe impacts (stampede) precede rapid and direct helicopter approaches, the Society's initial approach to the Station must be offshore from the island at a relatively high altitude (
NMFS has carefully evaluated the Society's proposed mitigation measures in the context of ensuring that we prescribe the means of affecting the least practicable impact on the affected marine mammal species and stocks and their habitat. The evaluation of potential measures included consideration of the following factors in relation to one another:
• The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;
• The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and
• The practicability of the measure for applicant implementation.
Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed here:
1. Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).
2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to vessel or visual presence that NMFS expects to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
3. A reduction in the number of times (total number or number at biologically important time or location) individuals exposed to vessel or visual presence that NMFS expects to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to vessel or visual presence that NMFS expects to result in the take of marine mammals (this goal may contribute to a, above, or to reducing the severity of harassment takes only).
5. Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time.
6. For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.
Based on the evaluation of the Society's proposed measures, NMFS has determined that the mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an incidental take authorization for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for Authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that NMFS expects to be present in the proposed action area.
Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals:
1. An increase in the probability of detecting marine mammals within the mitigation zone (thus allowing for more effective implementation of the mitigation) in order to generate more data to contribute to the analyses mentioned later;
2. An increase in our understanding of the nature, scope, or context of the likely exposure of marine mammal species to any of the potential stressor(s) associated with the action (
3. An increase in our understanding of how marine mammals respond to stimuli that we expect to result in take and how those anticipated adverse effects on individuals (in different ways and to varying degrees) may impact the population, species, or stock (specifically through effects on annual rates of recruitment or survival) through any of the following methods:
a. Behavioral observations in the presence of stimuli compared to observations in the absence of stimuli;
b. Physiological measurements in the presence of stimuli compared to observations in the absence of stimuli;
c. Distribution and/or abundance comparisons in times or areas with concentrated stimuli versus times or areas without stimuli;
4. An increased knowledge of the affected species; and
5. An increase in our understanding of the effectiveness of certain mitigation and monitoring measures.
The Society proposes to sponsor marine mammal monitoring in order to implement the mitigation measures that require real-time monitoring and to satisfy the monitoring requirements of the Authorization. These include:
At least once during the period between February 19, 2016, and February 18, 2017, a qualified biologist shall be present during all three workdays at the Station. The qualified biologist hired will be subject to approval by us and they shall document use of the island by the pinnipeds, frequency, (
Aerial photographic surveys may provide the most accurate means of documenting species composition, age and sex class of pinnipeds using the project site during human activity periods. The Society should complete aerial photo coverage of Northwest Seal Rock from the same helicopter used to transport the Society's personnel during restoration trips. The Society would take photographs of all hauled out marine mammals at an altitude greater than 300 m (984 ft) by a skilled photographer, prior to the first landing on each visit included in the monitoring program. Photographic documentation of marine mammals present at the end of each three-day work session shall also be made for a before and after comparison. These photographs will be forwarded to a biologist capable of discerning marine mammal species. Data shall be provided to us in the form of a report with a data table, any other significant observations related to marine mammals, and a report of restoration activities (see Reporting). The original photographs can be made available to us or other marine mammal experts for inspection and further analysis.
The monitoring requirements in relation to the Society's proposed
The Society can add to the knowledge of pinnipeds in the proposed action area by noting observations of: (1) Unusual behaviors, numbers, or distributions of pinnipeds, such that any potential follow-up research can be conducted by the appropriate personnel; (2) tag-bearing carcasses of pinnipeds, allowing transmittal of the information to appropriate agencies and personnel; and (3) rare or unusual species of marine mammals for agency follow-up.
The Society complied with the mitigation and monitoring required under the previous authorizations (2010-2014). They did not conduct any operations for the 2013 or 2014 season. However, in compliance with the 2012 Authorization, the Society submitted a final report on the activities at the Station, covering the period of February 15, 2012 through April 30, 2012. During the effective dates of the 2012 Authorization, the Society conducted one work session in March, 2012. The Society's aircraft operations and restoration activities on Northwest Seal Rock did not exceed the activity levels analyzed under the 2012 Authorization. During the March 2012 work session, the Society observed two harbor seals hauled out on Northwest Seal Rock. Both animals (a juvenile and an adult) departed the rock, entered the water, and did not return to the Station during the duration of the activities.
The Society would submit a draft report to NMFS' Office of Protected Resources no later than 90 days after the expiration of the Authorization. The report will include a summary of the information gathered pursuant to the monitoring requirements set forth in the Authorization. The Society will submit a final report to the NMFS Director, Office of Protected Resources within 30 days after receiving comments from NMFS on the draft report. If the Society receives no comments from NMFS on the report, NMFS will consider the draft report to be the final report.
The report will describe the operations conducted and sightings of marine mammals near the proposed project. The report will provide full documentation of methods, results, and interpretation pertaining to all monitoring. The report will provide:
1. A summary and table of the dates, times, and weather during all research activities.
2. Species, number, location, and behavior of any marine mammals observed throughout all monitoring activities.
3. An estimate of the number (by species) of marine mammals exposed to human presence associated with the Society's activities.
4. A description of the implementation and effectiveness of the monitoring and mitigation measures of the Authorization and full documentation of methods, results, and interpretation pertaining to all monitoring.
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the authorization, such as an injury (Level A harassment), serious injury, or mortality (
• Time, date, and location (latitude/longitude) of the incident;
• Description and location of the incident (including water depth, if applicable);
• Environmental conditions (
• Description of all marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
The Society shall not resume its activities until NMFS is able to review the circumstances of the prohibited take. We will work with the Society to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The Society may not resume their activities until notified by us via letter, email, or telephone.
In the event that the Society discovers an injured or dead marine mammal, and the marine mammal observer determines that the cause of the injury or death is unknown and the death is relatively recent (
In the event that the Society discovers an injured or dead marine mammal, and the lead visual observer determines that the injury or death is not associated with or related to the authorized activities (
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
All anticipated takes would be by Level B harassment, involving temporary changes in behavior. NMFS expects that the mitigation and monitoring measures would minimize the possibility of injurious or lethal takes. NMFS considers the potential for take by injury, serious injury, or mortality as remote. NMFS expects that the presence of Society personnel could disturb of animals hauled out on Northwest Seal Rock and that the animals may alter their behavior or
As discussed earlier, NMFS considers an animal to have been harassed if it moved greater than 1 m (3.3 ft) in response to the Society's presence or if the animal was already moving and changed direction and/or speed, or if the animal flushed into the water. NMFS does not consider animals that became alert without such movements as harassed.
Based on the Society's previous monitoring reports, NMFS estimates that approximately 1,120 California sea lions (calculated by multiplying the maximum number of California sea lions observed on Northwest Seal Rock [160] by 7 months: February-April, November-February) of the restoration and maintenance activities), 1,085 Steller sea lions (calculated by multiplying the maximum number of Steller sea lions observed on Northwest Seal Rock [155] by 7 months, 42 Pacific harbor seals (calculated by multiplying the maximum number of harbor seals observed on Northwest Seal Rock [6] by 7 months), and 7 northern fur seals (calculated by multiplying the maximum number of northern fur seals observed on Northwest Seal Rock [1] by 7 months) could be potentially affected by Level B behavioral harassment over the course of the Authorization. NMFS bases these estimates of the numbers of marine mammals that might be affected on consideration of the number of marine mammals that could be disturbed appreciably by approximately 51 hours of aircraft operations during the course of the activity. These incidental harassment take numbers represent approximately 0.38 percent of the U.S. stock of California sea lion, 1.80 percent of the eastern U.S. stock of Steller sea lion, 0.14 percent of the California stock of Pacific harbor seals, and 0.05 percent of the San Miguel Island stock of northern fur seal. However, actual take may be slightly less if animals decide to haul out at a different location for the day or if animals are foraging at locations away from Northwest Seal Rock at the time of the Societies proposed activities.
Because of the required mitigation measures and the likelihood that some pinnipeds will avoid the area, NMFS does not expect any injury or mortality to pinnipeds to occur and NMFS has not authorized take by Level A harassment for this proposed activity.
The Society would share observations and counts of marine mammals and all observed disturbances to the appropriate state and federal agencies at the conclusion of the activities.
Negligible impact is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). The lack of likely adverse effects on annual rates of recruitment or survival (
In making a negligible impact determination, NMFS considers:
• The number of anticipated injuries, serious injuries, or mortalities;
• The number, nature, and intensity, and duration of harassment;
• The context in which the takes occur (
• The status of stock or species of marine mammals (
• Impacts on habitat affecting rates of recruitment/survival; and
• The effectiveness of monitoring and mitigation measures to reduce the number or severity of incidental takes
To avoid repetition, our analysis applies to all the species listed in Table 1, given that NMFS expects the anticipated effects of the Society's activities to be similar in nature.
Although the Society's survey activities may disturb a small number of marine mammals hauled out on Northwest Seal Rock, NMFS expects those impacts to occur to a small, localized group of animals for a limited duration (
The Society's activities would occur during the least sensitive time (
Moreover, the Society's mitigation measures regarding helicopter approaches and restoration site ingress and egress would minimize the potential for stampedes and large-scale movements. Thus, the potential for large-scale movements and stampede leading to injury, serious injury, or mortality is low.
Any noise attributed to the Society's proposed helicopter operations on Northwest Seal Rock would be short-term (approximately 5 minutes per trip). We would expect the ambient noise levels to return to a baseline state when helicopter operations have ceased for the day. As the helicopter landings take place 15 m (48 ft) above the surface of the rocks on Northwest Seal Rock, NMFS presumes that the received sound levels would increase above 81-81.9 dB re: 20 μPa (A-weighted) at the landing pad. However, we do not expect that the increased received levels of sound from the helicopter would cause threshold shifts in hearing because the pinnipeds would flush before the helicopter approached Northwest Seal Rock; thus increasing the distance between the pinnipeds and the received sound levels on Northwest Seal Rock during the proposed action.
If pinnipeds are present on Northwest Seal Rock, Level B behavioral harassment of pinnipeds may occur during helicopter landing and takeoff from Northwest Seal Rock due to the pinnipeds temporarily moving from the rocks and lower structure of the Station
Sea lions have shown habituation to helicopter flights within a day at the project site and most animals are expected to return soon after helicopter activities cease for that day. By clustering helicopter arrival/departures within a short time period, we expect animals present to show less response to subsequent landings. NMFS anticipates no impact on the population size or breeding stock of Steller sea lions, California sea lions, Pacific harbor seals, or northern fur seals.
In summary, NMFS anticipates that impacts to hauled-out pinnipeds during the Society's proposed helicopter operations and restoration/maintenance activities would be behavioral harassment of limited duration (
As mentioned previously, NMFS estimates that the Society's proposed activities could potentially affect, by Level B harassment only, four species of marine mammal under our jurisdiction. For each species, these estimates are small numbers (each, less than or equal to one percent) relative to the population size. These incidental harassment take numbers represent approximately 0.32 percent of the U.S. stock of California sea lion, 0.42 percent of the eastern U.S. stock of Steller sea lion, 0.11 percent of the California stock of Pacific harbor seals, and 0.05 percent of the San Miguel Island stock of northern fur seal.
Based on the analysis contained in this notice of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS finds that the Society's proposed activities would be limited to small numbers of marine mammals relative to the populations of the affected species or stocks.
There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
NMFS does not expect that the Society's proposed helicopter operations and restoration/maintenance activities would affect any species listed under the ESA. Therefore, NMFS has determined that a section 7 consultation under the ESA is not required.
To meet our NEPA requirements for the issuance of an Authorization to the Society, NMFS has prepared an Environmental Assessment (EA) in 2010 that was specific to conducting aircraft operations and restoration and maintenance work on the St. George Reef Light Station. The EA, titled “Issuance of an Incidental Harassment Authorization to Take Marine Mammals by Harassment Incidental to Conducting Aircraft Operations, Lighthouse Restoration and Maintenance Activities on St. George Reef Lighthouse Station in Del Norte County, California,” evaluated the impacts on the human environment of our authorization of incidental Level B harassment resulting from the specified activity in the specified geographic region. At that time, NMFS concluded that issuance of an annual Authorization would not significantly affect the quality of the human environment and issued a Finding of No Significant Impact (FONSI) for the 2010 EA regarding the Society's activities. In conjunction with the Society's 2015 application, NMFS has again reviewed the 2010 EA and determined that there are no new direct, indirect, or cumulative impacts to the human and natural environment associated with the Authorization requiring evaluation in a supplemental EA and NMFS, therefore, reaffirms the 2010 FONSI. An electronic copy of the EA and the FONSI for this activity is available upon request (see
NMFS has issued an Incidental Harassment Authorization to the St. George Reef Lighthouse Preservation Society for conducting helicopter operations and restoration activities on the St. George Light Station in the northeast Pacific Ocean, February 19, 2016, through February 18, 2017, provided they incorporate the previously mentioned mitigation, monitoring, and reporting requirements.
National Oceanic and Atmospheric Administration, Department of Commerce.
Notice of solicitation for nominations for the National Sea Grant Advisory Board (NSGAB) and notice of public meeting.
This notice also sets forth the schedule and proposed agenda of a forthcoming meeting of the NSGAB. NSGAB members will discuss and provide advice on the National Sea Grant College Program (NSGCP)in the areas of program evaluation, strategic planning, education and extension, science and technology programs, and other matters as described in the agenda found on the NSGCP Web site at
The announced meeting is scheduled for Monday, March 7, 2016 from 8:30 a.m. to 5:00 p.m. EDT and Tuesday, March 8, 2016, from 8:30 a.m. to 12:00 p.m. EDT.
The meeting will be held at the Washington Plaza Hotel, 10 Thomas
The NSGAB expects that public statements presented at its meetings will not be repetitive of previously submitted verbal or written statements. In general, each individual or group making a verbal presentation will be limited to a total time of three (3) minutes. Written comments should be received by Mrs. Jennifer Hinden by Friday, February 24, 2016 to provide sufficient time for NSGAB review. Written comments received after the deadline will be distributed to the NSGAB, but may not be reviewed prior to the meeting date. Seats will be available on a first-come, first-serve basis.
The NSGAB, which consists of a balanced representation from academia, industry, state government and citizens groups, was established in 1976 by Section 209 of the Sea Grant Improvement Act (Public Law 94-461, 33 U.S.C. 1128).
The NSGAB advises the Secretary of Commerce and the Director of the NSGCP with respect to operations under the Act, and such other matters as the Secretary refers to them for review and advice.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental harassment authorization.
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that we have issued an incidental harassment authorization (IHA) to UniSea, Inc. (UniSea) to incidentally harass, by Level B harassment only, small numbers of marine mammals during construction activities associated with a dock replacement project in Iliuliuk Harbor, Unalaska, AK.
This authorization is effective from March 1, 2016, through February 28, 2017.
Jordan Carduner, Office of Protected Resources, NMFS, (301) 427-8401.
An electronic copy of UniSea's application and supporting documents, as well as a list of the references cited in this document, may be obtained by visiting the Internet at:
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
The incidental taking of small numbers of marine mammals may be allowed only if NMFS (through authority delegated by the Secretary) finds that the total taking by the specified activity during the specified time period will (i) have a negligible impact on the species or stock(s) and (ii) not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant). Further, the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such taking must be set forth.
The allowance of such incidental taking under section 101(a)(5)(A), by harassment, serious injury, death, or a combination thereof, requires that regulations be established. Subsequently, a Letter of Authorization may be issued pursuant to the prescriptions established in such regulations, providing that the level of taking will be consistent with the findings made for the total taking allowable under the specific regulations. Under section 101(a)(5)(D), NMFS may authorize such incidental taking by harassment only, for periods of not more than one year, pursuant to requirements and conditions contained within an IHA. The establishment of these prescriptions requires notice and opportunity for public comment.
NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: “. . . any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].”
On June 10, 2015, we received a request from UniSea for authorization to take marine mammals incidental to pile driving and pile removal associated with construction of a commercial fishing dock in Iliuliuk Harbor, a small harbor in the Aleutian Islands. UniSea submitted revised versions of the request on September 28, 2015, and December 2, 2015. The latter of these was deemed adequate and complete. UniSea proposed to replace the existing dock with an 80 foot by 400 foot open cell sheet pile dock, between March 1, 2016 and February 28, 2017.
The use of both vibratory and impact pile driving is expected to produce underwater sound at levels that have the potential to result in behavioral harassment of marine mammals. Species with the expected potential to be present during all or a portion of the in-water work window include the Steller sea lion (
A detailed description of the proposed G1 dock construction project is provided in the
A notice of NMFS' proposal to issue an IHA to UniSea was published in the
Marine waters near Unalaska Island support many species of marine mammals, including pinnipeds and cetaceans; however, the number of species regularly occurring near the project location is limited. There are three marine mammal species under NMFS' jurisdiction with recorded occurrence in Iliuliuk Harbor during the past 15 years, including one cetacean and two pinnipeds. Steller sea lions are the most common marine mammals in the project area and are part of the western Distinct Population Segment (DPS) that is listed as Endangered under the Endangered Species Act (ESA). Harbor seals (
We have reviewed UniSea's detailed species descriptions, including life history information, for accuracy and completeness and refer the reader to Sections 3 and 4 of UniSea's application, rather than reprinting the information here. In addition, a detailed description of the species likely to be affected by the UniSea G1 dock construction project, including brief introductions to the species and relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the
Table 1 lists the marine mammal species with expected potential for occurrence in the vicinity of the project during the project timeframe and summarizes key information regarding stock status and abundance. Taxonomically, we follow Committee on Taxonomy (2015). Please see NMFS' Stock Assessment Reports (SAR), available at
The effects of underwater noise from in-water construction activities for the UniSea G1 dock construction project have the potential to result in behavioral harassment of marine mammals in the vicinity of the action area. The
The main impact associated with the UniSea G1 dock construction project would be temporarily elevated sound levels and the associated direct effects on marine mammals. The project would not result in permanent impacts to habitats used directly by marine mammals, such as haul-out sites, but may have potential short-term impacts to food sources such as forage fish and salmonids, and minor impacts to the immediate substrate during installation and removal of piles during the dock construction project. These potential effects are discussed in detail in the
In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses.
For the G1 dock construction project, NMFS is requiring UniSea to implement the following mitigation measures to minimize potential impacts to marine mammals in the project vicinity as a result of in-water construction activities.
Measurements from similar pile driving events were coupled with practical spreading loss to estimate Level A and Level B harassment zones (see “Estimated Take by Incidental Harassment”). These values were then used to develop mitigation measures for pile driving activities. The Level A zone effectively represents the mitigation zone that would be established around each pile to prevent Level A harassment to marine mammals, while the Level B zone provides estimates of the areas within which Level B harassment might occur as a result of noise associated with in-water construction. While the Level A and Level B harassment zones vary between different types of construction methods, UniSea will establish mitigation zones for the maximum possible Level A and Level B zones for all construction activities conducted in support of the project. Note that in the
The following measures would apply to UniSea's mitigation through the Level A and Level B harassment zones:
In order to document observed incidents of harassment, monitors will record all marine mammals observed within the modeled Level B zones. Modeling was performed to estimate the Level B zone for impact pile driving (the areas in which SPLs are expected to equal or exceed 160 dB rms during impact driving) and for vibratory pile driving (the areas in which SPLs are expected to equal or exceed 120 dB rms during vibratory driving and removal). Results of this modeling showed the Level B zone for impact driving would extend to a radius of 900 m from the pile being driven, the Level B zone for vibratory pile driving and down-the-hole drilling (if it occurs) would extend to a radius of 10,000 m from the pile being driven, and the Level B zone for vibratory pile removal would extend to a radius of 7,400 m from the pile being removed. However, due to the geography of the project area, landmasses surrounding Iliuliuk Harbor are expected to limit the propagation of sound from construction activities such that the actual distances to the extents of the Level B zones for all construction activities will be substantially smaller than those described above. Modeling results of the ensonified areas, taking into account the attenuation provided by landmasses, suggest the actual Level B zones will extend to a maximum distance of 1,300 m from the G1 dock, at the furthest point (for vibratory driving). Due to this relatively small modeled Level B zones, and due to the monitoring locations chosen by UniSea, we expect that monitors will be able to observe the entire modeled Level B zones for both impact and vibratory pile driving, and thus we expect data collected on incidents of Level B harassment to be relatively accurate. The modeled areas of the Level B zones for impact and vibratory driving, taking into account the attenuation provided by landmasses in attenuating sound from the construction project, and the monitoring locations, are shown in Marine Mammal Monitoring Plan, available at:
UniSea will implement shutdown measures if a Steller sea lion or harbor seal is sighted in, or approaching, the Level A zone. In-water construction activities would be suspended until the Steller sea lion or harbor seal is observed leaving the Level A zone voluntarily and has been visually confirmed beyond the Level A zone, or 15 minutes has elapsed without re-detection of the animal in the Level A zone. Shutdown of construction operations will also occur if a species for which authorization has not been granted (including humpback whales) approaches or is observed within the Level B harassment zone; in-water construction activities would be suspended until the animal is observed leaving the Level B zone voluntarily and has been visually confirmed beyond the Level B harassment zone, or 15 minutes (in the case of pinnipeds) or 30 minutes (in the case of cetaceans) has elapsed without re-detection of the animal in the Level B harassment zone. In addition, shutdown of construction operations will also occur if the number of takes authorized for Steller sea lions or harbor seals have been met, and a Steller sea lion or harbor seal approaches, or is observed within, the Level B harassment zone; in-water construction activities would be suspended until the Steller sea lion or harbor seal is observed leaving the Level B zone voluntarily and has been visually confirmed beyond the Level B harassment zone, or 15 minutes has elapsed without re-detection of the animal in the Level B harassment zone.
Observations of Steller sea lions and harbor seals outside the Level A zone will not result in shutdown of construction operations, unless the Steller sea lion or harbor seal approaches or enters the Level A zone, or unless authorized take numbers for Steller sea lions or harbor seals has already been exceeded as described above, at which point all pile driving activities will be halted.
The following additional measures apply to visual monitoring:
(1) Monitoring will be conducted by qualified observers, who will be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown procedures when applicable by calling for the shutdown to the hammer operator. Qualified observers are will have the following minimum qualifications:
• Visual acuity in both eyes (correction is permissible) sufficient for discernment of moving targets at the water's surface with ability to estimate target size and distance;
• Experience and ability to conduct field observations and collect data according to assigned protocols;
• Experience or training in the field identification of marine mammals, including the identification of behaviors, with ability to accurately identify marine mammals in Alaskan waters to species;
• Sufficient training, orientation or experience with the construction operation to provide for personal safety during observations;
• Writing skills sufficient to prepare a report of observations; and
• Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary.
(2) Prior to the start of pile driving activity, the Level A and Level B zone will be monitored for thirty minutes to ensure that the Level A zone is clear of all marine mammals and the Level B zone is clear of marine mammals other than Steller sea lions and harbor seals. Pile driving will only commence once observers have declared the Level A zone is clear of all marine mammals and the Level B zone is clear of all marine mammals under NMFS jurisdiction with the exception of Steller sea lions and harbor seals; animals will be allowed to remain in the respective exclusion zones (
(3) If a Steller sea lion or harbor seal enters or approaches the Level A zone, or, if a marine mammal other than Steller sea lion or harbor seal enters or approaches the Level B zone, during the course of pile driving operations, activity will be halted and delayed until either the animal has voluntarily left the respective zone and been visually confirmed beyond the respective zone, or fifteen minutes have passed without re-detection of the animal in the case of pinnipeds, or thirty minutes have passed without re-detection of the animal in the case of cetaceans. Monitoring will be conducted throughout the time required to drive a pile.
UniSea will use bubble curtains, which create a column of air bubbles rising around a pile from the substrate to the water's surface, as a sound attenuation device. The air bubbles absorb and scatter sound waves emanating from the pile, thereby reducing the sound energy. Unconfined bubble curtains will be used during all impact pile driving associated with the G1 dock construction project. A discussion of bubble curtains and their anticipated effectiveness is included in the
The use of a “soft-start” procedure is believed to provide additional protection to marine mammals by providing a warning and an opportunity to leave the area prior to the hammer operating at full capacity. For vibratory hammers, the soft start technique will initiate noise from the hammer for 15 seconds at a reduced energy level, followed by 1-minute waiting period and repeat the procedure two additional times. For impact hammers, the soft start technique will initiate three strikes at a reduced energy level, followed by a 30-second waiting period. This procedure would also be repeated two additional times. The actual number of strikes at reduced energy will vary because operating the hammer at less than full power results in “bouncing” of the hammer as it strikes the pile, resulting in multiple “strikes.” Soft start for impact driving will be required at the beginning of each day's pile driving work and at any time following a cessation of impact pile driving of thirty minutes or longer.
We have carefully evaluated UniSea's proposed mitigation measures and considered their likely effectiveness relative to implementation of similar mitigation measures in previously issued IHAs to determine whether they are likely to affect the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:
(1) The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;
(2) The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and
(3) The practicability of the measure for applicant implementation.
Any mitigation measure(s) we prescribe should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed below:
(1) Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).
(2) A reduction in the number (total number or number at biologically important time or location) of individual marine mammals exposed to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing takes by behavioral harassment only).
(3) A reduction in the number (total number or number at biologically important time or location) of times any individual marine mammal would be exposed to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing takes by behavioral harassment only).
(4) A reduction in the intensity of exposure to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing the severity of behavioral harassment only).
(5) Avoidance or minimization of adverse effects to marine mammal habitat, paying particular attention to the prey base, blockage or limitation of passage to or from biologically important areas, permanent destruction of habitat, or temporary disturbance of habitat during a biologically important time.
(6) For monitoring directly related to mitigation, an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.
Based on our evaluation of UniSea's proposed measures, we have determined that the mitigation measures provide the means of affecting the least practicable impact on marine mammal species or stocks and their habitat.
In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for incidental take authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the project area.
Any monitoring requirement we prescribe should accomplish one or more of the following general goals:
1. An increase in the probability of detecting marine mammals, both within defined zones of effect (thus allowing for more effective implementation of the mitigation) and in general to generate more data to contribute to the analyses mentioned below;
2. An increase in our understanding of how many marine mammals are likely to be exposed to stimuli that we associate with specific adverse effects, such as behavioral harassment or hearing threshold shifts;
3. An increase in our understanding of how marine mammals respond to stimuli expected to result in incidental take and how anticipated adverse effects on individuals may impact the population, stock, or species (specifically through effects on annual rates of recruitment or survival) through any of the following methods:
• Behavioral observations in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict pertinent information,
• Physiological measurements in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict pertinent information,
• Distribution and/or abundance comparisons in times or areas with concentrated stimuli versus times or areas without stimuli.
4. An increased knowledge of the affected species; or
5. An increase in our understanding of the effectiveness of certain mitigation and monitoring measures.
UniSea submitted a marine mammal monitoring plan as part of their IHA application (the monitoring plan can be viewed online at:
UniSea will collect sighting data and will record behavioral responses to construction activities for marine mammal species observed in the project location during the period of activity. All marine mammal observers (MMOs) will be trained in marine mammal identification and behaviors and are required to have no other construction-related tasks while conducting monitoring. UniSea will monitor the Level A and Level B harassment zones before, during, and after pile driving, with observers located at the best practicable vantage points. See Figure 2 in the Marine Mammal Monitoring Plan for the observer locations planned for use during construction. Based on our requirements, the Marine Mammal Monitoring Plan would implement the following procedures for pile driving:
• Observers will report directly to the monitoring coordinator if/when a shutdown is deemed necessary due to marine mammals approaching the Level A or Level B harassment zones. An employee of the construction contractor will be identified as the monitoring coordinator at the start of each construction day. Shutdowns will be implemented immediately upon an observer reporting a marine mammal in, or approaching, the Level A zone; or, upon an observer reporting a marine mammal under NMFS's jurisdiction other than a Steller sea lion or harbor seal in, or approaching, the Level B zone.
• MMOs will be located at the best vantage point(s) in order to properly observe the entire Level A and Level B zones. A minimum of two MMOs will be on duty during all pile driving activity, with one of these MMOs having full time responsibility for monitoring the Level A zone.
• During all observation periods, observers will use binoculars and the naked eye to search continuously for marine mammals.
• If the Level A or Level B zones are obscured by fog or poor lighting conditions, pile driving will not be initiated until the Level A and Level B zones are clearly visible. Should such conditions arise while impact driving is underway, the activity would be halted.
• The Level A or Level B zones will be monitored for the presence of marine mammals before, during, and after any pile driving or removal activity.
Individuals implementing the monitoring protocol will assess its effectiveness using an adaptive approach. MMOs will use their best professional judgment throughout implementation and seek improvements to these methods when deemed appropriate. Any modifications to protocol will be coordinated between NMFS and UniSea.
We require that observers use approved data forms. Among other pieces of information, UniSea will record detailed information about any implementation of shutdowns, including the distance of animals to the pile being driven, a description of specific actions that ensued, and resulting behavior of the animal, if any. In addition, UniSea will attempt to distinguish between the number of individual animals taken and the number of incidents of take, when possible. We require that, at a minimum, the following information be collected on sighting forms:
• Date and time that monitored activity begins or ends;
• Construction activities occurring during each observation period;
• Weather parameters (
• Water conditions (
• Species, numbers, and (if possible) sex and age class of marine mammals;
• Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity;
• Distance from pile driving activities to marine mammals and distance from marine mammal(s) to the observation point;
• Locations of all marine mammal observations; and
• Other human activity in the area.
A draft report will be submitted within 90 calendar days of the completion of the activity, or within 45 calendar days prior to the effective date of a subsequent IHA (if applicable). The report will include information on marine mammal observations pre-activity, during-activity, and post-activity during pile driving days, and will provide descriptions of any behavioral responses to construction activities by marine mammals and a complete description of any mitigation shutdowns and results of those actions, as well as an estimate of total take based on the number of marine mammals observed during the course of construction. A final report must be submitted within 30 days following resolution of comments from NMFS on the draft report.
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner not authorized by the IHA, such as a Level A harassment, or a take of a marine mammal species other than those authorized, UniSea will immediately cease the specified activities and immediately report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources. The report would include the following information:
• Time, date, and location (latitude/longitude) of the incident;
• Description of the incident;
• Status of all sound source use in the 24 hours preceding the incident;
• Environmental conditions (
• Description of all marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
Activities would not resume until NMFS is able to review the circumstances of the prohibited take. NMFS would work with UniSea to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. UniSea would not be able to resume their activities until notified by NMFS via letter, email, or telephone.
In the event that UniSea discovers an injured or dead marine mammal, and the lead MMO determines that the cause of the injury or death is unknown and the death is relatively recent (
The report would include the same information identified in the paragraph above. Construction related activities would be able to continue while NMFS reviews the circumstances of the incident. NMFS would work with UniSea to determine whether
In the event that UniSea discovers an injured or dead marine mammal, and the lead MMO determines that the injury or death is not associated with or related to the activities authorized in the IHA (
Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: “. . . any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].”
All anticipated takes would be by Level B harassment, resulting from vibratory and impact pile driving and involving temporary changes in behavior. Based on the best available information, the activities—vibratory and impact pile driving—would not result in serious injuries or mortalities to marine mammals even in the absence of the mitigation and monitoring measures. However, the mitigation and monitoring measures are expected to minimize the potential for injury, such that take by Level A harassment is considered discountable.
If a marine mammal responds to a stimulus by changing its behavior (
This practice potentially overestimates the numbers of marine mammals taken, as it is often difficult to distinguish between the individual animals harassed and incidences of harassment. In particular, for stationary activities, it is more likely that some smaller number of individuals may accrue a number of incidences of harassment per individual than for each incidence to accrue to a new individual, especially if those individuals display some degree of residency or site fidelity and the impetus to use the site (
UniSea requested authorization for the incidental taking of small numbers of Steller sea lions and harbor seals that may result from pile driving activities associated with the dock construction project described previously in this document. In order to estimate the incidents of take that may occur incidental to the specified activity, we must first estimate the extent of the sound field that may be produced by the activity and then incorporate information about marine mammal density or abundance in the project area. We first provide information on applicable sound thresholds for determining effects to marine mammals before describing the information used in estimating the sound fields, the available marine mammal density or abundance information, and the method of estimating incidences of take.
We use generic sound exposure thresholds to determine when an activity that produces sound might result in impacts to a marine mammal such that a “take” by harassment might occur. To date, no studies have been conducted that explicitly examine impacts to marine mammals from pile driving sounds or from which empirical sound thresholds have been established. These thresholds should be considered guidelines for estimating when harassment may occur (
This formula neglects loss due to scattering and absorption, which is assumed to be zero here. The degree to which underwater sound propagates away from a sound source is dependent on a variety of factors, most notably the water bathymetry and presence or absence of reflective or absorptive conditions including in-water structures and sediments. Spherical spreading occurs in a perfectly unobstructed (free-field) environment not limited by depth or water surface, resulting in a 6 dB reduction in sound level for each doubling of distance from the source (20*log[range]). Cylindrical spreading occurs in an environment in which sound propagation is bounded by the water surface and sea bottom, resulting in a reduction of 3 dB in sound level for each doubling of distance from the source (10*log[range]). A practical spreading value of fifteen is often used under conditions, such as Iliuliuk Harbor, where water depth increases as the receiver moves away from the shoreline, resulting in an expected propagation environment that would lie between spherical and cylindrical spreading loss conditions. Practical spreading loss (4.5 dB reduction in sound level for each doubling of distance) is assumed here.
Iliuliuk Harbor does not represent open water, or free field, conditions. Therefore, sounds would attenuate as they encounter land masses. As a result, and as described above, pile driving noise in the project area is not expected to propagate to the calculated distances for the 160 dB or 120 dB thresholds as shown in Table 3. See Appendix B of UniSea's IHA application for figures depicting the actual extents of areas in which each underwater sound threshold is predicted to occur at the project area due to pile driving, taking into account the attenuation provided by landmasses.
As discussed above regarding underwater sound from pile driving, the intensity of pile driving sounds is greatly influenced by factors such as the type of piles, hammers, and the physical environment in which the activity occurs. In order to determine reasonable airborne SPLs and their associated effects on marine mammals that are likely to result from pile driving at Iliuliuk Harbor, studies with similar properties to the UniSea G1 dock construction project, as described previously, were evaluated. UniSea used representative source levels of 100 dB Leq/rms at 22 m for vibratory removal and installation of a 24-inch steel pile and 100 dB Leq/rms at 26 m for impact driven 24-inch steel piles. Please see Section 5 of UniSea's IHA application for details of the information considered. These values result in a disturbance zone (radial distance) of 3.16 m for harbor seals and 1.0 m for Steller sea lions. No data was found for the airborne sound levels expected from the installation of steel sheet piles or 18-inch steel piles, but sound levels from the installation of steel sheet piles and 18-inch steel piles are likely to be within a similar range as sound levels mentioned above.
Despite the modeled distances described above, no incidents of incidental take resulting solely from airborne sound are likely, as distances to the harassment thresholds would not reach areas where pinnipeds are known to haul out in the area of the project. Harbor seal haulout locations may change slightly depending on weather patterns, human disturbance, or prey availability, but the closest known harbor seal haulout to the project location is on the north side of Hog island, located west of Amaknak Island in Unalaska Bay, approximately 3 km from the G1 dock (pers. comm., L. Fritz, NMML, to J. Carduner, NMFS, Oct 30, 2015). Steller sea lions have greater site fidelity than harbor seals; the closest known Steller sea lion haulout is at Priest Rock, a point that juts into the Bering Sea on the northeastern corner of Unalaska Bay, approximately 20 km from the project site (pers. comm., L.
We recognize that pinnipeds in the water could be exposed to airborne sound that may result in behavioral harassment when their heads are above the water's surface. However, these animals would previously have been “taken” as a result of exposure to underwater sound above the behavioral harassment thresholds, which are in all cases larger than those associated with airborne sound. Thus, the behavioral harassment of these animals is already accounted for in these estimates of potential take. Multiple incidents of exposure to sound above NMFS' thresholds for behavioral harassment are not believed to result in increased behavioral disturbance, in either nature or intensity of disturbance reaction. Therefore, authorization of incidental take resulting from airborne sound for pinnipeds is not warranted, and airborne sound is not discussed further.
The most appropriate information available was used to estimate the number of potential incidences of take. Density estimates for Steller sea lions and harbor seals in Iliuliuk Harbor, and more broadly in the waters surrounding Unalaska Island, are not readily available. Likewise, we were not able to find any published literature or reports describing densities or estimating abundance of either species in the project area. As such, data collected from marine mammal surveys represent the best available information on the occurrence of both species in the project area.
Beginning in April 2015, UniSea personnel began conducting marine mammal surveys of Iliuliuk Harbor under the direction of an ecological consultant. Observers recorded data on all marine mammals that were observed, including Steller sea lions, whales, and harbor seals. Both stationary and roving observations occurred within a 1,000 m radius of the project site (see Figure 9 in the IHA application for a depiction of survey points and marine mammal observations). A combination of two of the stationary observation points were surveyed each day, for a total of 15 minutes at each point, and the roving route was checked once per day over a time span of 15 minutes, covering areas between the docks that were too difficult to see from the stationary points. The survey recorded the number of animals observed, the species, their primary activity, and any additional notes. From January through October 2015, a total of 323 Steller sea lions and 33 harbor seals were observed during 1,432 separate observations over the course of 358 hours of surveys. These surveys represent the most recent data on marine mammal occurrence in the harbor, and represent the only targeted marine mammal surveys of the project area that we are aware of.
Data from bird surveys of Iliuliuk Harbor conducted by the U.S. Army Corps of Engineers (USACE) from 2001-2007, which included observations of marine mammals in the harbor, were also available; however, we determined that these data were unreliable as a basis for prediction of marine mammal abundance in the project location as the goal of the USACE surveys was to develop a snapshot of waterfowl and seabird location and abundance in the harbor, thus the surveys would have been designed and carried out differently if the goal had been to document marine mammal use of the harbor (pers. comm., C. Hoffman, USACE, to J. Carduner, NMFS, October 26, 2015). Additionally, USACE surveys occurred only in winter; as Steller sea lion abundance is expected to vary significantly between the breeding and the non-breeding season in the project location, data that were collected only during the non-breeding season have limited utility in predicting year-round abundance. As such, we determined that the data from the surveys commissioned by UniSea in 2015 represents the best available information on marine mammals in the project location.
The take calculations presented here rely on the best data currently available for marine mammal populations in the project location. Density data for marine mammal species in the project location is not available. Therefore the data collected from marine mammal surveys of Iliuliuk Harbor in 2015 represent the best available information on marine mammal populations in the project location, and this data was used to estimate take. As such, the zones that have been calculated to contain the areas ensonified to the Level A and Level B thresholds for pinnipeds have been calculated for mitigation and monitoring purposes and were not used in the calculation of take. See Table 4 for total estimated incidents of take. Estimates were based on the following assumptions:
• All marine mammals estimated to be in areas ensonified by noise exceeding the Level B harassment threshold for impact and vibratory driving (as shown in Appendix B of the IHA application) are assumed to be in the water 100% of the time. This assumption is based on the fact that there are no haulouts or rookeries within the area predicted to be ensonified to the Level B harassment threshold based on modeling.
• Predicted exposures were based on total estimated total duration of pile driving/removal hours, which are estimated at 1,080 hours over the entire project. This estimate is based on a 180 day project time frame, an average work day of 12 hours (work days may be longer than 12 hours in summer and shorter than 12 hours in winter), and an estimate that approximately 50% of time during those work days will include pile driving and removal activities (with the other 50% of work days spent on non-pile driving activities which will not result in marine mammal take, such as installing templating and bracing, moving equipment, etc.).
• Vibratory or impact driving could occur at any time during the “duration” and our approach to take calculation assumes a rate of occurrence that is the same for any of the calculated zones.
• The hourly marine mammal observation rate recorded during marine mammal surveys of Iliuliuk Harbor in 2015 is reflective of the hourly rate that will be observed during the construction project.
• Takes were calculated based on estimated rates of occurrence for each species in the project area and this rate was assumed to be the same regardless of the size of the zone (for impact or vibratory driving/removal).
• Activities that may be accomplished by either impact driving or down-the-hole drilling (
Take estimates for Steller sea lions and harbor seals were calculated using the following series of steps:
1. The average hourly rate of animals observed during 2015 marine mammal surveys of Iliuliuk Harbor was calculated separately for both species (“Observation Rate”). Thus “Observation Rate” (OR) = No. of individuals observed/hours of observation;
2. The 95% confidence interval was calculated for the data set, and the
3. The total estimated hours of pile driving work over the entire project was calculated, as described above (“Duration”); Thus “Duration” = total number of work days (180) * average work hours per day (12) * percentage of pile driving time during work days (0.5) = total work hours for the project (1,080); and
4. The estimated number of exposures was calculated by multiplying the “Duration” by the estimated “Exposure Rate” for each species. Thus, estimated takes = Duration * XR.
Please refer to Appendix G of the IHA application for a more thorough description of the statistical analysis of the observation data from marine mammal surveys.
Estimated take of Steller sea lions was calculated using the equations described above, as follows:
Thus we estimate that a total of 2,177 Steller sea lion takes will occur as a result of the UniSea G1 dock construction project (Table 4).
Estimated take of harbor seals was calculated using the equations described above, as follows:
Thus we estimate that a total of 385 harbor seal takes will occur as a result of the UniSea G1 dock construction project (Table 4).
We therefore authorize the take, by Level B harassment only, of a total of 2,177 Steller sea lions (western DPS) and 385 harbor seals (Aleutian Islands stock) as a result of the UniSea G1 dock construction project. These take estimates are considered reasonable estimates of the number of marine mammal exposures to sound above the Level B harassment threshold that are likely to occur over the course of the project, and not the number of individual animals exposed. For instance, for pinnipeds that associate fishing boats in Iliuliuk Harbor with reliable sources of food, there will almost certainly be some overlap in individuals present day-to-day depending on the number of vessels entering the harbor, however each instance of exposure for these individuals will be recorded as a separate, additional take. Moreover, because we anticipate that marine mammal observers will typically be unable to determine from field observations whether the same or different individuals are being exposed over the course of a workday, each observation of a marine mammal will be recorded as a new take, although an individual theoretically would only be considered as taken once in a given day.
NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
Pile driving activities associated with the UniSea G1 dock construction project, as outlined previously, have the potential to disturb or displace marine mammals. Specifically, the specified activities may result in take, in the form of Level B harassment (behavioral disturbance) only, from underwater sounds generated from pile driving. Takes could occur if marine mammals are present in the Level B harassment zone when pile driving is happening, which is likely to occur because: (1) Steller sea lions have established haulouts near Iliuliuk Harbor and are frequently observed in Iliuliuk Harbor, in varying numbers depending on season and prey availability, and probably associate fishing boats entering the harbor with reliable food sources; and (2) harbor seals are observed in Iliuliuk Harbor occasionally and are known to haulout at sites outside the harbor, including one site approximately 3 km from the project location.
No serious injury or mortality of marine mammals would be anticipated as a result of vibratory and impact pile driving, regardless of mitigation and monitoring measures. Vibratory hammers do not have significant potential to cause injury to marine mammals due to the relatively low source levels produced (less than 180 dB rms) and the lack of potentially injurious source characteristics. Impact pile driving produces short, sharp pulses with higher peak levels than vibratory driving and much sharper rise time to reach those peaks. The potential for injury that may otherwise result from exposure to noise associated with impact pile driving will effectively be minimized through the implementation of the planned mitigation measures. These measures include: The implementation of a Level A “exclusion zone”, which is expected to eliminate the likelihood of marine mammal exposure to noise at received levels that could result in injury; the use of “soft start” before pile driving, which is expected to provide marine mammals near or within the zone of potential injury with sufficient time to vacate the area; and the use of a sound attenuation system which is expected to dampen the sharp, potentially injurious peaks associated with impact driving and to reduce the overall source level to some extent (it is difficult to predict the extent of attenuation provided as underwater recordings have not been performed for the type of bubble curtain proposed for use). We believe the required mitigation measures, which have been successfully implemented in similar pile driving projects, will minimize the possibility of injury that may otherwise exist as a result of impact pile driving.
Effects on individuals that are taken by Level B harassment, on the basis of reports in the literature as well as monitoring from similar pile driving projects that have received incidental take authorizations from NMFS, will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging. Most likely, individuals will simply move away from the sound source and be temporarily displaced from the area of pile driving (though even this reaction has been observed primarily in association with impact pile driving). In response to vibratory driving, harbor seals have been observed to orient towards and sometimes move towards the sound. Repeated exposures of individuals to levels of sound that may cause Level B harassment are unlikely to result in hearing impairment or to significantly disrupt foraging behavior. Thus, even repeated Level B harassment of some small subset of the overall stock is unlikely to result in any significant realized decrease in fitness to those individuals, and thus would not result in any adverse impact to the stock as a whole. Level B harassment will be reduced to the level of least practicable impact through use of mitigation measures described herein and, if sound produced by project activities is sufficiently disturbing, animals are likely to simply avoid the project area while the activity is occurring.
No pinniped rookeries or haul-outs are present within the project area, and the project area is not known to provide foraging habitat of any special importance to either Steller sea lions or harbor seals (other than is afforded by the migration of salmonids to and from Iliuliuk Stream and the occasional availability of discarded fish from commercial fishing boats and fish processing facilities in the project area). No cetaceans are expected within the project area. While we are not aware of comparable construction projects in the project location, the pile driving activities analyzed here are similar to other in-water construction activities that have received incidental harassment authorizations previously, including projects at Naval Base Kitsap Bangor in Hood Canal, Washington, and at the Port of Friday Harbor in the San Juan Islands, which have occurred with no reported injuries or mortalities to marine mammals, and no known long-term adverse consequences to marine mammals from behavioral harassment.
In summary, this negligible impact analysis is founded on the following factors: (1) The possibility of injury, serious injury, or mortality may reasonably be considered discountable; (2) the anticipated incidences of Level B harassment consist of, at worst, temporary modifications in behavior; (3) the absence of any major rookeries and only a few isolated haulout areas near the project site; (4) the absence of any other known areas or features of special significance for foraging or reproduction within the project area; and (5) the presumed efficacy of planned mitigation measures in reducing the effects of the specified activity to the level of least practicable impact. In combination, we believe that these factors, as well as the available body of evidence from other similar activities, demonstrate that the potential effects of the specified activity will have only short-term effects on individual animals. The specified activity is not expected to impact rates of recruitment or survival and will therefore not result in population-level impacts. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the monitoring and mitigation measures, we find that the total marine mammal take from UniSea's dock construction activities in Iliuliuk Harbor will have a negligible impact on the affected marine mammal species or stocks.
The numbers of animals authorized to be taken would be considered small relative to the relevant stocks or populations (4 percent and 11 percent for Steller sea lions and harbor seals, respectively) even if each estimated taking occurred to a new individual. However, the likelihood that each take would occur to a new individual is extremely low. As described above, for those sea lions that associate fishing boats with reliable sources of food, there will almost certainly be some overlap in individuals present day-to-day depending on the number of vessels entering the harbor. It is expected that operations at a separate, nearby UniSea dock and the associated UniSea processing facilities, as well as at seafood processing facilities owned by other companies based in Iliuliuk Harbor, will continue as usual during construction on the G1 dock, so it is likely that sea lions accustomed to seeking food at these facilities will continue to be attracted to the area during portions of the construction activities.
Further, these takes are likely to occur only within some small portion of the overall regional stock. For example, of the estimated 55,422 western DPS Steller sea lions throughout Alaska, there are probably no more than 300 individuals with site fidelity to the three haulouts located nearest to the project location, based on over twenty years of NMML survey data (see “Description of Marine Mammals in the Area of the Specified Activity” above). For harbor seals, NMML survey data suggest there are likely no more than 60 individuals that use the three haulouts nearest to the project location (the only haulouts in Unalaska Bay). Thus the estimate of take is an estimate of the number of anticipated exposures, rather than an estimate of the number of individuals that will be taken, as we expect the majority of exposures would be repeat exposures that would accrue to the same individuals. As such, the authorized takes represent a much smaller number of individuals of both Steller sea lions and harbor seals, in relation to total stock sizes.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, we find that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks.
Subsistence hunting and fishing is an important part of the history and culture of Unalaska Island. However, the number of Steller sea lions and harbor seals harvested in Unalaska decreased from 1994 through 2008; in 2008, the last year for which data is available, there were no Steller sea lions or harbor seals reported as harvested for subsistence use. Data on pinnipeds hunted for subsistence use in Unalaska has not been collected since 2008. For a summary of data on pinniped harvests in Unalaska from 1994-2008, see Section 8 of the IHA application.
Aside from the apparently decreasing rate of subsistence hunting in Unalaska, Iliuliuk Harbor is not likely to be used for subsistence hunting or fishing due to its industrial nature, with several fish processing facilities located along the shoreline of the harbor. In addition, the UniSea G1 dock construction project is likely to result only in short-term, temporary impacts to pinnipeds in the form of possible behavior changes, and is not expected to result in the injury or death of any marine mammal. As such, the project is not likely to adversely impact the availability of any marine mammal species or stocks that may otherwise be used for subsistence purposes.
NMFS prepared an Environmental Assessment (EA) in February, 2016, titled “
There is one marine mammal species (western DPS Steller sea lion) with confirmed occurrence in the project area that is listed as endangered under the ESA. The NMFS Alaska Regional Office Protected Resources Division issued a Biological Opinion on February 16, 2016, under section 7 of the ESA, on the issuance of an IHA to UniSea under section 101(a)(5)(D) of the MMPA by the NMFS Permits and Conservation Division. The Biological Opinion concluded that the proposed action is not likely to jeopardize the continued existence of western DPS Steller sea lions, and is not likely to destroy or adversely modify western DPS Steller sea lion critical habitat.
NMFS has issued an IHA to UniSea for the potential harassment of small numbers of two marine mammal species incidental to the G1 dock construction project in Unalaska, Alaska, provided the previously mentioned mitigation.
United States Army Medical Command, DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by April 25, 2016.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to Jason Etchegaray and Heather Krull, RAND Corporation, 1776 Main Street, Santa Monica, CA 90401, or call (310) 393-0411 ext. 7648 for Jason Etchegaray and ext. 6445 for Heather Krull.
Respondents are healthcare providers and patients/family members. Healthcare providers consist of active duty providers, DoD civilian and contractor providers, VA providers, and civilian rehabilitation center providers. Individual interviews and focus groups with healthcare providers will be conducted either in-person or telephonically. Patients/family members consist of currently serving amputees, veteran amputees, and family members of amputees. Interviews with amputees and/or family members of amputees will be conducted either in-person or telephonically. Compiling, analyzing, and understanding responses of all the various perspectives of patient care is necessary to set a baseline of care, identify core competencies, services and support required for providers, patients and family members providing, accepting, or supporting amputation rehabilitation.
Department of the Army, Network Enterprise Technology, DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by April 25, 2016.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Headquarters, Network Enterprise Technology Command, Military Auxiliary Radio System, Salado, TX 76571, ATTN: Paul English, or call 254-947-3141.
National Geospatial-Intelligence Agency, DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by April 25, 2016.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Office of Business Intelligence, Xperience Directorate, National Geospatial-Intelligence Agency, ATTN: Deborah A. Gaut, Program Manager, 3200 S. 2nd Street, St. Louis, MO 63118, or call Deborah Gaut at 314-676-1847.
Respondents to this survey are individuals and Federal government, who use Geospatial information or intelligence (GEOINT) to support their respective missions. Analysis is used for purposes of formal reporting to ODNI and Congress; for purposes of leadership decision-making and problem solving, and for improving NGA products and content. This survey serves as an important way of securing direct customer feedback via quantifiable data in pursuit of continuous process and product improvement.
Office of the Secretary of Defense, DoD.
Notice to alter a System of Records.
The Office of the Secretary of Defense proposes to alter a system of records, DWHS P04, entitled “Reduction-In-Force Case Files” to maintain records used to affect a RIF, document retention standing, personnel actions, and all communications between the employees, managers, and the Human Resources Office.
Comments will be accepted on or before March 28, 2016. This proposed action will be effective the day following the end of the comment period unless comments are received which result in a contrary determination.
You may submit comments, identified by docket number and title, by any of the following methods:
*
*
Ms. Cindy Allard, Chief, OSD/JS Privacy Office, 1155 Defense Pentagon, Washington, DC 20301-1155, or by phone at (571) 372-0461.
The Office of the Secretary of Defense notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The proposed system report, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on February 18, 2016, to the House Committee on Oversight and Government Reform, the Senate Committee on Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated February 8, 1996 (February 20, 1996, 61 FR 6427).
Reduction-In-Force Case Files (October 27, 2011, 76 FR 66695).
Delete entry and replace with “Human Resources Directorate, Personnel Services Division, 4800 Mark Center Drive, Alexandria, VA 22350-3200.”
Delete entry and replace with “5 U.S.C. 7103, Definitions, application; 10 U.S.C. 1597, Civilian positions: Guidelines for reductions; 5 CFR 351, Reduction in Force; and DoD Instruction 1400.25, Volume 1700, DoD Civilian Personnel Management System: Civilian Assistance and Re-Employment (CARE) Program.”
Delete entry and replace with “To maintain records used to affect a RIF, document retention standing, personnel actions, and all communications between the employees, managers, and the Human Resources Office.”
Delete entry and replace with “In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, as amended, the records contained herein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
To the Office of Personnel Management in instances where an affected employee appeals the decision.
Disclosure When Requesting Information Routine Use. A record from a system of records maintained by a DoD Component may be disclosed as a routine use to a federal, state, or local agency maintaining civil, criminal, or other relevant enforcement information or other pertinent information, such as current licenses, if necessary to obtain information relevant to a DoD Component decision concerning the hiring or retention of an employee, the issuance of a security clearance, the letting of a contract, or the issuance of a license, grant, or other benefit.
Disclosure of Requested Information Routine Use. A record from a system of records maintained by a DoD Component may be disclosed to a federal agency, in response to its request, in connection with the hiring or retention of an employee, the issuance of a security clearance, the reporting of an investigation of an employee, the letting of a contract, or the issuance of a license, grant, or other benefit by the requesting agency, to the extent that the information is relevant and necessary to the requesting agency's decision on the matter.
Disclosure to the Office of Personnel Management Routine Use. A record from a system of records subject to the Privacy Act and maintained by a DoD Component may be disclosed to the Office of Personnel Management (OPM) concerning information on pay and leave, benefits, retirement deduction, and any other information necessary for the OPM to carry out its legally authorized government-wide personnel management functions and studies.
Disclosure to the Department of Justice for Litigation Routine Use. A record from a system of records maintained by a DoD Component may be disclosed as a routine use to any component of the Department of Justice for the purpose of representing the Department of Defense, or any officer, employee or member of the Department in pending or potential litigation to which the record is pertinent.
Disclosure of Information to the National Archives and Records Administration Routine Use. A record from a system of records maintained by a DoD Component may be disclosed as a routine use to the National Archives and Records Administration for the purpose of records management inspections conducted under authority of 44 U.S.C. 2904 and 2906.
Disclosure to the Merit Systems Protection Board Routine Use. A record from a system of records maintained by a DoD Component may be disclosed as a routine use to the Merit Systems Protection Board, including the Office of the Special Counsel for the purpose of litigation, including administrative
Data Breach Remediation Purposes Routine Use. A record from a system of records maintained by a Component may be disclosed to appropriate agencies, entities, and persons when (1) The Component suspects or has confirmed that the security or confidentiality of the information in the system of records has been compromised; (2) the Component has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Component or another agency or entity) that rely upon the compromised information; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Components efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
The DoD Blanket Routine Uses set forth at the beginning of the Office of the Secretary of Defense (OSD) compilation of systems of records notices apply to this system. The complete list of DoD Blanket Routine Uses can be found Online at:
Delete entry and replace with “Paper file folders and electronic storage media.”
Delete entry and replace with “Retrieved by fiscal year, effective date, organization name, then affected employees alphabetically by last name.”
Delete entry and replace with “Paper records are maintained in locked file cabinets in a secure area in a building with 24-hour security. Access to records is only by authorized Reduction in Force (RIF) team personnel. Access to computerized data is restricted by Common Access Card.
Records are maintained in a secure, password protected electronic system that utilizes security hardware and software. All personnel requiring access to the information are trained in the proper safeguarding and use of the information.”
Delete entry and replace with “Records are destroyed two years after the RIF effective date, unless litigation, grievance, or equal employment opportunity case is pending.”
Delete entry and replace with “Assistant Director, Personnel Services Division, Human Resources Directorate, 4800 Mark Center Drive, Alexandria, VA 20350-3200.”
Delete entry and replace with “Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Assistant Director, Personnel Services Division, Human Resources Directorate, Washington Headquarters Service, 4800 Mark Center Drive, Alexandria, VA 20350-3200.”
Delete entry and replace with “Individuals seeking access to information about themselves contained in this system should address written inquiries to the OSD/Joint Staff, Freedom of Information Act Requester Service Center, Office of Freedom of Information, 1155 Defense Pentagon, Washington, DC 20301-1155.
Signed, written requests must include the name and number of this System of Records Notice along with the name of the individual and approximate date of RIF.”
Office of the Secretary of Defense, DoD.
Notice to alter a System of Records.
The Office of the Secretary of Defense proposes to alter a system of records notice DWHS D01, entitled “DoD National Capital Region Mass Transportation Benefit Program” to manage the DoD National Capital Region Mass Transportation Benefit Program for DoD military and civilian personnel applying for and in receipt of fare subsidies. Used as a management tool for statistical analysis, tracking, reporting, evaluating program effectiveness, and conducting research.
Comments will be accepted on or before March 28, 2016. This proposed action will be effective on the date following the end of the comment period unless comments are received which result in a contrary determination.
You may submit comments, identified by docket number and title, by any of the following methods:
*
*
Ms. Cindy Allard, Chief, OSD/JS Privacy Office, Washington Headquarters Service, 1155 Defense Pentagon, Washington, DC 20301-1155, or by phone at (571) 372-0461.
The Office of the Secretary of Defense notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The proposed systems reports, as required by 5 U.S.C. 552a(r) of the Privacy Act, as amended, were submitted on February 16, 2016, to the House Committee on Oversight and Government Reform, the Senate Committee on Homeland Security and
DoD National Capital Region Mass Transportation Benefit Program (October 27, 2015, 80 FR 65724).
Delete entry and replace with “Name, last four of Social Security Number (SSN), DoD Identification Number (DoD ID Number), point-to-point commuting expenses, type of mass transit used, city, state, and ZIP+4 of residence, organizational affiliation of the individual, office work number, DoD email address, duty/work address, Smartrip card number, and monthly amount spent from Washington Metropolitan Area Transit Authority (WMATA).”
Delete entry and replace with “Individual's name and last four of SSN.”
Delete entry and replace with “Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Director, Facilities Services Directorate, Washington Headquarters Services, 1155 Defense Pentagon, Washington, DC 20301-1155.
Signed, written requests for information should contain the full name of the individual and last four of SSN.”
Delete entry and replace with “Individuals seeking access to information about themselves contained in this system should address written inquiries to the Office of the Secretary of Defense/Joint Staff Freedom of Information Act Requester Service Center, 1155 Defense Pentagon, Washington, DC 20301-1155.
Signed, written requests for information should contain the full name of the individual, last four of SSN, and include the name and number of this system of record notice.”
Department of Defense.
Notice of meeting.
The Department of Defense is publishing this notice to announce the following Federal Advisory Committee meeting of the Judicial Proceedings since Fiscal Year 2012 Amendments Panel (“the Judicial Proceedings Panel” or “the Panel”). The meeting is open to the public.
A meeting of the Judicial Proceedings Panel will be held on Friday, March 11, 2016. The Public Session will begin at 9:30 a.m. and end at 4:45 p.m.
The Holiday Inn Arlington at Ballston, 4610 N. Fairfax Drive, Arlington, Virginia 22203.
Ms. Julie Carson, Judicial Proceedings Panel, One Liberty Center, 875 N. Randolph Street, Suite 150, Arlington, VA 22203. Email:
This public meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150.
United States Transportation Command, DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by April 25, 2016.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the United States Transportation Command, 508 Scott Drive, Bldg. 1900 E., Room 112 (Attn: Richard Swezey, TCJ4-PT), Scott Air Force Base, IL 62225-5357, or call TCJ4-PT at 618-220-7433.
Respondents are transportation service providers/commercial carriers who provide cargo movement for DoD cargo that requires transportation protective services due to the sensitive and/or classified nature of the cargo. DD form 1907 is used to record the name and signature of the person responsible for safeguarding the cargo at all times while in-transit. A single failure to complete the form could result in loss of accountability on a sensitive shipment, such as arms, ammunition and explosives or classified cargo. In addition, the DD Form 1907 supports the payment process by verifying the services requested by the origin transportation office were provided.
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Nevada. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Wednesday, March 16, 2016, 5:00 p.m.
National Atomic Testing Museum, 755 East Flamingo, Las Vegas, Nevada 89119.
Barbara Ulmer, Board Administrator, 232 Energy Way, M/S 505, North Las Vegas, Nevada 89030. Phone: (702) 630-0522; Fax (702) 295-5300 or Email:
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) announces a public meeting of the Science and Information Subcommittee (SIS) of the Great Lakes Advisory Board. The purpose of this meeting is to discuss the Great Lakes Restoration Initiative (GLRI) covering FY16-19 and other relevant matters.
The meeting will be held Wednesday, March 9, 2016 from 10 a.m. to 3 p.m. Central Time, 11 a.m. to 4 p.m. Eastern Time. An opportunity will be provided to the public to comment.
The meeting will be held at 77 W. Jackson, 19th Floor, Chicago, Illinois. For those unable to attend in person, this meeting will also be available telephonically. The teleconference number is 877-226-9607 and the conference ID number is 4218582837.
Any member of the public wishing further information regarding this meeting may contact Rita Cestaric, Designated Federal Officer (DFO), by email at
Federal Accounting Standards Advisory Board.
Notice.
The Statement is available on the FASAB Web site at
Ms. Wendy M. Payne, Executive Director, 441 G Street NW., Mail Stop 6H19, Washington, DC 20548, or call (202) 512-7350.
Federal Advisory Committee Act, Pub. L. 92-463.
Federal Communications Commission.
Notice.
In this document, the International Bureau declares the international section 214 authorization granted to Ocean Technology Limited (Ocean) terminated given Ocean's inability to comply with the express condition for holding the authorization. We also conclude that Ocean failed to comply with those requirements of the Communications Act of 1934, as amended (the Act) and the Commission's rules that ensure that the Commission can contact and communicate with the authorization holder and verify Ocean is still providing service, which failures have prevented any way of addressing Ocean's inability to comply with the condition of its authorization.
Cara Grayer, Telecommunications and Analysis Division, International Bureau, at (202) 418-2960 or
This is a summary of the Commission's Order, DA 16-105, adopted and released January 29, 2016.
On July 17, 2013, the International Bureau granted Ocean an international section 214 authorization to provide global or limited global facility-based service and global or limited global resale service in accordance with section 63.18(e)(1) and 63.18(e)(2) of the Commission's rules. The International Bureau granted the application on the express condition that Ocean abide by the commitments and undertakings contained in its Letter of Assurance (LOA) to the Department of Justice (DOJ), the Federal Bureau of Investigation, the Drug Enforcement Agency, and the U.S. Marshals Service (collectively, the Executive Branch Agencies) dated July 16, 2013. On July 1, 2015, the Executive Branch Agencies notified the Commission of Ocean's non-compliance with the conditions of its authorization and requested that the Commission terminate, and declare null and void and no longer in effect, the international section 214 authorization issued to Ocean. The Executive Branch Agencies indicated that open-source searches suggest that Ocean was still in operation and providing services, however, “every attempt by the DOJ to communicate with Ocean regarding its LOA compliance has resulted in failure.” The Executive Branch Agencies added that Ocean's former legal counsel has not been in contact with Ocean since July 2014 and was also unable to contact Ocean. Based on this, the Executive Branch Agencies stated that they are “wholly unable to evaluate Ocean's compliance with the LOA, and must consider Ocean to be non-compliant.”
The Commission has made significant efforts to communicate with Ocean, but has also been unable to do so. On August 25, 2015, the International Bureau sent Ocean a letter to the last addresses of record requesting that Ocean respond to the July 1, 2015 Executive Branch Letter within 30 days of the letter, by September 24, 2015. Ocean did not respond. Since that time, the International Bureau has provided Ocean with additional opportunities to respond to these allegations. The International Bureau stated that failure to respond would result in termination of Ocean's international section 214 authorization for failure to comply with conditions of its authorization. In Ocean's 2012 application, Ocean stated it was incorporated in Delaware, and according to the Delaware Secretary of State, the service of process received for Ocean cannot be forwarded because “the party served is not qualified to do business in the jurisdiction served.” To date, Ocean has not responded to any of the International Bureau or the Executive Branch Agencies' multiple requests to resolve this matter.
We determine that Ocean's international section 214 authorization to provide international services issued under File No. ITC-214-20121210-00323 has terminated for inability to comply with an express condition for holding the section 214 international authorization. The International Bureau has provided Ocean with notice and opportunity to respond to the allegations in the July 1, 2015 Executive Branch Letter concerning Ocean's non-compliance with the condition of the grant. Ocean has not responded to any of our multiple requests or requests from the Executive Branch Agencies. We find that Ocean's failure to respond to our multiple requests demonstrates that it is unable to satisfy the LOA conditions, upon which the Executive Branch Agencies gave their non-objection to the grant of the authorization to Ocean, and which is a condition of the grant of its section 214 authorization.
Furthermore, after having received an international 214 authorization, a carrier “is responsible for the continuing accuracy of the certifications made in its application” and must promptly correct information no longer accurate, “and, in any event, within thirty (30) days.” Ocean has failed to inform the Commission of any changes in its business status of providing international telecommunications services, as required by the rules. Nor is there any record of Ocean having complied with section 413 of the Act and the Commission's rules requiring it to designate an agent for service after receiving its authorization on July 17, 2013. Finally, as part of its authorization, Ocean “must file annual international telecommunications traffic and revenue as required by section 43.62.” Section 43.62(b) states that “[n]ot later than July 31 of each year, each person or entity that holds an authorization pursuant to section 214 to provide international telecommunications service shall report whether it provided international telecommunications services during the preceding calendar year.” Our records indicate that Ocean failed to file an annual international telecommunications traffic and revenue report indicating whether or not Ocean provided services in 2014, as required by section 43.62(b) of the Commission's rules. In these circumstances, and in light of Ocean's failure to respond to the Commission's rules designed to ensure its ability to communicate with the holder of the authorization, also warrants termination wholly apart from demonstrating Ocean's inability to satisfy the LOA conditions of its authorization.
Accordingly,
This Order is issued on delegated authority under 47 CFR 0.51, 0.261, and is effective upon release. Petitions for reconsideration under section 1.106 of the Commission's rules, 47 CFR 1.106, or applications for review under section 1.115 of the Commission's rules, 47 CFR 1.115, may be filed within 30 days of the date of the release of this Order.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y, (12 CFR part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act.
Unless otherwise noted, comments regarding the notices must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than March 21, 2016.
A. Federal Reserve Bank of San Francisco (Gerald C. Tsai, Director, Applications and Enforcement), 101 Market Street, San Francisco, California 94105-1579:
1.
In connection with this application, Applicant also has applied to acquire to acquire 51 percent of iReverse Home Loans, LLC, Owings Mill, Maryland, and thereby engage in activities related to extending credit, pursuant to sections 225.28(b)(1) and (b)(2) of Regulation Y.
Federal Trade Commission.
Proposed consent agreement.
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair methods of competition. The attached Analysis to Aid Public Comment describes both the allegations in the draft complaint and the terms of the consent orders—embodied in the consent agreement—that would settle these allegations.
Comments must be received on or before March 22, 2016.
Interested parties may file a comment at
Kari Wallace, (202-326-3085), Bureau of Competition, 600 Pennsylvania Avenue NW., Washington, DC 20580.
Pursuant to Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for February 19, 2016), on the World Wide Web, at
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before March 22, 2016. Write “In the Matter of Lupin Ltd., Gavis Pharmaceuticals LLC, and Novel Laboratories, Inc.—Consent Agreement; File No. 151-0202” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at
Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, like anyone's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible
If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you have to follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c).
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at
If you file your comment on paper, write “In the Matter of Lupin Ltd., Gavis Pharmaceuticals LLC, and Novel Laboratories, Inc.—Consent Agreement; File No. 151-0202” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex D), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex D), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.
Visit the Commission Web site at
The Federal Trade Commission (“Commission”) has accepted, subject to final approval, an Agreement Containing Consent Orders (“Consent Agreement”) from Lupin Ltd. (“Lupin”) and Gavis Pharmaceuticals LLC and Novel Laboratories, Inc. (collectively “Gavis”) that is designed to remedy the anticompetitive effects resulting from Lupin's acquisition of Gavis. Under the terms of the proposed Consent Agreement, the parties are required to divest all of Gavis's rights and assets related to generic doxycycline monohydrate capsules and generic mesalamine extended release (“ER”) capsules to G&W Laboratories (“G&W”).
The proposed Consent Agreement has been placed on the public record for thirty days for receipt of comments from interested persons. Comments received during this period will become part of the public record. After thirty days, the Commission will again evaluate the proposed Consent Agreement, along with the comments received, to make a final decision as to whether it should withdraw from the proposed Consent Agreement or make final the Decision and Order (“Order”).
Pursuant to Purchase and Sale Agreements dated July 23, 2015, Lupin plans to acquire Gavis Pharmaceuticals LLC and Novel Laboratories, Inc. for approximately $850 million (the “Proposed Acquisitions”). Gavis and Novel are related companies. Novel researches, develops and manufactures generic pharmaceutical products, which Gavis markets and sells. The Commission alleges in its Complaint that the Proposed Acquisitions, if consummated, would violate Section 7 of the Clayton Act, as amended, 15 U.S.C. 18, and Section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C. 45, by lessening current competition in the market for generic doxycycline monohydrate capsules and future competition in the market for generic mesalamine ER capsules in the United States. The proposed Consent Agreement will remedy the alleged violations by preserving the competition that otherwise would be eliminated by the Proposed Acquisitions.
The Proposed Acquisitions would reduce the number of current suppliers in the market for generic doxycycline monohydrate capsules and reduce the number of future suppliers in the market for generic mesalamine ER capsules.
Generic doxycycline is an antibiotic used for treating a variety of different bacterial infections, including respiratory infections, urinary tract infections, severe acne, skin and skin structure infections, Lyme disease, and anthrax. Generic doxycycline monohydrate is available in four strengths: 50 mg, 75 mg, 100 mg, and 150 mg. Gavis and Lupin both market three of the four strengths, 50 mg, 75 mg, and 100 mg. Both Lupin and Gavis are recent entrants into the generic doxycycline monohydrate market; Lupin launched its product in March 2014, while Gavis launched its product at the end of July 2015. Endo International plc, Allergan, Inc., and Sun Pharmaceutical Industries Ltd. also offer generic doxycycline monohydrate products in the United States. All five companies offer the 100 mg strength, but only four companies offer the 50 mg and 75 mg strengths.
Mesalamine ER capsules are used to treat ulcerative colitis. Valeant Pharmaceuticals markets Apriso, the branded version of the product, which is available in a 375 mg formulation. No generic version of mesalamine ER capsules is currently available in the United States. Lupin and Gavis are developing generic mesalamine ER capsules products, and are two of a limited number of suppliers capable of entering the market in the near future.
Entry into the two relevant markets would not be timely, likely, or sufficient in magnitude, character, and scope to deter or counteract the anticompetitive effects of the Proposed Acquisitions. The combination of drug development times and regulatory requirements, including approval by the United States Food and Drug Administration (“FDA”), is costly and lengthy.
The Proposed Acquisitions likely would cause significant anticompetitive harm to consumers by eliminating current competition between Lupin and Gavis in the market for generic doxycycline monohydrate capsules. Market participants characterize generic
In addition, the Proposed Acquisitions likely would cause significant anticompetitive harm to consumers by eliminating future generic competition that would otherwise have occurred in the mesalamine ER capsule market if Lupin and Gavis remained independent. The evidence shows that anticompetitive effects are likely to result from the Proposed Acquisitions due to the elimination of an additional independent entrant in the market for generic mesalamine ER. Customers and competitors expect that the price of this pharmaceutical product will decrease with new entry by Lupin and Gavis. Thus, absent a remedy, the Proposed Acquisitions will likely cause U.S. consumers to pay significantly higher prices for generic mesalamine ER.
The proposed Consent Agreement effectively remedies the competitive concerns raised by the acquisitions in the markets at issue by requiring Gavis to divest all its rights and assets relating to doxycycline monohydrate capsules and mesalamine ER to G&W. Founded in 1919, G&W is a privately held, family-owned, generic pharmaceutical company. G&W develops, manufactures, sells, and distributes generic pharmaceuticals and over-the-counter products within the United States.
The Commission's goal in evaluating possible purchasers of divested assets is to maintain the competitive environment that existed prior to the Proposed Acquisitions. If the Commission determines that G&W is not an acceptable acquirer, or that the manner of the divestitures is not acceptable, the proposed Order requires the parties to unwind the sale of rights to G&W and then divest the products to a Commission-approved acquirer within six months of the date the Order becomes final. The proposed Order further allows the Commission to appoint a trustee in the event the parties fail to divest the products as required.
The proposed Consent Agreement and Order contain several provisions to help ensure that the divestitures are successful. The proposed D&O requires that Lupin supply G&W with generic doxycycline monohydrate capsules for two years while Lupin transfers the manufacturing technology to G&W's facility. To ensure the success of the generic doxycycline monohydrate capsules divestiture, the proposed D&O requires Lupin to provide transitional services to assist G&W in establishing its manufacturing capabilities and securing all of the necessary FDA approvals. These transitional services include technical assistance to manufacture the product in substantially the same manner and quality employed or achieved by Gavis, and advice and training from knowledgeable employees of the parties.
To assist G&W with completing the regulatory work and setting up and validating the manufacturing for the generic mesalamine ER product, G&W will enter into a consulting agreement with Gavis's current CEO, Dr. Veerappan Subramanian, who will not be employed by Lupin post-transaction. Dr. Subramanian is the founder of Gavis and has previously served as the chief scientist for the company. He has been involved with the development and manufacturing of the generic mesalamine ER product since the company started the formulation. G&W will also inherit Gavis's ongoing patent litigation related to mesalamine ER. G&W intends to retain Gavis's current counsel to continue the litigation.
The purpose of this analysis is to facilitate public comment on the proposed Consent Agreement, and it is not intended to constitute an official interpretation of the proposed Order or to modify its terms in any way.
By direction of the Commission.
Federal Trade Commission.
Proposed Consent Agreement.
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair methods of competition. The attached Analysis to Aid Public Comment describes both the allegations in the draft complaint and the terms of the consent order—embodied in the consent agreement—that would settle these allegations.
Comments must be received on or before March 22, 2016.
Interested parties may file a comment at
Jordan Andrew (202-326-3678), Bureau of Competition, 600 Pennsylvania Avenue NW., Washington, DC 20580.
Pursuant to Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for February 19, 2016), on the World Wide Web, at
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before March 22, 2016. Write “In the Matter of Hikma Pharmaceuticals PLC and C.H. Boehringer Sohn AG & Co. KG,—Consent Agreement; File No. 151-
Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, like anyone's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, like medical records or other individually identifiable health information. In addition, do not include any “[t]rade secret or any commercial or financial information which . . . is privileged or confidential,” as discussed in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.
If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you have to follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c).
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at
If you file your comment on paper, write “In the Matter of Hikma Pharmaceuticals PLC and C.H. Boehringer Sohn AG & Co. KG,—Consent Agreement; File No. 151-0044” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex D), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex D), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.
Visit the Commission Web site at
The Federal Trade Commission (“Commission”) has accepted, subject to final approval, an Agreement Containing Consent Order (“Consent Agreement”) from Hikma Pharmaceuticals PLC (“Hikma”) and C.H. Boehringer Sohn AG & Co. KG (“Boehringer”) that is designed to remedy the anticompetitive effects that otherwise would have resulted from Hikma's proposed acquisition of forty-nine Abbreviated New Drug Applications (“ANDAs”) from Ben Venue Laboratories, Inc. (“Ben Venue”), a subsidiary of Boehringer, in five generic injectable pharmaceutical markets. Boehringer recently exited the markets related to these ANDAs when it ceased its manufacturing and other operations through Ben Venue. Under the terms of the proposed Consent Agreement, Hikma is required to divest to Amphastar Pharmaceuticals, Inc. (“Amphastar”) the Ben Venue ANDAs it will acquire from Boehringer related to acyclovir sodium injection, diltiazem hydrochloride injection, famotidine injection, prochlorperazine edisylate injection, and valproate sodium injection.
The proposed Consent Agreement has been placed on the public record for thirty days for receipt of comments from interested persons. Comments received during this period will become part of the public record. After thirty days, the Commission will again evaluate the proposed Consent Agreement, along with the comments received, in order to make a final decision as to whether it should withdraw from the proposed Consent Agreement, or make final the Decision and Order (“Order”).
Pursuant to a Sale and Purchase Agreement dated December 4, 2014 (“Proposed Acquisition”), Hikma proposes to acquire forty-nine ANDAs from Boehringer for approximately $5 million. The Commission alleges in its Complaint that the Proposed Acquisition, if consummated, would violate Section 7 of the Clayton Act, as amended, 15 U.S.C. 18, and Section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C. 45, by lessening future competition in the markets for acyclovir sodium injection, diltiazem hydrochloride injection, famotidine injection, prochlorperazine edisylate injection, and valproate sodium injection in the United States. The proposed Consent Agreement will remedy the alleged violations by replacing the competition that would otherwise be eliminated by the Proposed Acquisition.
The relevant products are all generic versions of injectable pharmaceutical products. Generic versions of these products are usually launched after a branded product's patents expire, or a generic supplier successfully challenges such patents in court or reaches a legal settlement with the branded manufacturer. Once multiple generic suppliers enter a market, the branded drug manufacturer usually ceases to provide any competitive constraint on the prices for generic versions of the drug. Rather, the generic suppliers compete only against each other. Sometimes, however, a branded injectable drug manufacturer may choose to lower its price and compete against generic versions of the drug, in which case it would be a participant in the generic drug market.
The relevant products at issue and the structure of each of the relevant markets is as follows:
• Acyclovir sodium injection is an antiviral drug used to treat chicken pox, herpes, and other related infections. Three firms, Boehringer, Fresenius Kabi
• Diltiazem hydrochloride injection is a calcium channel blocker and antihypertensive used to treat hypertension, angina, and arrhythmias. There are four firms that currently have FDA-approved ANDAs for diltiazem hydrochloride injection, Hikma, Boehringer, Hospira, Inc. (“Hospira”), and Akorn, Inc. (“Akorn”), but only Hikma, Hospira, and Akorn currently supply the market. No other firms are likely to enter the market in the near future. Thus, the Proposed Acquisition would reduce the number of likely future suppliers of diltiazem hydrochloride injection from four to three.
• Famotidine injection treats ulcers and gastroesophageal reflux disease. Three firms currently sell the vial presentation of famotidine injection, Hikma, Fresenius, and Mylan N.V. Boehringer has an FDA-approved ANDA for famotidine injection vials, but had no sales of the drug in 2014. No other companies appear to be poised to enter the market in the near future. The Proposed Acquisition would therefore reduce the number of likely future suppliers of famotidine injection from four to three.
• Prochlorperazine edisylate injection is an antipsychotic used to treat schizophrenia and nausea. Boehringer owned virtually the entire market for prochlorperazine edisylate injection in 2013, but it exited the market in mid-2014. Since that time, Heritage Pharmaceuticals Inc. has assumed all sales of prochlorperazine edisylate injection. Hikma is the only other company that has an FDA-approved ANDA for prochlorperazine edisylate injection, but it is not currently supplying the market. Another firm has prochlorperazine edisylate injection in its development pipeline and anticipates achieving FDA approval of its ANDA in the near future. Thus, the Proposed Acquisition would reduce the number of likely future suppliers of prochlorperazine edisylate injection from four to three.
• Valproate sodium injection is used to treat epilepsy, seizures, bipolar disorder, anxiety, and migraine headaches. There are two firms that currently supply valproate sodium injection in the market, Hikma and Fresenius. Boehringer has an FDA-approved ANDA for valproate sodium injection but exited the market in July 2014. Another firm has valproate sodium injection in its development pipeline and anticipates achieving FDA approval of its ANDA in the near future. Thus, the Proposed Acquisition would reduce the number of likely future suppliers of valproate sodium injection from four to three.
The transaction will reduce competition by decreasing the number of future suppliers in in each of these markets; in generic pharmaceutical products, prices generally decrease as the number of competing generic suppliers increases. In addition, the injectable pharmaceutical industry generally, and the generic products at issue in this investigation in particular, are highly susceptible to supply disruptions caused by the inherent difficulties of producing sterile liquid drugs. Recent manufacturing problems have made it difficult for customers to obtain sufficient quantities of, and contributed to price increases of, several of the generic injectable products impacted by this transaction. By reducing the number of likely future competitors in these markets, the Proposed Acquisition will likely create a direct and substantial anticompetitive effect on prices for each of the relevant products, absent the remedies required by the proposed Consent Agreement.
In each of the relevant markets, either Hikma or Boehringer, or both, currently do not supply an existing generic product. For markets in which Hikma is not a current competitor, it is likely to become one in the near future. Boehringer has recently exited each of these markets, but, absent the Proposed Acquisition, it would have had the incentive to sell these ANDAs to a third-party supplier who would likely bring these products to market. Hikma, which already has an approved ANDA or is likely to soon achieve FDA approval for an ANDA in each of the five relevant markets at issue, lacks that incentive, and thus, customers would be deprived of the price decreases that likely would have accompanied third-party entry into each of these concentrated markets.
Entry into each of these generic injectable product markets will not be timely, likely, or sufficient in magnitude, character, and scope to deter or counteract the likely anticompetitive effects of the Proposed Acquisition. The combination of drug development times and regulatory requirements, including FDA approval, takes well in excess of two years.
The Consent Agreement effectively remedies the Proposed Acquisition's anticompetitive effects in each relevant market. Under the Consent Agreement, Hikma is required to divest the Ben Venue ANDAs it will acquire from Boehringer related to acyclovir sodium injection, diltiazem hydrochloride injection, famotidine injection, prochlorperazine edisylate injection, and valproate sodium injection to Amphastar. Hikma must accomplish these divestitures and relinquish its rights no later than ten days after the acquisition.
Amphastar is a global pharmaceutical company based in Rancho Cucamonga, California and has over 1,200 employees worldwide. The company owns five pharmaceutical manufacturing facilities and produces a variety of branded and generic pharmaceutical products. Amphastar manufactures and sells sixteen injectable drug products in the United States, as well as a broad range of other pharmaceutical dosage formulations, including emulsions, suspensions, jellies, and lyophilized products. The company sells most of its products through long-standing relationships with major group purchasing organizations, drug wholesalers, and retailers in the United States. With its experience in generic markets, and in injectable products in particular, Amphastar is expected to replicate fully the competition that would otherwise have been lost as a result of the Proposed Acquisition.
The Commission's goal in evaluating possible acquirers of divested assets is to maintain the competitive environment that existed prior to the acquisition. If the Commission determines that Amphastar is not an acceptable acquirer, or that the manner of the divestitures or releases is not acceptable, the parties must unwind the sale or release of rights to Amphastar and divest the products to a Commission-approved acquirer within six months of the date the Order becomes final. In that circumstance, the Commission may appoint a trustee to divest the products if the parties fail to divest the products as required.
The proposed Consent Agreement contains several provisions to help ensure that the divestitures are successful. The Order requires Boehringer to maintain the economic viability, marketability, and
The purpose of this analysis is to facilitate public comment on the proposed Consent Agreement, and it is not intended to constitute an official interpretation of the proposed Order or to modify its terms in any way.
By direction of the Commission.
Public Buildings Service (PBS), General Services Administration.
Notice of a bulletin.
The attached bulletin announces the redesignation of a Federal building.
This bulletin expires August 26, 2016. The building redesignation remains in effect until canceled or superseded by another bulletin.
General Services Administration, Public Buildings Service (PBS), Office of Portfolio Management, Attn: Chandra Kelley, 77 Forsyth Street SW., Atlanta, GA 30303, at 404-562-2763, or by email at
This bulletin announces the redesignation of a Federal building. Public Law 114-48, 129 STAT. 488, dated August 7, 2015, designated the Hollings Judicial Center located at 83 Meeting Street in Charleston, South Carolina as the “J. Waties Waring Judicial Center.”
TO: Heads of Federal Agencies
SUBJECT: Redesignation of Federal Building
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The CDC is soliciting nominations for membership on the World Trade Center (WTC) Health Program Scientific/Technical Advisory Committee (STAC).
Title I of the James Zadroga 9/11 Health and Compensation Act of 2010, Public Law 111-347 (Jan. 2, 2011), amended by Public Law 114-113 (Dec. 18, 2015), added Title XXXIII to the Public Health Service Act (PHS Act), establishing the WTC Health Program within HHS (42 U.S.C. 300mm to 300mm-61). Section 3302(a) of the PHS Act established the WTC Health Program STAC. The STAC is governed by the provisions of the Federal Advisory Committee Act, as amended (Pub. L. 92-463, 5 U.S.C. App.), which sets forth standards for the formation and use of advisory committees in the Executive Branch. PHS Act Section 3302(a)(1) establishes that the STAC will review scientific and medical evidence and make recommendations to the WTC Program Administrator on additional WTC Health Program eligibility criteria and on additional WTC-related health conditions. Section 3341(c) of the PHS Act requires the WTC Program Administrator to also consult with the STAC on research regarding certain health conditions related to the September 11, 2001 terrorist attacks. The STAC may also be consulted on other matters related to implementation and improvement of the WTC Health Program, as outlined in the PHS Act, at the discretion of the WTC Program Administrator.
In accordance with Section 3302(a)(2) of the PHS Act, the WTC Program Administrator will appoint the members of the committee, which must include at least:
• 4 occupational physicians, at least two of whom have experience treating WTC rescue and recovery workers;
• 1 physician with expertise in pulmonary medicine;
• 2 environmental medicine or environmental health specialists;
• 2 representatives of WTC responders;
• 2 representatives of certified-eligible WTC survivors;
• 1 industrial hygienist;
• 1 toxicologist;
• 1 epidemiologist; and
• 1 mental health professional.
At this time the Administrator is seeking nominations for members fulfilling the following categories:
• Environmental medicine or environmental health specialist
• Occupational physician;
• Pulmonary physician;
• Representative of WTC responders;
• Representative of certified-eligible WTC survivors.
Additional members may be appointed at the discretion of the WTC Program Administrator.
A STAC member's term appointment may last 3 years. If a vacancy occurs, the WTC Program Administrator may appoint a new member who fulfills the same membership category as the predecessor. STAC members may be appointed to successive terms. The frequency of committee meetings shall be determined by the WTC Program Administrator based on program needs. Meetings may occur up to four times a year. Members are paid the Special Government Employee rate of $250 per day, and travel costs and per diem are included and based on the Federal Travel Regulations.
Any interested person or organization may self-nominate or nominate one or more qualified persons for membership.
Nominations must include the following information:
• The nominee's contact information and current occupation or position;
• The nominee's resume or curriculum vitae, including prior or current membership on other National Institute for Occupational Safety and Health (NIOSH), CDC, or HHS advisory committees or other relevant organizations, associations, and committees;
• The category of membership (environmental medicine or environmental health specialist, occupational physician, pulmonary physician, representative of WTC responders, or certified-eligible WTC survivor representative) that the candidate is qualified to represent;
• A summary of the background, experience, and qualifications that demonstrates the nominee's suitability for the nominated membership category;
• Articles or other documents the nominee has authored that indicate the nominee's knowledge and experience in relevant subject categories; and
• A statement that the nominee is aware of the nomination, is willing to regularly attend and participate in STAC meetings, and has no known conflicts of interest that would preclude membership on the Committee.
STAC members will be selected upon the basis of their relevant experience and competence in their respective categorical fields. The information received through this nomination process, in addition to other relevant sources of information, will assist the WTC Program Administrator in appointing members to serve on the STAC. In selecting members, the WTC Program Administrator will consider individuals nominated in response to this
The CDC is committed to bringing greater diversity of thought, perspective, and experience to its advisory committees. Nominees from all races, genders, ages, and persons living with disabilities are encouraged to apply. Nominees must be U.S. citizens.
Candidates invited to serve will be asked to submit the “Confidential Financial Disclosure Report,” OGE Form 450. This form is used by CDC to determine whether there is a financial conflict between that person's private interests and activities and their public responsibilities as a Special Government Employee as well as any appearance of a loss of impartiality, as defined by Federal regulation. The form may be viewed and downloaded at
Nominations must be submitted (postmarked or electronically received) by March 31, 2016.
Submissions must be electronic or by mail. Submissions should reference docket 229-D. Electronic submissions: You may electronically submit nominations, including attachments, to
Paul Middendorf, Acting Deputy Associate Director for Science, 1600 Clifton Rd. NE., MS: E-20, Atlanta, GA 30333; telephone (404)498-2500 (this is not a toll-free number); email
The Director, Management Analysis and Services Office, has been delegated the authority to sign
In accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces a meeting for the initial review of applications in response to Funding Opportunity Announcements (FOA) IP16-003, Research on the Epidemiology, Prevention, Vaccine Effectiveness and Treatment of Influenza and Other Respiratory Viruses in South Africa and IP16-004, Enhanced Surveillance for New Vaccine Preventable Diseases.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
The Centers for Disease Control and Prevention (CDC) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The notice for the proposed information collection is published to obtain comments from the public and affected agencies.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address any of the following: (a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) Enhance the quality, utility, and clarity of the information to be collected; (d) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to
Workplace Health In America—New—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
CDC has developed the Workplace Health in America survey program to describe the current state of U.S. workplace health promotion and protection programs and practices in employers of all sizes, industries and regions. To date, there has not been a systematic and ongoing effort to document the evidenced-based and best practice strategies and interventions that comprise a comprehensive workplace health program from a nationally representative sample of employers. National worksite health promotion experts, employers, and content experts from the CDC advised on the survey content. Items from existing, validated surveys were used whenever possible. The survey contains yes/no, multiple choice and a small number of open-ended items.
The Workplace Health in America survey is designed to collect information about: Basic organizational characteristics; employer-sponsored health insurance; health risk assessments; staffing and other resources devoted to employee health and safety programming; incentives; work-life policies and benefits; availability of health screenings and disease management programs; occupational safety and health programs. The survey items also cover the presence of evidence-based and other health promotion programs, policies and supports related to physical activity; nutrition; weight; tobacco; excess alcohol use and drug abuse; lactation and prenatal support; musculoskeletal disorders, arthritis and back pain; stress; and sleep.
The information that is collected is intended to build an infrastructure supporting ongoing surveillance to evaluate national workplace health priorities (
To achieve these aims, CDC has developed an infrastructure for this initial effort that can be expanded for future iterations of data collection. CDC has designed a process to select a nationally representative sample of worksites representing employers in all size categories, industry sectors, and CDC regions. The data collection platform was developed to collect information primarily by online survey or telephone assisted interview, and can be easily modified to accommodate additional survey modules. CDC has also created a dissemination plan to ensure the data and results can be used by employers and other stakeholders beyond the research community. Planned dissemination products include webinars to employer groups, an online dashboard for employers to benchmark their programs against other employers with comparable characteristics, and brief reports tailored to employers of different sizes.
OMB approval is requested for two years. CDC estimates that a total 8,085 employers will complete the Workplace Health in America survey. Participation is voluntary and there are no costs to respondents other than their time. The total estimated annualized burden hours are 5,616.
The Centers for Disease Control and Prevention (CDC) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The notice for the proposed information collection is published to obtain comments from the public and affected agencies.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address any of the following: (a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) Enhance the quality, utility, and clarity of the information to be collected; (d) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to
State Unintentional Drug Overdose Reporting System (SUDORS)—New — National Center for Injury Prevention and Control (NCIPC), Centers for Disease Control and Prevention (CDC).
In 2013, there were nearly 44,000 drug overdose deaths, including nearly 36,000 unintentional drug overdose deaths, in the United States. More people are now dying of drug overdose than automobile crashes in the U.S. A major driver of the problem are overdoses related to opioids, both opioid pain relievers (OPRs) and illicit forms such as heroin. In order to address this public health problem, the U.S. Department of Health and Human Services (HHS) has made addressing the opioid abuse problem a high priority.
In order to support targeting of drug overdose prevention efforts, detect new trends in fatal unintentional drug overdoses, and assess the progress of HHS's initiative to reduce opioid abuse and overdoses, the State Unintentional Drug Overdose Reporting System (SUDORS) plans to generate public health surveillance information at the national, state, and local levels that is more detailed, useful, and timely than is currently available.
SUDORS will collect information that is currently not collected on death certificates such as whether the drug(s) causing the overdoses were injected or taken orally, decedent toxicology report, if available, and risk factors for fatal drug overdoses including previous drug overdoses, decedent's mental health, and whether the decedent recently exiting a treatment program. SUDORS will leverage on the existing web-based data collection platform, the National Violent Death Reporting System (NVDRS) (OMB Control No. 0920-0607), to collect Coroner and Medical Examiner (CME) information, including toxicology, and death certificate information on unintentional fatal drug overdoses.
This proposed collection will generate public health surveillance information on unintentional fatal drug overdoses. This information will help develop, inform, and assess the progress of drug overdose prevention strategies. Without this information, drug overdose efforts are often based on limited information available in the death certificate and anecdotal evidence.
OMB approval is requested for three years. Participation is based on secondary data and is dependent on separate data collection efforts in each state managed by the state health departments or their bona fide agent.
The estimated annual burden hours are 7,008. There are no costs to respondents.
The Centers for Disease Control and Prevention (CDC) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The notice for the proposed information collection is published to obtain comments from the public and affected agencies.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address any of the following: (a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) Enhance the quality, utility, and clarity of the information to be collected; (d) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to
Insurance Coverage, Employment Status, and Copayments/Deductibles Faced by Young Women Diagnosed with Breast Cancer—New—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
The Education and Awareness Requires Learning Young (EARLY) Act of 2009, which is outlined in section 10413 of the Patient Protection and Affordable Care Act, authorizes the CDC to fund research and initiatives that increase knowledge of breast health and breast cancer among women, particularly among those under the age of 40. The EARLY Act along with section 301 of the Public Health Service Act authorizes the CDC to conduct research that will inform the prevention of physical and mental diseases such as breast cancer, and serves as the main basis for this data collection activity.
Research indicates that young women diagnosed with breast cancer face many barriers accessing high-quality breast cancer care and treatment. Some research indicates that employment status, financial stability, and insurance coverage are variables that individually affect treatment compliance, access to quality care, and ultimately quality of life for young women with breast cancer. However, to date, no comprehensive assessment exists examining the impacts of these factors on young, female breast cancer patients' access to comprehensive high quality breast cancer treatment and care.
CDC propose to address this gap by answering the following two research questions: (1) What are young, female breast cancer survivors experiencing after their diagnosis in terms of (a) continuation of insurance coverage, access to care, and quality of care; (b) changes in employment status after breast cancer diagnosis; and (c) out-of-pocket medical costs? (2) What factors affect young breast cancer survivors' access to comprehensive, high quality care?
To answer these research questions, CDC is sponsoring a study to collect information from two groups of breast cancer survivors. Sample 1 will be a population-based cohort of approximately 1,200 female breast cancer survivors recruited from four state cancer registries. These respondents will be asked to complete a mail-in or web-based questionnaire. Self-reported survey data from Sample 1 will be supplemented by data maintained by their state's cancer registry, including information about tumor characteristics, date of diagnosis, and stage. The linked survey and cancer registry data will be used to answer research question about the factors that affect young breast cancer survivors' access to comprehensive, high quality care?). CDC's data collection contractor will securely maintain identifiable information from respondents recruited from state registries (Sample 1). No identifiable information will be transmitted to CDC.
Sample 2 will include a national convenience sample of 2,000 female breast cancer survivors who were diagnosed between the ages of 18 and 49 and are associated with one of two breast cancer advocacy groups, Living Beyond Breast Cancer and Young Survival Coalition. Respondents from Sample 2 will complete the web-based version of the survey. A set of screening questions will be included at the beginning of this web-based survey to confirm eligibility and so that women from the four states included in Sample 1 can be excluded. The survey data will not be linked to any other data source.
Since the study uses two distinct samples and employs the same instrument with minor modifications, survey responses from the two samples can answer the following additional research questions: (1) How generalizable are the results from the four cancer registries? (2) Are there differences in the variables of interest between young breast cancer survivors based on the length of time that has elapsed from cancer diagnosis? (3) Do the experiences and barriers faced by women diagnosed between 18 and 39 years of age differ from those of women diagnosed between 40 and 44 years of age and 45 and 49 years of age?
The results can help inform future survey data collection methodologies by showing whether drawing a convenience sample from survivorship groups can be a more feasible, less expensive, but generalizable method to recruit respondents for future breast cancer survivor surveys.
The target number of responses for the overall study is estimated to be 3,200 completed surveys. Sample 1 respondents will have the option of completing a hardcopy questionnaire or an online questionnaire, both of which are be estimated to take about 22 minutes to complete. Sample 2 respondents will complete a screener and the questionnaire online. Due to the inclusion of additional screening questions for Sample 2, a completed survey by an eligible respondent is expected to take about 24 minutes. If a respondent completes the screening section and is found to be ineligible for the study, the estimated burden per response is 2 minutes. Demographic information will be collected from all patients who participate in the study.
Findings from this study will be used to identify interventions that can
OMB approval is requested for one year. Participation is voluntary and there are no costs to respondents other than their time. The total estimated annualized burden hours are 1,241.
In accordance with section 10(a) (2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announce the following meeting for the aforementioned committee:
Agenda items are subject to change as priorities dictate.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Attendees who wish to attend the March 9-10, 2016 ICD-10-CM C&M meeting must submit their name and organization by March 1, 2016 for inclusion on the visitor list. This visitor list will be maintained at the front desk of the CMS building and used by the guards to admit visitors to the meeting.
Participants who attended previous Coordination and Maintenance meetings will no longer be automatically added to the visitor list. You must request inclusion of your name prior to each meeting you wish attend.
Please register to attend the meeting on-line at:
Agenda items are subject to change as priorities dictate.
CMS and NCHS no longer provide paper copies of handouts for the meeting. Electronic copies of all meeting materials will be posted on the CMS and NCHS Web sites prior to the meeting at
The Director, Management Analysis and Services Office, has been delegated the authority to sign
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), and pursuant to the requirements of 42 CFR 83.15(a), the Centers for Disease Control and Prevention (CDC), announces the following meeting of the aforementioned committee:
* Please note that the public comment period may end before the time indicated, following the last call for comments. Members of the public who wish to provide public comments should plan to attend the public comment session at the start time listed.
In December 2000, the President delegated responsibility for funding, staffing, and operating the Advisory Board to HHS, which subsequently delegated this authority to the CDC. NIOSH implements this responsibility for CDC. The charter was issued on August 3, 2001, renewed at appropriate intervals, and will expire on August 3, 2017.
The agenda is subject to change as priorities dictate.
In the event an individual cannot attend, written comments may be
Policy on Redation of Board Meeting Transcripts (Public Comment):
(1) If a person making a comment gives his or her personal information, no attempt will be made to redact the name; however, NIOSH will redact other personally indentifiable information, such as contact information, social security numbers, case numbers, etc., of the commenter.
(2) If an individual in making a statement reveals personal information (
(3) If a commenter reveals personal information concerning a living third party, that information will be reviewed by the NIOSH FOIA coordinator, and upon determination, if deemed appropriated, such information will be redacted, unless the disclosure is made by the third party's authorized representative under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA) program.
(4) In general, information concerning a deceased third party may be disclosed; however, such information will be redacted if (a) the disclosure is made by an individual other than the survivor claimant, a parent, spouse, or child, or the authorized representative of the deceased third party; (b) if it is unclear whether the third party is living or deceased; or (c) the information is unrelated or irrelevant to the purpose of the disclosure.
The Board will take reasonable steps to ensure that individuals making public comment are aware of the fact that their comments (including their name, if provided) will appear in a transcript of the meeting posted on a public Web site. Such reasonable steps include: (a) A statement read at the start of each public comment period stating that transcripts will be posted and names of speakers will not be redacted; (b) A printed copy of the statement mentioned in (a) above will be displayed on the table where individuals sign up to make public comments; (c) A statement such as outlined in (a) above will also appear with the agenda for a Board Meeting when it is posted on the NIOSH Web site; (d) A statement such as in (a) above will appear in the
The Director, Management Analysis and Services Office, has been delegated the authority to sign
The Centers for Disease Control and Prevention (CDC) is soliciting nominations for possible membership on the BSC, OPHPR. The BSC, OPHPR consists of 11 experts in the fields associated with public health preparedness and response. This board provides advice and guidance to the Secretary, Department of Health and Human Services (HHS), the Director, CDC, and the Director, OPHPR, concerning strategies and goals for the programs within the divisions; conducts peer-review of scientific programs; and monitors the overall strategic direction and focus of the divisions. The BSC, OPHPR may perform second-level peer review of applications for grants-in-aid for research and research training activities, cooperative agreements, and research contract proposals relating to the broad areas within the office (
Nominations are being sought for individuals who have the expertise and qualifications necessary to contribute to accomplishment of the board's objectives. Nominees will be selected based on expertise in the fields relevant to the issues addressed by the divisions within the coordinating office, including: business, crisis leadership, emergency response and management, engineering, epidemiology, health policy and management, informatics, laboratory science, medicine, mental and behavioral health, public health law, public health practice, risk communication, and social science. Federal employees will not be considered for membership. Members may be invited to serve for terms of up to four years.
The U.S. Department of Health and Human Services policy stipulates that committee membership be balanced in terms of professional training and background, points of view represented, and the board's function. Consideration is given to a broad representation of geographic areas within the U.S., with equitable representation of gender, all ethnic and racial groups, and persons with disabilities. Nominees must be U.S. citizens.
The next cycle of selection of candidates will begin in the spring of 2016, for selection of potential nominees to replace members whose terms will end on September 30, 2016.
Selection of members is based on candidates' qualifications to contribute to the accomplishment of OPHPR objectives (
Candidates should submit the following items:
Current curriculum vitae, including complete contact information (telephone numbers, mailing address, email address)
At least one letter of recommendation from person(s) not employed by the U.S. Department of Health and Human Services.
The deadline for receipt of all application materials (for consideration for term beginning October 1, 2016) is April 15, 2016. All files must be submitted electronically as email attachments to: CDR Christye Brown, c/o BSC OPHPR Coordinator, email:
The Director, Management Analysis and Services Office, has been delegated the authority to sign
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC), announces the following meeting of the aforementioned committee:
Please note that the public comment period ends at the time indicated above or following the last call for comments, whichever is earlier. Members of the public who want to comment must sign up by providing their name by mail, email, or telephone, at the addresses provided below by March 18, 2016. Each commenter will be provided up to five minutes for comment. A limited number of time slots are available and will be assigned on a first come-first served basis. Written comments will also be accepted from those unable to attend the public session.
The agenda is subject to change as priorities dictate.
To view the notice, visit
Public Comment Sign-up and Submissions to the Docket: To sign up to provide public comments or to submit comments to the docket, send information to the NIOSH Docket Office by one of the following means:
In the event an individual cannot attend, written comments may be submitted. The comments should be limited to two pages and submitted through
Policy on Redaction of Committee Meeting Transcripts (Public Comment): Transcripts will be prepared and posted to
The Director, Management Analysis and Services Office, has been delegated the authority to sign
In accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces a meeting for the initial review of applications in response to Funding Opportunity Announcement (FOA) CK16-006, Research on Technical Improvement of Personal Protective Equipment (PPE) to be used in Healthcare Settings for Infection Control, including Ebola and other Emerging Pathogens.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
This gives notice under the Federal Advisory Committee Act (Pub. L. 92-463) of October 6, 1972, that the Clinical Laboratory Improvement Advisory Committee, Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS), has been renewed for a 2-year period through February 19, 2018.
For information, contact William R. MacKenzie M.D., Designated Federal Officer, Clinical Laboratory Improvement Advisory Committee, 1600 Clifton Road, NE., Mailstop F-11, Atlanta, Georgia 30333, telephone 404-498-6297 or via email at
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Centers for Medicare & Medicaid Services, HHS.
Final notice.
This final notice announces our decision to approve the American Association for Accreditation of Ambulatory Surgery Facilities (AAAASF) for continued recognition as a national accrediting organization for Rural Health Clinics (RHCs) that wish to participate in the Medicare or Medicaid programs.
This final notice is effective March 23, 2016 through March 23, 2022.
Monda Shaver, (410) 786-3410, or Patricia Chmielewski, (410) 786-6899.
A healthcare provider may enter into an agreement with Medicare to participate in the program as a Rural Health Clinic (RHC) provided certain requirements are met. Sections 1861(aa)(1) and 1905(l)(1) of the Social Security Act (the Act), establish distinct criteria for facilities seeking designation as a RHC. Regulations concerning Medicare provider agreements are at 42 CFR part 489 and those pertaining to the survey and certification for Medicare participation of providers and certain types of suppliers are at 42 CFR part 488. The regulations at 42 CFR part 491, subpart A specify the conditions that a provider must meet to participate in the Medicare program as a RHC.
Generally, to enter into a Medicare provider agreement, a facility must first be certified by a state survey agency as complying with the conditions or requirements set forth in part 491, subpart A, of our Medicare regulations. Thereafter, the RHC is subject to periodic surveys by a state survey agency to determine whether it continues to meet these conditions. However; there is an alternative to certification surveys by state agencies. Accreditation by a nationally recognized Medicare accreditation program approved by the Centers for Medicare & Medicaid Services (CMS) may substitute for both initial and ongoing state review.
Section 1865(a)(1) of the Act provides that, if the Secretary of the Department of Health and Human Services (the Secretary) finds that accreditation of a provider entity by an approved national accreditation organization meets or exceeds all applicable Medicare conditions or requirements, we may “deem” the provider entity to be in compliance. Accreditation by an accrediting organization is voluntary and is not required for Medicare participation.
Part 488, subpart A implements the provisions of section 1865 of the Act. It requires that a national accrediting organization applying for approval of its Medicare accreditation program must provide CMS with reasonable assurance that the accrediting organization requires its accredited provider or supplier entities to meet requirements that are at least as stringent as the Medicare conditions. Our regulations concerning the approval of accrediting organizations are set forth at § 488.5. The regulations at § 488.5(e)(2)(i) require an accrediting organization to reapply for continued approval of its Medicare accreditation program every 6 years or sooner as determined by CMS. The American Association for Accreditation of Ambulatory Surgery Facilities (AAAASF's) current term of approval for their RHC accreditation program expires March 23, 2016.
Section 1865(a)(3)(A) of the Act requires that we publish, within 60 days of receipt of an organization's complete application, a notice identifying the national accreditation body making the request, describing the nature of the request, and providing at least a 30-day public comment period. We have 210 days after the date of receipt of a complete application to publish a notice announcing our approval or denial of an application.
On September 25, 2015, we published a proposed notice in the
• An onsite administrative review of AAAASF's: (1) Corporate policies; (2) financial and human resources available to accomplish the proposed surveys; (3) procedures for training, monitoring, and evaluating its RHC surveyors; (4) ability to investigate and respond appropriately to complaints against accredited RHCs; and, (5) survey review and decision-making process for accreditation.
• The comparison of AAAASF's Medicare accreditation program standards to our current Medicare RHC conditions for certification.
• A documentation review of AAAASF's survey process to:
++ Determine the composition of the survey team, surveyor qualifications, and AAAASF's ability to provide continuous surveyor training.
++ Compare AAAASF's processes to those we require of State survey agencies, including periodic resurvey and the ability to investigate and respond appropriately to complaints against accredited RHCs.
++ Evaluate AAAASF's procedures for monitoring RHCs it has found to be out of compliance with AAAASF's program requirements. (This pertains only to monitoring procedures when AAAASF identifies non-compliance. If noncompliance is identified by a State survey agency through a validation survey, the State survey agency monitors corrections as specified at § 488.9(c)(1).)
++ Assess AAAASF's ability to report deficiencies to the surveyed RHC and respond to the RHC's plan of correction in a timely manner.
++ Establish AAAASF's ability to provide CMS with electronic data and reports necessary for effective validation and assessment of the organization's survey process.
++ Determine the adequacy of AAAASF's staff and other resources.
++ Confirm AAAASF's ability to provide adequate funding for performing required surveys.
++ Confirm AAAASF's policies with respect to surveys being unannounced.
++ Obtain AAAASF's agreement to provide CMS with a copy of the most current accreditation survey together with any other information related to the survey as we may require, including corrective action plans.
In accordance with section 1865(a)(3)(A) of the Act, the September 25, 2015 proposed notice also solicited public comments regarding whether AAAASF's requirements met or exceeded the Medicare conditions for certification for RHCs. We received no public comments in response to our proposed notice.
We compared AAAASF's RHC accreditation requirements and survey process with the Medicare conditions for certification at part 491, subpart A and the survey and certification process requirements at parts 488 and 489. We reviewed AAAASF's RHC accreditation program application as described in section III of this final notice. In response to our request AAAASF revised its standards and certification processes to ensure that its surveyors complete the required number of medical record reviews for each accredited facility.
Based on our review and observations described in section III of this final notice, we approve AAAASF as a national accreditation organization for RHCs that request participation in the Medicare program, effective March 23, 2016 through March 23, 2022.
This document does not impose information collection requirements, that is, reporting, recordkeeping or third-party disclosure requirements. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995.
Notice; Correction.
On Wednesday, February 10, 2016 (81 FR 7124), the Centers of Medicare & Medicaid Services (CMS) published a Notice document titled “Agency Information Collection Activities; Proposed Collection; Comment Request”. That notice invited
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice of meeting.
This notice announces the new meeting of the Advisory Panel on Outreach and Education (APOE) (the Panel) in accordance with the Federal Advisory Committee Act. The Panel advises and makes recommendations to the Secretary of the U.S. Department of Health and Human Services (HHS) and the Administrator of the Centers for Medicare & Medicaid Services (CMS) on opportunities to enhance the effectiveness of Health Insurance Marketplace
Abigail Huffman, Designated Federal Official, Office of Communications, CMS, 7500 Security Boulevard, Mail Stop S1-05-06, Baltimore, MD 21244, 410-786-0897, email
The Advisory Panel for Outreach and Education (APOE) (the Panel) is governed by the provisions of Federal Advisory Committee Act (FACA) (Pub. L. 92-463), as amended (5 U.S.C. Appendix 2), which sets forth standards for the formation and use of federal advisory committees. The Panel is authorized by section 1114(f) of the Social Security Act (42 U.S.C. 1314(f)) and section 222 of the Public Health Service Act (42 U.S.C. 217a).
The Secretary of the U.S. Department of Health and Human Services (HHS) (the Secretary) signed the charter establishing the Citizen's Advisory Panel on Medicare Education
The Medicare Modernization Act of 2003 (MMA) (Pub. L. 108-173) expanded the existing health plan options and benefits available under the M+C program and renamed it the Medicare Advantage (MA) program. We have had substantial responsibilities to provide information to Medicare beneficiaries about the range of health plan options available and better tools to evaluate these options. The successful MA program implementation required CMS to consider the views and policy input from a variety of private sector constituents and to develop a broad range of public-private partnerships.
In addition, Title I of the MMA authorized the Secretary and the Administrator of CMS (by delegation) to establish the Medicare prescription drug benefit. The drug benefit allows beneficiaries to obtain qualified prescription drug coverage. In order to effectively administer the MA program and the Medicare prescription drug benefit, we have substantial responsibilities to provide information to Medicare beneficiaries about the range of health plan options and benefits available, and to develop better tools to evaluate these plans and benefits.
The Affordable Care Act (Patient Protection and Affordable Care Act, Pub. L. 111-148, and Health Care and Education Reconciliation Act of 2010, Pub. L. 111-152) expanded the availability of other options for health care coverage and enacted a number of changes to Medicare as well as to Medicaid and the Children's Health Insurance Program (CHIP). Qualified individuals and qualified employers are
The scope of this panel also includes advising on issues pertaining to the education of providers and stakeholders with respect to the Affordable Care Act and certain provisions of the Health Information Technology for Economic and Clinical Health (HITECH) Act enacted as part of the American Recovery and Reinvestment Act of 2009 (ARRA).
On January 21, 2011, the Panel's charter was renewed and the Panel was renamed the Advisory Panel for Outreach and Education. The Panel's charter was most recently renewed on January 21, 2015, and will terminate on January 21, 2017 unless renewed by appropriate action.
Under the current charter, the APOE will advise the Secretary and the Administrator on optimal strategies for the following:
• Developing and implementing education and outreach programs for individuals enrolled in, or eligible for, Medicare, Medicaid, and the Children's Health Insurance Program (CHIP), or coverage available through a Health Insurance Marketplace
• Enhancing the federal government's effectiveness in informing Health Insurance Marketplace
• Expanding outreach to vulnerable and underserved communities, including racial and ethnic minorities, in the context of Health Insurance Marketplace
• Assembling and sharing an information base of “best practices” for helping consumers evaluate health coverage options.
• Building and leveraging existing community infrastructures for information, counseling, and assistance.
• Drawing the program link between outreach and education, promoting consumer understanding of health care coverage choices, and facilitating consumer selection/enrollment, which in turn support the overarching goal of improved access to quality care, including prevention services, envisioned under the Affordable Care Act.
The current members of the Panel are: Kellan Baker, Associate Director, Center for American Progress; Robert Blancato, President, Matz, Blancato & Associates; Dale Blasier, Professor of Orthopedic Surgery, Department of Orthopedics, Arkansas Children's Hospital; Deborah Britt, Executive Director of Community & Public Relations, Piedmont Fayette Hospital; Deena Chisolm, Associate Professor of Pediatrics & Public Health, The Ohio State University, Nationwide Children's Hospital; Josephine DeLeon, Director, Anti-Poverty Initiatives, Catholic Charities of California; Robert Espinoza, Vice President of Policy, Paraprofessional Healthcare Institute; Jennifer Gross, Manager of Political Field Operations, Planned Parenthood of Montana; Louise Scherer Knight, Director, The Sidney Kimmel Comprehensive Cancer Center at Johns Hopkins; Miriam Mobley-Smith, Director of Strategic Alliances, Pharmacy Technician Certification Board; Roanne Osborne-Gaskin, M.D., Senior Medical Director, MDWise, Inc.; Cathy Phan, Outreach and Education Coordinator, Asian American Health Coalition DBA HOPE Clinic; Kamilah Pickett, Litigation Support, Independent Contractor; Brendan Riley, Outreach and Enrollment Coordinator, NC Community Health Center Association; Jeanne Ryer, Director, New Hampshire Citizens Health Initiative, University of New Hampshire; Alvia Siddiqi, Medicaid Managed Care Community Network (MCCN) Medical Director, Advocate Physician Partners, Carla Smith, Executive Vice President, Healthcare Information and Management Systems Society (HIMSS); Tobin Van Ostern, Vice President and Co-Founder, Young Invincible Advisors; and Paula Villescaz, Senior Consultant, Assembly Health Committee, California State Legislature.
In accordance with section 10(a) of the FACA, this notice announces a meeting of the APOE. The agenda for the March 23, 2016 meeting will include the following:
Individuals or organizations that wish to make a 5-minute oral presentation on an agenda topic should submit a written copy of the oral presentation to the DFO at the address listed in the
This meeting will be held in a federal government building; therefore, federal security measures are applicable. The Real ID Act, enacted in 2005, establishes minimum standards for the issuance of state-issued driver's licenses and identification (ID) cards. It prohibits Federal agencies from accepting an official driver's license or ID card from a state unless the Department of Homeland Security determines that the state meets these standards. Beginning October 2015, photo IDs (such as a valid driver's license) issued by a state or territory not in compliance with the Real ID Act will not be accepted as identification to enter Federal buildings. Visitors from these states/territories will need to provide alternative proof of identification (such as a valid passport) to gain entrance into CMS buildings. The current list of states from which a Federal agency may accept driver's licenses for an official purpose is found at
• Presentation of government issued photographic identification to the Federal Protective Service or Guard Service personnel.
• Inspection of vehicle's interior and exterior (this includes engine and trunk inspection) at the entrance to the grounds. Parking permits and instructions will be issued after the vehicle inspection.
• Inspection, via metal detector or other applicable means, of all persons entering the building. We note that all items brought into CMS, whether personal or for the purpose of presentation or to support a presentation, are subject to inspection. We cannot assume responsibility for coordinating the receipt, transfer, transport, storage, set up, safety, or timely arrival of any personal belongings or items used for presentation or to support a presentation.
Individuals who are not registered in advance will not be permitted to enter the building and will be unable to attend the meeting. The public may not enter the building earlier than 45 minutes prior to the convening of the meeting.
All visitors must be escorted in areas other than the lower and first floor levels in the Central Building.
Sec. 222 of the Public Health Service Act (42 U.S.C. 217a) and sec. 10(a) of Pub. L. 92-463 (5 U.S.C. App. 2, sec. 10(a) and 41 CFR 102-3).
Food and Drug Administration, HHS.
Notice of public workshop.
The Food and Drug Administration (FDA), in co-sponsorship with the Foundation for the National Institutes of Health Biomarkers Consortium (FNIH BC), is announcing a public workshop entitled “Developing an Evidentiary Standards Framework for Safety Biomarkers Qualification Workshop.” The purpose of the workshop is to discuss the evidentiary standards needed to support biomarker qualification with a particular emphasis on drug safety markers. The 2-day workshop will focus on the standards relevant to the qualification of a range of safety biomarkers and examine case studies in several different organ systems.
The public workshop will be held on April 14, 2016, from 9 a.m. to 5 p.m. and April 15, 2016, from 8 a.m. to 5 p.m.
The public workshop will be held at the Bethesda North Marriott Hotel and Conference Center, 5701 Marinelli Rd., Bethesda, MD 20852.
Janelle Lewis, Foundation for the National Institutes of Health, 9650 Rockville Pike, Bethesda, MD 20814, 301-594-2919, FAX: 301-480-2752, email:
The need for evidentiary standards to qualify biomarkers was identified in FDA's Critical Path Initiative as essential to improving the efficiency and effectiveness of drug development. Evidentiary standards vary among different types of biomarkers and according to the context(s) of use (COU) for which qualification is being considered, and there are specific challenges involved in qualifying drug safety biomarkers. This workshop is aimed at creating alignment among scientific stakeholders including FDA, the National Institutes of Health (NIH), the biopharmaceutical industry, academic researchers, and patient groups regarding a proposed framework for determining the levels of evidence required to qualify biomarkers for use in drug development, with an emphasis on biomarkers used in determinations of drug safety assessments. Development of a general framework for biomarker qualification will be discussed, along with specific application to different COUs related to drug safety, including consideration of several specific case studies involving qualification of clinical markers of toxicity in different organ systems.
Attendees are responsible for their own hotel accommodations. Attendees making reservations at the Bethesda North Marriott Hotel and Conference Center (see
If you need special accommodations due to a disability, please contact Janelle Lewis (see
Electronic Government Office, HHS.
Notice.
In compliance with section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the Electronic Government Office (EGOV), Department of Health and Human Services, has submitted an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB) for review and approval. The ICR is for a 3-year extension for OMB Control Number 4040-0010. The ICR will expire on September 30, 2016. The 4040-0010 is composed of the following forms: Project Abstract; Project Performance Site Location(s); and Key Contacts. The ICR also requests categorizing these forms as common forms, meaning HHS will only request approval for its own use of the form rather than aggregating the burden estimate across all Federal Agencies as was done for previous actions on this OMB control number. Comments submitted during the first public review of this ICR will be provided to OMB. OMB will accept further comments from the public on this ICR during the review and approval period.
Comments on the ICR must be received on or before April 25, 2016.
Submit your comments to
Information Collection Clearance staff,
When submitting comments or requesting information, please include the OMB control number 4040-0010. Form is available at
HHS estimates that each of the respective forms will take 1 hour to complete. Once OMB approves the use of the Project Abstract; Project Performance Site Location(s); Key Contacts forms as common forms, federal agencies may request OMB approval to use this common form without having to publish notices and request public comments for 60 and 30 days. Each agency must account for the burden associated with their use of the common form.
EGOV specifically requests comments on (1) the necessity and utility of the proposed information collection for the proper performance of the agency's functions, (2) the accuracy of the estimated burden, (3) ways to enhance the quality, utility, and clarity of the information to be collected, and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
Electronic Government Office, HHS.
Notice.
In compliance with section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the Electronic Government Office (EGOV), Department of Health and Human Services, has submitted an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB) for review and approval. The ICR is for a 3-year extension for OMB Control Number 4040-0001. The ICR will expire on June 30, 2016. The ICR also requests categorizing 4040-0001 as a common form, meaning HHS will only request approval for its own use of the form rather than aggregating the burden estimate across all Federal Agencies as was done for previous actions on this OMB control number. Comments submitted during the first public review of this ICR will be provided to OMB. OMB will accept further comments from the public on this ICR during the review and approval period.
Comments on the ICR must be received on or before April 25, 2016.
Submit your comments to
Information Collection Clearance staff,
When submitting comments or requesting information, please include the OMB control number 4040-0001. Form is available
HHS estimates that the SF-424 Application for Federal Assistance forms will take 1 hour to complete.
Once OMB approves the use of this common form, federal agencies may request OMB approval to use this common form without having to publish notices and request public comments for 60 and 30 days. Each agency must account for the burden associated with their use of the common form.
EGOV specifically requests comments on (1) the necessity and utility of the proposed information collection for the proper performance of the agency's functions, (2) the accuracy of the estimated burden, (3) ways to enhance the quality, utility, and clarity of the information to be collected, and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
Electronic Government Office, HHS.
Notice.
In compliance with section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the Electronic Government Office (EGOV), Department of Health and Human Services, has submitted an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB) for review and approval. The ICR is for a 3-year extension for OMB Control Number 4040-0004. The ICR will expire on August 31, 2016. Grants.gov also requests categorizing this form as common forms, meaning HHS will only request approval for its own use of the form rather than aggregating the burden estimate across all Federal Agencies as was done for previous actions on this OMB control number. Comments submitted during the first public review of this ICR will be provided to OMB. OMB will accept further comments from the public on this ICR during the review and approval period.
Comments on the ICR must be received on or before April 25, 2016.
Submit your comments to
Information Collection Clearance staff,
When submitting comments or requesting information, please include the OMB control number 4040-0004. Form is available at
HHS estimates that each of the respective forms will take 1 hour to
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Under the provisions of Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below. This proposed information collection was previously published in the
To obtain a copy of the data collection plans and instruments or request more information on the proposed project contact: Dr. Rachel Sturke, Evaluation Officer, Division of Science Policy, Planning, and Evaluation, FIC, NIH, 16 Center Drive, Bethesda, MD 20892 or call non-toll-free number (301) 480-6025 or Email your request, including your address to:
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 8,714.
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.
National Institutes of Health, HHS.
Notice.
The inventions listed below are owned by an agency of the U.S. Government and are available for licensing in the U.S. in accordance with 35 U.S.C. 209 and 37 CFR part 404 to achieve expeditious commercialization of results of federally-funded research and development.
Licensing information may be obtained by emailing the indicated licensing contact at the National Heart, Lung, and Blood, Office of Technology Transfer and Development Office of Technology Transfer, 31 Center Drive Room 4A29, MSC2479, Bethesda, MD 20892-2479; telephone: 301-402-5579. A signed Confidential Disclosure Agreement may be required to receive any unpublished information.
Technology description follows.
Software is has been developed and available for licensing that fully automates image processing for the quantification of myocardial blood flow (MBF) pixel maps from first-pass contrast-enhanced cardiac magnetic resonance (CMR) perfusion images. The system removes the need for laborious manual quantitative CMR perfusion pixel map processing and can process prospective and retrospective studies acquired from various imaging protocols. In full automation, arterial input function (AIF) images are processed for motion correction and myocardial perfusion images are corrected for intensity bias. The corrected AIF images are processed for left ventricle signal detection and the corrected myocardial perfusion images and processed for myocardial signal detection. Both data sets are then corrected for nonlinear signaling, synchronized, and pixel-wise deconvolution processed. The resulting pixel map shows accurate myocardial blood flow.
Potential Commercial Applications:
Development Stage:
Inventors: Li-Yueh Hsu, Matthew Jacobs, Mitchel Benovoy, Andrew Arai (NHLBI)
Intellectual Property: HHS Reference No. E-097-2016/0—Software Materials.
Licensing Contact: Michael Shmilovich, Esq, CLP; 301-435-5019;
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The estimated annualized burden hour total is 320.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
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.
Science and Technology Directorate, DHS.
Committee Management; Notice of Federal Advisory Committee Meeting.
The Homeland Security Science and Technology Advisory Committee (HSSTAC) will meet on March 10-11, 2016 in Washington, DC. The meeting will be both in-person and virtual (webinar)—open session.
The HSSTAC will meet in-person on Thursday, March 10, 2016, from 9:30 a.m.-4:00 p.m. and Friday, March 11, 2016, from 9:00 a.m.-3:00 p.m.
Due to security requirements, screening pre-registration is required for this event. Please see registration information below. Also, please note the meeting may close early if the committee has completed its business.
Department of Homeland Security, 1120 Vermont Avenue NW., 8th Floor, Washington DC, 20005.
For information on services for individuals with disabilities or to request special assistance at the meeting, please contact Bishop Garrison as soon as possible. If you plan to attend the meeting in-person you must RSVP by Tuesday, March 8, 2016. To register, send an email to
To pre-register for the virtual meeting (webinar) please send an email to:
To facilitate public participation, we invite public comment on the issues to be considered by the committee as listed in the
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A period is allotted for public comment on March 10 and March 11, 2016 at the end of each open session. Please note that the public comment period may end before the time indicated, following the last call for comments. To register as a speaker, contact the person listed below.
Bishop Garrison, HSSTAC Executive Director, S&T IAO STOP 0205, Department of Homeland Security, 245 Murray Lane, Washington, DC 20528-0205, 202-254-5617, (Office), 202-254-6176 (Facsimile) m
Notice of this meeting is given under section 10(a) of the Federal Advisory Committee Act (FACA), 5 U.S.C. Appendix (Pub. L. 92-463). The committee addresses areas of interest and importance to the Under Secretary for Science and Technology, such as new developments in systems engineering, cyber-security, knowledge management and how best to leverage related technologies funded by other federal agencies and by the private sector. It also advises the Under Secretary on policies, management processes, and organizational constructs as needed.
National Protection and Programs Directorate, DHS.
Committee Management; Notice of an Open Federal Advisory Committee Meeting.
The National Infrastructure Advisory Council will meet Monday, March 14, 2016, at 1310 N. Courthouse Road, Suite 300, the Virginia Conference Room, Arlington, VA 22201. This meeting will be open to the public.
The National Infrastructure Advisory Council will meet on March 14, 2015 from 1:30 p.m.-3:30 p.m. EST. The meeting may close early if the committee has completed its business. For additional information, please consult the National Infrastructure Advisory Council Web site,
1310 N. Courthouse Road, Suite 300, the Virginia Conference Room, Arlington, VA 22201. Members of the public will register at the registration table prior to entering the meeting room. For information on facilities or services for individuals with disabilities, or to request special assistance at the meeting, contact the person listed under
To facilitate public participation, we are inviting public comment on the issues to be considered by the Council as listed in the
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Members of the public will have an opportunity to provide oral comments on the topics on the meeting agenda below, and on any previous studies issued by the National Infrastructure Advisory Council. We request that comments be limited to the issues and studies listed in the meeting agenda and previous National Infrastructure Advisory Council studies. All previous National Infrastructure Advisory Council studies can be located at
Ginger Norris, National Infrastructure Advisory Council, Alternate Designated Federal Officer, Department of Homeland Security, (703) 235-2888.
Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. Appendix. The National Infrastructure Advisory Council shall provide the President, through the Secretary of Homeland Security, with advice on the security and resilience of the Nation's critical infrastructure sectors. The NIAC will meet to discuss issues relevant to critical infrastructure security and resilience as directed by the President.
The meeting will commence at 1:30 p.m. EST. At this meeting, the council will discuss its on-going study on Water Resilience. All presentations will be posted prior to the meeting on the Council's public Web page—
Transportation Security Administration, DHS.
60-Day notice.
The Transportation Security Administration (TSA) invites public comment on one currently approved Information Collection Request (ICR), Office of Management and Budget (OMB) control number 1652-0055, abstracted below that we will submit to
Send your comments by April 25, 2016.
Comments may be emailed to
Christina A. Walsh at the above address, or by telephone (571) 227-2062.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
As the lead Federal agency for pipeline security, TSA desires to be notified of all incidents which are indicative of a deliberate attempt to disrupt pipeline operations or activities that could be precursors to such an attempt. The Pipeline Security Guidelines encourage pipeline operators to notify the Transportation Security Operations Center (TSOC) via phone at 866-615-5150 or email at
• Explosions or fires of a suspicious nature affecting pipeline systems, facilities, or assets.
• Actual or suspected attacks on pipeline systems, facilities, or assets.
• Bomb threats or weapons of mass destruction (WMD) threats to pipeline systems, facilities, or assets.
• Theft of pipeline company vehicles, uniforms, or employee credentials.
• Suspicious persons or vehicles around pipeline systems, facilities, assets, or right-of-way.
• Suspicious photography or possible surveillance of pipeline systems, facilities, or assets.
• Suspicious phone calls from people asking about the vulnerabilities or security practices of a pipeline system, facility, or asset operation.
• Suspicious individuals applying for security-sensitive positions in the pipeline company.
• Theft or loss of Sensitive Security Information (SSI) (detailed pipeline maps, security plans, etc.).
• Actual or suspected cyber-attacks that could impact pipeline Supervisory Control and Data Acquisition (SCADA) or enterprise associated IT systems.
When contacting the TSOC, the Guidelines request pipeline operators to provide as much of the following information as possible:
• Name and contact information (email address, telephone number).
• The time and location of the incident, as specifically as possible.
• A description of the incident or activity involved.
• Who has been notified and what actions have been taken.
• The names and/or descriptions of persons involved or suspicious parties and license plates as appropriate.
In addition to the reporting of security incident data to the TSOC, the Pipeline Security Guidelines previously included collecting information on recommendations for the voluntary submission of pipeline operator security manager contact information to TSA.
TSA expects reporting of pipeline security incidents will occur on an irregular basis. TSA estimates that approximately 30 incidents will be reported annually, requiring a maximum of 30 minutes to collect, review, and submit event information. The potential burden to the public is estimated to be 15 hours (30 incidents × 30 minutes = 15 hours).
Fish and Wildlife Service, Interior.
Notice of receipt of permit applications; request for comment.
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 (Act) prohibits activities with endangered and threatened species unless a Federal permit allows such activity. The Act also requires that we invite public comment before issuing recovery permits to conduct certain activities with endangered species.
Comments on these permit applications must be received on or before March 28, 2016.
Written data or comments should be submitted to the Endangered Species Program Manager, U.S. Fish and Wildlife Service, Region 8, 2800 Cottage Way, Room W-2606, Sacramento, CA 95825 (telephone: 916-414-6464; fax: 916-414-6486). Please refer to the respective permit number for each application when submitting comments.
Daniel Marquez, Fish and Wildlife
The following applicants have applied for scientific research permits to conduct certain activities with endangered species under section 10(a)(1)(A) of the Act (16 U.S.C. 1531
The applicant requests a permit renewal to take (capture, measure, handle, and release) the giant kangaroo rat (
The applicant requests a permit renewal to take (harass/harm while conducting habitat restoration activities) the Behren's silverspot butterfly (
The applicant requests a permit amendment to take (harass by survey and conduct nest monitoring) the southwestern willow flycatcher (
The applicant requests a new permit to take (perform rescue operations, capture, handle, collect, transport, rehabilitate, mark/tag, return to wild, display for educational purposes, perform veterinarian care, and euthanize) the green sea turtle (
The applicant requests a permit amendment to take (harass by survey, capture, mark, and perform telemetry) the Casey's June beetle (
The applicant requests a permit to take (harass by survey, perform biological sampling, capture, handle, and release) the tidewater goby (
The applicant requests a permit renewal to take (harass by pursuit) the Quino checkerspot butterfly (
The applicant requests a permit amendment to take (harass by capture, transport, hold in captivity, propagate, and translocate) the mountain yellow-legged frog (southern California DPS) (
The applicant requests a permit to take (survey by pursuit) the Mount Charleston blue butterfly (
The applicant requests a permit renewal to take (harass by survey, capture, handle, and release) the California freshwater shrimp (
The applicant requests a permit renewal to take (capture, measure, sex, weigh, ear-tag, radio-collar, and collect biological samples) the San Joaquin kit fox (
The applicant requests a permit renewal to take (harass by survey, capture, handle, release, collect adult vouchers, and collect branchiopod cysts) the Conservancy fairy shrimp (
The applicant requests a permit renewal to take (harass by survey, capture, handle, release, collect adult vouchers, and collect branchiopod cysts) the Conservancy fairy shrimp (
The applicant requests a permit amendment to take (capture, handle, collect, and release) the delta smelt (
We invite public review and comment on each of these recovery permit applications. Comments and materials we receive will be available for public inspection, by appointment, during normal business hours at the address listed in the
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
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) prohibit activities with listed species unless Federal authorization is acquired that allows such activities.
We must receive comments or requests for documents on or before March 28, 2016.
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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 an amendment to their permit to import samples from captive-born and wild hutia species (
The applicant requests a permit to import two male captive-bred red-collared brown lemurs (
The applicant requests a permit to export two captive-bred female giant panda (
The applicant requests an amendment to an existing captive-bred wildlife registration under 50 CFR 17.21(g) to add the following species to enhance species propagation or survival: Bolson tortoise (
The applicant requests a permit to import biological samples and carcasses from wild, captive-held, or captive born animals for the purpose of enhancement of the survival of the species and scientific research. This notification covers activities to be conducted by the applicant over a 5-year period.
The following applicants each request a permit to import the sport-hunted trophy of one male bontebok (
Bureau of Land Management, Interior.
Final supplementary rules.
In accordance with the Records of Decision (RODs) for the Moab and Monticello Field Office Approved Resource Management Plans (RMPs) and associated Environmental Impact Statements (EIS), the Bureau of Land Management (BLM) is finalizing supplementary rules for BLM-managed public land in Grand and San Juan Counties, Utah. These final supplementary rules apply to the operation of motorized and mechanized vehicles, camping and campfires, firewood and petrified wood collection, and the use of glass containers.
These final supplementary rules are effective on March 28, 2016.
You may direct inquiries by letter to Jeffrey Smith, Recreation Division Chief, Bureau of Land Management, Moab Field Office, 82 East Dogwood Avenue, Moab, UT 84532, or by email to
Jeffrey Smith, Recreation Division Chief,
The BLM is establishing these final supplementary rules under the authority of 43 Code of Federal Regulations (CFR) 8365.1-6, which allows state directors to establish supplementary rules for the protection of persons, property, and the public lands and resources. This provision allows the BLM to issue rules of less than national effect without codifying the rules in the CFR. These final supplementary rules apply to public lands managed by the Moab and Monticello Field Offices. Maps of the management areas and boundaries can be obtained by contacting the Moab or Monticello Field Office or by accessing Moab or Monticello Field Office Web sites (
In 2008, the BLM finalized RMPs for the Moab and Monticello Field Offices. During the public planning and EIS processes, the BLM identified the need to establish supplementary rules to provide for visitor health and safety, and to protect the cultural and natural resources on the BLM-Moab and Monticello Field Office lands.
The BLM has recorded significant increases in visitation numbers and resulting pressures on recreation areas and archaeological sites in the Moab and Monticello areas. Therefore, the BLM has determined that the final rules are necessary to protect visitor health and safety, prevent natural and cultural resource degradation, and promote high-quality outdoor recreation opportunities. Some of the final rules apply to the entire field office areas, while others apply only to specific geographic areas experiencing the most intense visitation pressures. The geographic applicability of each rule is addressed in sections III and V of this Notice.
The BLM took the following steps to involve the public in developing the plans, which are the basis for the final supplementary rules:
(1) The BLM held five scoping meetings for the Moab and Monticello Field Offices between October 14 and November 13, 2003, in the planning area. A formal scoping period was held between June 6, 2003, and January 31, 2004. The BLM also engaged in Tribal consultation during the planning process.
(2) The Draft RMP/EIS, which included recommendations for published closures, limitations, restrictions, and special rules, was available for a 90-day public comment period. Moab's Draft RMP/EIS was available from August 24, 2007, to November 30, 2007. Four public meetings were held on the Draft RMP beginning September 25, 2007. Monticello's Draft RMP/EIS was available for public review and comment from November 2, 2007, through February 8, 2008. Five public meetings were held on the Draft RMP in January 2008.
(3) The BLM released the Proposed RMPs and Final EISs, which included recommendations for published closures, limitations, restrictions, and special rules on August 1, 2008 (Moab), and on September 5, 2008 (Monticello), for a 30-day comment period.
(4) The BLM summarized all public comments and addressed them in the Final EISs approved on August 1, 2008 (Moab), and September 5, 2008 (Monticello).
The BLM published proposed supplementary rules on July 18, 2014 (79 FR 42035). Twelve comment letters were received during the 90-day public comment period. Eleven of the commenters expressed support for the supplementary rules.
One comment concluded that the dispersed camping limitations applied to the entire Canyon Country District, and expressed opposition to this district-wide imposition of camping rules. Dispersed camping limitations only apply to enumerated areas as defined in the final supplementary rules.
One comment requested that language of Rule 4 (Moab Field Office) and Rule 5 (Monticello Field Office) be changed to conform to the field office's Travel Management Plans. The Travel Management Plans for the Moab and Monticello Field Offices state: “In areas limited to designated routes, only designated routes are open to motorized use.” However, the supplementary rules must describe prohibited acts and, therefore, Moab Rule 4 and Monticello Rule 5 will be clarified by adding the underlined text: “You must not operate a motorized or mechanized vehicle on any route, trail or area not designated as open to such use by a BLM sign, a BLM map or the [appropriate field office] Travel Management Plan.”
Another comment requested that the rules be changed to clarify that researchers should be able to enter archaeological sites via ropes (Monticello Rule 3). Researchers will still be able to access archaeological sites via ropes assuming they have obtained the necessary permits from either the Moab or Monticello Field Office allowing such research to be conducted.
Another comment requested that the definition of climbing aids be clarified (Monticello Rule 3). The rule language is taken directly from the Approved Monticello RMP. The definition of a climbing aid has been augmented to include the use of ladders as requested by the commenter.
Another comment requested a correction of a typographical error in Rule 5 (Monticello), which refers to the Moab, rather than the Monticello, Field Office. The typographical error has been corrected.
One comment disagreed with the proposed rule restricting campfires in Dark Canyon and White Canyon Special Recreation Management Areas (SRMAs) in their entirety. The commenter agreed with the campfire restriction in the canyons, but stated that the restriction on campfires along the rims of these canyons was overly restrictive. The language in the RMP only restricts campfires within the canyons of these SRMAs; it does not restrict campfires on the rims. The wording of the final rule has been changed to clarify the restriction and to more accurately reflect the decision in the RMP.
The BLM-Moab Field Office's jurisdiction is bound by the Grand County line to the north, the Utah-Colorado state line to the east, Harts Draw and Lisbon Valley to the south, and the Green River to the west. The public lands managed by the BLM-Moab Field Office are domestic and international tourist destinations. Since 1999, annual visitation has increased by over 500,000, to 1.8 million visitors per year.
The final supplementary rules are critical to provide for public health and safety and to protect natural and cultural resources on public lands
The final rules regarding camping, campfires, human waste, and wood gathering (Moab Rules 7, 8, 9 and 10) cover areas that receive an estimated 90 percent of the 1.8 million visitors to the Moab Field Office. The restrictions are directly related to the degradation of natural resources, health and safety issues posed by the presence of human waste, and the overuse of undeveloped camping areas where no facilities exist to mitigate visitor impacts.
All of the locations listed for camping restrictions were also specifically listed in the 2008 Moab RMP/EIS. In the majority of the areas affected by camping restrictions, the BLM offers existing campgrounds with toilet facilities and trash disposal, thus ensuring the public's ability to camp on these BLM lands. Public lands that do not receive intense visitation and are not listed in this notice and the 2008 RMP/EIS will not be affected by the final camping rules.
The reasoning for each rule is addressed below.
1. Final rule:
Wood pallets are the wood frames typically used in shipping operations. Burning wood pallets is hazardous to visitors, BLM personnel, wildlife, and livestock because they contain nails that remain behind after the pallets are burned. These nails can cause physical injury to people and animals, and property damage to vehicles. By prohibiting the burning of wood pallets, the BLM will be better able to ensure the safety of people and animals, and to minimize the risk of property damage. This rule applies to all lands managed by the Moab Field Office because the hazards are the same regardless of where the pallets are burned.
2. Final rule:
Camping activities destroy fragile archaeological resources and cause irreparable damage. Although visitors may not intentionally harm archaeological sites when they camp, several activities associated with camping may cause inadvertent damage. For example, campfires can destroy and/or contaminate the archaeological record, which is important to our scientific and historical understanding of archaeological resources. Also, inadvertent trampling from foot traffic and the use of camping shelters causes movement of artifacts and site features. Camping in archaeological sites also increases the risk of illegal artifact collection. Finally, food preparation often results in food scraps being left behind on the ground, and this attracts animals that dig in and damage the site. This rule applies throughout the Moab Field Office because of the high density of archaeological sites across the entire region. The definition of archaeological site is found in the “Definitions” section.
3. Final rule:
Once these rules are finalized, historic sites that are important to the historical record and local and national heritage will be posted as closed to camping. Sites that are included or eligible for inclusion in the National Register of Historic Places are covered under this rule. Camping activities in these areas can destroy fragile historical resources and may cause irreparable damage. Although visitors may not intentionally harm historical sites when they camp, several activities associated with camping cause inadvertent damage. For example, campfires can destroy and/or contaminate the historical record, which is important to our understanding of historical resources. Also, inadvertent trampling from foot traffic and the use of camping shelters causes movement of structures and site features.
4. Final rule:
Mechanized and motorized travel across sensitive desert landscapes and off of established routes can damage scenic, cultural, soil, vegetation, and wildlife habitat resources. The final rule limits these modes of travel to designated routes in order to prevent the degradation of the public land resources that draw people to the area. The proliferation of user-created routes also contributes to confusion among visitors as to their location and this has contributed to an increased demand on search and rescue resources. This rule applies to all lands managed by the Moab Field Office because the resources at risk of damage from vehicles are present across the entire region.
5. Final rule:
In the Moab area, there are two BLM SRMAs where petrified wood can be found exposed on the ground. These two SRMAs experience heavy visitation and, as a result, petrified wood often is collected and removed from the public lands. In order to preserve this resource for future public viewing, the collection of petrified wood is prohibited. This potential restriction was analyzed in the 2008 Moab RMP/EIS. The two SRMAs that are affected by this rule are the Colorado Riverway SRMA, and the high visitation areas within Labyrinth Rim/Gemini Bridges SRMA.
6. Final rule:
The potential for broken glass arising from the possession or use of glass beverage containers presents a health and safety hazard to visitors, especially in areas where children and adults are likely to go barefoot. This final rule applies only to two specific areas that the BLM has determined poses the greatest health and safety risks: The Sand Hill area near the entrance of Arches National Park, where visitors can be harmed by broken glass hidden in the sand; and the Powerhouse/Mill Creek area, a rare swimming hole near the city of Moab, where visitors can be harmed by broken glass in the stream bed. Broken glass has been a problem at these two locations and this rule will help safeguard the public. The geographic descriptions of these locations are listed in the “Final Supplementary Rules.
7. Final rule:
This final rule applies only to specific geographic areas where dispersed camping is degrading natural, visual, and wildlife resources, and/or causing risks to human health. The affected areas, which are enumerated in the Final Supplementary Rules section, reflect the recreation management decision (REC-6) in the 2008 Moab RMP to limit dispersed camping as visitation impacts and environmental conditions warrant. By regulating campsites along scenic highways and byways, the BLM will be better able to preserve the view shed for those travelling along the roads. Also, dispersed camping is negatively affecting crucial Desert Bighorn Sheep lambing areas shown in Map 9 of the Moab RMP. In addition, the presence of campers without the benefit of toilet facilities devalues adjacent private property and poses a health threat to
8. Final rule:
Campfires made without a metal fire ring create an increased risk of wildfire, and resulting damage to natural and cultural resources and harm to public health and safety. In addition, non-designated campfire rings, ashes, and associated garbage that are often left behind at campfire sites have a negative visual impact on the area. Finally, the presence of non-designated campfire rings encourages repeated illegal camping. The areas affected by this rule receive the most intense visitation and so the risks posed by campfires are amplified in these areas. All the geographic locations affected by this final rule are enumerated in the Final Supplementary Rules.
9. Final rule:
Exposure to human waste is a health risk to the public and BLM personnel. The continuous deposition of human waste on or just beneath the surface of the ground—which is largely sand and bare rock in the Moab region—is a risk that is not naturally mitigated. In high visitation areas, the risk of exposure to human waste is amplified. This risk may be mitigated by limiting the methods of disposal. This rule applies to the enumerated areas because they experience the highest levels of visitation and, in the case of the Areas of Critical Environmental Concern and Desert Bighorn Sheep lambing areas, the lands are especially sensitive to human impacts. All geographic locations affected by this final rule are listed in the Final Supplementary Rules.
10. Final rule:
Wood gathering depletes an already limited supply of wood that is not readily replaced in the desert environment. The areas to which this rule applies are at a great risk of resource damage and depletion due to high visitation. In order to ensure that future visitors can enjoy the visual resources, and the sensitive desert ecology is protected, wood gathering in the enumerated areas is prohibited. All geographic locations affected by this final rule are listed in the Final Supplementary Rules.
The BLM-Monticello Field Office's jurisdiction is bound by Harts Draw and Lisbon Valley to the north, the Utah-Colorado state line to the east, the Navajo Indian Reservation and Utah-Arizona state line to the south, and Canyonlands National Park and the Glen Canyon National Recreation Area to the west. A number of archaeological and historical resources are located on the public lands throughout the BLM-Monticello Field Office.
The BLM-Monticello Field Office's final supplementary rules are integral to protecting natural and cultural resources. The office currently enforces supplementary rules that have been effective in protecting resources in the Indian Creek area. See 63 FR 110 (Jan. 2, 1998). The final rules in this notice do not replace existing rules. The final rules supplement existing rules and provide protection to archaeological sites. Each of the final rules was analyzed in the 2008 Monticello RMP and accompanying EIS.
The reasoning for each rule is addressed below.
1. Final rule:
Camping activities destroy fragile archaeological resources and cause irreparable damage. Although visitors may not intentionally harm archaeological sites when they camp, several activities associated with camping cause inadvertent damage. For example, campfires can destroy and/or contaminate the archaeological record, which is important to our scientific and historical understanding of cultural resources. Also, inadvertent trampling from foot traffic and camping shelters causes movement of artifacts and site features. Camping in sites also increases the risk of illegal artifact collection. Finally, food preparation often results in food scraps being left behind on the ground and this attracts animals that dig in and damage the site. This rule applies throughout the Monticello Field Office because of the high density of archaeological sites across the entire region. The definition of archaeological site is found in the “Definitions” section.
2. Final rule:
Individual archaeological sites are closed on a case-by-case basis due to degradation from increased visitation. Closing these sites to the general public protects them for future generations and our national heritage, and also ensures the integrity of the site for further scientific study. These sites may still be enjoyed from outside the barriers but due to the degradation and their fragile nature, further public visitation within the barriers would cause irreparable damage. This rule applies throughout the Monticello Field Office because of the high density of archaeological sites across the entire region. A definition of archaeological site is in the “Definitions” section of the Final Supplementary Rules.
3. Final rule:
The use of ropes or other climbing aids to access archaeological sites can cause irreparable damage and it increases visitation and resulting degradation to otherwise rare and inaccessible sites. Ropes and climbing aids cause damage because climbers put them in direct contact with fragile features such as prehistoric walls and towers. For example, ropes rub against walls as climbers go up and over sites, and climbing aids such as bolts and other protection pieces cause direct damage to the rock where they are placed. Also, the use of climbing aids in general increases human contact with fragile sites and artifacts. Many otherwise inaccessible sites still retain cultural integrity and important scientific information, and the use of ropes and climbing aids to access these sites may destroy what little remains of the cultural heritage and valuable knowledge of the past. This rule applies throughout the Monticello Field Office because of the high density of archaeological sites across the entire region. A definition of archaeological site is in the “Definitions” section of the Final Supplementary Rules.
4. Final rule:
Pets and pack animals cause damage to archaeological sites when they paw, dig in, defecate on, and trample fragile structures and artifacts. In order to promote the integrity and longevity of these sites, pets and pack animals are prohibited. This rule applies throughout the Monticello Field Office because of the high density of archaeological sites across the entire region. A definition of archaeological site is in the “Definitions” section of the Final Supplementary Rules.
5. Final rule:
Similar to the Moab area, mechanized and motorized travel across sensitive desert landscapes and off of established routes in the Monticello area damages scenic, cultural, soil, vegetation, and wildlife habitat resources. The final rule
6. Final rule:
Campfires are prohibited within the canyons of the Dark Canyon SRMA because of the canyons' high density of archaeological resources. Prohibiting campfires will reduce the risk of starting wildfires, which can cause extensive damage to those resources. Also, by prohibiting campfires within the canyons, the BLM will reduce the risk that visitors will remove ancient wood from archaeological sites for fuel. Campfires also are prohibited in the canyon in the White Canyon SRMA because it is a narrow slot canyon in which burning poses significant health and safety risks. In addition, the logjams that people rely on to navigate the canyon are targeted for firewood. By prohibiting campfires within the canyons of these SRMAs, the likelihood of wildfires will be greatly reduced, thereby providing greater protection of human safety, wildlife, livestock, public land resources, and private property.
The BLM has made the following changes to the rules as proposed:
• The BLM has removed the proposed definition of off-highway vehicles because that term is not used in any of the substantive proposed or final supplementary rules.
• The BLM has revised Moab Rule 2 and Monticello Rule 1, both of which prohibit camping in archaeological sites, by adding the phrase, “posted as closed to camping.” The public is not aware of every archaeological site. This revision discloses how the BLM will promote public awareness of the sites that are subject to the supplementary rule.
• The BLM has revised Moab Rule 4 and Monticello Rule 5, both of which prohibit operation of vehicles in locations not designated as open, by revising the description of such locations to read “not designated as open by a BLM sign, a BLM map, or the [Moab or Monticello] Field Office Travel Management Plan.” These revisions disclose the multiple ways that the BLM will promote public awareness of travel designations.
• The BLM has revised Monticello Rule 3, which prohibits using ropes or other climbing aids to access archaeological sites, by adding the phrase, “unless operating under a permit.” This modification allows for researchers to obtain a permit to enter archaeological sites using climbing aids.
• The BLM has revised Monticello Rule 4, which prohibits bringing pets or pack animals to archaeological sites, by adding the phrase, “posted as closed to the public.” The public is not aware of every archaeological site. This revision discloses how the BLM will promote public awareness of the sites that are subject to the supplementary rule.
• The BLM has removed the proposed “Penalties” provision and has replaced it with an “Enforcement” provision that is in accordance with recent BLM policy.
• The BLM has revised the “Exemptions” provision to read as a complete sentence, to add a statement that these rules are not intended to affect any valid existing rights, and to delete a statement pertaining to penalties. These revisions are intended to improve the clarity of the “Exemptions” provision.
These final supplementary rules are not significant regulatory actions and are not subject to review by the Office of Management and Budget under Executive Order 12866. These final supplementary rules will not have an annual effect of $100 million or more on the economy. They will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities. These final supplementary rules will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. The final supplementary rules will not materially alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients; nor does it raise novel legal or policy issues. These supplementary rules merely establish rules of conduct for public use on a limited area of public lands.
These final supplementary rules are consistent with and necessary to properly implement decisions proposed, analyzed, and approved in the 2008 Moab and Monticello Field Office RMPs, Final EISs, and RODs. They establish rules of conduct for public use of public lands managed by the Moab and Monticello Field Offices in order to protect public health and safety and protect natural and cultural resources on the public lands. The approved RMPs, EISs, and RODs are available for review at the physical and on-line locations identified in the
These final rules are a component of a larger planning process for the Moab and Monticello Field Offices (
Congress enacted the Regulatory Flexibility Act (RFA) of 1980, as amended (5 U.S.C. 601-612) to ensure that Government regulations do not unnecessarily or disproportionately burden small entities. The RFA requires a regulatory flexibility analysis if a rule will have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities. These final supplementary rules merely establish rules of conduct for public use on a limited area of public lands. Therefore, the BLM has determined that the final supplementary rules will not have a significant economic impact on a substantial number of small entities.
These final supplementary rules are not “major” as defined under 5 U.S.C. 804(2). The final supplementary rules merely establish rules of conduct for public use on a limited area of public lands and will not affect commercial or business activities of any kind.
These final supplementary rules will not impose an unfunded mandate on State, local, or Tribal governments in the aggregate, or the private sector of more than $100 million per year; nor will they have a significant or unique effect on small governments. The final
These final supplementary rules do not have significant takings implications, nor are they capable of interfering with Constitutionally-protected property rights. The final supplementary rules merely establish rules of conduct for public use on a limited area of public lands and do not affect any valid existing rights. Therefore, the Department of the Interior has determined that these final supplementary rules will not cause a “taking” of private property or require preparation of a takings assessment under this Executive Order.
These final supplementary rules will not have a substantial direct effect on the States, the relationship between the Federal Government and the states, nor the distribution of power and responsibilities among the various levels of government. These final supplementary rules will not conflict with any State law or regulation. Therefore, in accordance with Executive Order 13132, the BLM has determined that these supplementary rules do not have sufficient Federalism implications to warrant preparation of a Federalism Assessment.
Under Executive Order 12988, the Office of the Solicitor has determined that these final supplementary rules will not unduly burden the judicial system and that they meet the requirements of sections 3(a) and 3(b)(2) of the Order.
In accordance with Executive Order 13175, the BLM conducted consultation and coordination with Tribal governments in the development of the RMPs, which form the basis for the final rules.
The final rules are in accordance with the issues raised in consultation with the Tribes during the RMP planning process.
As part of the RMP/EIS scoping process, by letter dated August 1, 2003, the Utah State Director initiated consultation for land use planning with 34 Tribal organizations. Between November 2003 and May 2004, all 34 Tribal organizations were contacted to determine the need for additional or future consultation for the study areas identified in the consultation letter. Meetings were arranged when requested.
In consulting with Tribes or Tribal entities, the BLM emphasized the importance of identifying historic properties having cultural significance to Tribes (commonly referred to as Traditional Cultural Properties). The BLM held meetings with 12 Tribal organizations between December 2003 and May 2004. During these meetings, Tribal organizations were invited to be a cooperating agency in the development of the land use plan. None of the Tribal organizations requested to be a cooperating agency.
In 2006 and 2007, the Moab Field Office manager and archaeologist participated in a second round of meetings with the five Tribes who so requested. At these meetings, the draft RMP/EIS alternatives were discussed with special emphasis on cultural resource issues. A copy of the Moab Draft RMP/EIS was mailed in August 2007 to 12 Tribal organizations. In April 2008, the BLM extended an invitation to meet with Tribal organizations regarding the proposed RMP/Final EIS. Two Tribes accepted this invitation.
The final rules are in accordance with the issues raised in consultation with the Tribes during the RMP planning process.
Consultations with Native Americans on the Monticello RMP began in 2003. The Draft RMP/EIS was sent to the Tribes for review and comment on November 5, 2007. Monticello FO received comments from three tribes, the Hopi Tribe, the Navajo Nation, and the Ute Mountain Ute Tribe. Tribal concerns related to the Draft RMP/EIS were focused on the following:
1. Maintaining access for collection of plants for medicinal, spiritual, and sustenance uses.
2. Protection of the cultural resources in the Allen and Cottonwood Canyon areas, which are important to the culture and history of the White Mesa Utes.
3. Allocation of sites for scientific use.
4. Ongoing consultation on selection and allocation of sites for interpretive development, educational, public, and scientific uses.
5. Inadvertent discoveries.
The BLM provided additional clarification or modifications in developing the Proposed RMP to address these concerns. None of the Tribes filed a protest.
Under Executive Order 13211, the BLM has determined that the final supplementary rules will not comprise a significant energy action, and that they will not have an adverse effect on energy supplies, production, or consumption.
These supplementary rules do not contain information collection requirements that the Office of Management and Budget must approve under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
The principal author of these supplementary rules is Jason Moore, Supervisory Staff Law Enforcement Ranger, Canyon Country District Office, 82 East Dogwood Avenue, Moab, Utah 84532.
For the reasons stated in the preamble, and under the authorities for supplementary rules found at 43 U.S.C. 1740, 43 U.S.C. 315a, and 43 CFR 8365.1-6, the BLM Utah State Director establishes the following supplementary rules to read as follows:
The following definitions apply to the supplementary rules of both the Moab Field Office and the Monticello Field Office.
Unless otherwise authorized, on all public lands within the BLM-Moab Field Office jurisdiction:
(1) You must not burn wood pallets.
(2) You must not camp in archaeological sites posted as closed to camping.
(3) You must not camp in historic sites posted as closed to camping.
(4) You must not operate a motorized or mechanized vehicle on any route, trail, or area not designated as open to such use by a BLM sign, a BLM map, or the Moab Field Office Travel Management Plan.
The following rules apply only to the enumerated areas:
(5) You must not gather petrified wood in the following two areas:
i. The Colorado Riverway SRMA; and
ii. High visitation sites within the Labyrinth Rim/Gemini Bridges SRMA.
(6) You must not possess or use glass beverage containers in the following areas:
i. Moab Canyon Sand Hill within sections 20 and 21 of Township 25 South, Range 21 East, Salt Lake Meridian; and
ii. Powerhouse Lane Trailhead, Lower Mill Creek, and the North Fork of Mill Creek for a distance of one mile from the trailhead at Powerhouse Lane within sections 3, 4, 5, 8, 9 and 10 of Township 26 South, Range 22 East, Salt Lake Meridian.
(7) You must not camp at a non-designated site.
(8) You must not ignite or maintain a campfire at a non-designated site.
(9) You must not dispose of human waste in any container other than a portable toilet.
(10) You must not gather wood.
Rules 7, 8, 9 and 10 apply to lands within one half mile of the following roads:
i. Utah Highway 313;
ii. The Island in the Sky entrance road between Utah Highway 313 and Canyonlands;
iii. The Gemini Bridges Route (Grand County Road No. 118) and the spur route into Bride Canyon within section 24, Township 25 South, Range 20 East, Salt Lake Meridian; and
iv. The Kane Springs Creek Canyon Rim route from U.S. Highway 191 to where it first crosses the eastern boundary of section 20, Township 27 South, Range 22 East, Salt Lake Meridian, exclusive of the State and private land west of Blue Hill in sections 25, 26, 35, and 36.
Rules 7, 8, 9 and 10 also apply to the following:
v. Lands within Long Canyon (Grand County Road No. 135) coincident with a portion of the Colorado Riverway SRMA and the BLM lands within Dead Horse Point State Park.
vi. Lands along both sides of U.S. Highway 191 bounded by Arches National Park on the east, private lands in Moab Valley on the south, the Union Pacific Railroad Potash Rail Spur on the west, and private and state land near the lower Gemini Bridges Trailhead on the north.
vii. Lands located between the upper end of the Nefertiti Rapid parking area in section 1, Township 19 South, Range 16 East, Salt Lake Meridian, along the shoreline of the Green River on the east side of the river to Swaseys Take-Out in section 3, Township 20 South, Range 16 East, Salt Lake Meridian. This includes all public lands between Nefertiti and Swaseys along Grand County Road No. 154.
viii. Lands including Castle Rock, Ida Gulch, Professor Valley, Mary Jane Canyon, and the upper Onion Creek areas that are south of the Colorado Riverway SRMA, below the rims of Adobe and Fisher Mesas, and west of the private land in Fisher Valley.
ix. Lands along the Potash Trail (Grand County Road Nos. 134 and 142, between the western end of Potash
x. Lands located at the southern end of Spanish Valley located on the east and west sides of U.S. Highway 191 to the rim of the valley, south of the San Juan County line to the Kane Springs Creek Canyon Rim Road.
xi. Lands within the Mill Creek Canyon ACEC and the Mill Creek Canyon Wilderness Study Area (WSA). Backpack-type camping within the Mill Creek Canyon ACEC and the Mill Creek Canyon WSA is allowed at sites one-quarter mile or farther from designated roads and greater than 100 feet from Mill Creek and archaeological sites.
xii. Lands within Desert Bighorn Sheep lambing areas (46,319 acres) as shown on Map 9 of the Approved Moab RMP.
Unless otherwise authorized, on all public lands administered by the BLM-Monticello Field Office:
(1) You must not camp in archaeological sites posted as closed to camping.
(2) You must not enter archaeological sites posted as closed to the public.
(3) You must not use ropes or other climbing aids to access archaeological sites, unless operating under a permit.
(4) You must not bring domestic pets or pack animals to archaeological sites, posted as closed to the public.
(5) You must not operate a motorized or mechanized vehicle on any route, trail, or area not designated as open to such use by a BLM sign, a BLM map, or the Monticello Field Office Travel Management Plan.
(6) You must not ignite or maintain a campfire within the canyons in the Dark Canyon SRMA or White Canyon SRMA.
Any person who violates any of these supplementary rules may be tried before a United States Magistrate and fined in accordance with 18 U.S.C. 3571, imprisoned no more than 12 months under 43 U.S.C. 1733(a) and 43 CFR 8360.0-7, or both. In accordance with 43 CFR 8365.1-7, State or local officials may also impose penalties for violations of Utah law.
Any Federal, State, local or military persons acting within the scope of their duties, and members of an organized rescue or firefighting force in performance of an official duty are exempt from these rules. These rules are not intended to affect any valid existing rights.
Approved:
United States International Trade Commission.
March 4, 2016 at 11:00 a.m.
Room 101, 500 E Street SW., Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
1. Agendas for future meetings: None.
2. Minutes.
3. Ratification List.
4. Vote in Inv. Nos. 701-TA-555 and 731-TA-1310 (Preliminary) (Certain Amorphous Silica Fabric from China). The Commission is currently scheduled to complete and file its determinations on March 7, 2016; views of the Commission are currently scheduled to be completed and filed on March 14, 2016.
5. Outstanding action jackets: None.
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By order of the Commission.
Federal Bureau of Investigation, Department of Justice.
60-day notice.
The Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division (CJIS) has submitted the following Information Collection Request to the Office of Management and Budget (OMB) for review and clearance in accordance with the established review procedures of the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 60 days until April 25, 2016.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Mr. Samuel Berhanu, Unit Chief, Federal Bureau of Investigation, CJIS Division, Module E-3, 1000 Custer Hollow Road, Clarksburg, West Virginia 26306; facsimile (304) 625-3566.
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.
Pursuant to the authority contained in section 512 of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. 1142, the 180th open meeting of the Advisory Council on Employee Welfare and Pension Benefit Plans (also known as the ERISA Advisory Council) will be held on March 16, 2016.
The meeting will take place in Room S-2508, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210. The purpose of the open meeting, which will run from 9 a.m. to approximately 3:30 p.m., is to welcome the new members, introduce the Council Chair and Vice Chair, receive an update from the Assistant Secretary of Labor for the Employee Benefits Security Administration, and set the topics to be addressed by the Council in 2016.
Organizations or members of the public wishing to submit a written statement may do so by submitting 30 copies on or before March 9, 2016 to Larry Good, Executive Secretary, ERISA Advisory Council, U.S. Department of Labor, Suite N-5623, 200 Constitution Avenue NW., Washington, DC 20210. Statements also may be submitted as email attachments in text or pdf format transmitted to
Individuals or representatives of organizations wishing to address the Advisory Council should forward their requests to the Executive Secretary or telephone (202) 693-8668. Oral presentations will be limited to ten minutes, time permitting, but an extended statement may be submitted for the record. Individuals with disabilities who need special accommodations, or others who need special accommodations, should contact the Executive Secretary by March 9.
In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C. 2273), and Section 246 of the Trade Act of 1974 (26 U.S.C. 2813), as amended, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance on June 21, 2013 applicable to workers and former workers of Simpson Lumber Company LLC, John's Prairie Operations Division, Shelton, Washington. Workers of the subject firm are engaged in activities related to the production of softwood dimensional lumber.
The intent of the Department's certification is to include all workers at the subject firm who were adversely affected by increased imports of softwood dimensional lumber.
The Department has determined that the workers of Interfor Corporation, NW Region—Tacoma, f/k/a Simpson Lumber Company, Inc., including on-site leased workers from Almond and Associates and, including workers whose unemployment insurance (UI) wages are reported through Simpson Lumber Company, Inc., Tacoma, Washington operated in conjunction with the subject firm and that the workers of Interfor Corporation, NW Region—Tacoma, f/k/a Simpson Lumber Company, Inc., including on-site leased workers from Almond and Associates and, including workers whose unemployment insurance (UI) wages are reported through Simpson Lumber Company, Inc., Tacoma, Washington are impacted
Based on these findings, the Department is amending this certification to also include workers of Interfor Corporation, NW Region—Tacoma, f/k/a Simpson Lumber Company, Inc., including on-site leased workers from Almond and Associates and, including workers whose unemployment insurance (UI) wages are reported through Simpson Lumber Company, Inc., Tacoma, Washington.
The amended notice applicable to TA-W-82,797 is hereby issued as follows:
All workers of Simpson Lumber Company LLC, John's Prairie Operations Division, Shelton, Washington (TA-W-82,797); Simpson Lumber Company LLC, Sawmill and Mill #5, including on-site leased workers of Express Employment Services, Shelton, Washington (TA-W-82,797A); and Interfor Corporation, NW Region—Tacoma, f/k/a Simpson Lumber Company, Inc., including on-site leased workers from Almond and Associates and, including workers whose unemployment insurance (UI) wages are reported through Simpson Lumber Company, Inc., Tacoma, Washington (TA-W-82,797B), who became totally or partially separated from employment on or after June 7, 2012 through June 21, 2015, and all workers in the three groups threatened with total or partial separation from employment on June 21, 2013 through June 21, 2015 are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.
Petitions have been filed with the Secretary of Labor under Section 221(a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Office of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to Section 221(a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Office of Trade Adjustment Assistance, at the address shown below, no later than March 7, 2016.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Office of Trade Adjustment Assistance, at the address shown below, not later than March 7, 2016.
The petitions filed in this case are available for inspection at the Office of the Director, Office of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room N-5428, 200 Constitution Avenue NW., Washington, DC 20210.
In accordance with Section 223 of the Trade Act of 1974, as amended (19 U.S.C. 2273) the Department of Labor herein presents summaries of determinations regarding eligibility to apply for trade adjustment assistance for workers by (TA-W) number issued during the period of January 11, 2016 through February 5, 2016.
In order for an affirmative determination to be made for workers of a primary firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(a) of the Act must be met.
I. Under Section 222(a)(2)(A), the following must be satisfied:
(1) A significant number or proportion of the workers in such workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) the sales or production, or both, of such firm have decreased absolutely; and
(3) One of the following must be satisfied:
(A) Imports of articles or services like or directly competitive with articles produced or services supplied by such firm have increased;
(B) imports of articles like or directly competitive with articles into which one or more component parts produced by such firm are directly incorporated, have increased;
(C) imports of articles directly incorporating one or more component parts produced outside the United States that are like or directly competitive with imports of articles incorporating one or more component parts produced by such firm have increased;
(D) imports of articles like or directly competitive with articles which are produced directly using services supplied by such firm, have increased; and
(4) the increase in imports contributed importantly to such workers' separation or threat of separation and to the decline in the sales or production of such firm; or
II. Section 222(a)(2)(B) all of the following must be satisfied:
(1) A significant number or proportion of the workers in such workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) One of the following must be satisfied:
(A) There has been a shift by the workers' firm to a foreign country in the production of articles or supply of services like or directly competitive with those produced/supplied by the workers' firm;
(B) there has been an acquisition from a foreign country by the workers' firm of articles/services that are like or directly competitive with those produced/supplied by the workers' firm; and
(3) the shift/acquisition contributed importantly to the workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected secondary workers of a firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(b) of the Act must be met.
(1) A significant number or proportion of the workers in the workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) the workers' firm is a Supplier or Downstream Producer to a firm that employed a group of workers who received a certification of eligibility under Section 222(a) of the Act, and such supply or production is related to the article or service that was the basis for such certification; and
(3) either—
(A) the workers' firm is a supplier and the component parts it supplied to the firm described in paragraph (2) accounted for at least 20 percent of the production or sales of the workers' firm; or
(B) a loss of business by the workers' firm with the firm described in paragraph (2) contributed importantly to the workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected workers in firms identified by the International Trade Commission and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(e) of the Act must be met.
(1) The workers' firm is publicly identified by name by the International Trade Commission as a member of a domestic industry in an investigation resulting in—
(A) an affirmative determination of serious injury or threat thereof under section 202(b)(1);
(B) an affirmative determination of market disruption or threat thereof under section 421(b)(1); or
(C) an affirmative final determination of material injury or threat thereof under section 705(b)(1)(A) or 735(b)(1)(A) of the Tariff Act of 1930 (19 U.S.C. 1671d(b)(1)(A) and 1673d(b)(1)(A));
(2) the petition is filed during the 1-year period beginning on the date on which—
(A) a summary of the report submitted to the President by the International Trade Commission under section 202(f)(1) with respect to the affirmative determination described in paragraph (1)(A) is published in the
(B) notice of an affirmative determination described in subparagraph (1) is published in the
(3) the workers have become totally or partially separated from the workers' firm within—
(A) the 1-year period described in paragraph (2); or
(B) not withstanding section 223(b)(1), the 1-year period preceding the 1-year period described in paragraph (2).
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of Section 222(a)(2)(A) (increased imports) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(a)(2)(B) (shift in production or services) of the Trade Act have been met.
In the following cases, the investigation revealed that the eligibility criteria for worker adjustment assistance have not been met for the reasons specified.
The investigation revealed that the criterion under paragraph (a)(1) or (b)(1) (employment decline or threat of separation) of section 222 has not been met.
The investigation revealed that the criteria under paragraphs (a)(2)(A)(i) (decline in sales or production, or both) and (a)(2)(B) (shift in production or services to a foreign country) of section 222 have not been met.
The investigation revealed that the criteria under paragraphs(a)(2)(A) (increased imports) and (a)(2)(B) (shift in production or services to a foreign country) of section 222 have not been met.
After notice of the petitions was published in the
The following determinations terminating investigations were issued because the petitioner has requested that the petition be withdrawn.
The following determinations terminating investigations were issued because the petitions are the subject of ongoing investigations under petitions filed earlier covering the same petitioners.
I hereby certify that the aforementioned determinations were issued during the period of January 11, 2016 through February 5, 2016. These determinations are available on the Department's Web site
Notice.
The Department of Labor (DOL) is submitting the Office of Workers' Compensation Programs (OWCP) sponsored information collection request (ICR) revision titled, “Provider Enrollment Form,” to the Office of Management and Budget (OMB) for review and approval for use in accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501
The OMB will consider all written comments that agency receives on or before March 28, 2016.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the RegInfo.gov Web site at
Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-OWCP, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or sending an email to
44 U.S.C. 3507(a)(1)(D).
This ICR seeks approval under the PRA for revisions to the Provider Enrollment Form, Form OWCP-1168, information collection that requests profile information on a provider enrolling in one or more OWCP benefit programs, so the OWCP can pay for services rendered to beneficiaries using an automated bill processing system. This information collection has been classified as a revision, because while not affecting burden estimates, the agency has updated Form OWCP-1168 including the provider letter, Privacy Act statement, and several items on the form and instructions. Federal Employees' Compensation Act section 9, Black Lung Benefits Act section 413, and Energy Employees Occupational Illness Compensation Program Act of 2000 section 3629(c) authorize this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Notice.
The Department of Labor (DOL) is submitting the Office of Workers' Compensation Programs (OWCP) sponsored information collection request (ICR) titled, “Health Insurance Claim Form,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, in accordance with the Paperwork Reduction Act (PRA) of 1995
The OMB will consider all written comments that agency receives on or before March 28, 2016.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the RegInfo.gov Web site at
Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-OWCP, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or sending an email to
44 U.S.C. 3507(a)(1)(D).
This ICR seeks to extend PRA authority for the Health Insurance Claim Form information collection. The OWCP uses Form OWCP-1500 to process bills for medical services provided by medical professionals other than medical services provided by hospitals, pharmacies, or certain other medical providers. This information is required to pay health care providers for services rendered to injured employees covered under OWCP-administered programs, because appropriate payment cannot be made without documentation of the medical services provided by the health care provider billing the OWCP. The OWCP uses information obtained to identify the patient and determine benefit eligibility. The OWCP also uses the information to decide whether services and supplies received are covered by OWCP programs and to assure that proper payment is made. Federal Employees' Compensation Act section 9, Black Lung Benefits Act section 413, and Energy Employees Occupational Illness Compensation Program Act of 2000 section 3629(c) authorize this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
OMB authorization for an ICR cannot be for more than three (3) years without renewal, and the DOL seeks to extend PRA authorization for this information collection for three (3) more years, without any change to existing requirements. The DOL notes that existing information collection requirements submitted to the OMB receive a month-to-month extension while they undergo review. For additional substantive information about this ICR, see the related notice published in the
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463 as amended), the National Science Foundation announces the following meeting:
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463 as amended), the National Science Foundation announces the following meeting:
3:15 p.m.-3:45 p.m.: NSF debrief MRSEC Executive Committee (Closed)
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463 as amended), the National Science Foundation announces the following meeting:
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463 as amended), the National Science Foundation announces the following meeting:
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463 as amended), the National Science Foundation announces the following meeting:
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463 as amended), the National Science Foundation announces the following meeting:
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463 as amended), the National Science Foundation announces the following meeting:
The National Science Board, 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 in regard to the scheduling of a meeting for the transaction of National Science Board business, as follows:
Tuesday, March 1, 2016 at 8:00-9:00 p.m. EST.
NSB Chair's opening remarks; discussion re construction and initial operations awards for NEON; action item re consideration of NEON Resolution; NSB Chair's closing remarks.
Closed.
This meeting will be held by teleconference originating at the National Science Board Office, National Science Foundation, 4201 Wilson Blvd., Arlington, VA 22230.
Please refer to the National Science Board Web site (
Nuclear Regulatory Commission.
License termination; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is providing public notice of the termination of Source Materials License No. STC-1333. The NRC has terminated the license of the decommissioned Stepan Company facility in Maywood, New Jersey, and has approved the site for unrestricted release.
Notice of termination of Source Materials License No. STC-1333 issued on February 25, 2016.
Please refer to Docket ID NRC-2008-0591 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
•
•
•
Kim Conway, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington DC 20555-0001; telephone: 301-415-1335, email:
The NRC has terminated License No. STC-1333, held by Stepan Company (Stepan), for a site in Maywood, New Jersey, and has approved the site for unrestricted release.
Maywood Chemical Works processed thorium ore at its Maywood facility in northeastern New Jersey between 1916 and 1956. Radioactive contamination resulted from these processing operations and associated material storage and waste disposal practices. In 1959, Stepan Chemical Company (now Stepan Company) purchased the Maywood facility. In the late 1960s, Stepan took corrective measures at some of the former disposal areas by re-locating approximately 19,000 cubic yards of thorium wastes and consolidating the wastes into three onsite burial pits. The three onsite burial pits were subsequently licensed by the NRC under materials license STC-1333.
In 1983, the U.S. Environmental Protection Agency (EPA) included the Maywood facility on its National Priorites List for cleanup under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). In 1984, the U.S. Department of Energy (DOE) assumed responsibility for remediating the Maywood facility (including the NRC-licensed burial pits) and 87 other designated residential, commercial, and government properties that were contaminated by the thorium processing activities at the former Maywood Chemical Works. The Maywood facility was included in the Formerly Utilized Sites Remedial Action Program (FUSRAP) along with the other 87 radiologically contaminated properties.
In October 1997, the administration of FUSRAP was transferred from DOE to the U.S. Army Corps of Engineers (USACE). In September 2003, the Record of Decision (ROD) for Soils and Buildings at the FUSRAP Maywood Superfund Site was issued. In the ROD, the specific concentration-based cleanup criteria for the radioactive contamination in soil for commercial properties (relevant to the Stepan burial pits) was determined to be an average of 15 picocuries/gram (pCi/g) of the combined radium-226 (Ra-226) plus thorium-232 (Th-232) concentrations above background, with an “as low as is reasonably achievable” (ALARA) goal of 5 pCi/g. The ROD also includes a criterion of 100 pCi/g above background for total uranium, which equates to approximately 50 pCi/g of uranium-238 (U-238).
On October 21, 2008, the NRC executed a Confirmatory Order to
On February 14, 2012, the USACE notified the NRC that the remediation response action had been completed for all three of the NRC-licensed burial pits, and pursuant to the MOU, USACE also provided notification of its intent to terminate physical possession of all three licensed burial pits in May 2012 (ADAMS Accession No. ML120880217). On May 7, 2012, NRC license STC-1333 was reinstated when Stepan reestablished possession of the burial pits in accordance with the Confirmatory Order (ADAMS Accession No. ML12159A537). By letter dated August 15, 2014, Stepan submitted a request to the NRC for the termination of their materials license (ADAMS Accession No. ML14259A103). As part of this submittal, Stepan provided the NRC with the USACE's Post Remedial Action Reports for each of the burial pits (ADAMS Accession Nos. ML12046A500, ML12046A502, and ML12046A504, respectively). On July 20, 2015, Stepan provided a response to the NRC's request for additional information (ADAMS Accession No. ML15217A026) and a radiological dose assessment (ADAMS Accession No. ML15217A025).
The NRC has now completed its review of the reports and associated documents according to NUREG-1757, “Consolidated Decommissioning Guidance,” and guidance in the Multi-Agency Radiation Survey and Site Investigation Manual) MARSSIM (NUREG 1575). The NRC staff has concluded that the Final Site Survey (FSS) design and data collected were adequate to characterize the residual radioactivity in the NRC-licensed portions of the Stepan site. The NRC staff also concluded that the data analysis and dose assessments performed are appropriate and that the projected dose from residual radioactivity in these areas is less than the 25 mrem/year dose criterion in 10 CFR 20.1402. Stepan has also submitted a completed NRC Form 314 (“Certificate of Disposition of Materials”) and otherwise met the requirements of 10 CFR 40.42(j), the NRC regulation concerning the final step in the decommissioning process for a 10 CFR part 40 source materials license. For these reasons, the NRC staff has determined that Stepan has demonstrated that the site will meet the radiological criteria for license termination described in 10 CFR 20.1402. Therefore, Source Materials License No. STC-1333 has been terminated.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Interim staff guidance; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing Interim Staff Guidance (ISG) DSS-ISG-2016-01, “Clarification of Licensee Actions in Receipt of Enforcement Discretion Per Enforcement Guidance Memorandum EGM 15-002, `Enforcement Discretion for Tornado-Generated Missile Protection Noncompliance.' ” This ISG provides clarifying guidance for staff understanding of expectations for consistent oversight associated with implementing enforcement discretion for tornado missile protection noncompliance per EGM 15-002 and allows consistent enforcement and regulation of licensees that implement corrective actions outlined in EGM 15-002.
This guidance is effective on February 25, 2016.
Please refer to Docket ID NRC-2015-0231 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
• Federal Rulemaking Web site: Go to
• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at
• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.
Todd Keene, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-1994, email:
Following the issuance of EGM 15-002 (ADAMS Accession No. ML15111A269), the staff received stakeholder comments requesting clarification in complying with NRC expectations for implementing enforcement discretion in accordance with the EGM, specifically the implementation of compensatory measures and guidance on addressing operability status of equipment once the EGM is implemented. The NRC staff has developed ISG DSS-ISG-2016-01, “Clarification of Licensee Actions in Receipt of Enforcement Discretion Per Enforcement Guidance Memorandum (EGM) 15-002, `Enforcement Discretion for Tornado-Generated Missile Protection Noncompliance,' ” to provide clarification concerning the implementation of EGM 15-002.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Policy statement; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing its Insider Threat Program Policy Statement that establishes the NRC Insider Threat Program in accordance with Executive Order (E.O.) 13587, “Structural Reforms to Improve the Security of Classified Networks and the Responsible Sharing and Safeguarding of Classified Information.” The purpose of the policy statement is to ensure the responsible sharing and safeguards of classified information, including restricted data and safeguards information, by deterring employees, contractors, and detailees holding national security clearances from becoming insider threats, detecting insiders who pose a risk to protected information, and mitigating risks.
The NRC's Insider Threat Program Policy Statement is effective February 25, 2016.
Please refer to Docket ID NRC-2016-0033 when contacting the NRC about the availability of information for this policy statement. You may access publicly-available information related to this policy statement by any of the following methods:
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•
•
Denis Brady, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-5768; email:
Executive Order 13587, “Structural Reforms to Improve the Security of Classified Networks and the Responsible Sharing and Safeguarding of Classified Information,” directs all executive branch departments and agencies that have access to classified information to implement reforms to ensure responsible sharing and safeguarding of classified information on computer networks, consistent with appropriate protections for privacy and civil liberties (76 FR 63811; October 13, 2011). The E.O. also established the National Insider Threat Task Force, which issued the “National Insider Threat Policy” and the “Minimum Standards for Executive Branch Insider Threat Programs” on November 21, 2012 (
The purpose of this policy statement is to ensure the responsible sharing and safeguards of classified information, including restricted data and safeguards information, by deterring employees, contractors, and detailees holding national security clearances from becoming insider threats, detecting insiders who pose a risk to protected information, and mitigating risks. The policy statement addresses the background, purpose, applicability, policy components, and references. This policy statement is not applicable to members of the public.
The NRC's Insider Threat Program Policy Statement is published in its entirety in the attachment to this document, and is also available in ADAMS under Accession No. ML16039A282.
This policy statement does not contain information collection requirements and, therefore, is not subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
This policy statement is not a rule as defined in the Congressional Review Act (5 U.S.C. 801-808).
For the Nuclear Regulatory Commission.
1. Background. Executive Order (E.O.) 13587, “Structural Reforms to Improve the Security of Classified Networks and the Responsible Sharing and Safeguarding of Classified Information,” directs all executive branch departments and agencies that have access to classified information to implement reforms to ensure responsible sharing and safeguarding of classified information on computer networks that are consistent with appropriate protections for privacy and civil liberties (October 7, 2011). The Executive Order also established the National Insider Threat Task Force, which issued the “National Insider Threat Policy” and the “Minimum Standards for Executive Branch Insider Threat Programs” on November 21, 2012. In order to execute its primary mission essential functions, the Nuclear Regulatory Commission (NRC) has access to and possesses classified information, including classified information on computer networks, which it protects through appropriate security procedures.
2. Purpose. This document establishes the NRC Insider Threat Program (ITP) Policy in accordance with E.O. 13587 and the Atomic Energy Act of 1954, as amended (AEA). The primary purpose of the ITP is to protect information classified under E.O. 13526 or section 142 of the AEA (restricted data), or that is safeguards information under section 147 of the AEA, as well as any such information on classified networks, by
3. Applicability. This policy is applicable to all NRC employees, contractors, and detailees to the NRC from other government agencies who have national security clearances and access to information classified under E.O. 13526 or section 142 of the AEA or that is safeguards information under section 147 of the AEA.
4. Policy. It is NRC policy that:
(a) All NRC employees, contractors, and detailees must comply with the requirements of all current and applicable Federal laws, regulations, and policies concerning the responsible sharing and safeguarding of classified information. This includes reporting insider threat information related to potential espionage, violent acts against the Government or the Nation, and unauthorized access to or disclosure of information classified under E.O. 13526 or section 142 of the AEA or that is safeguards information under section 147 of the AEA, and any such information that is available on interconnected U.S. Government computer networks and systems.
(b) Consistent with established law and policy, including the Privacy Act, the ITP uses information made available to it to identify, analyze, and respond to potential insider threats at the NRC. The ITP itself does not maintain or store any personal information. The information is maintained by the program office in which the information resides.
(c) All NRC employees, contractors, and detailees involved in any ITP actions (including, but not limited to, gathering information or conducting inquiries) do so in accordance with all applicable Federal laws, regulations, and policies, including those pertaining to whistleblower protections, civil liberties, civil rights, criminal rights, personnel records, medical records, and privacy rights. The ITP consults with and obtains the concurrence of the NRC's Office of the General Counsel (OGC) on questions concerning these legal protections in insider threat activities, inquiries, assistance in investigations by law enforcement authorities, and other matters.
(d) The ITP refers to the U.S. Federal Bureau of Investigation (FBI) information indicating that classified information is being, or may have been, disclosed in an unauthorized manner to a foreign power or an agent of a foreign power, in accordance with 50 U.S.C. 3381(e). Subject to an appropriate inquiry by the ITP, other information indicating unauthorized access to or misuse of classified information, classified networks, or safeguards information is referred to the NRC's Office of Inspector General (OIG). OGC will provide ongoing legal advice to the ITP as appropriate.
5. References.
A. The Atomic Energy Act of 1954, as amended; 42 U.S.C. 2011
B. 50 U.S.C. 3381(e).
C. Inspector General Act of 1978, as amended; 5 U.S.C. Appx § 1
D. Executive Order 10450, “Security Requirements for Government Employment,” April 27, 1953 (18 FR 2489; April 29, 1953).
E. Executive Order 12333, “United States Intelligence Activities,” dated December 4, 1981 (as amended by Executive Orders 13284 (2003), 13355 (2004), and 13470 (2008) (46 FR 59941; December 8, 1981).
F. Executive Order 12829, “National Industrial Security Program,” dated January 6, 1993 (58 FR 3479; January 8, 1993).
G. Executive Order 12968, “Access to Classified Information,” dated August 4, 1995 (60 FR 40245; August 7, 1995).
H. Executive Order 13526, “Classified National Security Information,” dated December 29, 2009 (75 FR 707; January 5, 2010).
I. Executive Order 13587, “Structural Reforms to Improve the Security of Classified Networks and the Responsible Sharing and Safeguarding of Classified Information,” dated October 7, 2011 (76 FR 63811; October 13, 2011).
J. NRC Management Directive 7.4, “Reporting Suspected Wrongdoing and Processing of OIG Referrals.”
K. NRC Management Directive, Volume 12, “Security.”
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on February 18, 2016, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on February 18, 2016, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on February 18, 2016, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on February 18, 2016, it filed with the Postal Regulatory Commission a
Pursuant to Section 19(b)(1)
The Exchange proposes to list and trade shares of the following under NYSE Arca Equities Rule 8.600 (“Managed Fund Shares”): JPMorgan Diversified Alternative ETF. The text of 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 list and trade shares (“Shares”) of the following under NYSE Arca Equities Rule 8.600, which governs the listing and trading of Managed Fund Shares
The Fund is a series of J.P. Morgan Exchange-Traded Fund Trust (“Trust”), a Delaware statutory trust. J.P. Morgan Investment Management Inc. (“Adviser”) will be the investment adviser to the Fund. The Adviser is a wholly-owned subsidiary of JPMorgan Asset Management Holdings Inc., which is a wholly-owned subsidiary of JPMorgan Chase & Co. (“JPMorgan Chase”), a bank holding company. JPMorgan Funds Management, Inc. (“Administrator”) will provide administrative services for and will oversee the other service providers of the Fund. SEI Investments Distribution Co. (“Distributor”) will be the distributor of the Fund's Shares.
Commentary .06 to Rule 8.600 provides that, if the investment adviser to the investment company issuing Managed Fund Shares is affiliated with a broker-dealer, such investment adviser shall erect a “fire wall” between the investment adviser and the broker-dealer with respect to access to information concerning the composition and/or changes to such investment company portfolio.
According to the Registration Statement, the Fund will seek to provide long term, total return. The Fund will seek to achieve its investment objective by allocating assets across several different investment strategies, including traditional and alternative investment strategies, such as those utilized by certain hedged funds.
The strategies identified by the Adviser for the Fund fall into the following broad categories: “Equity Long/Short”, “Event Driven” and “Global Macro Based” (including equities, fixed income, currency and commodities) strategies, as described below. Within these broad strategies, the Adviser believes that it has identified a set of return sources present in markets that result from, among other things, assuming a particular risk or taking advantage of a behavioral bias (each a “return factor”).
According to the Registration Statement, under normal market conditions,
The Fund may employ the following investment strategies:
• Equity Long/Short:
• Event Driven:
• Global Macro Based Strategies:
According to the Registration Statement, the Fund will invest its assets globally (including in emerging
According to the Registration Statement, the Adviser will make use of derivatives as described below,
According to the Registration Statement, the amount that may be invested in any one instrument will vary and generally depend on the investment strategies and return factors employed by the Adviser at that time. However, with the exception of specified investment limitations for certain assets described below, there are no stated percentage limitations on the amount that can be invested in any one type of instrument, and the Adviser may, at times, invest in a smaller number of instruments. Moreover, the Fund will generally be unconstrained by any particular capitalization, style or sector and may invest in any region or country, including emerging markets.
The Fund will purchase a particular instrument when the Adviser believes that such instrument will allow the Fund to gain the desired exposure to a return factor. Conversely, the Fund will consider selling a particular instrument when it no longer provides the desired exposure to a return factor. In addition, investment decisions will take into account a return factor's contribution to the Fund's overall volatility.
According to the Registration Statement, under normal market conditions, the Fund will invest principally (
The Fund may invest in exchange-listed-and-traded common stocks, preferred stocks,
The Fund may invest in exchange-listed and over-the-counter (“OTC”) Depositary Receipts.
The Fund may invest in the following cash and cash equivalents: investments in money market funds (for which the Adviser and/or its affiliates serve as investment adviser or administrator), bank obligations,
The Fund may invest in corporate debt.
The Fund may purchase and sell futures contracts on currencies and fixed income securities, and futures contracts on indexes of securities.
The Fund may invest in OTC and exchange-traded call and put options on
In addition to money market funds referenced above, the Fund may invest in shares of non-exchange-traded investment company securities including investment company securities for which the Adviser and/or its affiliates may serve as investment adviser or administrator, to the extent permitted by Section 12(d)(1)
The Fund may invest in exchange traded funds (“ETFs”).
The Fund may invest in swaps as follows: credit default swaps (“CDSs”), interest rate swaps, currency swaps, total return swaps on equity securities and equity index swaps.
The Fund may invest in forward and spot currency transactions. Such investments consist of non-deliverable forwards (“NDFs”), foreign forward currency contracts,
The Fund may invest in U.S. Government obligations, which may include direct obligations of the U.S. Treasury, including Treasury bills, notes and bonds, all of which are backed as to principal and interest payments by the full faith and credit of the United States, and separately traded principal and interest component parts of such obligations that are transferable through the Federal book-entry system known as Separate Trading of Registered Interest and Principal of Securities (STRIPS) and Coupons Under Book Entry Safekeeping (“CUBES”).
The Fund may invest in U.S. government sponsored mortgage-backed securities.
While the Fund, under normal market conditions, will invest at least fifty percent (50%) of its assets in the securities and financial instruments described above, the Fund may invest its remaining assets in other assets and financial instruments, as described below.
The Fund will gain exposure to commodity markets indirectly by investing up to 15% of its total assets in the Subsidiary. The Subsidiary also will be advised by the Adviser. The Subsidiary will only invest in commodity futures contracts and will also hold any necessary cash or other short-term investments as collateral. The Fund will not invest in such commodity futures contracts directly.
The Fund may invest in Brady Bonds, which are securities created through the exchange of existing commercial bank loans to public and private entities in certain emerging markets for new bonds in connection with debt restructurings.
The Fund may invest in U.S. and non-U.S. convertible securities, which are bonds or preferred stock that can convert to common stock. The Fund may invest in inflation-linked debt securities, which include fixed and floating rate debt securities of varying maturities issued by the U.S. government and foreign governments.
The Fund may invest in obligations of supranational agencies, which are chartered to promote economic development and are supported by various governments and governmental agencies.
The Fund may invest in reverse repurchase agreements.
The Fund may invest in sovereign obligations, which are investments in debt obligations issued or guaranteed by a foreign sovereign government or its agencies, authorities or political subdivisions.
The Fund may invest in U.S. Government agency securities (excluding U.S. government sponsored mortgage-backed securities, referenced above), which are securities issued or guaranteed by agencies and instrumentalities of the U.S. government. These include all types of securities issued by the Government National Mortgage Association (“Ginnie Mae”), the Federal National Mortgage Association (“Fannie Mae”) and the Federal Home Loan Mortgage Corporation (“Freddie Mac”), including funding notes, subordinated benchmark notes, collateralized mortgage obligations (“CMOs”) and real estate mortgage investment conduits (“REMICs”).
The Fund may invest in equity and debt securities that are restricted securities (Rule 144A securities).
Under normal market conditions, the Fund may invest no more than 5% of its assets in OTC common stocks, preferred stocks, warrants, rights and contingent value rights (“CVRs”) of U.S. and foreign corporations (including emerging market securities).
The Fund may hold up to an aggregate amount of 15% of its net assets in illiquid assets (calculated at the time of investment), including Rule 144A securities deemed illiquid by the Adviser, consistent with Commission guidance. The Fund will monitor its portfolio liquidity on an ongoing basis to determine whether, in light of current circumstances, an adequate level of liquidity is being maintained, and will consider taking appropriate steps in order to maintain adequate liquidity if, through a change in values, net assets, or other circumstances, more than 15% of the Fund's net assets are held in illiquid assets. Illiquid assets include securities subject to contractual or other restrictions on resale and other instruments that lack readily available markets as determined in accordance with Commission staff guidance.
The Fund may invest in other investment companies to the extent permitted by Section12(d)(1) of the 1940 Act and rules thereunder and/or any applicable exemption or exemptive order under the 1940 Act with respect to such investments.
The Fund may invest in securities denominated in U.S. dollars, major reserve currencies, and currencies of other countries in which the Fund may invest.
The Fund may investment in both investment grade and high yield debt securities.
The Fund intends to qualify for and to elect treatment as a separate regulated investment company (“RIC”) under Subchapter M of the Internal Revenue Code.
The Fund is a diversified series of the Trust. The Fund intends to meet the diversification requirements of the 1940 Act.
The Fund's investments, including derivatives, will be consistent with the Fund's investment objective and will not be used to enhance leverage (although certain derivatives may result in leverage). That is, while the Fund will be permitted to borrow as permitted under the 1940 Act, the Fund's (and the Subsidiary's) investments will not be used to seek performance that is the multiple or inverse multiple (
The Fund proposes to seek certain exposures through transactions in the specific derivative instruments described above. The derivatives usage may occur in the Fund or the Subsidiary (provided that the Subsidiary will invest only in commodity futures). The derivatives to be used are futures, swaps, NDFs, foreign forward currency contracts, and call and put options. Derivatives, which are instruments that have a value based on another instrument, exchange rate or index, may also be used as substitutes for securities in which the Fund can invest. The Fund may use these derivative instruments to increase gain, to effectively gain targeted exposure from its cash positions, to hedge various investments and/or for risk management.
Investments in derivative instruments will be made in accordance with the 1940 Act and consistent with the Fund's investment objective and policies. To limit the potential risk associated with such transactions, the Fund will segregate or “earmark” assets determined to be liquid by the Adviser in accordance with procedures established by the Trust's Board of Trustees (the “Board”) and in accordance with the 1940 Act (or, as permitted by applicable regulation, enter into certain offsetting positions) to cover its obligations under derivative instruments. These procedures have been adopted consistent with Section 18 of the 1940 Act and related Commission guidance. In addition, the Fund will include appropriate risk disclosure in its offering documents, including leveraging risk. Leveraging risk is the risk that certain transactions of the Fund, including the Fund's use of derivatives, may give rise to leverage, causing the Fund to be more volatile than if it had not been leveraged.
According to the Registration Statement, the consideration for a purchase of Creation Units will generally be cash, but may consist of an in-kind deposit of a designated portfolio of equity securities and other investments (the “Deposit Instruments”) and an amount of cash computed as described below (the “Cash Amount”) under some circumstances. The Cash Amount together with the Deposit Instruments, as applicable, are referred to as the “Portfolio Deposit,” which represents the minimum initial and subsequent investment amount for a Creation Unit of the Fund.
In the event the Fund requires Deposit Instruments and a Cash Amount in consideration for purchasing a Creation Unit, the function of the Cash Amount is to compensate for any differences between the NAV per Creation Unit and the Deposit Amount (as defined below). The Cash Amount would be an amount equal to the difference between the NAV of the Shares (per Creation Unit) and the “Deposit Amount,” which is an amount equal to the aggregate market value of the Deposit Instruments. If the Cash Amount is a positive number (the NAV per Creation Unit exceeds the Deposit Amount), the Authorized Participant will deliver the Cash Amount. If the Cash Amount is a negative number (the NAV per Creation Unit is less than the Deposit Amount), the Authorized Participant will receive the Cash Amount. The Administrator, through the National Securities Clearing Corporation (“NSCC”), will make available on each business day, immediately prior to the opening of business on the Exchange (currently 9:30 a.m. Eastern time (“E.T.”)), the list of the names and the required number of shares of each Deposit Instrument to be included in the current Portfolio Deposit (based on information at the end of the previous business day), as well as information regarding the Cash Amount for the Fund. Such Portfolio Deposit is applicable, subject to any adjustments as described below, in order to effect creations of Creation Units of the Fund until such time as the next-announced Portfolio Deposit composition is made available.
The identity and number of the Deposit Instruments and Cash Amount required for the Portfolio Deposit for the Fund changes as rebalancing adjustments and corporate action events are reflected from time to time by the Adviser with a view to the investment objective of the Fund. In addition, the Trust reserves the right to accept a basket of securities or cash that differs from Deposit Instruments or to permit the substitution of an amount of cash (
In addition to the list of names and numbers of securities constituting the current Deposit Instruments of a Portfolio Deposit, the Administrator, through the NSCC, also will make available on each business day, the estimated Cash Component adjusted through the close of the trading day.
To be eligible to place orders with the Distributor to create Creation Units of the Fund, an entity or person either must be (1) a “Participating Party,”
Shares may be redeemed only in Creation Units at their NAV next determined after receipt of a redemption request in proper form by the Distributor, only on a business day and only through a Participating Party or DTC Participant who has executed a Participant Agreement. The Trust will not redeem Shares in amounts less than Creation Units.
Although the Fund will generally pay redemption proceeds in cash, there may be instances when it will make redemptions in-kind. In these instances, the Administrator, through NSCC, makes available immediately prior to the opening of business on the Exchange (currently 9:30 a.m. E.T.) on each day that the Exchange is open for business, the identity of the Fund's assets and/or an amount of cash that will be applicable (subject to possible amendment or correction) to redemption requests received in proper form on that day. Unless cash redemptions are permitted or required for the Fund, the redemption proceeds for a Creation Unit generally consist of Redemption Instruments as announced by the Administrator on the business day of the request for redemption, plus cash in an amount equal to the difference between the NAV of the Shares being redeemed, as next determined after a receipt of a request in proper form, and the value of the Redemption Instruments, less the redemption transaction fee and variable fees described below.
Should the Redemption Instruments have a value greater than the NAV of the Shares being redeemed, a compensating cash payment to the Trust equal to the differential plus the applicable redemption transaction fee will be required to be arranged for by or on behalf of the redeeming shareholder. The Fund reserves the right to honor a redemption request by delivering a basket of securities or cash that differs from the Redemption Instruments.
The NAV of Shares, under normal market conditions, will be calculated each business day as of the close of the Exchange, which is typically 4:00 p.m. E.T. On occasion, the Exchange will close before 4:00 p.m. E.T. When that happens, NAV will be calculated as of the time the Exchange closes. The price at which a purchase of a Creation Unit is effected is based on the next calculation of NAV after the order is received in proper form.
Securities for which market quotations are readily available will generally be valued at their current market value. Other securities and assets, including securities for which market quotations are not readily available or market quotations are determined not to be reliable; or, if their value has been materially affected by events occurring after the close of trading on the exchange or market on which the security is principally traded but before the Fund's NAV is calculated, may be valued at fair value in accordance with policies and procedures adopted by the Trust's Board of Trustees. Fair value represents a good faith determination of the value of a security or other asset based upon specifically applied procedures. Fair valuation may require subjective determinations.
U.S. exchange-traded common stocks, preferred stocks, warrants, rights, REITs, and Depositary Receipts will be valued at the last sale price or official market closing price on the primary exchange on which such security trades. Exchange-traded non-U.S. equity securities will be valued at the last sale price or official market closing price on the primary exchange on which such security trades.
OTC equity securities will be priced utilizing market quotations provided by approved pricing services or by broker quotation. For OTC warrants, rights and CVRs, if no pricing service or broker quotation is available, then the warrant, right or CVR will be valued intrinsically based on the terms of issuance.
Shares of non-exchange-traded open-end investment companies will be valued at their current day NAV published by the relevant fund. ETFs will be valued at the last sale price or official market closing price on the primary exchange on which such ETF trades.
CDS, interest rate swaps, currency swaps, total return swaps, index swaps, and commodity swaps will be priced utilizing market quotations provided by approved pricing services.
Forward and spot currency transactions will be valued based on foreign exchange rates obtained from an approved pricing service, using spot and forward rates available at the time net asset value of the Fund is calculated.
Commercial paper will be valued at prices supplied by approved pricing services which is generally based on bid-side quotations.
Options traded on U.S. exchanges shall be valued at the composite mean price, using the National Best Bid and Offer quotes (“NBBO”) on the valuation date. NBBO consists of the highest bid price and lowest ask price across any of the exchanges on which an option is quoted.
Options traded on foreign exchanges are valued at the settled price on the valuation date, or if no settled price is available, at the last sale price available prior to the calculation of the Fund's net asset value.
Futures traded on U.S. and foreign exchanges are valued at the settled price, or if no settled price is available, at the last sale price as of the close of the exchanges on the valuation date.
OTC derivatives are priced utilizing market quotations provided by approved pricing services.
In addition, non-Western Hemisphere equity securities or derivatives involving non-Western Hemisphere equity reference obligations are normally subject to adjustment (fair value) each day by applying a fair value factor provided by approved pricing
Convertible securities will be valued at prices supplied by approved pricing services which is generally based on bid-side quotations.
Corporate debt securities will be valued at prices supplied by approved pricing services which is generally based on bid-side quotations.
Inflation-linked debt securities, mortgage-backed securities, bank obligations, Brady Bonds, short-term funding agreements, repurchase agreements, reverse repurchase agreements, U.S. Government agency securities, U.S. Government obligations, sovereign obligations, obligations of supranational agencies and Rule 144A securities will be valued at prices supplied by approved pricing services which is generally based on bid-side quotations.
On each business day, before commencement of trading in Fund Shares on NYSE Arca, the Fund will disclose on its Web site the identities and quantities of the portfolio instruments and other assets held by the Fund that will form the basis for the Fund's calculation of NAV at the end of the business day.
In order to provide additional information regarding the intra-day value of Shares of the Fund, the NYSE Arca or a market data vendor will disseminate every 15 seconds through the facilities of the Consolidated Tape Association or other widely disseminated means an updated Intra-day Indicative Value (“IIV”) for the Fund as calculated by a third party market data provider.
A third party market data provider will calculate the IIV for the Fund. The third party market data provider may use market quotes if available or may fair value securities against proxies (such as swap or yield curves).
With respect to specific derivatives:
• NDFs and foreign forward currency contracts may be valued intraday using market quotes, or another proxy as determined to be appropriate by the third party market data provider.
• Futures may be valued intraday using the relevant futures exchange data, or another proxy as determined to be appropriate by the third party market data provider.
• Interest rate swaps and cross-currency swaps may be mapped to a swap curve and valued intraday based on changes of the swap curve, or another proxy as determined to be appropriate by the third party market data provider.
• Credit default swaps may be valued using intraday data from market vendors, or based on underlying asset price, or another proxy as determined to be appropriate by the third party market data provider.
• Total return swaps may be valued intraday using the underlying asset price, or another proxy as determined to be appropriate by the third party market data provider.
• Exchange listed options may be valued intraday using the relevant exchange data, or another proxy as determined to be appropriate by the third party market data provider.
• OTC options may be valued intraday through option valuation models (
The Fund's disclosure of derivative positions in the Disclosed Portfolio will include information that market participants can use to value these positions intraday. On a daily basis, the Adviser will disclose on the Fund's Web site the following information regarding each portfolio holding, as applicable to the type of holding: Ticker symbol, CUSIP number or other identifier, if any; a description of the holding (including the type of holding, such as the type of swap); the identity of the security, commodity, index or other asset or instrument underlying the holding, if any; for options, the option strike price; quantity held (as measured by, for example, par value, notional value or number of shares, contracts or units); maturity date, if any; coupon rate, if any; effective date, if any; market value of the holding; and the percentage weighting of the holding in the Fund's portfolio. The Web site information will be publicly available at no charge.
The Adviser believes there will be minimal impact to the arbitrage mechanism as a result of the use of derivatives. Market makers and participants should be able to value derivatives as long as the positions are disclosed with relevant information. The Adviser believes that the price at which Shares trade will continue to be disciplined by arbitrage opportunities created by the ability to purchase or redeem creation Shares at their NAV, which should ensure that Shares will not trade at a material discount or premium in relation to their NAV.
The Adviser does not believe there will be any significant impacts to the settlement or operational aspects of the Fund's arbitrage mechanism due to the use of derivatives. Because derivatives generally are not eligible for in-kind transfer, they will typically be substituted with a “cash in lieu” amount when the Fund processes purchases or redemptions of creation units in-kind.
The Fund's Web site (
The Fund's portfolio holdings (including those of the Subsidiary) will be disclosed on its Web site daily after the close of trading on the Exchange and prior to the opening of trading on the Exchange the following day.
Investors can also obtain the Trust's Statement of Additional Information (“SAI”), the Fund's Shareholder Reports, and its Form N-CSR and Form N-SAR, filed twice a year. The Trust's SAI and Shareholder Reports are
Quotation and last sale information for the Shares and for portfolio holdings of the Fund that are U.S. exchange listed, including common stocks, preferred stocks, warrants, rights, ETFs, REITs, and U.S. exchange-traded ADRs will be available via the Consolidated Tape Association (“CTA”) high speed line. Quotation and last sale information for such U.S. exchange-listed securities, as well as futures will be available from the exchange on which they are listed. Quotation and last sale information for exchange-listed options cleared via the Options Clearing Corporation will be available via the Options Price Reporting Authority. Quotation and last sale information for non-U.S. equity securities will be available from the exchanges on which they trade and from major market data vendors, as applicable. Price information for OTC common stocks, preferred stocks, warrants, rights and CVRs will be available from the Fund's Web site or from major market data vendors.
Quotation information for OTC options, cash equivalents, swaps, Brady Bonds, inflation-linked debt instruments, obligations of supranational agencies, money market funds, non-exchange-listed investment company securities (other than money market funds), Rule 144A securities, U.S. Government obligations, U.S. Government agency obligations, sovereign obligations, corporate debt, inflation-linked debt securities, and reverse repurchase agreements may be obtained from brokers and dealers who make markets in such securities or through nationally recognized pricing services through subscription agreements. The U.S. dollar value of foreign securities, instruments and currencies can be derived by using foreign currency exchange rate quotations obtained from nationally recognized pricing services. Forwards and spot currency price information will be available from major market data vendors.
In addition, the Portfolio Indicative Value (“PIV”), as defined in NYSE Arca Equities Rule 8.600 (c)(3), will be widely disseminated by one or more major market data vendors at least every 15 seconds during the Core Trading Session.
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of the Fund.
The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. Shares will trade on the NYSE Arca Marketplace from 4:00 a.m. to 8:00 p.m. E.T. in accordance with NYSE Arca Equities Rule 7.34 (Opening, Core, and Late Trading Sessions). 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.
The Shares of the Fund will conform to the initial and continued listing criteria under NYSE Arca Equities Rule 8.600. The Exchange represents that, for initial and/or continued listing, the Fund will be in compliance with Rule 10A-3
The Exchange represents that trading in the Shares will be subject to the existing trading surveillances, administered by regulatory staff of the Exchange, or 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 regulatory staff of the Exchange or FINRA, on behalf of the Exchange, will communicate as needed regarding trading in the Shares, certain exchange-listed equity securities, certain futures, and certain exchange-traded options with other markets and other entities that are members of the Intermarket Surveillance Group (“ISG”), and FINRA, on behalf of the Exchange, may obtain trading information regarding trading such securities and financial instruments from such markets and other entities. In addition, the regulatory staff of the Exchange may obtain information regarding trading in such securities and financial instruments from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.
Under normal circumstances, the non-U.S. equity securities in the Fund's portfolio will meet the following criteria at time of purchase: (1) Non-U.S. equity securities each shall have a minimum market value of at least $100 million; (2) non-U.S. equity securities each shall have a minimum global monthly trading volume of 250,000 shares, or minimum global notional volume traded per month of $25,000,000, averaged over the last six months; (3) the most heavily weighted non-U.S. equity security shall not exceed 25% of the weight of the Fund's entire portfolio, and, to the extent applicable, the five most heavily weighted non-U.S. equity securities shall not exceed 60% of the weight of the Fund's entire portfolio; and (4) each non-U.S. equity security shall be listed and traded on an exchange that has last-sale reporting.
Not more than 10% of the net assets of the Fund in the aggregate invested in futures contracts or exchange-traded options shall consist of futures contracts or options whose principal market is not a member of ISG or is a market with which the Exchange does not have a comprehensive surveillance sharing agreement.
In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
Prior to the commencement of trading, the Exchange will inform its Equity Trading Permit (“ETP”) Holders in an Information Bulletin (“Bulletin”) of the special characteristics and risks associated with trading the Shares of the Fund. Specifically, the Bulletin will discuss the following: (1) The procedures for purchases and redemptions of Shares in Creation Units (and 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) the risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated PIV will not be calculated or publicly disseminated; (4) how information regarding the PIV and the Disclosed Portfolio is disseminated; (5) the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (6) trading information.
In addition, the Bulletin will reference that the Fund is subject to various fees and expenses described in the Registration Statement. The Bulletin will discuss any exemptive, no-action, and interpretive relief granted by the Commission from any rules under the Act. The Bulletin will also disclose that the NAV for the Shares of the Fund will be calculated after 4:00 p.m. E.T. each trading day.
The basis under the Act for this proposed rule change is the requirement under Section 6(b)(5)
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed and traded on the Exchange pursuant to the initial and continued listing criteria in NYSE Arca Equities Rule 8.600. The Adviser is not registered as a broker-dealer but is affiliated with a broker-dealer and has implemented and will maintain a fire wall with respect to such broker-dealer affiliate regarding access to information concerning the composition and/or changes to the portfolio. The Exchange represents that trading in the Shares will be subject to the existing trading surveillances, administered by regulatory staff of the Exchange or FINRA on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws. The Exchange represents 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 applicable federal securities laws. The regulatory staff of the Exchange or FINRA, on behalf of the Exchange, will communicate as needed regarding trading in the Shares, certain exchange-listed equity securities, certain futures, and certain exchange-traded options with other markets and other entities that are members of the ISG, and FINRA, on behalf of the Exchange, may obtain trading information regarding trading such securities and financial instruments from such markets and other entities. In addition, the regulatory staff of the Exchange may obtain information regarding trading in such securities and financial instruments from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement. FINRA, on behalf of the Exchange, is able to access, as needed, trade information for certain fixed income securities held by the Fund reported to FINRA's TRACE. Under normal circumstances, the non-U.S. equity securities in the Fund's portfolio will meet the following criteria at time of purchase: (1) Non-U.S. equity securities each shall have a minimum market value of at least $100 million; (2) non-U.S. equity securities each shall have a minimum global monthly trading volume of 250,000 shares, or minimum global notional volume traded per month of $25,000,000, averaged over the last six months; (3) the most heavily weighted non-U.S. equity security shall not exceed 25% of the weight of the Fund's entire portfolio, and, to the extent applicable, the five most heavily weighted non-U.S. equity securities shall not exceed 60% of the weight of the Fund's entire portfolio; and (4) each non-U.S. equity security shall be listed and traded on an exchange that has last-sale reporting. Not more than 10% of the net assets of the Fund in the aggregate invested in futures contracts or exchange-traded options shall consist of futures contracts or options whose principal market is not a member of ISG or is a market with which the Exchange does not have a comprehensive surveillance sharing agreement.
The PIV, as defined in NYSE Arca Equities Rule 8.600 (c)(3), will be widely disseminated by one or more major market data vendors at least every 15 seconds during the Core Trading Session. The Fund may hold up to an aggregate amount of 15% of its net assets in illiquid assets (calculated at the time of investment), including Rule 144A securities deemed illiquid by the Adviser, consistent with Commission guidance.
The Shares of the Fund will conform to the initial and continued listing criteria under NYSE Arca Equities Rule 8.600. The Exchange represents that, for initial and/or continued listing, the Fund will be in compliance with Rule 10A-3 under the Act, as provided by NYSE Arca Equities Rule 5.3. A minimum of 100,000 Shares of the Fund will be outstanding at the commencement of trading on the Exchange. The Exchange will obtain a representation from the issuer of the Shares of the Fund that the NAV per Share will be calculated daily and that
Investors can also obtain the Trust's Statement of Additional Information (“SAI”), the Fund's Shareholder Reports, and its Form N-CSR and Form N-SAR, filed twice a year. The Trust's SAI and Shareholder Reports are available free upon request from the Trust, and those documents and the Form N-CSR and Form N-SAR may be viewed on-screen or downloaded from the Commission's Web site at
Quotation information for OTC options, cash equivalents, swaps, Brady Bonds, inflation-linked debt instruments, obligations of supranational agencies, money market funds, Rule 144A securities, U.S. Government obligations, U.S. Government agency obligations, sovereign obligations, corporate debt, and reverse repurchase agreements may be obtained from brokers and dealers who make markets in such securities or through nationally recognized pricing services through subscription agreements. The U.S. dollar value of foreign securities, instruments and currencies can be derived by using foreign currency exchange rate quotations obtained from nationally recognized pricing services. Forwards and spot currency price information will be available from major market data vendors.
The Web site for the Fund will include a form of the prospectus for the Fund and additional data relating to NAV and other applicable quantitative information. Moreover, 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 of the Fund. Trading in Shares of the Fund will be halted if the circuit breaker parameters in NYSE Arca Equities Rule 7.12 have been reached or because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable, and trading in the Shares will be subject to NYSE Arca Equities Rule 8.600(d)(2)(D), which sets forth circumstances under which Shares of the Fund may be halted. In addition, as noted above, investors will have ready access to information regarding the Fund's holdings, the PIV, the Disclosed Portfolio, and quotation and last sale information for the Shares. The Fund's investments, including derivatives, will be consistent with the Fund's investment objective and will not be used to enhance leverage (although certain derivatives may result in leverage). That is, while the Fund will be permitted to borrow as permitted under the 1940 Act, the Fund's investments will not be used to seek performance that is the multiple or inverse multiple (
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 actively-managed 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 of the Fund 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 the Fund's holdings, the PIV, the Disclosed Portfolio for the Fund, and quotation and last sale information for the Shares of the Fund.
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 purpose of the Act. The Exchange notes that the proposed rule change will facilitate the listing and trading of an additional type of actively-managed exchange-traded product that holds fixed income and equity securities and that will enhance competition among market participants, to the benefit of investors and the marketplace.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to delete these Rules: 903 entitled, “Fixed Interest of Partner”;” 904 entitled, “Use of a Partnership Name;” 905 entitled, “Special or Limited Partners;” and 906 entitled, “Notice of Change in Partnership.” The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to delete certain Phlx membership rules in order to harmonize and modernize the Exchange's Rulebook. Specifically, Exchange proposes to delete Rule 903 entitled, “Fixed Interest of Partner;” Rule 904 entitled, “Use of a Partnership Name;” Rule 905 entitled, “Special or Limited Partners;” and Rule 906 entitled, “Notice of Change in Partnership.” Specifically, each proposed rule change is as a result of the demutualization of the Exchange in 2004 and no longer applicable to the business today. The proposed changes related to the former need for the exchange to more acutely understand the ownership structure of the membership and are discussed in greater detail below.
These rules were applicable when Phlx offered seats, prior to demutualization. Before demutualization, Phlx seats conveyed ownership which created a greater obligation on Phlx to gather information on the members corporate structure. Specifically, Phlx was obligated to maintain a heighted vigilance on the makeup, ownership, and changes of individuals in a partnership in order to ensure the financial integrity of its ownership structure. Today, permits are issued to Exchange members and member organizations. The Exchange no longer needs to differentiate ownership because the permit structure conveys no ownership to the membership. These membership rules related to partnerships are no longer applicable today. The distinctions regarding the admission of member as a partnership, as compared to a corporation, are no longer relevant. The Exchange proposes to remove these outdated Rules.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The removal of Rules 903-906 will promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities by removing burdensome requirements so that members may properly focus on other relevant requirements which benefit the marketplace.
The proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange's proposed amendments seek to delete certain unnecessary rules which today burden partnerships over corporation. The deletions of Rules 903-906 will remove a current burden on competition which requires members and member organizations that are partnerships to disclose unnecessary information as compared to other corporate entities not structured as a partnership.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) 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: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) 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. The Exchange has provided the Commission written notice of its intent to file the proposed rule change, along with a brief description and text of the proposed rule change, at least five business days prior to the date of filing of the proposed rule change.
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.
Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly.
All submissions should refer to File Number SR-Phlx-2016-20 and should be submitted on or before March 17,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On December 15, 2015, NYSE Arca, Inc. (“Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change. Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend C2 Rule 8.2 relating to the Market-Maker registration cost for all option classes. The text of the proposed rule change is provided below.
(a)-(c) No change.
(d) Market-Maker Option Class Registration. Absent an exemption by the Exchange, an option class registration of a Market-Maker confers the right to quote in that product. A Market-Maker may change its registered classes upon advance notification to the Exchange in a form and manner prescribed by the Exchange.
Each Trading Permit held by a Market-Maker has a registration credit of 1.0. A Market-Maker may select for each Trading Permit the Market-Maker holds any combination of option classes, whose aggregate registration cost does not exceed 1.0. Option class “registration costs” are set forth below:
(e) No change.
The text of the proposed rule change is also available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this rule change is to amend C2 Rule 8.2 relating to the Market-Maker registration cost for all option classes. All option classes on C2 currently have a registration cost of .001. C2 proposes to reduce the registration cost to .0001, effective February 22, 2016, which would apply to all existing classes that currently trade on C2 and to all classes listed in the future.
In support of this filing, the Exchange states it intends to add an additional 2,000 option classes beginning the week of February 22, 2016. By reducing the registration cost for existing classes, Market-Makers could utilize the excess registration capacity of their current trading permits to quote in these additional option classes when they begin trading without having to obtain any additional trading permits, which promotes competition and efficiency.
The Exchange will announce its plan to reduce the registration cost for all option classes via Regulatory Circular at least one business day before February 22, 2016, which the Exchange believes provides Market-Makers with sufficient notice.
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the Exchange believes that reducing the registration cost for all option classes will foster competition and efficiency by enabling Market-Makers to use the excess registration capacity to quote in additional option classes. The Exchange believes this may result in more liquidity and competitive pricing, which ultimately benefits investors. Additionally, the proposed rule change does not result in unfair discrimination, as the reduced registration cost will apply to all Market-Makers.
C2 does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change will apply to all Market-Makers (it is applicable only to Market-Makers, since only Market-Makers can register to quote in classes). C2 does not believe that the proposed rule change will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because the proposed rule change only applies to the C2 Market-Maker registration process. C2 believes that the proposed rule change will enhance competition among market participants and benefit investors and the marketplace because Market-Makers will be able to use the excess registration capacity to quote in additional option classes and increase overall liquidity on the Exchange.
The Exchange neither solicited nor received comments on the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
The Exchange has asked the Commission to waive the 30-day operative delay so that the proposal may become operative immediately upon filing. The Exchange has stated that it intends to add an additional 2,000 option classes on February 22, 2016. The Exchange has argued that waiving the operative delay would allow it to reduce the registration cost for all option classes on that date, which would allow Market-Makers to utilize their excess registration capacity to quote and provide liquidity in these additional option classes on their first trading day without having to obtain additional trading permits. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest because it would provide Market-Makers with the ability to quote and provide liquidity in the new option classes that C2 seeks to list without necessarily requiring Market Makers to purchase an additional trading permit to do so. Market Makers could thus be incentivized to begin making markets in the new classes without delay, which could enhance liquidity in these new classes to the potential benefit of investors. For this reason, the Commission hereby waives the 30-day operative delay requirement and designates the proposed rule change as operative upon filing.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission will institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to list and trade shares of the following under NYSE Arca Equities Rule 8.600 (“Managed Fund Shares”): RiverFront Dynamic US Dividend Advantage ETF and RiverFront Dynamic US Flex-Cap ETF. 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 list and trade shares (“Shares”) of the following under NYSE Arca Equities Rule 8.600,
Commentary .06 to Rule 8.600 provides that, if the investment adviser to the investment company issuing Managed Fund Shares is affiliated with a broker-dealer, such investment adviser shall erect a “fire wall” between the investment adviser and the broker-dealer with respect to access to information concerning the composition and/or changes to such investment company portfolio.
According to the Registration Statement, the investment objective of the Fund will be to seek to provide capital appreciation and dividend income. Under normal market conditions,
In selecting the Fund's portfolio securities, the Sub-Adviser assembles a portfolio of eligible securities based on several core attributes such as value, quality and momentum. The Sub-Adviser will consider multiple proprietary factors within each core attribute, such as the price-to-book value of a security when determining value, a company's cash as a percentage of the company's market capitalization when determining quality and a security's three month relative price change when determining momentum. Additionally, within a given sector, security selection will emphasize companies offering a meaningful dividend yield premium over alternative investments within that sector. This dividend yield emphasis is subject to quality screens intended to limit exposure to companies whose financial characteristics suggest the potential for dividend cuts. The Sub-Adviser then assigns each qualifying security a score based on its core attributes, including its dividend growth score, and selects the individual securities with the highest scores for investment. In doing so, the Sub-Adviser will utilize its proprietary optimization process to maximize the percentage of high-scoring securities included in the portfolio. The Sub-Adviser will also consider the market capitalization of the companies in which the Fund may invest, the potential for dividend income, and the trading volume of a company's shares in the secondary market.
The Fund may invest in small, mid and large capitalization companies. The Fund may also invest in other exchange-traded funds (“ETFs”)
According to the Registration Statement, the investment objective of the Fund will be to seek to provide capital appreciation. Under normal market conditions,
In selecting the Fund's portfolio securities, the Sub-Adviser assembles a portfolio of eligible securities based on several core attributes such as value, quality and momentum. The Sub-Adviser will consider multiple proprietary factors within each core attribute, such as the price-to-book value of a security when determining value, a company's cash as a percentage of the company's market capitalization when determining quality and a security's three month relative price change when determining momentum. The Sub-Adviser then assigns each qualifying security a score based on its core attributes and selects the individual securities with the highest scores for investment. In doing so, the Sub-Adviser utilizes its proprietary optimization process to maximize the percentage of high-scoring securities included in the portfolio. The Sub-Adviser will also consider the market capitalization of the companies in which the Fund may invest, and the trading volume of a company's shares in the secondary market.
The Fund may invest in small, mid and large capitalization companies. The Fund may also invest in other ETFs
While each Fund will, under normal market conditions, principally invest its assets in the securities and financial instruments as described above, each Fund may invest its remaining assets in the securities and financial instruments described below.
A Fund may invest in the following other types of equity securities: Non-
According to the Registration Statement, a Fund may invest in equity securities of non-U.S. companies, including issuers in emerging market countries.
According to the Registration Statement, a Fund may also invest in the following short-term instruments on an ongoing basis to provide liquidity or for other reasons: Money market instruments, cash and cash equivalents. Cash equivalents include the following: (i) Short-term obligations issued by the U.S. Government; (ii) negotiable certificates of deposit (“CDs”),
In addition, according to the Registration Statement, a Fund may use derivative instruments. Specifically, a Fund may use options, futures, swaps and forwards, for hedging or risk management purposes or as part of its investment practices.
The Funds will only enter into transactions in derivative instruments with counterparties that the Adviser or Sub-Adviser reasonably believes are capable of performing under the contract and will post collateral as required by the counterparty. The Funds will seek, where possible, to use counterparties, as applicable, whose financial status is such that the risk of default is reduced; however, the risk of losses resulting from default is still possible. The Adviser or Sub-Adviser will evaluate the creditworthiness of counterparties on a regular basis. In addition to information provided by credit agencies, the Adviser or Sub-Adviser will review approved counterparties using various factors, which may include the counterparty's reputation, the Adviser's or Sub-Adviser's past experience with the counterparty and the price/market actions of debt of the counterparty.
According to the Registration Statement, a Fund may enter into the following derivatives: Futures on securities, indices, and currencies and options on such futures; exchange-traded and OTC options on securities, indices, and currencies; exchange-traded and OTC interest rate swaps, cross-currency swaps, total return swaps, inflation swaps and credit default swaps; and options on such swaps (“swaptions”).
According to the Registration Statement, a Fund may invest in forward currency contracts.
A Fund may gain exposure to foreign securities by purchasing U.S. exchange-listed and traded American Depositary Receipts (“ADRs”), exchange-traded European Depositary Receipts (“EDRs”) and Global Depositary Receipts (“GDRs”, together with ADRs and EDRs, “Depositary Receipts”).
According to the Registration Statement, the Funds may invest in Rule 144A restricted securities.
Each Fund may invest up to an aggregate amount of 15% of its net assets in illiquid assets (calculated at the time of investment), including securities that are offered pursuant to Rule 144A under the Securities Act deemed illiquid by the Adviser or Sub-Adviser.
The Funds intend to qualify for and to elect to be treated as separate regulated investment companies (“RICs”) under Subchapter M of the Internal Revenue Code.
A Fund's investments will be consistent with a Fund's investment objective and will not be used to enhance leverage. That is, while a Fund will be permitted to borrow as permitted under the 1940 Act, a Fund's investments will not be used to seek performance that is the multiple or inverse multiple (
Not more than 10% of the net assets of a Fund in the aggregate invested in exchange-traded equity securities shall consist of equity securities whose principal market is not a member of the Intermarket Surveillance Group (“ISG”) or party to a comprehensive surveillance sharing agreement (“CSSA”) with the Exchange.
According to the Registration Statement, the net asset value (“NAV”) per Share of each Fund will be computed by dividing the value of the net assets of each Fund (
The NAV per Share will be calculated by each Fund's custodian and determined as of the close of the regular trading session on the New York Stock Exchange (“NYSE”) (ordinarily 4:00 p.m., Eastern Time) on each day that such exchange is open. Any assets or liabilities denominated in currencies other than the U.S. dollar will be converted into U.S. dollars at the current market rates on the date of valuation as quoted by one or more major banks or dealers that makes a two-way market in such currencies (or a data service provider based on quotations received from such banks or dealers). Information that becomes known to a Fund or its agents after the NAV has been calculated on a particular day will not generally be used to retroactively adjust the price of a portfolio asset or the NAV determined earlier that day. Each Fund reserves the right to change the time its NAV is calculated if the Fund closes earlier, or as permitted by the Commission.
According to the Registration Statement, the values of each Fund's portfolio securities holdings will be based on market prices. Price information for exchange-traded equity securities, including equity securities of domestic and foreign companies, such as common stock, ETFs and Depositary Receipts (excluding ADRs traded OTC), and preferred securities, will be taken from the exchange where the security or asset is primarily traded. Each Fund's securities holdings that are traded on a national securities exchange will be valued based on their last sale price or, in the case of the NASDAQ, at the NASDAQ official closing price. Securities regularly traded in an over-the-counter market will be valued at the latest quoted sale price in such market. Other portfolio securities and assets for which market quotations are not readily available will be valued based on fair value as determined in good faith in accordance with procedures adopted by the Board, as discussed below.
Price information for money market instruments will be available from major market data vendors.
In the absence of a last reported sales price for an exchange-traded security or asset, if no sales were reported, if a market quotation for a security or asset is not readily available or the Adviser or Sub-Adviser believes it does not otherwise accurately reflect the market value of the security or asset at the time a Fund calculates its NAV, the security or asset will be valued based on fair value as determined in good faith by the Adviser or Sub-Adviser in accordance with the Trust's valuation policies and procedures approved by the Board and in accordance with the 1940 Act. A Fund may also use fair value pricing in a variety of circumstances, including but not limited to, trading in a security or asset has been suspended or halted. Fair value pricing involves subjective judgments and it is possible that a fair value determination for a security or asset may be materially different than the value that could be realized upon the sale of the security or asset.
Values may be based on quotes obtained from a quotation reporting system, established market makers or by an outside independent pricing service. Prices obtained by an outside independent pricing service will use information provided by market makers or estimates of market values obtained from data related to investments or securities with similar characteristics and may use a computerized grid matrix of securities and its evaluations in determining what it believes is the fair value of the portfolio securities.
Derivatives for which market quotes are readily available will be valued at market value. Local closing prices will be used for all instrument valuation purposes. Futures will be valued at the last reported sale or settlement price on the day of valuation. Swaps traded on exchanges such as the Chicago Mercantile Exchange (“CME”) or the Intercontinental Exchange (“ICE-US”) will use the applicable exchange closing price where available. Foreign currency-denominated derivatives will generally be valued as of the respective local region's market close.
With respect to specific derivatives:
• Currency spot and forward rates from major market data vendors
• Futures on securities, indices, and currencies will generally be valued at the settlement price of the relevant exchange.
• A total return swap on an index will be valued at the publicly available index price. The index price, in turn, is determined by the applicable index calculation agent, which generally values the securities underlying the index at the last reported sale price.
• Exchange-traded non-equity options (for example, options on bonds, Eurodollar options and U.S. Treasury options), index options, and options on futures will generally be valued at the official settlement price determined by the relevant exchange, if available.
• OTC foreign currency (FX) options will generally be valued by pricing vendors.
• All other swaps such as interest rate swaps, inflation swaps, swaptions, credit default swaps, and CDX/CDS will generally be valued by pricing services.
The approximate value of a Fund's investments on a per-Share basis, the Indicative Intra-Day Value (“IIV”), will be disseminated every 15 seconds during the Exchange Core Trading Session. The IIV should not be viewed as a “realtime” update of NAV because the IIV will be calculated by an independent third party and may not be calculated in the exact same manner as NAV, which will be computed daily. For the purposes of determining the IIV, the third party market data provider's valuation of derivatives is expected to be similar to their valuation of all securities. The third party market data provider may use market quotes if available or may fair value securities against proxies (such as swap or yield curves).
With respect to specific derivatives:
• Foreign currency derivatives may be valued intraday using market quotes, or another proxy as determined to be appropriate by the third party market data provider.
• Futures may be valued intraday using the relevant futures exchange data, or another proxy as determined to be appropriate by the third party market data provider.
• Interest rate swaps and cross-currency swaps may be mapped to a swap curve and valued intraday based on changes of the swap curve, or another proxy as determined to be appropriate by the third party market data provider.
• Index credit default swaps (such as, CDX/CDS) may be valued using intraday data from market vendors, or based on underlying asset price, or another proxy as determined to be appropriate by the third party market data provider.
• Total return swaps may be valued intraday using the underlying asset price, or another proxy as determined to be appropriate by the third party market data provider.
• Exchange listed options may be valued intraday using the relevant exchange data, or another proxy as determined to be appropriate by the third party market data provider.
• OTC options on securities, indices, and currencies and swaptions may be valued intraday through option valuation models (
The Funds' disclosure of derivative positions in the Disclosed Portfolio will include information that market participants can use to value these positions intraday. On a daily basis, the Adviser or Sub-Adviser will disclose on the Funds' Web site the following information regarding each portfolio holding, as applicable to the type of holding: ticker symbol, CUSIP number or other identifier, if any; a description of the holding (including the type of holding, such as the type of swap); the identity of the security, commodity, index or other asset or instrument underlying the holding, if any; for options, the option strike price; quantity held (as measured by, for example, par value, notional value or number of shares, contracts or units); maturity date, if any; coupon rate, if any; effective date, if any; market value of the holding; and the percentage weighting of the holding in each Fund's portfolio. The Web site information will be publicly available at no charge.
The Adviser believes there will be minimal, if any, impact to the arbitrage mechanism as a result of the use of derivatives. Market makers and participants should be able to value derivatives as long as the positions are disclosed with relevant information. The Adviser believes that the price at which Shares trade will continue to be disciplined by arbitrage opportunities created by the ability to purchase or redeem creation Shares at their NAV, which should ensure that Shares will not trade at a material discount or premium in relation to their NAV.
The Adviser does not believe there will be any significant impacts to the settlement or operational aspects of a Fund's arbitrage mechanism due to the use of derivatives. Because derivatives generally are not eligible for in-kind transfer, they will typically be substituted with a “cash in lieu” amount when a Fund processes purchases or redemptions of creation units in-kind.
Shares may be created and redeemed in “Creation Unit” size aggregations of at least 50,000 Shares. The size of a Creation Unit is subject to change. In order to purchase Creation Units of a Fund, an investor must generally deposit a designated portfolio of securities (the “Deposit Securities”) (and/or an amount in cash in lieu of some or all of the Deposit Securities) and generally make a cash payment referred to as the “Cash Component.” The list of the names and the amounts of the Deposit Securities is made available by the Funds' custodian through the facilities of the NSCC immediately prior to the opening of business each day of the NYSE Arca. The Cash Component represents the difference between the NAV of a Creation Unit and the market value of the Deposit Securities. Creations and redemptions of Shares may only be made through an Authorized Participant, as described in the Registration Statement.
Shares may be redeemed only in Creation Units at their NAV and only on a day the NYSE Arca is open for business. The Funds' custodian will make available immediately prior to the opening of business each day of the NYSE Arca, through the facilities of the NSCC, the list of the names and the amounts of each Fund's portfolio securities that will be applicable that day to redemption requests in proper form (“Fund Securities”). Fund Securities received on redemption may not be identical to Deposit Securities, which are applicable to purchases of Creation Units.
Unless cash redemptions or partial cash redemptions are available or specified for a Fund, the redemption proceeds will consist of the Fund Securities, plus cash in an amount equal to the difference between the NAV of Shares being redeemed as next determined after receipt by the transfer agent of a redemption request in proper
The Funds' Web site (
In addition, a basket composition file, which will include the security names and share quantities required to be delivered in exchange for each Fund's Shares, together with estimates and actual cash components, will be publicly disseminated daily prior to the opening of the NYSE via NSCC. The basket represents one Creation Unit of the applicable Fund.
Investors can also obtain the Trust's Statement of Additional Information (“SAI”), the Funds' Shareholder Reports, and Form N-CSR and Form N-SAR, filed twice a year. The Trust's SAI and Shareholder Reports are available free upon request from the Trust, and those documents and the Form N-CSR and Form N-SAR may be viewed on-screen or downloaded from the Commission's Web site at
Quotation and last sale information for the Shares, U.S. exchange-traded common stocks, as well as depositary receipts (excluding ADRs traded OTC and GDRs), REITs, BDCs, preferred securities, CEFs and ETFs (collectively, “Exchange Traded Equities”) will be available via the Consolidated Tape Association (“CTA”) high-speed line and from the securities exchange on which they are listed. Price information for OTC REITs and OTC common stocks will be available from major market data vendors.
Quotation and last sale information for GDRs will be available from the securities exchange on which they are listed. Information relating to futures and options on futures also will be available from the exchange on which such instruments are traded. Information relating to exchange-traded options will be available via the Options Price Reporting Authority.
Quotation information from brokers and dealers or pricing services will be available for ADRs traded OTC and non-exchange-traded derivatives, including forwards, swaps and certain options. Pricing information regarding each asset class in which the Funds will invest is generally available through nationally recognized data services providers through subscription agreements.
In addition, the IIV, as defined in NYSE Arca Equities Rule 8.600 (c)(3), will be widely disseminated by one or more major market data vendors at least every 15 seconds during the Core Trading Session.
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of a Fund.
The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. Shares will trade on the NYSE Arca Marketplace from 4 a.m. to 8 p.m. Eastern Time in accordance with NYSE Arca Equities Rule 7.34 (Opening, Core, and Late Trading Sessions). 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
The Shares will conform to the initial and continued listing criteria under NYSE Arca Equities Rule 8.600. The Exchange represents that, for initial and/or continued listing, each Fund will be in compliance with Rule 10A-3
The Exchange represents that trading in the Shares will be subject to the existing trading surveillances, administered by the Exchange or 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 Exchange represents 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.
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, will communicate as needed regarding trading in the Shares, Exchange Traded Equities, and certain exchange-traded options and futures with other markets and other entities that are members of the ISG,
Not more than 10% of the net assets of a Fund in the aggregate invested in exchange-traded equity securities shall consist of equity securities whose principal market is not a member of the ISG or party to a CSSA with the Exchange. Not more than 10% of the net assets of a Fund in the aggregate invested in futures contracts or options contracts shall consist of futures contracts or exchange-traded options contracts whose principal market is not a member of the ISG or is a market with which the Exchange does not have a CSSA.
In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
Prior to the commencement of trading, the Exchange will inform its Equity Trading Permit (“ETP”) Holders in an Information Bulletin (“Bulletin”) of the special characteristics and risks associated with trading the Shares. Specifically, the Bulletin will discuss the following: (1) The procedures for purchases and redemptions of Shares in Creation Units (and 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) the risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated IIV will not be calculated or publicly disseminated; (4) how information regarding the IIV and the Disclosed Portfolio is disseminated; (5) the requirement that ETP Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (6) trading information.
In addition, the Bulletin will reference that each Fund is subject to various fees and expenses described in the Registration Statement. The Bulletin will discuss any exemptive, no-action, and interpretive relief granted by the Commission from any rules under the Act. The Bulletin will also disclose that the NAV for the Shares will be calculated after 4:00 p.m. Eastern Time each trading day.
The basis under the Act for this proposed rule change is the requirement under Section 6(b)(5)
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed and traded on the Exchange pursuant to the initial and continued listing criteria in NYSE Arca Equities Rule 8.600. 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 federal securities laws applicable to trading on the Exchange.
The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that each of the Adviser and the Sub-Adviser each is affiliated with a broker-dealer and has represented that it has implemented a fire wall with respect to its broker-dealer affiliate(s) regarding access to information concerning the composition and/or changes to the portfolio. The Exchange will obtain a representation from the issuer of the Shares that the NAV per Share will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time.
The Exchange or FINRA, on behalf of the Exchange, will communicate as needed regarding trading in the Shares, underlying Exchange Traded Equities, and certain exchange-traded options and futures with other markets and other entities that are members of the ISG, and the Exchange or FINRA, on behalf of the Exchange, may obtain trading information regarding trading in the Shares, underlying Exchange Traded Equities, and certain exchange-traded options and futures from such markets and other entities. In addition, the Exchange may obtain information regarding trading in the Shares,
Each Fund's disclosure of derivative positions in the Disclosed Portfolio will include information that market participants can use to value these positions intraday. On a daily basis, the Funds will disclose on a Fund's Web site the following information regarding each portfolio holding, as applicable to the type of holding: ticker symbol, CUSIP number or other identifier, if any; a description of the holding (including the type of holding, such as the type of swap); the identity of the security, commodity, index or other asset or instrument underlying the holding, if any; for options, the option strike price; quantity held (as measured by, for example, par value, notional value or number of shares, contracts or units); maturity date, if any; coupon rate, if any; effective date, if any; market value of the holding; and the percentage weighting of the holding in each Fund's portfolio. Price information for the equity securities held by a Fund will be available through major market data vendors and on the applicable securities exchanges on which such securities are listed and traded. In addition, a large amount of information will be publicly available regarding the Funds and the Shares, thereby promoting market transparency. Moreover, the IIV will be widely disseminated by one or more major market data vendors at least every 15 seconds during the Exchange's Core Trading Session. On each business day, before commencement of trading in Shares in the Core Trading Session on the Exchange, each Fund will disclose on its Web site the Disclosed Portfolio that will form the basis for a Fund's calculation of NAV at the end of the business day. Information regarding market price and trading volume of the Shares will be continually available on a real-time basis throughout the day on brokers' computer screens and other electronic services, and quotation and last sale information will be available via the CTA high-speed line. The Web site for the Funds will include a form of the prospectus for each Fund and additional data relating to NAV and other applicable quantitative information. Moreover, 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. Trading in Shares of a Fund will be halted if the circuit breaker parameters in NYSE Arca Equities Rule 7.12 have been reached or because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable, and trading in the Shares will be subject to NYSE Arca Equities Rule 8.600(d)(2)(D), which sets forth circumstances under which Shares of a Fund may be halted. In addition, as noted above, investors will have ready access to information regarding each Fund's holdings, the IIV, the Disclosed Portfolio, and quotation and last sale information for the Shares.
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 actively-managed 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 CSSA. Not more than 10% of the net assets of a Fund in the aggregate invested in exchange-traded equity securities shall consist of equity securities whose principal market is not a member of the ISG or party to a CSSA with the Exchange. Not more than 10% of the net assets of a Fund in the aggregate invested in futures contracts or options contracts shall consist of futures contracts or options contracts whose principal market is not a member of ISG or is a market with which the Exchange does not have a CSSA. In addition, as noted above, investors will have ready access to information regarding each Fund's holdings, the IIV, the Disclosed Portfolio, and quotation and last sale information for the Shares.
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 purpose of the Act. The Exchange notes that the proposed rule change will facilitate the listing and trading of additional types of actively-managed exchange-traded products that primarily hold equity securities and will enhance competition among market participants, to the benefit of investors and the marketplace.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange filed a proposal to amend Rules 8.15 and 25.3 to amend the Exchange's Minor Rule Violation Plan. The Exchange has designated this proposal as non-controversial and provided the Commission with the notice required by Rule 19b-4(f)(6)(iii) under the Act.
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend Rule 8.15 applicable to the Exchange's equity platform (“BZX Equities”) to remove the $2,500 penalty limitation contained in Rule 8.15(a) in order to modify the permissible penalties for minor rule violations with respect to Rule 25.3 applicable to the BZX options platform (“BZX Options”) and to allow the Exchange the discretion to impose penalties in excess of $2,500 under both the BZX Equities and BZX Options Minor Rule Violation Plans. The proposal further provides that only fines that do not exceed $2,500 will not be reported. Fines that exceed $2,500 will continue to be publicly reported by the Exchange
Further, the Exchange proposes to amend the BZX Options Minor Rule Violation Plan penalty schedule contained in Rule 25.3(d)—for violations of Rule 22.6(d) regarding Market Makers maintaining continuous bids and offers—to aggregate violations of Rule 22.6(d) that occur in a single month of a rolling 24-month period and sanction such aggregated violations as a single offense. The proposed amended penalty schedule is substantially similar to International Securities Exchange (“ISE”) Rule 1614(d)(11) Minor Rule Violation Plan penalties for continuous options quotation violations.
Rule 25.3 states that the Exchange may proceed under the Minor Rule Violation Plan pursuant to the procedures set forth in Rule 8.15 applicable to BZX Equities. Currently, Rule 8.15(a) states that the Exchange may impose a fine “not to exceed $2,500” for a minor rule violation. Because existing Rule 25.3 recommends the imposition of penalties in excess of $2,500 in certain circumstances, the Exchange believes the penalty limitation in 8.15(a) is obsolete, inappropriate, and unnecessarily confusing. Moreover, abiding by the terms of the penalty limitation contained in 8.15(a) for purposes of the BZX Options Minor Rule Violation Plan deprives Rule 25.3 of much of its meaning and effectiveness. Further, it is the Exchange's position that the penalty limitation currently contained in Rule 8.15(a) is also unnecessary because the Exchange must exercise its discretion to opt to proceed under the Minor Rule Violation Plan rather than under its default process, the formal disciplinary process. As a practical matter, if an individual or entity exceeds the prescribed Minor Rule Violation Plan fine threshold of $2,500, it will oftentimes be appropriate for the Exchange to decline to exercise its discretion to proceed under the Minor Rule Violation Plan and to instead proceed under the formal disciplinary process. The Exchange, however, believes it should have the discretion to elect to proceed under the Minor Rule Violation Plan for a minor rule violation that would otherwise cumulatively exceed $2,500. Accordingly, the Exchange proposes to eliminate the penalty limitation in Rule 8.15(a).
The Exchange recognizes, however, a fine exceeding $2,500 must be reported as final in accordance with SEC Rule 19d-1(c),
The Exchange proposes to amend Rule 25.3(d) to impose fines for violations of Rule 22.6(d)—regarding a Market Maker's failure to maintain continuous bids and offers—under the Minor Rule Violation Plan by aggregating the violations that occur in a month and sanctioning the violations as a single offense. The Exchange proposes to continue its current recommendation of issuing a letter of caution for the first offense in a rolling 24-month period. For the second violation in the period, the Exchange proposes to issue a $1,000 penalty; for the third a $2,500 penalty; for the fourth a $5,000 penalty. Finally, if there occurs a fifth violation within a rolling 24-month period, the Exchange believes that such a violation is inappropriate for disposition under the Minor Rule Violation Plan, and the proposed amendment to Rule 25.3(d) directs that the violation be enforced in a formal disciplinary action. The Exchange believes it is appropriate to recommend higher penalties than recommended in current Rule 25.3(d) because the Exchange is aggregating violations that occur in a month and sanctioning the violations as a single offense.
As with other violations covered under the Exchange's Minor Rule Violation Plan, the Exchange may elect to forgo the Minor Rule Violation Plan and enforce any egregious violations of its rules under the Exchange's formal disciplinary process.
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 believes the proposed rule change for Rule 8.15(a) fulfills the requirements set forth above because it modifies the procedures for the Exchange to discipline minor BZX Options rule violations by removing the $2,500 penalty limitation from the BZX Equities and BZX Options Minor Rule Violation Plan. The proposed rule change further provides that the Exchange will not report fines that do not exceed $2,500 under the Minor Rule Violation Plan except as required under SEC Rule 19d-1(c).
The Exchange believes the proposed rule change for Rule 25.3(d) fulfills the requirements set forth above because it permits the Exchange to levy progressively larger fines against a repeat-offender and prescribes that after five violations in a rolling 24-month period, the conduct is outside the purview of the Minor Rule Violation Plan, and formal disciplinary action is appropriate. Further, the Exchange believes the proposed rule change for Rule 25.3(d) fulfills the requirements set forth above because it clearly defines when and how a Market Maker may be disciplined under the Minor Rule Violation Plan. The Exchange also notes that the proposed rule change for Rule 25.3(d) is based on and substantially similar to ISE Rule 1614(d)(11).
The Exchange believes the proposal is consistent with Section 6(b)(8) of the Act
The Exchange has neither solicited nor received written comments on the proposed rule change.
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 proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to amend FINRA Rules 7410 and 7440 to require FINRA members to identify on their Order Audit Trail System (“OATS”) reports the identity of certain broker-dealers that are not FINRA members when the member has received an order from such a broker-dealer.
Below is the text of the proposed rule change. Proposed new language is in italics; proposed deletions are in brackets.
(a) through (o) No Change.
(p)
(a) No Change.
(b) Order Origination and Receipt
Unless otherwise indicated, the following order information must be recorded under this Rule when an order is received or originated. For purposes of this Rule, the order origination or receipt time is the time the order is received from the customer.
(1) through (17) No Change.
(18) the type of account,
(19)
(c) through (d) No Change.
In its filing with the Commission, FINRA included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
FINRA is proposing an amendment to Rule 7440 of the OATS rules to require FINRA members subject to the OATS rules (“Reporting Members”) to specifically identify two types of non-FINRA-member broker-dealers (“Non-Member Firms”) as part of the OATS report when they receive orders from
A Reporting Member receiving an order from a Reportable Non-Member would include on its OATS report either the SRO-assigned identifier (
FINRA is filing the proposed rule change to enhance its market surveillance efforts, both under its own SRO license and pursuant to its Regulatory Service Agreements (“RSAs”) with multiple national securities exchanges, by being able to identify more Non-Member Firm trading activity across exchanges and in the over-the-counter market through trades that are reported to a FINRA trade reporting facility.
In addition to amending Rule 7440 to require the identification of Reportable Non-Members from which an order is received, FINRA is also planning to update the
The proposed rule change, along with the changes to the
FINRA notes that although the data required by the proposed rule change may ultimately be captured as part of the Consolidated Audit Trail (“CAT”), the implementation of the CAT is likely several years away, as the national market system plan filed by the SROs still must be published by the Commission for public notice and comment, approved by the SEC, and, if approved, ultimately implemented pursuant to a multi-year timeline.
In addition to the CAT, the proposed rule change could also be affected by any amendments to SEA Rule 15b9-1.
On March 25, 2015, the SEC proposed amendments to SEA Rule 15b9-1 that would significantly narrow the exemption from association membership by replacing the $1,000 gross income provision in the rule with a provision that exempts from association membership exchange member broker-dealers that operate on the floor of an exchange to the extent they effect transactions off-exchange solely for the purpose of hedging the risks of their floor-based activities.
If this, or a substantially similar, amendment to SEA Rule 15b9-1 were adopted by the SEC, it is likely that many firms that are not currently FINRA members would become FINRA members and, as a result, would be identified on OATS reports in addition to submitting OATS reports themselves. Even if amendments to SEA Rule 15b9-1 are adopted, there would likely still be some firms that do not become FINRA members, and the timeline for compliance with any potential amendments to SEA Rule 15b9-1, could be substantial. Consequently, FINRA believes that the proposed rule change is necessary regardless of the pending proposed amendments to SEA Rule 15b9-1 and would remain necessary even if amendments are subsequently adopted by the SEC.
Although this proposed rule change will require Reporting Members to submit an additional data field when submitting an OATS report for an order received from a Reportable Non-Member, FINRA does not believe that the proposed rule change will have a significant operational impact on Reporting Members or their reporting practices.
As noted in Item 2 of this filing, if the Commission approves the proposed rule change, FINRA will announce the effective date of the proposed rule no later than 60 days following Commission approval. The effective date will be no later than 120 days following Commission approval.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
As discussed above, under the current rules, Reporting Members report orders they receive from, or route to, Non-Member Firms but these reports do not always contain the identity of the Non-Member Firm. As a result, FINRA cannot consistently identify Non-Member Firm activity and cannot see a complete view of such activities across all exchanges and over-the-counter market centers. The proposed rule change will address these current gaps in order reporting by requiring Reporting Members to identify Reportable Non-Members in their OATS reports. Reporting this information will allow FINRA to obtain the identity of the Reportable Non-Member directly from the OATS data, thereby improving FINRA's ability to perform comprehensive market surveillance and increasing investor protection.
The proposed rule change would impact Reporting Members that report orders received from, or routed to, Reportable Non-Members. As a baseline, FINRA estimates that, in the fourth quarter of 2014, approximately 175 Reporting Members received orders from Non-Member Firms and approximately 215 Reporting Members routed orders to Non-Member Firms. As discussed above, FINRA estimates that over 33% of the total OATS orders in the fourth quarter of 2014 were reported as being received from a Non-Member Firm. Non-Member Firm orders accounted for a higher proportion (over 45%) of ATS orders. In addition, during that quarter approximately 13% of sponsored access orders were received from a Non-Member Firm. Reporting Members currently report orders received from or routed to Non-Member Firms but are not required to specifically identify these firms in their OATS reports. The proposed rule change would require the Reporting Members to identify Reportable Non-Members and submit an SRO-assigned identifier or the CRD number of these firms.
The proposed rule change would enhance FINRA's cross-market and over-the-counter surveillance efforts by allowing FINRA to identify more Non-Member Firm trading activity across exchanges and the over-the-counter market. As discussed above, FINRA members receive a substantial amount of order flow from Non-Member Firms, particularly in connection with ATS activity. The proposed rule change will enable FINRA to identify these activities from Reportable Non-Members, thereby significantly improving FINRA's ability to support cross-market surveillance and monitor over-the-counter trading activity.
As a result of the proposed rule change, Reporting Members that are not already identifying Reportable Non-Members in their OATS reports will incur certain implementation costs and on-going compliance costs associated with identifying Reportable Non-Members and submitting identifiers on their OATS reports.
FINRA anticipates that the costs associated with identifying Reportable Non-Members will likely be minimal because identifiers have already been assigned to Reportable Non-Members and these identifiers are generally readily available to the Reporting Member that is receiving orders from or routing orders to Reportable Non-Members. In addition, the proposed rule change would provide Reporting Members with the option to report either the CRD number or the SRO assigned identifier, thereby allowing them to submit the identifiers that are already in use.
FINRA recognizes that some Reporting Members may need to update their reporting systems and would incur certain costs associated with system analysis, coding, and testing in order to submit the required identifiers on their OATS reports. However, based on the provision of the list of identifiers by FINRA, the current volume of OATS Reports already submitted with Non-Member Firm information, and the Staff's experience with previous changes to the OATS requirements requiring similar modification to OATS reporting (
In considering the best way to meet its regulatory objectives, FINRA considered certain alternatives to particular features
The proposed rule change, in addition to another proposal involving ATS order reporting, was published for comment in
Liquidnet and SIFMA requested that FINRA provide guidance on the application of the proposed rule change to non-U.S. broker-dealers that do not have either SRO-assigned identifiers or CRD numbers.
As noted above, FINRA has amended the proposed rule language from that in
FIF noted that using SRO-assigned identifiers would be preferable to using CRD numbers and suggested that FINRA provide a list of allowable identifiers. KCG requested that FINRA develop a list of identifiers that OATS reporting firms could rely upon to identify non-member broker-dealers and suggested that only those identifiers appearing on the list be required to be reported when dealing with non-member broker-dealers.
In response to these comments, FINRA intends to develop and publish on its Web site a list of acceptable CRD numbers for Reporting Members to use to meet their OATS reporting obligations. FINRA does not, however, intend that only those identifiers appearing on the list would be acceptable values. For example, Canadian broker-dealers that have been issued MPIDs to access FINRA trade reporting facilities pursuant to Rule 7220A or Rule 7320 do not have CRD numbers; thus, Reporting Members receiving orders from or routing orders to such firms would be required to use the Canadian firm's MPID on their OATS reports. Finally, FIF noted that the issue of identifying Non-Member Firms will be addressed upon the implementation of the CAT and suggested that FINRA not take interim measures to improve OATS but “work diligently with the other SROs towards driving CAT forward.”
FINRA does not view these undertakings as mutually exclusive. While FINRA is working diligently with other SROs to develop and implement the CAT, FINRA also believes that reasonable changes to OATS should still be made to ensure existing audit trails can be enhanced. As noted above, the full implementation of the CAT is likely still years away. FINRA strongly believes that gaps in OATS data must be addressed in the near-term, after weighing the burdens to firms and the necessity of the change, to ensure an effective audit trail. As set forth above, FINRA has concluded that the identification of Reportable Non-Members is important to enhance FINRA's cross-market surveillance and believes these modest changes to the OATS requirements should not be delayed due to the potential future implementation of the CAT. Although this proposed rule change will require some Reporting Members to submit more specific data when submitting an OATS report for an order received from a Reportable Non-Member, FINRA does not believe that this change will have a significant operational impact on Reporting Members or their reporting practices because identifiers already have been assigned to the Reportable Non-Members, are generally readily ascertainable by the Reporting Member that is receiving orders from or routing orders to the Reportable Non-Member, and OATS will accept submission of any of these identifiers already in use. As noted above, FINRA intends to provide a list of CRD numbers to assist further in implementing the new requirements for those Reporting Members that are not already identifying Reportable Non-Members on their OATS reports.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to 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”)
FINRA is proposing to reduce the synchronization tolerance for members' computer clocks that are used to record events in NMS securities, including standardized options, and OTC Equity Securities. This proposal would not change the current clock synchronization requirement for members' mechanical time stamping devices or computer clocks that are used to record events for securities other than NMS securities or OTC Equity Securities.
The text of the proposed rule change is available on FINRA's Web site at
In its filing with the Commission, FINRA included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Current FINRA rules require that firms synchronize their business clocks in conformity with procedures prescribed by FINRA. Specifically, FINRA Rule 7430 requires that firms synchronize their business clocks that are used for purposes of recording the date and time of any event that must be recorded pursuant to the FINRA By-Laws or other FINRA rules (
Given the increasing speed of trading in today's automated markets, FINRA believes the current one second tolerance is no longer appropriate for computer system clocks recording
Accordingly, FINRA is proposing to tighten the synchronization requirement for computer system clocks that record events in NMS securities and OTC Equity Securities. The proposal would reduce the drift tolerance for computer clocks that record events in these securities from one second to 50 milliseconds. The proposal would not change the current one second standard for securities other than NMS securities or OTC Equity Securities and would not change the current one second standard for events recorded by mechanical clocks or time stamping devices, as opposed to computer clocks.
As a technical matter, the proposal would codify the existing OATS technical specifications cited above, along with the new proposed 50 millisecond standard, in FINRA's Rule 4500 Series (Books, Records and Reports). The purpose of this technical change is to relocate the clock synchronization requirements from OATS rules to a rule set where it is clear the requirements apply to the recording of the date and time of any event that must be recorded under FINRA By-Laws or rules. As noted above, under a combination of Rule 7430 and the OATS technical specifications, the current one second synchronization standard already applies to the recording of the date and time of any event that must be recorded under FINRA By-Laws or rules. Under this proposal, FINRA would consolidate and codify the clock synchronization requirements in new Rule 4590 for clarity and ease of reference. This consolidation would include the current provision in the OATS technical specifications that conveys guidance on recordkeeping to demonstrate compliance with the synchronization standard, which would be codified without material change as Supplementary Material .01 to Rule 4590.
In arriving at this proposal, FINRA solicited and received feedback from its industry advisory committees, as well as through a public request for comment. After thoroughly evaluating all of the feedback received, FINRA has determined that the proposed 50 millisecond standard is the best approach given existing technology and FINRA's regulatory needs. In addition, as described in more detail below, FINRA further determined that it should proceed with the proposal now, rather than wait for approval and implementation of the clock synchronization requirements proposed in the National Market System Plan governing the Consolidated Audit Trail (“CAT NMS Plan”).
As an initial step, FINRA staff solicited industry input from several of its industry advisory committees prior to publishing the proposal for comment in a
Next, in November 2014, FINRA published
Of the five commenters that supported tightening clock synchronization requirements at least to some extent, all agreed that a millisecond standard is necessary given the speed of trading in today's markets. For example, according to FSMLabs, FINRA's proposal is “timely and necessary” because “[w]ide use of electronic trading systems and proliferation of trading venues make it impossible to understand market operation or to manage risks without precise and reliable time information.”
The commenters that supported the proposal generally took the view that the proposed 50 millisecond standard would not be overly burdensome to adopt, even for smaller firms. FSMLabs stated that a 50 millisecond standard “can be met with low cost off-the-shelf software only.”
Several of these commenters proposed tightening the clock synchronization standard even further, to below 50
Two commenters took different views and opposed the proposal. Crews & Associates stated that any standard less than 200 milliseconds is not feasible at any cost, based on the time it takes to receive data packets with updated time information from NIST servers.
Finally, several of the commenters argued that FINRA should consider different standards for different types of market participants. KOR suggested that highly automated firms—
FINRA carefully considered the committee views and written comments. After analyzing this feedback, FINRA believes it is necessary and appropriate to proceed with the proposed 50 millisecond standard for NMS securities and OTC Equity Securities, with a phased implementation that allows less automated firms more time to adjust their systems. FINRA believes that 50 milliseconds is the right standard at this time, given prevailing technology for trading systems and clock synchronization, because it strikes an acceptable balance between audit trail integrity and the costs of compliance. FINRA also believes it is important to apply the same standard to all computer-recorded events, regardless of firm size or activity type. Audit trail integrity relies on the ability to accurately sequence events for a given period of time, including events generated by firms that do not engage in HFT.
FINRA's decision to pursue the proposed 50 millisecond standard is informed in part by the CAT NMS Plan filed in February, 2015. The CAT NMS Plan was required by SEC Rule 613, which directed FINRA and the national securities exchanges to submit a national market system plan to govern the creation, implementation, and maintenance of a consolidated audit trail and central repository.
Ultimately, the CAT NMS Plan concluded “that a clock offset of 50ms represents an aggressive, but achievable, industry standard.”
But while FINRA believes it is appropriate to propose the same 50 millisecond clock synchronization standard advanced by the CAT NMS Plan, FINRA does not agree with the comment that FINRA should forego this proposal and wait for the CAT NMS Plan to become effective. It may be some time before the clock synchronization requirements of the CAT NMS Plan take effect.
FINRA acknowledges that a tightened clock synchronization standard could impose costs, particularly on small or
FINRA proposes to adopt a phased implementation for the proposed 50 millisecond standard. If the Commission approves the filing, FINRA will announce the effective date of the proposed rule change in a
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. FINRA has undertaken an economic impact assessment, as set forth below, to analyze the regulatory need for the proposed rule change, its potential economic impacts, including anticipated costs and benefits, and the alternatives FINRA considered in assessing how to best meet its regulatory objectives.
FINRA's current rules require members to synchronize their business clocks to within one second of the NIST atomic clock. Considering the speed of trading in today's automated equity and options markets, FINRA believes that the current one second tolerance is no longer appropriate for computer system clocks recording time for events in these securities under FINRA rules. For example, the wide use of automated trading systems entails order placement and trading decisions made on a millisecond, or finer, basis. In such a fast-paced environment, the one second tolerance is insufficient for audit trail and surveillance purposes. Accordingly, FINRA is proposing a tighter synchronization standard for NMS securities and OTC Equity Securities that will give FINRA the capability to better determine the order in which reportable events occur, thereby bolstering its surveillance of the markets and enhancing investor protection.
The proposed rule change would impact member firms that receive or route orders or execute trades directly in NMS securities and OTC Equity Securities. As a baseline, FINRA estimates that there are approximately 1,720 firms that would be subject to the proposal.
FINRA understands that some firms already synchronize their computer clocks within 50 milliseconds, and as a result, will not experience any material direct economic impacts as a result of this rule. Additionally, the proposed rule change would not alter the current clock synchronization requirement for members' mechanical time stamping devices. As a result, members solely using mechanical time stamping would not be impacted. Based on FINRA staff's experience, FINRA estimates that only a small fraction of firms use mechanical time stamping devices for trading in NMS securities and OTC Equity Securities.
The proposal would be implemented in phases that would allow less automated firms more time to comply with the 50 millisecond clock synchronization standard. Specifically, FINRA would require firms with systems that capture time in milliseconds to comply with the new 50 millisecond standard within six months of the effective date. Of firms that report to OATS, FINRA estimates that there are 736 firms that report some or all of their order events in milliseconds, accounting for 76 percent of OATS-reporting firms and 95 percent of OATS reportable order events (ROE). FINRA further estimates that there are roughly 237 less automated OATS-reporting firms,
The proposed rule change would allow FINRA to more accurately determine, with respect to NMS securities and OTC Equity Securities, the sequence of order, quote and trade events across market participants and market centers. By doing so, the proposal would improve FINRA's surveillance program, and as a result, support FINRA's compliance with its regulatory obligations set forth in Section 15A(b)(6) of the Act. In particular, the proposal would enhance FINRA's ability to monitor for manipulative trading practices, including spoofing or layering, and to evaluate best execution and compliance with SEC Regulation NMS, among other things. For example, potentially manipulative trading practices often involve large numbers of orders placed in short periods of time, such that more granular and precise order event sequencing would enhance FINRA's market surveillance abilities. As a result, the proposal would facilitate FINRA's efforts to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, and to protect investors and the public interest.
Member firms that receive or route orders or execute trades directly in NMS securities and OTC Equity Securities would likely incur costs associated with updating their systems and procedures to comply with a tightened clock synchronization standard. These costs may include costs to develop and maintain software programs that allow and monitor for synchronization within 50 milliseconds. FINRA notes that there are third party software products that could help firms maintain the proposed 50 millisecond standard. Firms may find these software products to be more cost effective than developing and maintaining their own programs. Some firms may also need to update their technology hardware, including servers and event logging platforms, or implement other networking enhancements to achieve the 50 millisecond drift standard. These costs will likely vary across firms depending on their current technology systems and procedures, their business models and the frequency with which they synchronize their clocks, as well as their current drift standards.
FINRA's analysis of current practices and potential costs is informed in part by the industry survey that FIF performed and submitted along with its comment on this proposal. The FIF Clock Offset Survey, which is discussed in detail in the CAT NMS Plan, collected information on existing synchronization systems, current clock management costs, and anticipated costs of meeting tighter synchronization standards from 28 firms, including 23 broker-dealers and 5 service bureaus.
FINRA notes that the respondents primarily comprised of firms with a significant amount of reportable order events (ROE) in OATS. For example, 64% of the respondents reported 3 million or more ROE/month. Smaller firms with low ROE/month tiers did not generally respond to the survey. As a result, these survey results may not be representative of the views of smaller firms with less trading activity. The FIF survey notes that an effort is underway to solicit feedback from smaller firms.
The FIF survey estimates an average cost of adopting a 50 millisecond standard would be roughly $550,000 per firm.
Implementation costs would likely vary across firms based on their current clock synchronization systems and procedures, their business models and trading activity. Firms that already synchronize their clocks to the 50 millisecond standard would likely incur much lower implementation costs, whereas other firms with less tight synchronization standards may incur relatively higher costs. As noted above, FINRA is aware of third party clock synchronization software products that could help firms, in particular smaller firms, reduce costs relative to developing and maintaining their own programs.
The survey results indicate that the average annual costs of maintaining a 50 millisecond standard are anticipated to be approximately $313,000 per firm and this represents a 31% increase over current annual clock management costs. Based on these survey results, FINRA estimates current annual clock management costs to be approximately $239,000 per firm. Hence the anticipated increase in the annual cost from the current standard to the proposed 50 millisecond synchronization standard is expected to be approximately $74,000 per firm. FINRA notes again, however, that to the extent the FIF survey assumed a more than 3 year log retention period, its maintenance cost estimates may be greater than the maintenance costs of this proposal, which requires that synchronization logs be retained for three years.
According to the FIF survey, implementation and maintenance costs would increase significantly for synchronization standards below 50 milliseconds. For instance, survey respondents indicated that a 1 millisecond standard, recommended by some of the commenters on this proposal, would cost over $1.1 million to implement and more than $530,000 to annually maintain.
Based on its evaluation of the FIF Clock Offset Survey, as well as the CAT NMS Plan's economic analysis of potential clock synchronization requirements, FINRA believes that a 50 millisecond standard is the best achievable standard at this time. Furthermore, to minimize undue cost burdens, particularly for small or less automated firms, FINRA modified the proposal as described above—specifically, FINRA narrowed the scope of the proposal to apply only to NMS securities and OTC Equity Securities, and FINRA is proposing a phased implementation that would allow less automated firms up to 18 months to come into compliance. In addition,
In considering how to best meet its regulatory objectives, FINRA considered several alternatives to particular features of this proposed rule change. For example, FINRA considered whether to impose less costly 100 or 200 millisecond standards. For the reasons referenced in part above, FINRA chose not to pursue these alternatives.
FINRA's decision not to pursue these alternatives is based in part on its own observations. The range of variance among market participants' clocks may be up to twice the permitted synchronization standard; for example, one participant's clocks may drift ahead of the NIST clock by 50 milliseconds, while another's may drift behind by 50 milliseconds, meaning their clocks would be 100 milliseconds apart. FINRA studied OATS data for a single trading day and found a large number of events that occur within any single 100 millisecond window of time. However, FINRA observed that the number of events within 200 or 400 millisecond windows—twice the possible alternative 100 and 200 millisecond standards—increased significantly. Departing from the 50 millisecond standard would therefore cause significantly greater numbers of events to be recorded with less certainty and accuracy.
In addition, FINRA notes that the FIF Clock Offset Survey supported the proposed 50 millisecond standard, as opposed to a 100 or 200 millisecond standard. The survey asked respondents about possible reduced burdens if FINRA were to adopt one of these alternative standards in advance of tighter tolerances imposed as part of the CAT NMS Plan. In response, survey respondents “questioned the benefits of an interim tolerance citing that any changes to the current clock offset would require modifications to systems and processes.”
In developing this proposal, FINRA also considered suggestions by commenters regarding different clock synchronization standards depending on the type of market participants (
The proposed rule change was published for comment in
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to amend the operation of Non-Displayed Orders
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
A Non-Displayed Order is an order that is not displayed on the Exchange.
Currently, Non-Displayed Orders and Reserve Orders that are routed to an away Trading Center pursuant to the Post to Away routing option are routed as fully displayed orders. The Exchange proposes to identify Non-Displayed Orders and Reserve Orders as such when routed to an away Trading Center. The Exchange believes doing so is consistent with the original intent of the order, to be not displayed or to include a Reserve Quantity.
The Exchange, therefore, proposes to amend the definition of Non-Displayed Orders under Exchange Rule 11.9(c)(11) to state that a Non-Displayed Order that is to be re-routed pursuant to the Post to Away routing option set forth in Rule 11.13(b)(3)(H) will be identified as a Non-Displayed Order when routed to an away Trading Center. Similarly, the Exchange proposes to amend the definition of a Reserve Order under Exchange Rule 11.9(c)(1) to state that a Reserve Order that is to be re-routed pursuant to the Post to Away routing option set forth in Rule 11.13(b)(3)(H) will be identified as a Reserve Order when routed to an away Trading Center.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes its proposed rule change would not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes the proposal would enhance competition by attracting additional order flow to the Exchange because it allows Users to ensure that their order is not altered and retains its original instructions from order entry when it is routed to an away Trading Center.
The Exchange has not solicited, and does not intend to solicit, comments on
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) 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.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange is filing with the Securities and Exchange Commission (“Commission”) a proposed rule change to amend the Fee Schedule to delete the Continuing Education Fees and the Qualification Examination Fee which relate to the Series 56 registration category under the Regulatory Fees section of the BOX Fee Schedule on the BOX Market LLC (“BOX”) options facility. The text of the proposed rule change is available from the principal office of the Exchange, at the Commission's Public Reference Room and also on the Exchange's Internet Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend the Fee Schedule for trading on BOX to delete the Continuing Education Fees and the Qualification Examination Fee
Specifically, the Exchange proposes to delete the (i) $60.00 S501 Continuing Education Fee for Series 56 and (ii) the $195.00 Series 56 Examination Fee. The Exchange further proposes to add a (i) $55.00 S101 Continuing Education Fee and (ii) a $120.00 Series 57 Examination Fee.
BOX is proposing such Fee Schedule amendments in consultation with FINRA and the other exchanges, and anticipates that the other exchanges will make corresponding changes to their respective fee schedules.
BOX has amended its rules to establish the Securities Trader and Securities Trader Principal registration categories to establish the Series 57 examination as the appropriate qualification examination for Securities Traders and retire the Series 56 examination for Proprietary Traders, and to establish S101 as the appropriate continuing education program for Securities Traders and retire the S501 continuing education program for Proprietary Traders starting January 4, 2016.
In accordance with BOX's amended rules relating to the new Securities Trader registration category, individual Participants and associated persons of Participants engaged in proprietary trading or the direct supervision of proprietary trading will be required to register with the Exchange as Securities Traders and be qualified by passing the new Securities Trader qualification examination (Series 57) being implemented by FINRA, unless grandfathered as provided for in the Rules. In addition, the Series 57 examination replaces the Series 56 examination for those exchange registration categories, such as the Proprietary Trader Principal registration category, where the Series 56 examination was the acceptable prerequisite.
The Exchange has further amended its Rules, in consultation with FINRA and the other exchanges, to provide for the Continuing Education Regulatory Element for registered persons. The personalized S101 Continuing Education Program will be the required Continuing Education Program for all registered persons including Securities Traders.
The Exchange proposes to amend its Fee Schedule to delete the (i) $60.00 Continuing Education Fee for Series 56 [sic] and the (ii) $195.00 Series 56 Examination Fee. The Exchange further proposes to add a $120.00 Series 57 Examination Fee which will be applicable with respect to the new Securities Trader Qualification Examination (Series 57).
The $100.00 fee charged for administration of the S101 Continuing Education program applicable to registrants required to take examinations other than the Series 56 will remain in effect, and become applicable to all registrants, if a continuing education session is conducted at a testing center from January 4, 2016 through no later than six months thereafter when the Continuing Education program will no longer be offered at testing centers. A new $55.00 fee will be applicable to all registrants from and after January 4, 2016 for the S101 Continuing Education program. The $195.00 fee currently charged for the Series 56 examination will be replaced with a $120.00 fee for the Series 57 examination starting January 4, 2016. Therefore, the Exchange is proposing to add the $55.00 S101 Continuing Education fee and the $120.00 Series 57 examination fee to the current BOX Fee Schedule. Additionally, the $60.00 fee currently charged for the administration of the S501 Continuing Education Program applicable to Series 56 is being retired starting January 4, 2016. Therefore, the Exchange is proposing to delete both the Series 56 examination fee and the $60.00 S501 Continuing Education fee from the current BOX Fee Schedule.
Since the Series 57 and the S101 Continuing Education Program will fall within FINRA's jurisdiction, the related fees will be billed directly through FINRA commencing as of January 4, 2016.
The Exchange believes that the proposal is consistent with the requirements of section 6(b) of the Act, in general, and section 6(b)(4) and 6(b)(5)of the Act,
The Exchange believes that the proposal is fair, equitable and not unreasonably discriminatory because the fee change applies equally to all Participants and persons associated with Participants. The proposed deletion of the S501 Continuing Education Fees and Series 56 Qualification Examination Fee is further reasonable because such Continuing Education program and exam will be replaced by the S101 Continuing Education Program and Series 57 Qualification Examination Program. In addition, the Exchange believes that the fees added to the BOX Fee Schedule are equitably allocated and not unfairly discriminatory as they will apply uniformly to all Participants and persons associated with Participants who choose to take the Series 57 examination and participate in the continuing education program through FINRA.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The Exchange further believes that the proposal does not impose any burden on competition because it believes that the other exchanges will also be making the same changes to their fee schedules.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to section 19(b)(3)(A)(ii) of the Exchange Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend the rule change if it appears to the Commission that the action is necessary or appropriate in the public interest, for the protection of investors, or would otherwise further 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 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”),
Nasdaq is proposing to amend certain fees in Nasdaq Rule 5940 in connection with listing a type of open-end management investment company registered under the Investment Company Act of 1940, as amended (“1940 Act”), called an exchange-traded managed fund (“NextShares”). The shares are collectively referred to herein as “NextShares.”
The text of the proposed rule change is available at
In its filing with the Commission, Nasdaq 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 certain fees in Nasdaq Rule 5940 (entitled “Exchange Traded Products”) associated with the listing of NextShares.
Specifically, the proposed entry fee for when a company submits an application for listing a series
The proposed annual fee for the issuer of a series of NextShares will be paid for each individual series of NextShares and calculated on total shares outstanding for that specific series of NextShares. The annual fee, which can vary from year to year based on the NextShares' total shares outstanding, will be $6,500 for a series of NextShares with up to 25 million shares; $15,000 for over 25 million to 100 million shares; and $25,000 for over 100 million shares.
The Exchange intends to treat each series of NextShares independently and in connection with the calculation of the proposed annual fee, the Exchange will not aggregate the total shares outstanding across different series
NextShares will have a distinct fee schedule for both entry and annual fees because the costs Nasdaq incurs in support of NextShares is greater than the costs the Exchange incurs with other exchange-traded products (“ETPs”). The increased Nasdaq costs for NextShares, as compared with other ETPs, that the higher entry fees are intended to address, include the technological changes and the platform needed to support the initial listing, launch, and trading of NextShares. The Exchange also anticipates greater costs associated with the necessary regulatory review and extra legal work associated with the launch of each NextShares, which may include the preparation of filings under Section 19(b) of the Exchange Act and initial work with each NextShares licensee.
The increased Nasdaq costs for NextShares, as compared with other ETPs, that the higher annual fees are intended to address, include the ongoing trading and continued support of NextShares by the Exchange. This will require Nasdaq to expend greater resources than it currently expends on other ETPs. Specifically, the Exchange believes that as a result of supporting intra-day NAV-based trading, NextShares' will require additional daily support that is more than what is currently provided for traditional ETPs.
Each series of NextShares has a different investment strategy and strikes a unique net asset value (“NAV”) at the end of each trading day and will require the calculation of a final exchange trading price each day after the NAV is calculated. This involves supplementary operational procedures that are specific to NextShares (
Nasdaq believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange believes that the addition of an initial entry fee and an annual fee in connection with each series of NextShares under proposed Nasdaq Rule 5940 is consistent with Section 6(b)(4) of the Act
Specifically, Nasdaq believes that although the proposed entry fee of $20,000 for the first series
The Exchange also believes that the proposed entry fees are equitable and not unfairly discriminatory because the Exchange assesses the same entry fees uniformly and for all series of NextShares. Additionally, Nasdaq believes that although the proposed entry fees are higher than those for other ETPs for the reasons explained above, they are equitable and not unfairly discriminatory.
Nasdaq also believes that the proposed annual fee for the issuer of a series of NextShares that will be paid for each individual series and calculated on total shares outstanding for that specific NextShares is reasonable because it will help offset the higher ongoing costs, including regulatory, legal, surveillance, and operational costs to monitor the listing of NextShares and that these costs are greater than what is currently provided for other ETPs.
These costs include the ongoing trading and continued support of NextShares by the Exchange and will require Nasdaq to expend greater resources than it currently expends on other ETPs. Specifically, the Exchange believes that as a result of supporting intra-day NAV-based trading, NextShares' will require additional daily support that is more than what is currently provided for traditional ETPs. Additionally, each series of NextShares has a different investment strategy and strikes a unique NAV at the end of each trading day and will require the calculation of a final exchange trading price each day after the NAV is calculated. This involves supplementary operational procedures that are specific to NextShares (
Nasdaq also anticipates an increase in time, effort and expense in responding to trading and data inquiries from third party vendors/counterparties, as compared with what it expends on other ETPs. The Exchange also anticipates greater costs associated with the necessary regulatory review and extra legal work associated with the ongoing support of each NextShares.
The Exchange will not aggregate the total shares outstanding across different series of NextShares for purposes of the
For the above reasons, Nasdaq believes the proposed rule change is consistent with the requirements of Sections 6(b)(4) and 6(b)(5) of the Act.
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes that the proposed fees for this new exchange-traded product will promote competition to the benefit of the markets and investors by making NextShares available to investors at a reasonable cost across a broad range of actively managed investment strategies in a structure that offers the cost and tax efficiencies and shareholder protections of exchange-traded funds. In order to remain competitive with other exchanges that also develop and market new ETPs, Nasdaq scrutinizes its fees closely before adopting such entry and annual fees.
Written comments were neither solicited nor received.
The foregoing change has become effective pursuant to Section 19(b)(3)(A)(ii) 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.
Securities and Exchange Commission.
Notice of the determination of the Board of Directors of the Securities Investor Protection Corporation (“SIPC”) regarding the standard maximum cash advance amount, beginning January 1, 2017.
Pursuant to Section 3(e)(2) of the Securities Investor Protection Act of 1970 (“SIPA”),
Comments are to be received on or before March 11, 2016.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
Copies of the submission, all subsequent amendments, all written statements with respect to this Notice that are filed with the Commission, and all written communications relating to the Notice between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. 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.
Michael A. Macchiaroli, Associate Director, at (202) 551-5525; Thomas K. McGowan, Associate Director, at (202) 551-5521; Randall W. Roy, Deputy Associate Director, at (202) 551-5522; Timothy C. Fox, Branch Chief, at (202) 551-5687; or Rose Russo Wells, Senior Counsel, at (202) 551-5527; Office of Financial Responsibility, Division of Trading and Markets, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-7010.
In its filing with the Commission, SIPC included statements concerning the purpose of and statutory basis of the SIPC Board's determination. The text of these statements may be examined at the places specified above, and appear in the text, below.
“Under the Securities Investor Protection Act, 15 U.S.C. Section 78aaa
Per our notice to the Commission by letter dated August 18, 2015, this will re-affirm to the Commission that effective January 1, 2017, and for the five years immediately thereafter, the Board has determined that the maximum amount of the advance to satisfy a claim for cash will remain at the current level of $250,000 per customer.
In deciding whether to adjust the maximum cash advance amount, the Board is to consider the following criteria under SIPA Section 78fff-3(e)(5):
(A) The overall state of the fund and the economic conditions affecting members of SIPC;
(B) the potential problems affecting members of SIPC; and
(C) such other factors as the Board of Directors of SIPC may determine appropriate.
In furtherance of the Board's consideration of the above factors, the SIPC staff solicited and received comments and/or data from the staffs of FINRA, SIFMA, the SEC, and the FDIC. The data related to member firms' aggregate leverage, liquidity, and default risk, and to aggregate customer free credit balances. The information was presented to the Board by the SIPC staff, as part of an analysis by the staff of the state of the SIPC Fund and its projected growth. The staff's analysis focused on SIPC's historical experience and examined (1) SIPC advances in past and present liquidation proceedings; (2) amounts generated from assessments on member broker-dealers; and (3) projected returns on SIPC investments. The analysis also considered a 2013 study by consultants engaged by SIPC to examine the potential impact on the SIPC Fund of an increase in the cash advance limit to $500,000. The conclusions reached by the staff in their analysis were corroborated by the data received from the aforementioned authorities and by the 2013 consultants' study, namely, that the SIPC Fund is positioned to remain on a steady growth path for the foreseeable future, barring any unforeseen catastrophic event.
The Board also reviewed the number of claims for cash exceeding the limit of protection in past and present liquidation proceedings. This data suggests that an inflation adjustment may not be necessary to further SIPC's purposes, but that if an inflation adjustment is made, its impact on the SIPC Fund may not be significant.
Of the more than 625,000 allowed claims in completed or substantially completed liquidation proceedings as of December 31, 2014, the unsatisfied portion of cash claims amounted to $25 million. More than half of that amount related to only three claims that were submitted when the limit of protection for cash claims was less than the current $250,000. In the six SIPA proceedings initiated since 2010, SIPC has advanced, net, funds for only one cash claim in excess of $250,000.
The Board also noted that customer credit balances at brokerage firms had decreased at the end of 2013 and 2014, and that due to broker-dealers' offer of overnight “sweep” programs, customer free credit balances were being moved to bank accounts, with the protection of such accounts thereby transferred to the FDIC.
With regard to FDIC deposit insurance, increases to the limit of protection for cash claims under SIPA historically have been in lockstep with increases in FDIC deposit insurance under the Federal Deposit Insurance Act, 12 U.S.C. 1821
The Board expressed concern that a unilateral increase to the SIPA limit could have unintended consequences, particularly in light of the issue not having been widely studied or discussed. For example, increasing the SIPA limit above the deposit insurance limit could incentivize the movement of funds to brokerage accounts as a savings vehicle, an outcome not consistent with the intent of SIPA.
Finally, the Board considered the amount by which the limit of protection for allowed cash claims would change if adjusted for inflation. Under SIPA Section 78fff-3(e)(1)(B), if the Board determines that an adjustment is appropriate, then $250,000 is to be multiplied by
15 U.S.C. 78fff-3(e)(1)(B).
A present-day application of the formula would increase the limit by $20,000.
Within thirty-five days of the date of publication of this notice of the SIPC Board's determination in the
(A) By order approve such determination or
(B) Institute proceedings to determine whether such determination should be disapproved.
Effective January 1, 2016, the Board of Directors of the Securities Investor Protection Corporation determined that an inflation adjustment to the standard maximum cash advance amount, as defined in section 9(d) of the Securities Investor Protection Act, 15 U.S.C. 78fff-3(d), would not be appropriate for the five-year period beginning on January 1, 2017. Accordingly, the Board determined that the standard maximum cash advance amount should remain at $250,000 per customer, effective January 1, 2017 and for the five years immediately thereafter.
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 the NYSE Listed Company Manual (the “Manual”) to adopt a requirement that listed foreign private issuers must, at a minimum, submit a Form 6-K to the Securities and Exchange Commission (“SEC”) containing semi-annual
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 the Manual to adopt a requirement that listed foreign private issuers must, at a minimum, submit a Form 6-K to the SEC containing semi-annual unaudited financial information.
Any listed company that is a domestic issuer is required by SEC rules to file a quarterly report on Form 10-Q within a specified period after the end of each of the company's first, second and third fiscal quarters. The Form 10-Q contains unaudited financial information with respect to the most recently completed fiscal quarter. However, listed companies that are foreign private issuers
Given the importance of the practice of foreign private issuer listed companies reporting mid-year results, the Exchange believes that it is desirable to make this practice mandatory. Doing so will ensure that the practice is uniform among all listed foreign private issuers and also enables the Exchange to apply its compliance procedures for companies that are late in their periodic reporting to listed foreign private issuers that fail to disclose semi-annual financial information on a timely basis.
Consequently, the Exchange proposes to adopt new Section 203.03 of the Manual which would provide that each listed foreign private issuer must, at a minimum, submit to the SEC a Form 6-K that includes (i) an interim balance sheet as of the end of its second fiscal quarter and (ii) a semi-annual income statement that covers its first two fiscal quarters. This Form 6-K would be required to be submitted no later than six months following the end of the company's second fiscal quarter. The financial information included in the Form 6-K would be required to be presented in English, but would not be required to be reconciled to U.S. GAAP. The Exchange's intention in adopting proposed Section 203.03 is solely to establish a minimum interim reporting regime applicable to all listed foreign private issuers. The Exchange is not seeking to discourage companies from providing more expansive or more frequent interim financial information and proposed Section 203.03 would not relieve companies of the obligation to comply with any reporting obligations they may have under the requirements of Form 6-K or home country law or regulation. In addition, the Exchange proposes to amend Section 802.01E of the Manual to subject listed foreign private issuers that have not timely filed the required Form 6-K to the same compliance procedures as are applied to listed companies that are late in filing their annual report or Form 10-Q. A failure to file the required Form 6-K within the period specified by proposed Section 203.03 would constitute a Late Filing Delinquency under Section 802.01E. As with any other Late Filing Delinquency under that rule, a company that was delayed in filing its Form 6-K would have an initial six months compliance period within which to file the Form 6-K and any subsequently due Form 20-F or Form 6-K. If the company did not file all required filings during that initial six month period, Exchange staff would have the discretion to provide an additional compliance period of up to six months. Any company that failed to become timely with its filing obligations within the compliance periods provided under the rule (including, in the case of a company that receives the maximum 12-month cure period, the Form 6-K including the semi-annual data for the first six months of the subsequent fiscal year) would be subject to delisting.
The Exchange proposes to make Section 203.03 effective beginning with any fiscal year beginning on or after July 1, 2015. This means that the earliest semi-annual period with respect to which a company would be required to furnish a Form 6-K under the proposed rule would have ended on December 31, 2015.
The Exchange also proposes to amend Section 103.00 of the Manual to clarify that, notwithstanding the provision in that section that allows listed foreign private issuers to follow home country
The Exchange believes that the proposed rule change is consistent with Section 6(b)
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 purpose of the Act. The proposed rule change is designed to mandate that foreign private issuer listed companies must, at a minimum, provide semi-annual financial information. As almost all NYSE-listed foreign private issuers already provide this information and Nasdaq listed companies are already subject to a comparable rule, the Exchange does not expect the rule change to have any significant impact on competition.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
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 Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is proposing to amend Rules 8.15 and 25.3 to amend the Exchange's Minor Rule Violation Plan.
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend Rule 8.15 applicable to the Exchange's equity platform (“EDGX Equities”) to remove the $2,500 penalty limitation contained in Rule 8.15(a) in order to modify the permissible penalties for minor rule violations with respect to Rule 25.3 applicable to the EDGX options platform (“EDGX Options”) and to allow the Exchange the discretion to impose penalties in excess of $2,500 under both the EDGX Equities and EDGX Options Minor Rule Violation Plans. The proposal further provides that only fines that do not exceed $2,500 will not be reported. Fines that exceed $2,500 will continue to be publicly reported by the Exchange
Further, the Exchange proposes to amend the EDGX Options Minor Rule Violation Plan penalty schedule contained in Rule 25.3(d)—for violations of Rule 22.6(d) regarding Market Makers maintaining continuous bids and offers—to aggregate violations of Rule 22.6(d) that occur in a single month of a rolling 24-month period and sanction such aggregated violations as a single offense. The proposed amended penalty schedule is substantially similar to International Securities Exchange (“ISE”) Rule 1614(d)(11) Minor Rule Violation Plan penalties for continuous options quotation violations. In addition to these changes, the Exchange proposes to make minor non-substantive changes to conform to the Rules of BATS Exchange, Inc., specifically by capitalizing the term “rule” in Rule 8.15 and by adding the words “and Policy” to Interpretation and Policy .01.
Rule 25.3 states that the Exchange may proceed under the Minor Rule Violation Plan pursuant to the procedures set forth in Rule 8.15 applicable to EDGX Equities. Currently, Rule 8.15(a) states that the Exchange may impose a fine “not to exceed $2,500” for a minor rule violation. Because existing Rule 25.3 recommends the imposition of penalties in excess of $2,500 in certain circumstances, the
The Exchange recognizes, however, a fine exceeding $2,500 must be reported as final in accordance with SEC Rule 19d-1(c),
The Exchange proposes to amend Rule 25.3(d) to impose fines for violations of Rule 22.6(d)—regarding a Market Maker's failure to maintain continuous bids and offers—under the Minor Rule Violation Plan by aggregating the violations that occur in a month and sanctioning the violations as a single offense. The Exchange proposes to continue its current recommendation of issuing a letter of caution for the first offense in a rolling 24-month period. For the second violation in the period, the Exchange proposes to issue a $1,000 penalty; for the third a $2,500 penalty; for the fourth a $5,000 penalty. Finally, if there occurs a fifth violation within a rolling 24-month period, the Exchange believes that such a violation is inappropriate for disposition under the Minor Rule Violation Plan, and the proposed amendment to Rule 25.3(d) directs that the violation be enforced in a formal disciplinary action. The Exchange believes it is appropriate to recommend higher penalties than recommended in current Rule 25.3(d) because the Exchange is aggregating violations that occur in a month and sanctioning the violations as a single offense.
As with other violations covered under the Exchange's Minor Rule Violation Plan, the Exchange may elect to forgo the Minor Rule Violation Plan and enforce any egregious violations of its rules under the Exchange's formal disciplinary process.
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 believes the proposed rule change for Rule 8.15(a) fulfills the requirements set forth above because it modifies the procedures for the Exchange to discipline minor EDGX Options rule violations by removing the $2,500 penalty limitation from the EDGX Equities and EDGX Options Minor Rule Violation Plan and makes other minor stylistic and conforming changes. The proposed rule change further provides that the Exchange will not report fines that do not exceed $2,500 under the Minor Rule Violation Plan except as required under SEC Rule 19d-1(c).
The Exchange believes the proposed rule change for Rule 25.3(d) fulfills the requirements set forth above because it permits the Exchange to levy progressively larger fines against a repeat-offender and prescribes that after five violations in a rolling 24-month period, the conduct is outside the purview of the Minor Rule Violation Plan, and formal disciplinary action is appropriate. Further, the Exchange believes the proposed rule change for Rule 25.3(d) fulfills the requirements set forth above because it clearly defines when and how a Market Maker may be disciplined under the Minor Rule Violation Plan. The Exchange also notes that the proposed rule change for Rule 25.3(d) is based on and substantially similar to ISE Rule 1614(d)(11).
The Exchange believes the proposal is consistent with Section 6(b)(8) of the Act
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any
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 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 is proposing to amend the operation of Non-Displayed Orders
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
A Non-Displayed Order is an order that is not displayed on the Exchange.
Currently, Non-Displayed Orders and Reserve Orders that are routed to an away Trading Center pursuant to the Post to Away routing option are routed as fully displayed orders. The Exchange proposes to identify Non-Displayed Orders and Reserve Orders as such when routed to an away Trading Center. The Exchange believes doing so is consistent with the original intent of the order, to be not displayed or to include a Reserve Quantity.
The Exchange, therefore, proposes to amend the definition of Non-Displayed Orders under Exchange Rule 11.9(c)(11) to state that a Non-Displayed Order that is to be re-routed pursuant to the Post to Away routing option set forth in Rule 11.13(b)(3)(H) will be identified as a Non-Displayed Order when routed to an away Trading Center. Similarly, the Exchange proposes to amend the definition of a Reserve Order under Exchange Rule 11.9(c)(1) to state that a Reserve Order that is to be re-routed pursuant to the Post to Away routing option set forth in Rule 11.13(b)(3)(H) will be identified as a Reserve Order when routed to an away Trading Center.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes its proposed rule change would not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes the proposal would enhance competition by attracting additional order flow to the Exchange because it allows Users to ensure that their order is not altered and retains its original instructions from order entry when it is routed to an away Trading Center.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited 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) 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.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange is proposing to amend the operation of orders with a Non-Displayed
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
Non-Displayed is an instruction the User may attach to an order stating that the order is not to be displayed by the System on the EDGA Book.
Currently, orders with a Non-Displayed instruction or Reserve Quantity that are routed to an away Trading Center pursuant to the Post to Away routing option are routed as fully displayed orders. The Exchange proposes to include a Non-Displayed instruction or to include a Reserve Quantity on orders routed to an away Trading Center. The Exchange believes doing so is consistent with the original intent of the order, to be Non-Displayed or to include a Reserve Quantity.
The Exchange, therefore, proposes to amend the definition of Non-Displayed under Exchange Rule 11.6(d)(2) to state that an order with a Non-Displayed instruction that is to be re-routed pursuant to the Post to Away routing option set forth in Rule 11.11(g)(15) will be identified as Non-Displayed when routed to an away Trading Center. Similarly, the Exchange proposes to amend the definition of Reserve Quantity under Exchange Rule 11.6(m) to state that the Reserve Quantity of an order that is to be re-routed pursuant to the Post to Away routing option set forth in Rule 11.11(g)(15) will be identified as an order with a Reserve Quantity when routed to an away Trading Center.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes its proposed rule change would not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes the proposal would enhance competition by attracting additional order flow to the Exchange because it allows Users to ensure that their order is not altered and retains its original instructions from order entry when it is routed to an away Trading Center.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited 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) 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.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange is proposing to amend the operation of orders with a Non-Displayed
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
Non-Displayed is an instruction the User may attach to an order stating that the order is not to be displayed by the System on the EDGX Book.
Currently, orders with a Non-Displayed instruction or Reserve Quantity that are routed to an away Trading Center pursuant to the Post to Away routing option are routed as fully displayed orders. The Exchange proposes to include a Non-Displayed instruction or to include a Reserve Quantity on orders routed to an away Trading Center. The Exchange believes doing so is consistent with the original intent of the order, to be Non-Displayed or to include a Reserve Quantity.
The Exchange, therefore, proposes to amend the definition of Non-Displayed under Exchange Rule 11.6(d)(2) to state that an order with a Non-Displayed instruction that is to be re-routed pursuant to the Post to Away routing option set forth in Rule 11.11(g)(12) will be identified as Non-Displayed when routed to an away Trading Center. Similarly, the Exchange proposes to amend the definition of Reserve Quantity under Exchange Rule 11.6(m) to state that the Reserve Quantity of an order that is to be re-routed pursuant to the Post to Away routing option set forth in Rule 11.11(g)(12) will be identified as an order with a Reserve Quantity when routed to an away Trading Center.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes its proposed rule change would not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes the proposal would enhance competition by attracting additional order flow to the Exchange because it allows Users to ensure that their order is not altered and retains its original instructions from order entry when it is routed to an away Trading Center.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited 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) 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
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Rule 7.31P(a)(2)(C) (Orders and Modifiers) relating to repricing events. The proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend Rule 7.31P(a)(2)(C) relating to repricing events that occur upon arrival of an Intermarket Sweep Order designated Day (“Day ISO”).
Rule 7.31P(e)(3)(C) provides that a Day ISO, if marketable on arrival, will be immediately traded with contra-side interest in the NYSE Arca Book up to its full size and limit price and any untraded quantity of a Day ISO will be displayed at its limit price and may lock or cross a protected quotation that was displayed at the time of arrival of the Day ISO. Accordingly, under current rules, on arrival, a Day ISO may be displayed at a price that locks or crosses a protected quotation.
Under Rule 7.36P(b)(3), if arrival of a Day ISO would result in less than a round lot being displayed, such order would be displayed on the Exchange's proprietary data feeds, but it would not be considered a new Exchange BBO or be considered a protected quotation. In addition, under Rule 7.38P(b)(1), the working price of an odd-lot quantity of a Day ISO will depend on where the limit price is in relation to the PBBO, and whether the PBBO is crossed.
Separately, Rule 7.31P(a)(2)(C) describes how the Exchange re-prices resting orders to buy (sell) to avoid locking or crossing a protected quotation of another market by assigning a display price one MPV below (above) the PBO (PBB) and a working price equal to the PBO (PBB). The rule further specifies that “[i]f a Day ISO to buy (sell) arrives before the PBO (PBB) is updated, such re-priced Limit Order(s) to buy (sell) will be repriced to the lower (higher) of the display price of the Day ISO or the original price of the Limit Order(s).” Accordingly, current rules specify that arrival of a Day ISO results in a repricing event for resting orders.
The Exchange proposes to amend Rule 7.31P(a)(2)(C) to specify how orders are repriced under that paragraph due to the arrival of a Day ISO. Specifically, the Exchange proposes to specify that the repricing event for resting orders under this Rule due to the arrival of a Day ISO to buy (sell) would occur only if the arriving Day ISO would result in at least a round lot being displayed as a new BB (BO). In other words, the arrival of the Day ISO must result in a new protected quotation at the Exchange before any resting orders are repriced.
The Exchange also proposes to specify what would occur if the arriving Day ISO would not result in at least a round lot being displayed. When resting orders have been repriced under Rule 7.31P(a)(2)(C), if a Day ISO to buy (sell) arrives that would result in less than a round lot being displayed, the Exchange
Finally, the Exchange proposes to move the last sentence of Rule 7.31P(a)(2)(C), without change, to be the second sentence of that rule.
The proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
Specifically, the Exchange believes that the proposed rule change would remove impediments to and perfect the mechanism of a free and open market and a national market system by promoting transparency in Exchange rules by providing specificity regarding when resting orders would be repriced due to the arrival of a Day ISO. Specifically, the proposed rule change would specify that an arriving Day ISO needs to result in a round lot or more being displayed as a new Exchange BBO before resting orders would be repriced under Rule 7.31P(a)(2)(C). Rule 7.31P(a)(2)(C) already provides that resting orders would be repriced upon arrival of a Day ISO, and the amendment provides specificity that before resting orders may be repriced, the arrival of the Day ISO needs to result in a new protected quotation.
The proposed rule change would further remove impediments to and perfect the mechanism of a free and open market and a national market system by specifying that if the arrival of the Day ISO to buy (sell) would not result in a round lot or more being displayed and thus would not result in a repricing event for resting orders, the Day ISO would instead be assigned a display price of one MPV below (above) the PBO (PBB) and a working price equal to the PBO (PBB). This proposed rule text is similar to Rule 7.38P(b)(1), which already provides that an arriving odd lot order to buy (sell) will be assigned a working price based on the PBBO. The Exchange proposes a difference for how an odd lot quantity of an arriving Day ISO would be priced under Rule 7.31P(a)(2)(C) as compared to Rule 7.38P(b)(1). Specifically, the Exchange believes that the proposed pricing of an arriving odd-lot sized Day ISO under Rule 7.31P(a)(2)(C) would remove impediments to and perfect the mechanism of a free and open market and a national market system because it would provide for a consistent manner for repricing orders under Rule 7.31P(a)(2)(C), regardless whether they were resting orders or arriving odd lot quantity of a Day ISO. Providing for different treatment of an arriving Day ISO that would result in the display of an odd-lot quantity is consistent with Regulation NMS, which permits exchanges to establish their own rules for the handling of odd lot orders.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed change is not designed to address any competitive issue but rather to make amendments to Rule 7.31P(a)(2)(C) relating to repricing events due to the arrival of a Day ISO.
No written comments were solicited or received with respect to the proposed rule change.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On December 22, 2015, The NASDAQ Stock Market LLC (“Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds it appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider this proposed rule change. Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
The Department of State will conduct an open meeting at 10:30 a.m. on Tuesday, March 22, 2016, at the headquarters of the Radio Technical Commission for Maritime Service (RTCM) in Suite 605, 1611 N. Kent Street, Arlington, Virginia 22209. The primary purpose of the meeting is to
The agenda items to be considered include:
Members of the public may attend this meeting up to the seating capacity of the room. To facilitate the building security process, and to request reasonable accommodation, those who plan to attend should contact the meeting coordinator, Mr. David Du Pont, by email at
Grenada Railroad, LLC (Grenada Railroad), a Class III rail carrier, has filed a verified notice of exemption under 49 CFR 1150.41 to lease from Illinois Central Railroad Company (Illinois Central),
Grenada Railroad currently holds authority to operate within the State of Mississippi pursuant to a 15-year lease/purchase and operating agreement executed on June 23, 2015.
Grenada Railroad states that there are no agreements applicable to the line imposing any interchange commitments.
The transaction may be consummated on or after March 10, 2016, the effective date of the exemption (30 days after the verified notice of exemption was filed).
Grenada Railroad certifies that its projected annual revenues as a result of this transaction will not exceed $5 million or result in the creation of a Class II or Class I rail carrier.
If the verified notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of the exemption. Petitions for stay must be filed no later than March 3, 2016 (at least seven days before the exemption becomes effective).
An original and 10 copies of all pleadings, referring to Docket No. FD 35993, must be filed with the Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001. In addition, one copy of each pleading must be served on John D. Heffner, Strasburger & Price, LLP, 1025 Connecticut Ave. NW., Suite 717, Washington, DC 20036.
According to Grenada Railroad, this action is categorically excluded from environmental review under 49 CFR 1105.6(c).
Board decisions and notices are available on our Web site at
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
CSX Transportation, Inc. (CSXT) filed a verified notice of exemption under 49 CFR part 1152 subpart F—
CSXT has certified that: (1) No local traffic has moved over the Line for at least two years; (2) no overhead traffic needs to be rerouted over other lines; (3) no formal complaint filed by a user of rail service on the Line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the Line is pending either with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of
As a condition to this exemption, any employee adversely affected by the discontinuance of service shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) to subsidize continued rail service has been received, this exemption will be effective on March 26, 2016, unless stayed pending reconsideration. Petitions to stay that do not involve environmental issues and formal expressions of intent to file an OFA to subsidize continued rail service under 49 CFR 1152.27(c)(2)
A copy of any petition filed with the Board should be sent to CSXT's representative: Louis E. Gitomer, Law Offices of Louis E. Gitomer, LLC, 600 Baltimore Avenue, Suite 301, Towson, MD 21204.
If the verified notice contains false or misleading information, the exemption is void ab initio.
Board decisions and notices are available on our Web site at “
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Federal Aviation Administration (FAA), DOT.
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Title 14 of the Code of Federal Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before March 16, 2016.
Send comments identified by docket number FAA-2015-1571 using any of the following methods:
•
•
•
•
Dan Ngo (202) 267-4264, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), DOT.
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Title 14 of the Code of Federal Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before March 16, 2016.
Send comments identified by docket number FAA-2015-4248 using any of the following methods:
•
•
•
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Dan Ngo, (202) 267-4264. 800 Independence Avenue SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), DOT.
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Title 14 of the Code of Federal Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before March 16, 2016.
Send comments identified by docket number FAA-2015-0513 using any of the following methods:
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•
•
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Dan Ngo, (202) 267-4264. 800 Independence Avenue SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), DOT.
Notice of public meeting
This notice announces the bi-annual meeting of the Federal Aviation Administration (FAA) Aeronautical Charting Forum (ACF) to discuss informational content and design of aeronautical charts and related products, as well as instrument flight procedures development policy and design criteria.
The ACF is separated into two distinct groups. The Instrument Procedures Group (IPG) will meet April 26, 2016 from 8:30 a.m. to 5:00 p.m. The Charting Group will meet April 27 and 28, 2016 from 8:30 a.m. to 5:00 p.m.
The meeting will be hosted by Air Line Pilots Association (ALPA) located at 535 Herndon Parkway, Herndon, VA 20170.
For information relating to the Instrument Procedures Group, contact Thomas E. Schneider, FAA, Flight Procedures Standards Branch, AFS-420, 6500 South MacArthur Blvd., P.O. Box 25082, Oklahoma City, OK 73125; telephone: (405) 954-5852.
For information relating to the Charting Group, contact Valerie S. Watson, FAA, Aeronautical Information Services, Governance & Standards, AJV-553, 1305 East-West Highway, SSMC4, Station 3409, Silver Spring, MD 20910; telephone: (301) 427-5155.
Pursuant to § 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463; 5 U.S.C. App. II), notice is hereby given of a meeting of the FAA Aeronautical Charting Forum to be held from April 26 through April 28, 2016, from 8:30 a.m. to 5:00 p.m. at Air Line Pilots Association (ALPA), at their offices located at 535 Herndon Parkway, Herndon, VA 20170.
The Instrument Procedures Group agenda will include briefings and discussions on recommendations regarding pilot procedures for instrument flight, as well as criteria, design, and developmental policy for instrument approach and departure procedures.
The Charting Group agenda will include briefings and discussions on recommendations regarding aeronautical charting specifications, flight information products, and new aeronautical charting and air traffic control initiatives. Attendance is open to the interested public, but will be limited to the space available.
The public must make arrangements by April 7, 2016, to present oral statements at the meeting. The public may present written statements and/or new agenda items to the committee by providing a copy to the person listed in the
Federal Aviation Administration (FAA), DOT.
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Title 14 of the Code of Federal Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before March 16, 2016.
Send comments identified by docket number FAA-2015-0430 using any of the following methods:
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Dan Ngo (202) 267-4264, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), DOT.
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Title 14 of the Code of Federal Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before March 16, 2016.
Send comments identified by docket number FAA-2015-0346 using any of the following methods:
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Dan Ngo, (202) 267-4264. 800 Independence Avenue SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), DOT.
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Title 14 of the Code of Federal Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before March 16, 2016.
Send comments identified by docket number FAA-2015-4420 using any of the following methods:
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Brent Hart (202) 267-4034, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FMCSA announces its plan to submit the Information Collection Request (ICR) described below to the Office of Management and Budget (OMB) for its
Please send your comments to this notice by March 28, 2016. OMB must receive your comments by this date to act quickly on the ICR.
All comments should reference Federal Docket Management System (FDMS) Docket Number FMCSA-2015-0255. Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the attention of the Desk Officer, Department of Transportation/Federal Motor Carrier Safety Administration, and sent via electronic mail to
Mr. Kenneth Rodgers, Chief, Commercial Enforcement and Investigations Division, Federal Motor Carrier Safety Administration, West Building 6th Floor, 1200 New Jersey Avenue SE., Washington, DC 20590. Telephone: 202-366-0073; email
The FMCSA has authority to regulate the overall commercial operations of the household goods industry under 49 U.S.C. 14104, “Household goods carrier operations.” Under § 14104(a)(1), paperwork required of household goods carrier must be minimized to the maximum extent feasible consistent with the protection of individual shippers. This ICR includes the information collection requirements contained in title 49 CFR part 375, “Transportation of Household Goods in Interstate Commerce; Consumer Protection Regulations.” The information collected encompasses that which is generated, maintained, retained, disclosed, and provided to, or for, the agency under 49 CFR part 375.
Sections 4202 through 4216 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (Pub. L. 109-59, 119 Stat. 1144, Aug. 10, 2005) (SAFETEA-LU) amended various provisions of existing law regarding household goods transportation. It specifically addressed: definitions (section 4202); payment of rates (section 4203); registration requirements for household goods motor carriers (section 4204); carrier operations (section 4205); enforcement of regulations (section 4206); liability of carriers under receipts and bills of lading (section 4207); arbitration requirements (section 4208); civil penalties for brokers and unauthorized transportation (section 4209); penalties for holding goods hostage (section 4210); consumer handbook (section 4211); release of broker information (section 4212); working group for Federal-State relations (section 4213); consumer complaint information (section 4214); review of liability of carriers (section 4215); and application of State laws (section 4216). The FMCSA regulations that set forth Federal requirements for movers that provide interstate transportation of household goods are found in 49 CFR part 375, “Transportation of Household Goods; Consumer Protection Regulation.”
On July 16, 2012, FMCSA published a Direct Final Rule titled, “Transportation of Household Goods in Interstate Commerce; Consumer Protection Regulations: Household Goods Motor Carrier Record Retention Requirements,” (77 FR 41699). The rule amended the regulations governing the period during which HHG motor carriers must retain documentation of an individual shipper's waiver of receipt of printed copies of consumer protection materials. This change harmonized the retention period with other document retention requirements applicable to HHG motor carriers. FMCSA also amended the regulations to clarify that a HHG motor carrier is not required to retain waiver documentation from any individual shippers for whom the carrier does not actually provide services.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FMCSA announces its plan to submit the Information Collection Request (ICR) described below to the Office of Management and Budget (OMB) for its review and approval and invites public comment. The information collected will be used to help ensure that motor carriers of passengers and property maintain appropriate levels of financial responsibility to operate on public highways.
We must receive your comments on or before April 25, 2016.
You may submit comments identified by Federal Docket Management System (FDMS) Docket Number FMCSA-2015-0436 using any of the following methods:
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Mr. Jeff Secrist, Office of Registration and Safety Information, Chief, East and South Division, Department of Transportation, Federal Motor Carrier Safety Administration, West Building 6th Floor, 1200 New Jersey Avenue SE., Washington, DC 20590. Telephone: 202-385-2367; email:
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 January 21, 2016, the Association of American Railroads (AAR) has petitioned the Federal Railroad Administration (FRA) for renewal of a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR part 229—Railroad Locomotive Safety Standards. FRA assigned the petition Docket Number FRA-2005-21613.
This regulatory relief was initially granted by FRA in a letter dated December 2, 2005. This letter, along with subsequent modifications and renewals, established a program to perform field investigations to determine new limits for the air brake system clean, repair, and test requirements applicable to electronic air brake systems manufactured by New York Air Brake (NYAB) and Wabtec Railway Electronics (Wabtec). At the time, those requirements were contained in 49 CFR 229.27 and 229.29, which have since been reorganized and updated in 229.29 as level 2 and level 3 air brake system maintenance. The program required that each air brake system be periodically evaluated by a joint committee involving a railroad, the air brake manufacturer, labor organizations (both operating and maintenance crafts) and FRA representatives. Several joint committees, with extensive participation from each of the above mentioned groups, were formed on CSX Transportation (CSX), BNSF Railway (BNSF), and Union Pacific Railroad (UP). All of the air brake systems that were studied were endorsed by consensus of the participating groups for varying extensions to the clean, repair, and test intervals given in 49 CFR 229.29. All of the committees have concluded their investigations and none are currently meeting.
As provided for in the waiver, relief was also extended to certain other AAR member railroads which applied for inclusion and provided a statement from the air brake manufacturer attesting to the similarity of their air brake systems to the ones tested.
Based on the similarity of design documented by the air brake manufacturers and performance demonstrated by tests and teardowns performed on various AAR member railroads, AAR is requesting a unified extension of the waiver applicable to all member railroads. AAR also requests that this waiver extension include all of the NYAB and Wabtec Air Brake systems that were studied by the joint committees. The air brake systems, conditions, and restrictions are requested to be as given in approval letters to Amtrak (June 19, 2014), CSX (August 14, 2015), and a joint letter to CSX and UP (October 15, 2015). A summary of the requested intervals and brake systems is given in the following table:
AAR also submitted copies of FRA decision letters documenting the intervals above and giving complete conditions as determined by FRA based on the consensus reached in the various joint railroad, manufacturer, labor and FRA waiver committees. These letters are available online at
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 April 11, 2016 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
Office of the Comptroller of the Currency (OCC), Treasury.
Notice and request for comment.
The OCC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on a continuing information collection, as required by the Paperwork Reduction Act of 1995 (PRA).
In accordance with the requirements of the PRA, the OCC may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number.
The OCC is soliciting comment concerning renewal of its information collection titled, “Disclosure of Financial and Other Information by National Banks.”
Comments must be submitted on or before April 25, 2016.
Because paper mail in the Washington, DC area and at the OCC is subject to delay, commenters are encouraged to submit comments by email, if possible. Comments may be sent to: Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, Attention: 1557-0182, 400 7th Street SW., Suite 3E-218, Mail Stop 9W-11, Washington, DC 20219. In addition, comments may be sent by fax to (571) 465-4326 or by electronic mail to
All comments received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not include any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure.
Shaquita Merritt, OCC Clearance Officer, (202) 649-5490 or, for persons who are deaf or hard of hearing, TTY, (202) 649-5597, Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, 400 7th Street SW., Suite 3E-218, Mail Stop 9W-11, Washington, DC 20219.
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the OMB for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) to include agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
This program of periodic financial disclosure is needed not only to facilitate informed decision making by existing and potential customers and investors, but also to improve public understanding of, and confidence in, the financial condition of individual national banks and the national banking system. Further, financial disclosure reduces the likelihood that the market will overreact to incomplete information.
(a) Whether the collection of information is necessary for the proper performance of the functions of the OCC, including whether the information has practical utility;
(b) The accuracy of the OCC's estimate of the information collection burden;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of the collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Office of the Comptroller of the Currency, Treasury (OCC) and Federal Deposit Insurance Corporation (FDIC).
Joint notice and request for comment.
The OCC and the FDIC (the Agencies), as part of their continuing effort to reduce paperwork and respondent burden, invite the general public and other Federal agencies to take this opportunity to comment on an information collection renewal, as required by the Paperwork Reduction Act of 1995 (PRA).
An agency may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number.
The Agencies are soliciting comment concerning the renewal of each Agency's information collection titled “Interagency Appraisal Complaint Form.” The Agencies also are giving notice that they have each sent their collection to OMB for review.
Comments must be received by March 28, 2016.
All comments received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not include any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure.
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Additionally, please send a copy of your comments by mail to: OCC Desk Officer, 1557-0314 or 3064-0190, U.S. Office of Management and Budget, 725 17th Street NW., #10235, Washington, DC 20503, or by email to:
In compliance with the PRA, 44 U.S.C. 3501
Section 1473(p) of the Dodd-Frank Wall Street Reform and Consumer Protection Act
Representatives from the Agencies, the Board, the NCUA, and the CFPB met and established a process to facilitate the referral of complaints received through the ASC Hotline to the appropriate Federal financial institution regulatory agency or agencies. The Agencies, the Board, and the NCUA developed the Interagency Appraisal Complaint Form (IACF) to collect the information necessary to take further action on the complaint. The CFPB incorporated the process into one of their existing systems.
The IACF was developed for use by those who wish to file a formal, written complaint that an entity subject to the jurisdiction of one or more Agencies, the Board, or the NCUA has failed to comply with the appraisal independence standards or USPAP. The IACF is designed to collect information necessary for one or both of the Agencies, the Board, or the NCUA to take further action on a complaint from an appraiser, other individual, financial
The OCC and FDIC estimate that the burden of this collection of information is as follows:
The Agencies issued a notice regarding the collection for 60 days of comment on December 4, 2015, 80 FR 75896. No comments were received. Comments continue to be invited on:
(a) Whether the collection of information is necessary for the proper performance of the functions of the Agencies, including whether the information has practical utility;
(b) The accuracy of the Agencies' estimates of the burden of the collection of information;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of the collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Application of Separate Limitations to Dividends From Noncontrolled Section 902 Corporations.
Written comments should be received on or before April 25, 2016 to be assured of consideration.
Direct all written comments to Tuawana Pinkston, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the regulation should be directed to Martha R. Brinson, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 1045, Application for Tentative Refund.
Written comments should be received on or before April 25, 2016 to be assured of consideration.
Direct all written comments to Tuawana Pinkston, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Martha R. Brinson, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments should be received on or before April 25, 2016 to be assured of consideration.
Direct all written comments to Tuawana Pinkston, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or
Please send separate comments for each specific information collection listed below. You must reference the information collection's title, form number, reporting or record-keeping requirement number, and OMB number (if any) in your comment.
To obtain additional information, or copies of the information collection and instructions, or copies of any comments received, contact Elaine Christophe, at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the internet, at
The Department of the Treasury and the Internal Revenue Service, as part of their continuing effort to reduce paperwork and respondent burden, invite the general public and other Federal agencies to take this opportunity to comment on the proposed or continuing information collections listed below in this notice, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Currently, the IRS is seeking comments concerning the following forms, and reporting and record-keeping requirements:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Real Estate Mortgage Investment Conduits.
Written comments should be received on or before April 25, 2016 to be assured of consideration.
Direct all written comments to Tuawana Pinkston, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the regulation should be directed to Martha R. Brinson, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Wage and Hour Division, Department of Labor
Notice of proposed rulemaking.
This document proposes regulations to implement Executive Order 13706, Establishing Paid Sick Leave for Federal Contractors, signed by President Barack Obama on September 7, 2015, which requires certain parties that contract with the Federal Government to provide their employees with up to 7 days of paid sick leave annually, including paid leave allowing for family care. Executive Order 13706 explains that providing access to paid sick leave will improve the health and performance of employees of Federal contractors and bring their benefits packages in line with model employers, ensuring that Federal contractors remain competitive employers and generating savings and quality improvements that will lead to improved economy and efficiency in Government procurement. The Executive Order directs the Secretary of Labor (Secretary) to issue regulations by September 30, 2016, to implement the Order's requirements. This proposed rule therefore defines terms used in the regulatory text, describes the categories of contracts and employees the Order covers and excludes from coverage, sets forth requirements and restrictions governing the accrual and use of paid sick leave, and prohibits interference with or discrimination for the exercise of rights under the Executive Order. It also describes the obligations of contracting agencies, the Department of Labor, and contractors under the Executive Order, and it establishes the standards and procedures for complaints, investigations, remedies, and administrative enforcement proceedings related to alleged violations of the Order. As required by the Order and to the extent practicable, the proposed rule incorporates existing definitions, procedures, remedies, and enforcement processes under the Fair Labor Standards Act, the Service Contract Act, the Davis-Bacon Act, the Family and Medical Leave Act, the Violence Against Women Act, and Executive Order 13658, Establishing a Minimum Wage for Contractors.
Comments must be received on or before March 28, 2016.
You may submit comments, identified by Regulatory Information Number (RIN) 1235-AA13, by either of the following methods:
Robert Waterman, Compliance Specialist, Wage and Hour Division, U.S. Department of Labor, Room S-3510, 200 Constitution Avenue NW., Washington, DC 20210; telephone: (202) 693-0406 (this is not a toll-free number). Copies of this proposed rule may be obtained in alternative formats (large print, Braille, audio tape or disc), upon request, by calling (202) 693-0675 (this is not a toll-free number). TTY/TDD callers may dial toll-free 1-877-889-5627 to obtain information or request materials in alternative formats.
Questions of interpretation and/or enforcement of the agency's regulations may be directed to the nearest WHD district office. Locate the nearest office by calling the WHD's toll-free help line at (866) 4US-WAGE ((866) 487-9243) between 8 a.m. and 5 p.m. in your local time zone, or log onto the WHD's Web site for a nationwide listing of WHD district and area offices at
On September 7, 2015, President Barack Obama signed Executive Order 13706, Establishing Paid Sick Leave for Federal Contractors (the Executive Order or the Order). 80 FR 54697.
Section 1 of Executive Order 13706 explains that the Order seeks to increase efficiency and cost savings in the work performed by parties that contract with the Federal Government by ensuring that employees on those contracts can earn up to 7 days or more of paid sick leave annually, including paid leave allowing for family care. 80 FR 54697. The Order states that providing access to paid sick leave will improve the health and performance of employees of Federal contractors and bring benefits packages at Federal contractors in line with model employers, ensuring that they remain competitive employers in the search for dedicated and talented employees.
Section 2 of the Executive Order establishes paid sick leave for Federal contractors and subcontractors. 80 FR 54697. Section 2(a) provides that
Section 2(c) explains that paid sick leave earned under the Order may be used by an employee for an absence resulting from: (i) physical or mental illness, injury, or medical condition; (ii) obtaining diagnosis, care, or preventive care from a health care provider; (iii) caring for a child, a parent, a spouse, a domestic partner, or any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship who has any of the conditions or needs for diagnosis, care, or preventive care described in (i) or (ii) or is otherwise in need of care; or (iv) domestic violence, sexual assault, or stalking, if the time absent from work is for the purposes described in (i) or (ii), to obtain additional counseling, to seek relocation, to seek assistance from a victim services organization, or take related legal action, including preparation for or participation in any related civil or criminal legal proceeding, or to assist an individual related to the employee as described in (iii) in engaging in any of these activities. 80 FR 54697.
Section 2(d) provides that paid sick leave shall carry over from one year to the next and shall be reinstated for employees rehired by a covered contractor within 12 months after a job separation.
Under section 2(e), the use of paid sick leave cannot be made contingent on the requesting employee finding a replacement to cover any work time to be missed. 80 FR 54698. Section 2(f) provides that the paid sick leave required by the Order is in addition to a contractor's obligations under the Service Contract Act and Davis-Bacon Act, and contractors may not receive credit toward their prevailing wage or fringe benefit obligations under those Acts for any paid sick leave provided in satisfaction of the Order's requirements.
Section 2(g) explains that an employer's existing paid sick leave policy provided in addition to the fulfillment of Service Contract Act or Davis-Bacon Act obligations, if applicable, and made available to all covered employees will satisfy the requirements of the Executive Order if the amount of paid leave is sufficient to meet the requirements of section 2 and if it may be used for the same purposes and under the same conditions described in the Executive Order.
Section 2(h) of the Order establishes that paid sick leave shall be provided upon the oral or written request of an employee that includes the expected duration of the leave, and is made at least 7 calendar days in advance where the need for the leave is foreseeable, and in other cases as soon as is practicable.
Section 2(i) addresses when a contractor may require employees to provide certification or documentation regarding the use of leave. 80 FR 54698. It provides that a contractor may only require certification issued by a health care provider for paid sick leave used for the purposes listed in sections 2(c)(i), (c)(ii), or (c)(iii) for employee absences of 3 or more consecutive workdays, to be provided no later than 30 days from the first day of the leave.
Section 2(j) states that nothing in the Order shall require a covered contractor to make a financial payment to an employee upon a separation from employment for unused accrued sick leave. 80 FR 54698. Section 2(j) further notes, however, that unused leave is subject to reinstatement as prescribed in section 2(d).
Section 2(k) prohibits a covered contractor from interfering with or in any other manner discriminating against an employee for taking, or attempting to take, paid sick leave as provided for under the Order, or in any manner asserting, or assisting any other employee in asserting, any right or claim related to the Order.
Section 2(l) states that nothing in the Order shall excuse noncompliance with or supersede any applicable Federal or State law, any applicable law or municipal ordinance, or a collective bargaining agreement requiring greater paid sick leave or leave rights than those established under the Order.
Section 3(a) of the Executive Order provides that the Secretary shall issue such regulations by September 30, 2016, as are deemed necessary and appropriate to carry out the Order, to the extent permitted by law and consistent with the requirements of 40 U.S.C. 121, including providing exclusions from the requirements set forth in the Order where appropriate; defining terms used in the Order; and requiring contractors to make, keep, and preserve such employee records as the Secretary deems necessary and appropriate for the enforcement of the provisions of the Order or the regulations thereunder. 80 FR 54698. It also requires that, to the extent permitted by law, within 60 days of the Secretary issuing such regulations, the Federal Acquisition Regulatory Council (FARC) shall issue regulations in the Federal Acquisition Regulation (FAR) to provide for inclusion in Federal procurement solicitations and contracts subject to the Executive Order the contract clause described in section 2(a) of the Order.
Additionally, section 3(b) states that within 60 days of the Secretary issuing regulations pursuant to the Order, agencies shall take steps, to the extent permitted by law, to exercise any applicable authority to ensure that contracts or contract-like instruments for concessions and contracts entered into with the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public, entered into after January 1, 2017, consistent with the effective date of such agency action, comply with the requirements set forth in section 2 of the Order. 80 FR 54699.
Section 3(c) specifies that any regulations issued pursuant to section 3 of the Order should, to the extent practicable and consistent with section 7 of the Order, incorporate existing definitions, procedures, remedies, and enforcement processes under the Fair Labor Standards Act, 29 U.S.C. 201
Section 4(a) of the Executive Order grants authority to the Secretary to investigate potential violations of and obtain compliance with the Order, including the prohibitions on interference and discrimination in section 2(k) of the Order. 80 FR 54699. Section 4(b) further explains that the Executive Order creates no rights under the Contract Disputes Act, and disputes regarding whether a contractor has provided employees with paid sick leave prescribed by the Order, to the extent permitted by law, shall be disposed of only as provided by the Secretary in regulations issued pursuant to the Order.
Section 5 of the Executive Order establishes that if any provision of the Order, or applying such provision to any person or circumstance, is held to be invalid, the remainder of the Order and the application of the provisions of such to any person or circumstances shall not be affected thereby.
Section 6(a) of the Executive Order provides that nothing in the Order shall be construed to impair or otherwise affect (i) the authority granted by law to an executive department, agency, or the head thereof; or (ii) the functions of the Director of the Office of Management and Budget (OMB) relating to budgetary, administrative, or legislative proposals. 80 FR 54699. Section 6(b) states that the Order is to be implemented consistent with applicable law and subject to the availability of appropriations.
Section 6(d) of the Executive Order establishes that the Order shall apply only to a new contract or contract-like instrument, as defined by the Secretary in the regulations issued pursuant to section 3(a) of the Order, if: (i) (A) It is a procurement contract for services or construction; (B) it is a contract or contract-like instrument for services covered by the Service Contract Act; (C) it is a contract or contract-like instrument for concessions, including any concessions contract excluded by Department of Labor (Department) regulations at 29 CFR 4.133(b); or (D) it is a contract or contract-like instrument entered into with the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public; and (ii) the wages of employees under such contract or contract-like instrument are governed by the DBA, SCA, or FLSA, including employees who qualify for an exemption from the FLSA's minimum wage and overtime provisions. 80 FR 54699.
Section 6(e) states that, for contracts or contract-like instruments covered by the SCA or DBA, the Order shall apply only to contracts or contract-like instruments at the thresholds specified in those statutes. 80 FR 54699-700. Additionally, Section 6(e) provides that for procurement contracts in which employees' wages are governed by the FLSA, the Order shall apply only to contracts or contract-like instruments that exceed the micro-purchase threshold, as defined in 41 U.S.C. 1902(a), unless expressly made subject to the Order pursuant to regulations or actions taken under section 3 of the Order. 80 FR 54700.
Section 6(f) specifies that the Order shall not apply to grants; contracts and agreements with and grants to Indian Tribes under the Indian Self-Determination and Education Assistance Act (Pub. L. 93-638), as amended; or any contracts or contract-like instruments expressly excluded by the regulations issued pursuant to section 3(a) of the Order.
Section 7(a) of the Executive Order provides that the Order is effective immediately and shall apply to covered contracts where the solicitation for such contract has been issued, or the contract has been awarded outside the solicitation process, on or after: (i) January 1, 2017, consistent with the effective date for the action taken by the FARC pursuant to section 3(a) of the Order; or (ii) January 1, 2017, for contracts where an agency action is taken pursuant to section 3(b) of the Order, consistent with the effective date for such action. 80 FR 54700. Section 7(b) specifies that the Order shall not apply to contracts or contract-like instruments that are awarded, or entered into pursuant to solicitations issued, on or before the effective date for the relevant action taken pursuant to section 3 of the Order.
The President issued Executive Order 13706 pursuant to his authority under “the Constitution and the laws of the United States of America,” expressly including 40 U.S.C. 121, a provision of the Federal Property and Administrative Services Act (Procurement Act). 80 FR 54697. The Procurement Act authorizes the President to “prescribe policies and directives that [the President] considers necessary to carry out” the statutory purposes of ensuring “economical and efficient” government procurement and administration of government property. 40 U.S.C. 101, 121(a). Executive Order 13706 delegates to the Secretary the authority to issue regulations “deemed necessary and appropriate to carry out this order.” 80 FR 54698. The Secretary has delegated his authority to promulgate these regulations to the Administrator of the WHD. Secretary's Order 01-2014 (Dec. 19, 2014), 79 FR 77527 (published Dec. 24, 2014).
As part of the development of this proposed rule, the Department has engaged stakeholders who have an interest in the Executive Order to solicit their views regarding implementation of the Order's paid sick leave requirements and important issues to address in this rulemaking. In particular, the Department held listening sessions regarding the Order with worker advocates and business representatives in October and November 2015.
The Department's notice of proposed rulemaking (NPRM), which would amend Title 29 of the Code of Federal Regulations (CFR) by adding part 13, proposes standards and procedures for implementing and enforcing Executive Order 13706. Proposed subpart A of part 13 addresses general matters, including the purpose and scope of the rule, sets forth definitions of terms used in the proposed part, and describes the types of contracts and employees covered by the Order and part 13 and excluded from such coverage. It describes the paid sick leave requirements for contractors established by the Executive Order, including rules and restrictions regarding the accrual and use of such leave. It also prohibits interference with the accrual or use of paid sick leave provided pursuant to the Executive Order or part 13, discrimination for the exercise of rights under the Executive Order or part 13, and failure to comply with the recordkeeping requirements of part 13. Finally, proposed subpart A includes a prohibition against waiver of rights.
Proposed subpart B establishes the obligations of the Federal government (specifically, contracting agencies and the Department) under the Order, and proposed subpart C establishes the
The following section-by-section discussion of this proposed rule presents the contents of each section in more detail. The Department invites comments on any issues addressed in this NPRM.
Proposed subpart A of part 13 describes the purpose and scope of the proposed rule, and it sets forth definitions of terms used in the proposed rule, descriptions of the types of contracts and employees covered by the Order and part 13 and excluded from such coverage, and rules and restrictions regarding the accrual and use of paid sick leave. Proposed subpart A also prohibits interference with the accrual or use of the paid sick leave required by, and discrimination for the exercise of rights under, the Executive Order or part 13, as well as violations of the recordkeeping requirements of part 13. Finally, proposed subpart A includes a prohibition against waiver of rights.
Proposed § 13.1(a) explains that the purpose of the proposed rule is to implement Executive Order 13706 and reiterates statements from the Order that the Federal Government's procurement interests in economy and efficiency are promoted when the Federal Government contracts with sources that provide paid sick leave to their employees. It explains that the Order states that providing access to paid sick leave will improve the productivity of employees by improving their health and performance and will bring benefits packages offered by Federal contractors in line with model employers, ensuring they remain competitive in the search for dedicated and talented employees. As stated in proposed § 13.1(a), it is for these reasons that the Executive Order concludes that the provision of paid sick leave under the Order will generate savings and quality improvements in the work performed by parties who contract with the Federal Government, thereby leading to improved economy and efficiency in Government procurement. The Department believes that, by increasing the quality and efficiency of services provided to the Federal Government, the Executive Order will improve the value that taxpayers receive from the Federal Government's investment.
Proposed § 13.1(b) sets forth the general position of the Federal Government that providing access to paid sick leave on Federal contracts will increase efficiency and cost savings for the Federal Government, and it explains the general requirement established in Executive Order 13706 that new contracts with the Federal Government include a clause, which the contractor and any subcontractors shall incorporate into lower-tier subcontracts, requiring, as a condition of payment, that the contractor and any subcontractors provide paid sick leave to employees in the amount of not less than 1 hour of paid sick leave for every 30 hours worked on or in connection with covered contracts. Proposed § 13.1(b) also specifies that nothing in Executive Order 13706 or part 13 shall excuse noncompliance with or supersede any applicable Federal or State law, any applicable law or municipal ordinance, or a collective bargaining agreement requiring greater paid sick leave or leave rights than those established under the Order or part 13.
Proposed § 13.1(c) outlines the scope of this proposed rule and provides that neither Executive Order 13706 nor part 13 creates any rights under the Contract Disputes Act or creates any private right of action. The Department does not interpret the Executive Order as limiting existing rights under the Contract Disputes Act. This provision also implements the Executive Order's directive that disputes regarding whether a contractor has provided paid sick leave as prescribed by the Order, to the extent permitted by law, shall be disposed of only as provided by the Secretary in regulations issued under the Order. The provision specifies, however, that nothing in the Order or part 13 is intended to limit or preclude a civil action under the False Claims Act, 31 U.S.C. 3730, or criminal prosecution under 18 U.S.C. 1001. Finally, this paragraph specifies that neither the Order nor part 13 would preclude judicial review of final decisions by the Secretary in accordance with the Administrative Procedure Act, 5 U.S.C. 701
Proposed § 13.2 defines terms for purposes of part 13. Section 3(c) of the Executive Order instructs that any regulations issued pursuant to the Order should “incorporate existing definitions” under the FLSA, SCA, DBA, FMLA, VAWA, and Executive Order 13658 “to the extent practicable and consistent with section 7 of this order.” 80 FR 54699. Because of the similarities in language, structure, and intent of the Minimum Wage Executive Order and Executive Order 13706, many of the definitions provided in this proposed rule are identical to or based on definitions promulgated in the Minimum Wage Executive Order Final Rule. Pursuant to section 4(c) of the Minimum Wage Executive Order, those definitions were largely based either on the language of the Order itself or the definitions of relevant terms set forth in the statutory text or implementing regulations of the FLSA, SCA, or DBA; in addition, some definitions were based on definitions published by the FARC in section 2.101 of the FAR, 48 CFR 2.101, or definitions set forth in the Department's regulations implementing Executive Order 13495, Nondisplacement of Qualified Workers Under Service Contracts (Executive Order 13495 or Nondisplacement Executive Order), at 29 CFR 9.2. 79 FR 60637. Definitions relevant because of provisions of Executive Order 13706 that do not appear in Executive Order 13658 are largely based on definitions set forth in the statutory text or implementing regulations of the FMLA or the VAWA, as well as regulations issued by the U.S. Office of Personnel Management (OPM) at 5 CFR part 630, subparts B and D, which govern the accrual and use of sick leave by employees of the Federal government.
The definitions discussed in this proposed rule would govern the implementation and enforcement of Executive Order 13706. Nothing in the rule is intended to alter the meaning of or to be interpreted inconsistently with the definitions set forth in section 2.101 of the FAR for purposes of that regulation.
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The Department understands this term to be inclusive of non-nuclear family structures. It could include, for example, an individual who was a foster child in the same home in which the employee was a foster child for several years and with whom the employee has maintained a sibling-like relationship, a friend of the family in whose home the employee lived while she was in high school and whom the employee therefore considers to be like a mother or aunt to her, or an elderly neighbor with whom the employee has regularly shared meals and to whom the employee has provided unpaid caregiving assistance for the past 5 years and whom the employee therefore considers to be like a grandfather to her. The Department seeks comments regarding its proposed definition of this term, in particular regarding whether additional specificity is necessary.
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Proposed § 13.3 addresses and implements the coverage provisions of section 6 of Executive Order 13706. 80 FR 54697-54700. Proposed § 13.3(a) would implement the provisions regarding the categories of contracts and employees covered by the Order by stating that part 13 applies to any new contract with the Federal Government, unless excluded by § 13.4, provided that: (1)(i) It is a procurement contract for construction covered by the DBA; (ii) it is a contract for services covered by the SCA; (iii) it is a contract for concessions, including any concessions contract excluded from coverage under the SCA by Department of Labor regulations at 29 CFR 4.133(b); or (iv) it is a contract in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public; and (2) the wages of employees performing on or in connection with such contract are governed by the DBA, SCA, or FLSA, including employees who qualify for an exemption from the FLSA's minimum wage and overtime provisions.
Proposed § 13.3(b) incorporates the monetary value thresholds referred to in section 6(e) of the Executive Order. Specifically, it would provide that for contracts covered by the SCA or the DBA, part 13 applies to prime contracts only at the thresholds specified in those statutes, and for procurement contracts where employees' wages are governed by the FLSA (
Proposed § 13.3(c), which is identical to the analogous provision in the Minimum Wage Executive Order Final Rule, 29 CFR 10.3(c), states that part 13 only applies to contracts with the Federal Government requiring performance in whole or in part within the United States; it further explains that if a contract with the Federal Government is to be performed in part within and in part outside the United States and is otherwise covered by the Executive Order and part 13, the requirements of the Order and part 13 would apply with respect to that part of the contract that is performed within the United States.
Proposed § 13.3(d), adopted from the Minimum Wage Executive Order regulations, 29 CFR 10.3(d), explains that part 13 does not apply to contracts subject to the Walsh-Healey Public Contracts Act, 41 U.S.C. 6501
The preamble to the Minimum Wage Executive Order Final Rule addressed several issues related to the coverage provisions of that Order in its discussion of the regulatory text that was codified at 29 CFR 10.3; because many of those issues are also relevant to Executive Order 13706, the Department addresses them here. Where the language of § 13.3 is based on text of Executive Order 13706 that is identical to the text of the Minimum Wage Executive Order, the Department interprets the text identically, although the Department is posing one question about a contracts coverage issue, as described below. The Department's interpretations of language from Executive Order 13706 that differs from the text of the Minimum Wage Executive Order are based on and consistent with the language of the Order being implemented here.
Executive Order 13706 applies to all “[e]xecutive departments and agencies.” 80 FR 54697. The Department proposes to define
Executive Order 13706, like the Minimum Wage Executive Order, strongly encourages but does not compel “[i]ndependent agencies” to comply with its requirements. 80 FR 54700;
Proposed § 13.3(a) provides that the requirements of the Executive Order apply to a “new contract with the Federal Government.” By applying only to “new contracts,” the Executive Order ensures that contracting agencies and contractors will have sufficient notice of any obligations under Executive Order 13706 and can take into account any potential impact of the Order prior to entering into “new contracts” on or after January 1, 2017. As discussed above, the proposed definition of the term
As explained in the discussion of proposed § 13.2, the proposed definition of
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Specifically, and particularly in light of these clauses, a bilaterally negotiated extension of an existing contract on or after January 1, 2017 will be viewed as a “new contract” unless the extension is made pursuant to a term in the contract as of December 31, 2016 providing for a short-term limited extension, in which case the extension will not constitute a “new contract” and will not be covered. Therefore, a short-term, bilaterally negotiated extension of contract terms (
An extension that was bilaterally negotiated and not previously authorized by the terms of the existing contract, however, would be a “new contract” subject to the Order's paid sick leave requirements. The Department also notes that a long-term extension of an existing contract will qualify as a “new contract” subject to the Executive Order even if such an extension was provided for by a pre-negotiated term of the contract.
With respect to the coverage of other contract modifications, the Department's approach in this proposal is identical to that in the Minimum Wage Executive Order Final Rule. 79 FR 60646-49. It is meant to reflect that modifications within the scope of the contract do not in fact constitute new contracts. Long-standing contracting principles recognize that an existing contract, especially a larger one, will often require modifications, which may include very modest changes (
However, if the parties bilaterally negotiate a modification that is outside the scope of the contract, the agency will be required to create a new contract, triggering solicitation and/or justification requirements, and thus such a modification after January 1, 2017 will constitute a “new contract” subject to the Executive Order's paid sick leave requirements. For example, if an existing SCA-covered contract for janitorial services at a Federal office building is modified by bilateral negotiation after January 1, 2017 to also provide for security services at that building, such a modification would likely be regarded as outside the scope of the contract and thus qualify as a “new contract” subject to the Executive Order. Similarly, if an existing DBA-covered contract for construction work at Site A was modified by bilateral negotiation after January 1, 2017 to also cover construction work at Site B, such a modification would generally be viewed as outside the scope of the contract and thus trigger coverage of the Executive Order. The Department cautions, however, that whether a modification qualifies as “within the scope” or “outside the scope” of the contract is necessarily a fact-specific determination.
Although in-scope modifications do not create “new contracts” under part 13, the Department strongly encourages agencies to bilaterally negotiate, as part of any such modification, application of the Executive Order's paid sick leave requirements so that these contracts can take advantage of the benefits of such leave. For example, the FARC should encourage, if not require, contracting officers to modify existing indefinite-delivery, indefinite-quantity contracts in accordance with FAR section 1.108(d)(3) to include the paid sick leave requirements of Executive Order 13706 and part 13, particularly if the remaining ordering period extends at least 6 months and the amount of remaining work or number of orders expected is substantial.
Proposed § 13.3(a)(1) sets forth the specific types of contractual arrangements with the Federal Government that are covered by the Executive Order. Executive Order 13706 and part 13 are intended to apply to a wide range of contracts with the Federal Government for services or construction, and proposed § 13.3(a)(1) implements the Executive Order by generally extending coverage to procurement contracts for construction covered by the DBA; service contracts covered by the SCA; concessions contracts, including any concessions contract excluded by the Department's regulations at 29 CFR 4.133(b); and contracts in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public. Each of these categories of contractual agreements, which are treated in this proposed rulemaking as they were in the Minimum Wage Executive Order rulemaking, is discussed in greater detail below.
The DBA applies, in relevant part, to contracts to which the Federal Government is a party, for the construction, alteration, or repair, including painting and decorating, of public buildings and public works of the Federal Government and which require or involve the employment of mechanics or laborers. 40 U.S.C. 3142(a). The DBA's regulatory definition of
Proposed § 13.3(b) implements section 6(e) of Executive Order 13706, 80 FR 52699-700, which provides that the Order applies only to DBA-covered prime contracts that exceed the $2,000 value threshold specified in the DBA.
This proposed provision implements section 6(d)(i)(B) of the Executive Order, which states that the Order applies to “a contract or contract-like instrument for services covered by the Service Contract Act.” 80 FR 54699. The SCA applies (subject to the exceptions discussed below) to any contract entered into by the United States that “has as its principal purpose the furnishing of services in the United States through the use of service employees.” 41 U.S.C. 6702(a)(3);
In addition to the provision in section 6(d)(i)(B) of the Executive Order extending coverage to contracts covered by the SCA, section 6(d)(i)(A) provides that the Order applies to “a procurement contract for services.” 80 FR 54699. In the Minimum Wage Executive Order rulemaking, the Department interpreted these two phrases together to mean that Executive Order 13658 applied to all procurement and non-procurement contracts covered by the SCA. The phrase “a procurement contract for services” could, however, be construed to encompass a category or categories of procurement contracts for services beyond those covered by the SCA.
The SCA does not apply to all procurement contracts with the Federal Government for services. For example, the SCA contains a list of exemptions from its coverage: It does not apply to “a contract for the carriage of freight or personnel by vessel, airplane, bus, truck, express, railway line or oil or gas pipeline where published tariff rates are in effect”; “a contract for the furnishing of services by radio, telephone, telegraph, or cable companies, subject to the Communications Act of 1934”; “a contract for public utility services, including electric light and power, water, steam, and gas”; “an employment contract providing for direct services to a Federal agency by an individual”; and “a contract with the United States Postal Service, the principal purpose of which is the operation of postal contract stations.” 41 U.S.C. 6702(b);
The Department seeks comment as to whether it should include within the coverage of Executive Order 13706 a wider set of procurement contracts for services than those contracts for services covered by the SCA. An interpretation treating as covered procurement contracts for services performed exclusively or essentially by employees who qualify as bona fide executive, administrative, or professional employees as defined in the FLSA's regulations at 29 CFR part 541—a type of employee covered by section 6(d)(ii) of the Order because such employees qualify for an exemption from the FLSA's minimum wage and overtime provisions, 80 FR 54700—would, for example, extend the Order's paid sick leave requirements to some such employees who would otherwise not be covered by the Order. An interpretation treating as covered other types of service contracts explicitly exempted from SCA coverage under 41 U.S.C. 6702(b) and 29 CFR 4.123(d) and (e) would also extend the Order's paid sick leave requirements to at least some employees on any such contracts; although those employees' wages would by definition not be covered by the SCA, under such an interpretation, employees performing on or in connection with such contracts whose wages were governed by the FLSA, including employees who qualify for an exemption from its minimum wage and overtime provisions, would be entitled to paid sick leave under the Order and part 13. The Department seeks comments discussing the potential scope and implications of such coverage, including whether employees who work on or in connection with certain categories of non-SCA-covered service contracts currently typically do not have paid sick time or do not have any type of paid time off such that the protections of Executive Order 13706 would be particularly significant to them. (If in the Final Rule, the Department changes the scope of coverage of service contracts, it will make a corresponding change to proposed § 13.4(d), which—as explained below—sets forth an exclusion from the Order's coverage for service contracts not covered by the SCA or proposed § 13.3(a)(1)(iii) or (iv).)
The Department notes that regardless of whether it adopts a broader interpretation of the set of procurement contracts for services covered by the Order and part 13, under proposed § 13.3(a)(1)(iii) and (iv) as well as § 13.3(d), described in more detail below, the Order's paid sick leave requirements will apply to service contracts that are concessions contracts, including all concessions contracts excluded by the SCA regulations at 29 CFR 4.133(b); will apply to service contracts that are in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public; and will not apply to contracts for the manufacturing or furnishing of materials, supplies, articles, or equipment to the Federal Government that are subject to the Walsh-Healey Public Contracts Act, 41 U.S.C. 6501
Finally, proposed § 13.3(b) implements section 6(e) of the Executive Order, which provides that for SCA-covered contracts, the Executive Order applies only to those prime contracts that exceed the threshold for prevailing wage requirements specified in the SCA. 80 FR 54700. Although the SCA covers all non-exempted contracts with the Federal Government that have the “principal purpose” of furnishing services in the United States through the use of service employees regardless of the value of the contract, the prevailing wage requirements of the SCA only apply to covered contracts in excess of $2,500. 41 U.S.C. 6702(a)(2). Consistent with the SCA, there is no value threshold requirement for application of Executive Order 13706 and part 13 to subcontracts awarded under such prime contracts.
The SCA generally covers contracts for concessionaire services.
Proposed § 13.3(b) implements the value threshold requirements of section 6(e) of Executive Order 13706. 80 FR 54699-700. Pursuant to that section, the Executive Order applies to an SCA-covered concessions contract only if it exceeds $2,500.
Despite this broad definition, the Department notes some limits to it. Coverage under this section only extends to contracts that are in connection with Federal property or lands. The Department does not interpret section 6(d)(i)(D)'s reference to “Federal property” to encompass money; as a result, purely financial transactions with the Federal Government,
Pursuant to proposed § 13.3(b) and section 6(e) of Executive Order 13706, 80 FR 54700, the Order and part 13 apply only to SCA-covered prime contracts in connection with Federal property and related to offering services if such contracts exceed $2,500.
As explained in the Minimum Wage Executive Order rulemaking, 79 FR 60657-58, the same test for determining application of the Executive Order to prime contracts applies to the determination of whether a subcontract is covered by the Order, with the distinction that the value threshold requirements set forth in section 6(e) of the Order do not apply to subcontracts. In other words, the requirements of the Order apply to a subcontract if the subcontract qualifies as a
Pursuant to this approach, only covered subcontracts of covered prime contracts are subject to the requirements of the Executive Order. Therefore, just as the Executive Order does not apply to prime contracts that are subject to the PCA, it likewise does not apply to subcontracts for the manufacturing or furnishing of materials, supplies, articles, or equipment. In other words, the Executive Order does not apply to subcontracts for the manufacturing or furnishing of materials, supplies, articles, or equipment between a manufacturer or other supplier and a covered contractor for use on a covered Federal contract. For example, a subcontract to supply napkins and utensils to a covered prime contractor operating a fast food restaurant on a military base is not a covered subcontract for purposes of this Order. The Executive Order likewise does not apply to contracts under which a contractor orders materials from a construction materials supplier.
Proposed § 13.3(a)(2) implements section 6(d)(ii) of Executive Order
An employee's wages are governed by the FLSA for purposes of section 6(d)(ii) of the Executive Order and part 13 if the employee is entitled to minimum wage and/or overtime compensation under sections 6 and/or 7 of the FLSA or the employee's wages are calculated pursuant to special certificates issued under section 14 of the FLSA.
The Department interprets the Order's reference to employees whose wages are governed by the DBA to include laborers and mechanics who are covered by the DBA, including any individual who is employed on a DBA-covered contract and individually registered in a bona fide apprenticeship program registered with the Department's Employment and Training Administration, Office of Apprenticeship, or with a State Apprenticeship Agency recognized by the Office of Apprenticeship. The Department also interprets the language in section 6(d)(ii) of Executive Order 13706 and proposed § 13.3(a)(2) to extend coverage to employees performing on or in connection with DBA-covered contracts for construction who are not laborers or mechanics but whose wages are governed by the FLSA as provided above, including those who qualify for an exemption from the FLSA's minimum wage and overtime provisions. Although such employees are not covered by the DBA itself because they are not “laborers and mechanics,” 40 U.S.C. 3142(b), such individuals are employees performing on or in connection with a contract subject to the Executive Order whose wages are governed by the FLSA, including those who qualify for an exemption from the FLSA's minimum wage and overtime provisions, and thus are covered by section 6(d) of the Order. 80 FR 54699. This coverage extends to employees whose wages are governed by the FLSA, including those who qualify for an exemption from the FLSA's minimum wage and overtime provisions, who are working on or in connection with DBA-covered contracts regardless of whether such employees are physically present on the DBA-covered construction worksite.
The Order also refers to employees whose wages are governed by the SCA. The SCA provides that “service employees” directly engaged in providing specific services called for by the SCA-covered contract are entitled to SCA prevailing wage rates. 41 U.S.C. 6701(3), 6703; 29 CFR 4.152. These employees are covered by the plain language of section 6(d) of Executive Order 13706. This category includes individuals who are employed on an SCA contract and individually registered in a bona fide apprenticeship program registered with the Department's Employment and Training Administration, Office of Apprenticeship, or with a State Apprenticeship Agency recognized by the Office of Apprenticeship.
Under the SCA, “service employees” who do not perform the services required by an SCA-covered contract but whose duties are “necessary to performance of the contract” must be paid at least the FLSA minimum wage. 29 CFR 4.153;
Furthermore, some employees perform work on or in connection with SCA-covered contracts but are not “service employees” for purposes of the Act because that term does not include an individual employed in a bona fide executive, administrative, or professional capacity, as those terms are defined in the FLSA regulations at 29 CFR part 541. 41 U.S.C. 6701(3)(C). As explained above, these employees are covered pursuant to section 6(d)(ii) of the Executive Order. For example, a contractor could employ a manager who meets the test for the executive employee exemption under 29 U.S.C. 213(a)(1) and 29 CFR 541.100 to supervise janitors on an SCA-covered contract for cleaning services at a Federal building. Because that manager performs work on a covered contract and qualifies for an exemption from the FLSA's minimum wage and overtime provisions, she would be entitled to the paid sick leave required by Executive Order 13706 and part 13.
The Department notes that where State or local government employees are performing on or in connection with covered contracts and their wages are governed by the SCA or the FLSA, including employees who qualify for an exemption from the FLSA's minimum wage and overtime provisions, such employees are entitled to the protections of the Executive Order and part 13. The DBA does not apply to construction performed by State or local government employees.
The paid sick leave requirements of Executive Order 13706 and part 13 apply to employees performing work “on or in connection with” covered contracts. As it did in the Minimum Wage Executive Order rulemaking,
The Department regards an employee performing “in connection with” a covered contract to be any employee who is performing work activities that are necessary to the performance of a covered contract but who is not directly engaged in performing the specific services called for by the contract itself. This standard, also articulated in the Minimum Wage Executive Order rulemaking, is derived from SCA regulations.
The Department notes that the Order does not extend to employees who are not engaged in working on or in connection with a covered contract. For example, a technician who is hired to repair a DBA contractor's electronic time system or a janitor who is hired to clean the bathrooms at the DBA contractor's company headquarters are not covered by the Order because they are not performing the specific duties called for by the contract or other services or work necessary to the performance of the contract. Similarly, the Executive Order would not apply to a landscaper at the home office of an SCA contractor because that employee is not performing the specific duties called for by the SCA contract or other services or work necessary to the performance of the contract. And the Executive Order would not apply to an employee hired by a covered concessionaire to redesign the storefront sign for a snack shop in a National Park unless the redesign of the sign was called for by the concessions contract itself or otherwise necessary to the performance of the contract. The Department notes for clarity that because the Order and part 13 do not apply to employees of Federal contractors who do no work on or in connection with a covered contract, a contractor could be required to provide paid sick leave to some of its employees but not others; in other words, it is not the case that because a contractor has one or more Federal contracts, all of its projects becomes covered.
Proposed § 13.3(c), which is identical to 29 CFR 10.3(c) as promulgated in the Minimum Wage Executive Order Final Rule,
Proposed § 13.4 sets forth exclusions from the Executive Order's requirements, including by implementing the exclusions set forth in section 6(f) of the Order and creating other limited exclusions from coverage as authorized by section 3(a) of the Executive Order.
Proposed § 13.4(a) implements the statement in section 6(f) of Executive Order 13706 that the Order does not apply to “grants.” 80 FR 54700. As it did in the Minimum Wage Executive Order rulemaking,
Proposed § 13.4(b) implements the other exclusion set forth in section 6(f) of Executive Order 13706, which states that the Order does not apply to “contracts and agreements with and grants to Indian Tribes under the Indian Self-Determination and Education Assistance Act (Pub. L. 93-638), as amended.” 80 FR 54700. This proposed provision is identical to 29 CFR 10.4(b) as promulgated by the Minimum Wage Executive Order.
Proposed § 13.4(c) provides that any procurement contracts for construction that are not subject to the DBA are excluded from coverage of the Executive Order and part 13. This proposed provision is identical to 29 CFR 10.4(c) as promulgated by the Minimum Wage Executive Order Final Rule.
Similarly, proposed § 13.4(d) incorporates the SCA's exemption of certain service contracts into the exclusionary provisions of the Executive Order. This proposed provision excludes from coverage of the Executive Order and part 13 any contracts for services, except for those expressly covered by proposed § 13.3(a)(1)(iii) or (iv), that are exempted from coverage under the SCA, pursuant to its statutory language at 41 U.S.C. 6702(b) or its implementing regulations, including those at 29 CFR 4.115 through 4.122 and 29 CFR 4.123(d) and (e). The Department notes that this exemption would not apply if the relevant service contract is expressly included within the Executive Order's coverage by proposed § 13.3(a)(1)(iii) or (iv). For example, certain types of concessions contracts are excluded from SCA coverage pursuant to 29 CFR 4.133(b) but are explicitly covered by section 6(d)(i)(C) of the Executive Order and part 13 under proposed § 13.3(a)(1)(iii). The Department notes that any comments addressing whether the Department should change proposed § 13.3(a)(1)(ii) to extend coverage to any categories of “procurement contracts for services” beyond those covered by the SCA would be relevant to this proposed provision as well.
Proposed § 13.4(e) provides that the accrual requirements of part 13 do not apply to employees performing in connection with covered contracts,
As explained in the Minimum Wage Executive Order rulemaking, 79 FR 60659-62, this exclusion does not apply to any employee performing “on,” rather than “in connection with,” a covered contract at any point during the workweek. (The meaning of these terms is addressed above, in the discussion of the coverage provisions of proposed § 13.3.) If an employee spends any time performing on a covered contract and that employee's wages are governed by the DBA, SCA, or FLSA, including employees who qualify for an exemption from the FLSA's minimum wage and overtime provisions, the employee will be entitled to accrue and use paid sick leave pursuant to the Executive Order as to all time performing on or in connection with covered contracts in that workweek. For an employee solely performing “in connection with” a covered contract, however, the Executive Order's paid sick leave requirements will only apply if that employee spends 20 percent or more of her hours worked in a given workweek performing in connection with covered contracts. Therefore, in order to apply this exclusion correctly, contractors must accurately distinguish between employees performing “on” a covered contract and those employees performing “in connection with” a covered contract. As explained in the discussion of these concepts above, employees directly performing the specific services called for by the contract are performing “on” a covered contract. This category includes any employee who is entitled to be paid DBA or SCA prevailing wages; such an employee is therefore entitled to accrue and use paid sick leave as required by the Executive Order and part 13 regardless of whether such covered work constitutes less than 20 percent of the employee's overall hours worked in a particular workweek.
This exclusion could apply, however, to any employees who are not directly engaged in performing the specific construction identified in a DBA contract (
Similarly, any employees performing work in connection with an SCA contract who are not entitled to SCA prevailing wages but are, because they perform work “in connection with” an SCA-covered contract, entitled to at least the FLSA minimum wage could fall within the scope of this exclusion provided their work falls below the 20 percent threshold. For example, the exclusion could apply to an accounting
With respect to concessions contracts and contracts in connection with Federal property or lands and related to offering services, the proposed § 13.4(e) exclusion could apply to any employees performing in connection with such contracts who are not at any time directly engaged in performing the specific services identified in the contract but whose services or work duties are necessary to the performance of the covered contract. One example of an employee who could qualify for this exclusion is a clerk who handles the payroll for a child care center that leases space in a Federal building as well as the center's other locations that are not covered by the Executive Order and thus does not spend 20 percent or more of his time handling payroll for the child care center in the Federal building.
Importantly, as in the Minimum Wage Executive Order rulemaking, 79 FR 60661-62, the Department notes that a contractor seeking to rely on this exclusion must correctly determine the hours worked, make and maintain records (or other affirmative proof) that the employee did not work “on” a covered contract, and appropriately segregate the hours worked by the employee in connection with the covered contract from other work not subject to the Executive Order. This requirement is consistent with other instances, described elsewhere in this preamble, in which employees perform some work covered by the Executive Order and part 13 and some work that is not. In the absence of records or other proof demonstrating that an employee did not work “on” a covered contract and adequately segregating non-covered work from the work performed in connection with a covered contract, the exclusion will not apply, and employees who work in connection with a covered contract will be presumed to have spent all paid time performing such work throughout the workweek.
The quantum of affirmative proof necessary to support reliance on the exclusion will vary with the circumstances. For example, it may require considerably less affirmative proof to satisfy the proposed § 13.4(e) exclusion with respect to an accounting clerk who only occasionally processes an SCA-contract-related invoice than would be necessary to establish the exclusion with respect to a security guard who works on a DBA-covered site for at least several hours each week.
Additionally, the Department notes that in calculating hours worked by a particular employee in connection with covered contracts for purposes of determining whether this exclusion may apply, contractors must determine the aggregate amount of hours worked on or in connection with covered contracts in a given workweek by that employee. For example, if an administrative assistant works for a single employer 40 hours per week and spends 2 hours each week handling payroll for each of four separate SCA contracts, the 8 hours that the employee spends performing in connection with the four covered contracts must be aggregated for each workweek in order to determine whether the exclusion applies. In this case, the exclusion would not apply because the employee's hours worked in connection with the SCA contracts constitute 20 percent of her total hours worked for that workweek. As a result, the 8 hours that the employee spends performing in connection with the four covered contracts each workweek would count toward the accrual of paid sick leave.
Finally, the Department acknowledges that the Minimum Wage Executive Order rulemaking contained additional exclusions for certain categories of employees that are not replicated in this proposed rule. Specifically, under the Minimum Wage Executive Order regulations, employees whose wages are not governed by section 206(a)(1) of the FLSA because of the applicability of exemptions under section 213(a) are not entitled to the protections of Executive Order 13658. 29 CFR 10.4(e)(3). Executive Order 13706 expressly covers employees to whom an exemption from the FLSA's minimum wage and overtime provisions applies,
Proposed § 13.5 implements section 2 of Executive Order 13706 by setting forth rules and restrictions regarding the accrual and use of paid sick leave.
Proposed § 13.5(a) addresses the accrual of paid sick leave. Proposed § 13.5(a)(1) provides that a contractor shall permit an employee to accrue not less than 1 hour of paid sick leave for every 30 hours worked on or in connection with a covered contract. This requirement implements section 2(a) of Executive Order 13706. 80 FR 54697. Proposed § 13.5(a) further provides that a contractor shall aggregate an employee's hours worked on or in connection with all covered contracts for that contractor for purposes of paid sick leave accrual. For example, if a subcontractor who installs windows in building construction projects sends a single employee to three separate DBA-covered projects, all the time the employee spends on all worksites—whether during the same or different workweeks—for the subcontractor must be added together to determine how much paid sick leave the employee has accrued. If in one workweek the employee spent 20 hours at Site A and 10 hours at Site B, she would have accrued 1 hour of paid sick leave at the end of that workweek; if in the next workweek the employee spent 30 hours at Site C, she would then have a total accrual of 2 hours of paid sick leave. As for an employee who falls within the 20 percent of hours worked exclusion created by proposed § 13.4(e) for some workweeks but not others, only the employee's hours worked on or in connection with covered contracts during workweeks in which the exclusion does not apply would count toward accrual of paid sick leave.
Proposed § 13.5(a)(1)(i) explains that for purposes of Executive Order 13706 and part 13, “hours worked” includes all time for which an employee is or should be paid, meaning time an employee spends working or in paid time off status, including time when the employee is using paid sick leave or any other paid time off provided by the contractor. This definition is different from the use of the term “hours worked” in other contexts and applies only for purposes of the Executive Order. It includes (but is broader than)
The Department's interpretation of “hours worked” under Executive Order 13706 to additionally include paid time off, although distinct from the FLSA and SCA definitions of the term, is analogous to the accrual of vacation leave under the SCA, where absences from work (with or without pay) generally count toward satisfaction of length of service requirements for vacation benefits. 29 CFR 4.173(b)(1). And it is consistent with the OPM regulation regarding leave accrual by federal employees, which provides that an employee accrues leave each pay period based on time she is “in a pay status.” 5 CFR 630.202(a). The Department's interpretation also reflects its view that basing paid sick leave accrual on all time an employee is in pay status, rather than merely on when the employee is suffered or permitted to work, will be administratively easier (or no more difficult) for contractors to implement. The Department further notes that this interpretation generally will have minimal impact on the rate of an employee's accrual of paid sick leave and, with respect to many employees who work at least full time (or potentially even less) each week on or in connection with covered contracts, will have no impact on the total amount of paid sick leave accrued per year because such employees will reach the maximum 56 hours within each accrual year regardless of whether paid time off is included. The Department reiterates that this broad definition of hours worked is only for purposes of the Executive Order and part 13 and has no bearing on the definition of hours worked in other contexts, such as the definition for purposes of the FLSA and SCA, which is set forth in longstanding regulations under those statutes.
The Department reiterates that only hours worked (as that term is defined for purposes of the Order and part 13) on or in connection with a covered contract, rather than hours worked on or in connection with a non-covered contract, count toward paid sick leave accrual. For example, if an employee works on an SCA-covered contract for security services for 30 hours each workweek and works for the same contractor on a private contract for security services an additional 30 hours each workweek, the contractor would only be required to allow that employee to accrue 1, rather than 2, hours of paid sick leave each workweek. Similarly, if an employee works for one contractor on a DBA-covered contract for construction for 2 months and then on a private contract for construction for 2 months, the contractor would only be required to allow the employee to accrue paid sick leave during the first 2 months. But the Department proposes to require contractors who wish to distinguish covered and non-covered hours worked for purposes of paid sick leave accrual to keep records that clearly reflect that distinction. Specifically, proposed § 13.5(a)(1)(i) explains that to properly exclude time spent on non-covered work from an employee's hours worked that count toward the accrual of paid sick leave, a contractor must accurately identify in its records the employee's covered and non-covered hours worked. In the absence of records or other proof adequately segregating the time—whether because of a contractor's inadequate recordkeeping, because the contractor preferred permitting the employee to more rapidly accrue paid sick leave rather than keeping such records, or for another reason—the employee would be presumed to have spent all paid time performing work on or in connection with a covered contract. This policy is consistent with the treatment of hours worked on SCA- and non-SCA-covered contracts,
Proposed § 13.5(a)(1)(ii) provides that a contractor shall calculate an employee's accrual of paid sick leave no less frequently than at the conclusion of each workweek, but it is not required to allow employees to accrue paid sick leave in increments smaller than 1 hour for completion of any fraction of 30 hours worked. In other words, a contractor must treat each employee's paid sick leave as accruing no less frequently than at the end of each workweek, but an employee need only be permitted to accrue a full hour of paid sick leave after working a full 30 hours, rather than accruing any fraction of an hour for any fraction of 30 hours worked during the workweek. The Department considers “workweek” to have the meaning explained in the FLSA regulations,
Proposed § 13.5(a)(1)(ii) further explains that any remaining fraction of 30 hours worked shall be added to hours worked for the same contractor in subsequent workweeks to reach the next 30 hours worked provided that the next workweek in which the employee performs on or in connection with a covered contract occurs within the same accrual year. (The term
Proposed § 13.5(a)(1)(iii) addresses the accrual of paid sick leave for employees as to whom contractors are not obligated by another statute to keep records of hours worked. For most employees on covered contracts, such as service employees on SCA-covered contracts, laborers and mechanics on DBA-covered contracts, and all employees performing work on or in connection with any covered contract whose wages are governed by the FLSA, contractors are already obligated by the SCA, DBA, or FLSA to keep records of employees' hours worked as that term is defined under those statutes. 29 CFR 4.6(g)(1)(iii), 4.185 (SCA); 29 CFR 5.5(a)(3)(i) (DBA); 29 CFR 516.2(a)(7), 516.30(a) (FLSA). As to those employees, therefore, contractors are already collecting information central to calculating the accrual of paid sick leave. But for those employees who are employed in a bona fide executive, administrative, or professional capacity, as those terms are defined in 29 CFR part 541, contractors are not currently required by the SCA, DBA, or FLSA to keep such records.
Proposed § 13.5(a)(2) would require a contractor to inform an employee, in writing, of the amount of paid sick leave that the employee has accrued but not used (i) no less than monthly, (ii) at any time when the employee makes a request to use paid sick leave, (iii) upon the employee's request for such information, but no more often than once a week, (iv) upon a separation from employment, and (v) upon reinstatement of paid sick leave pursuant to § 13.5(b)(3). Some of these requirements are based on FMLA regulations regarding notification to an employee of how much leave will be or has been counted against her FMLA entitlement,
Proposed § 13.5(a)(3) permits a contractor to choose to provide an employee with at least 56 hours of paid sick leave at the beginning of each accrual year rather than allowing the employee to accrue such leave based on hours worked over time. As proposed, it further provides that in such circumstances, the contractor need not comply with the accrual requirements described in proposed § 13.5(a)(1). The contractor must, however, allow carryover of paid sick leave as required by proposed § 13.5(b)(2), and although the contractor may limit the amount of paid sick leave an employee may carry over to no less than 56 hours, the contractor may not limit the amount of paid sick leave an employee has available for use at any point as is otherwise permitted by proposed § 13.5(b)(3). For example, if a contractor exercises this option and an employee carries over 16 hours of paid sick leave from one accrual year to the next (as described in the discussion of proposed § 13.5(b)(2) below), the contractor must permit the employee to have 72 hours (16 hours plus 56 hours) of paid sick
Proposed § 13.5(b) implements the Executive Order's provisions, in sections 2(b), (d), and (j), regarding maximum accrual, carryover, and reinstatement of paid sick leave as well as non-payment for unused paid sick leave. Proposed § 13.5(b)(1) provides that a contractor may limit the amount of paid sick leave an employee is permitted to accrue at not less than 56 hours in each accrual year. Proposed § 13.5(b)(1) would also provide detail regarding an
Proposed § 13.5(b)(2) provides that paid sick leave shall carry over from one accrual year to the next. This proposed language would mean that upon the date a contractor has selected as the beginning of the accrual year, an employee would continue to have available for use as much paid sick leave as the employee had accrued but not used as of the end of the previous accrual year. Proposed § 13.5(b)(2) further provides that paid sick leave carried over from the previous accrual year shall not count toward any limit the contractor sets on the annual accrual of paid sick leave. For example, if an employee carries over 30 unused hours of paid sick leave from accrual year 1 to accrual year 2, she must still be permitted to accrue up to 56 additional hours of paid sick leave in accrual year 2 rather than only 26 (because 30 plus 26 is 56), subject to the limitations described below.
Proposed § 13.5(b)(3) provides that a contractor may limit the amount of paid sick leave an employee is permitted to have available for use at any point to not less than 56 hours and further explains that even if an employee has accrued fewer than 56 hours of paid sick leave since the beginning of the accrual year, the employee need only be permitted to accrue additional paid sick leave if the employee has fewer than 56 hours available for use. For example, if an employee carries over 56 hours of paid sick leave into a new accrual year, a contractor may prohibit that employee from accruing any additional paid sick leave until she has used some portion of that leave. If and when she does use paid sick leave, she must be permitted to accrue additional paid sick leave, up to a limit of no less than 56 hours for the accrual year, beginning with hours worked in the workweek after she has used paid sick leave such that her amount of available paid sick leave is less than 56 hours. Similarly, if an employee carries over 16 hours of paid sick leave into a new accrual year, she must be permitted to accrue 40 additional hours of paid sick leave even if she does not use any paid sick leave while that accrual occurs. Once she has 56 hours of paid sick leave accrued, the contractor may prohibit her from accruing any additional leave unless, and until the workweek after, she uses some portion of the 56 hours. If she uses, for example, 24 hours of paid sick leave in the same accrual year (such that she has 32 hours remaining available for use), she must be permitted to accrue up to at least 16 more hours (in addition to the 40 hours she has already accrued during the accrual year) for a total of 56 hours accrued in that accrual year. If she did so, she would then have 48 hours of paid sick leave (32 previously available hours plus 16 newly accrued hours) available for use and could be limited to that amount until the next accrual year.
Proposed § 13.5(b)(4) implements the second clause of section 2(d) of the Executive Order by providing that paid sick leave shall be reinstated for employees rehired by the same contractor or a successor contractor within 12 months after a job separation. The proposed text specifies that this reinstatement requirement applies whether the employee leaves and returns to a job on or in connection with a single covered contract or works for a single contractor on or in connection with more than one covered contract, regardless of whether the employee remains employed by the contractor to work on non-covered contracts in between periods of working on covered contracts. For example, if a service employee on an SCA-covered contract accrued but did not use 12 hours of paid sick leave, moved to a different work site to perform work unrelated to a contract with the Federal Government (either with or not with the same employer), and after 6 months, returned to the original SCA-covered contract, that employee would begin back on the original job with 12 hours of paid sick leave available for use. Pursuant to proposed §§ 13.5(a)(2) and 13.5(b)(1), if her first week back on the job is within the same accrual year during which she accrued those 12 hours, the contractor would be required to count any fraction of 30 hours worked in her previous time on the contract toward the accrual of her next hour of paid sick leave, but the contractor may limit her additional accrual in that accrual year to 44 hours such that she can only accrue 56 hours total in the accrual year.
Proposed § 13.5(b)(4) further explains that the reinstatement requirement also applies if an employee takes a job on or in connection with a covered successor contract after working for a different contractor on or in connection with the predecessor contract, including when an employee is entitled to a right of first refusal of employment from a successor contractor under Executive Order 13495. (The terms “successor contract” and “predecessor contract” are defined in proposed § 13.2, and the requirements that a predecessor contractor submit to a contracting agency, and a contracting agency provide to a successor contractor, a certified list of relevant employees' accrued, unused paid sick leave appear in proposed §§ 13.26 and 13.11(f), respectively.) For example, if an employee performing work on a contract
The Department invites comments on its interpretation of section 2(d) of the Executive Order to mean that the reinstatement requirement applies if an employee is rehired by a different contractor on or in connection with a covered successor contract after working on or in connection with the predecessor contract. The Department believes that the Executive Order's requirement to carry over previously accrued paid sick leave for employees “rehired by a covered contractor” should be interpreted to include different successor contractors who rehire employees from the predecessor contract. SCA-covered successor contractors generally are required by the Nondisplacement Executive Order to provide a right of first refusal of employment to employees on the predecessor contract in positions for which they are qualified. As a result, many covered successor contractors effectively “rehire” these employees, and thus, it is reasonable to interpret Executive Order 13706, particularly given its purpose of ensuring that employees have access to paid sick leave, to provide that such employees' accrued paid sick leave balances would carry over as well. Such an interpretation also ensures that the carryover of accrued, unused leave does not depend on whether the successor contract is awarded to the same contractor that performed on the predecessor contract (in which case the Executive Order clearly mandates carryover of unused paid sick leave).
The Department recognizes that the government must ensure that it spends money wisely, and it is imperative that contract actions result in the best value for the taxpayer. The Government understands contractors may include the costs of benefits in overhead and may not (except in cost-type contracts) pay contractors based on their actual costs. The Department therefore invites comments regarding the extent to which its interpretation of the reinstatement requirement may affect pricing and cost accounting, if at all, for covered contractors and contracting agencies, including any potential for paying twice for the same benefit—once to a predecessor contractor charging the Government for predicted use of paid sick leave during its contract term, and a second time to a successor contractor who would be obligated to pay for unused sick leave later used by its employees during the successor's contract, with the Government potentially bearing the added costs through higher contract prices. In one potential scenario, a contractor on a covered contract may have included in its bid the full cost of providing 56 hours of paid sick leave to every employee performing on or in connection with the contract, and the contracting agency may treat the full amount of such leave as an allowable cost. At the end of the contract term, some employees will likely have balances of accrued but unused paid sick which could be carried over to a successor contractor. The Department seeks comment on how the current contractor and any different contractors bidding for the successor contract would account for this situation in their bid pricing. The Department also invites comment as to the extent to which any potential impacts on pricing or cost accounting may be mitigated, including ways to mitigate any potential impact on subcontractors, small businesses, and prime contractors with covered supply chains. In providing comments on the feasibility of mitigation steps, commenters should consider that the requirement for paid sick leave flows down to all subcontract tiers and that in other than cost type contracts, the Government may not have insight into and does not pay contractors based on their actual costs.
Proposed § 13.5(b)(5) implements section 2(j) of the Executive Order by providing that nothing in the Order or part 13 shall require a contractor to make a financial payment to an employee for accrued paid sick leave that has not been used upon a separation from employment. Although the Executive Order does not prohibit a contractor from making such payments should the contractor so choose, under the regulatory text as proposed, doing so (whether voluntarily or pursuant to a collective bargaining agreement) does not affect that contractor's, or a successor contractor's, obligation to reinstate any accrued paid sick leave upon rehiring the employee within 12 months of the separation pursuant to proposed § 13.5(b)(4). In other words, under proposed § 13.5(b)(5), a contractor cannot avoid the requirement to reinstate paid sick leave when it rehires an employee by cashing out the leave at the time of the original separation from employment. This interpretation is consistent with the Department's understanding that the Executive Order is meant to ensure that employees of Federal contractors have access to paid sick leave rather than its cash equivalent. The Department requests comments, however, regarding the impact of this proposed provision on contractors and employees, as well as the incidence of cash-out for paid time off or paid sick time under contractors' current policies or relevant collective bargaining agreements.
Proposed § 13.5(c) describes the purposes for which an employee may use paid sick leave, thereby implementing section 2(c) of the Executive Order, and addresses the calculation of the use of paid sick leave.
Proposed § 13.5(c)(1) provides that subject to the conditions described in proposed § 13.5(d) and (e) and the amount of paid sick leave the employee has available for use, a contractor must permit an employee to use paid sick leave to be absent from work for that contractor on or in connection with a covered contract for four reasons.
First, under proposed § 13.5(c)(1)(i), an employee may use paid sick leave if she is absent because of her own physical or mental illness, injury, or medical condition. These terms are defined in proposed § 13.2 and, as explained above, are meant to be understood broadly.
Second, under proposed § 13.5(c)(1)(ii), an employee may use paid sick leave if she is absent because she is obtaining diagnosis, care, or preventive care from a health care provider.
Third, under proposed § 13.5(c)(1)(iii), an employee may use paid sick leave if she is absent because
Fourth, under proposed § 13.5(c)(1)(iv), an employee may use paid sick leave if the absence is because of domestic violence, sexual assault, or stalking, if the time absent from work is for the purposes otherwise described in proposed § 13.5(c)(1)(i) or (ii) or to obtain additional counseling, seek relocation, seek assistance from a victim services organization, take related legal action, including preparation for or participation in any related civil or criminal legal proceeding, or assist an individual related to the employee as described in proposed § 13.5(c)(1)(iii) in engaging in any of these activities. The terms used in proposed § 13.5(c)(1)(iv) (
Just as with the accrual of paid sick leave, use of paid sick leave is contractor, rather than contract, specific, meaning that an employee who has accrued paid sick leave working on or in connection with one covered contract may use the paid sick leave for time she would otherwise have been working on or in connection with another covered contract for the same contractor. For example, if an employee had accrued 2 hours of paid sick leave over the course of several workweeks during which she worked for a single contractor in connection with one covered contract for 30 hours and another two covered contracts for 15 hours each, she could use her accrued paid sick leave during time she was scheduled to perform work in connection with any of the three contracts, or any other covered contract, on behalf of the same contractor.
Additionally, the Department notes that under proposed § 13.5(c)(1), an employee need only be permitted to use paid sick leave during time the employee would otherwise have spent working on or in connection with a covered contract rather than time spent performing other work (such as on a private contract), even if that work is for the same contractor. As explained elsewhere in this preamble, it is the contractor's responsibility to keep adequate records distinguishing between an employee's covered and non-covered work, and any denial of a request to use paid sick leave because the leave would occur while an employee is performing work that is not covered by Executive Order 13706 or part 13 must be supported by records or other proof demonstrating that fact. As for an employee who falls within the 20 percent of hours worked exclusion created by proposed § 13.4(e) for some workweeks but not others, the employee must be permitted to use paid sick leave at any time the employee would be working on or in connection with covered contracts, regardless of whether they fall during workweeks in which the exclusion applies. This approach is designed to avoid complications that would otherwise arise in responding to requests to use paid sick leave accrued by such employees. Specifically, an employee could request to use paid sick leave during a week in which it was not clear at the time of the request (because it would not be known until the end of the week) whether the employee met the 20 percent threshold; under this approach, in such circumstances, the contractor must permit the use of paid sick leave (assuming all relevant requirements for use are met) rather than deny the request or provide an uncertain response to the employee.
Proposed § 13.5(c)(2) provides that a contractor shall account for an employee's use of paid sick leave in increments of no greater than 1 hour. In other words, although a contractor may choose to allow employees to use paid sick leave in increments of smaller than 1 hour (such as half an hour or 15 minutes), it may not require employees to use paid sick leave in increments of any more than 1 hour. For example, if an employee needs to be an hour late for work because she accompanied her sister to a chemotherapy appointment that morning, her employer must permit her to use 1 hour of paid sick leave (rather than, for instance, requiring her to take a full day off or use a full day's leave).
The Department requests comments regarding whether it should add to this proposed provision a physical impossibility exception to the 1-hour requirement as exists under the FMLA regulations at 29 CFR 825.205(a)(2). Under such a provision, in situations in which an employee is physically unable to access the worksite after the start of the shift or to depart from the workplace prior to the end of the shift, a contractor would be permitted to require the employee to continue to use paid sick leave for as long as the physical impossibility remains. Examples that arise in the FMLA context are flight attendants whose scheduled flight departs, train conductors whose scheduled train departs, and laboratory technicians who work in “clean rooms” that must remain sealed. The Department seeks comment regarding the categories of covered contracts and employees entitled to paid sick leave under Executive Order 13706 and part 13 with respect to which similar circumstances could arise and the implications of such a provision for contractors and employees who perform on or in connection with those contracts.
Proposed § 13.5(c)(2)(i) further explains that a contractor may not reduce an employee's accrued paid sick leave by more than the amount of leave the employee actually takes, and a contractor may not require an employee to take more leave than is necessary to address the circumstances that precipitated the need for the leave, provided that the leave is counted using an increment of no greater than 1 hour. This language is based on FMLA regulations regarding the use of FMLA leave.
Proposed § 13.5(c)(2)(ii) explains that the amount of paid sick leave used may not exceed the hours an employee would have worked if the need for leave had not arisen. If, for example, an employee is scheduled to work from 9am to 3pm, and she is absent from work from 10:30am to 12:30pm to take her father to a doctor's appointment, a contractor may deduct no more than 2 hours of paid sick leave from her accrued paid sick leave. If the employee is scheduled to work from 9am to 3pm and she is absent from work for the entire day to care for her sick child, a contractor may deduct no more than 6 hours of paid sick leave from her accrued paid sick leave. If an employee is out on paid sick leave at a time when she could have worked beyond her scheduled hours but would not have been required to do so, the contractor may not treat the employee as having used paid sick leave for those optional hours. For example, if an employee scheduled to work from 9am to 3pm could have chosen to stay until 7pm that night to earn overtime, but she was absent for the entire day, a contractor may not deduct more than 6 hours of paid sick leave from her accrued paid sick leave. This provision is consistent with the FMLA regulation at 29 CFR 925.205(e) (“Voluntary overtime hours that an employee does not work due to an FMLA-qualifying reason may not be counted against the employee's FMLA leave entitlement.”).
Proposed § 13.5(c)(3) provides that a contractor shall provide to an employee using paid sick leave the same pay and benefits the employee would have received had the employee not used paid sick leave. In other words, while on paid sick leave, employees paid on a salary basis may not face any deduction in pay, and employees paid hourly must receive the same hourly rate of pay they would have earned had they been present at work. Furthermore, for time employees are using paid sick leave, contractors must continue to make contributions to any fringe benefit plan (for example, a health insurance or pension plan) and count time toward the earning of other benefits (for example, the accrual of vacation time) as they would were the employees working. In particular, employees whose wages are governed by the SCA or DBA must receive the same wages required under those statutes, including health and welfare and other fringe benefits or the cash equivalent thereof, as they would have earned had they been present at work instead of using paid sick leave. As discussed above, contractors must count employees' time using paid sick leave toward the accrual of paid sick leave. Under this proposal, employees who receive different pay and benefits for different portions of their work (for example, an employee who works as a carpenter on one DBA-covered contract and a skilled laborer on another DBA-covered contract on which she works for the same contractor), the pay and benefits due while the employee uses paid sick leave is to be determined based on which work she would have been doing at the time she uses the leave.
The Department proposes to include as § 13.5(c)(4) a restriction on limits to an employee's use of paid sick leave. Specifically, as proposed, § 13.5(c)(4) would provide that a contractor may not limit the amount of paid sick leave an employee may use per year or at once. In other words, although a contractor may limit an employee's accrual of paid sick leave to 56 hours per year, a contractor may not prohibit the employee from, for example, using 16 hours carried over from the previous accrual year, accruing 56 additional hours, and then using all 56 accrued hours even though her total use in the current accrual year would exceed 56 hours. Under the proposed text, an employer also cannot limit the amount of paid sick leave an employee may use at one time. For example, an employer cannot establish a policy prohibiting employees from using any particular number of hours of paid sick leave in a single workweek. Similarly, an employer may not deny an employee's request to use paid sick leave for 2 full days in a row based on the length of time requested (as long as the employee has accrued sufficient paid sick leave to cover the time).
Proposed § 13.5(c)(5) provides that a contractor may not make an employee's use of paid sick leave contingent on the employee's finding a replacement worker to cover any work time to be missed or the fulfillment of the contractor's operational needs. This language implements section 2(e) of the Executive Order and makes explicit the important point that the intent of the Executive Order can only be fulfilled if employees are entitled to use paid sick leave even if the need for such leave arises at a time that is inconvenient for a contractor.
Proposed § 13.5(d) implements section 2(h) of Executive Order 13706. Proposed § 13.5(d)(1) provides that a contractor shall permit an employee to use any or all of the employee's available paid sick leave upon the oral or written request of an employee that includes information sufficient to inform the contractor that the employee is seeking to be absent from work for a purpose described in proposed § 13.5(c)(1) and, to the extent reasonably feasible, the anticipated duration of the
Under this proposed text, employees may request paid sick leave by any oral or written method, including in person, by phone, via email, or with a note reasonably calculated to provide timely notice of the employee's intent to take leave. Additionally, although the request must contain sufficient information for a contractor to determine whether it is a proper use of paid sick leave, and the contractor may ask questions tailored to making that determination, the request need not contain extensive or detailed information about the reason for the leave and a contractor may not require such information. Because the employee only needs to provide information sufficient to inform the contractor that she wishes to miss work for a reason that is a permissible use of paid sick leave, the employee need not specify all symptoms or details of the need for leave, nor need she specifically request to use paid sick leave required by the Executive Order or part 13 or even use the words “sick leave” or “paid sick leave.” The employee could simply state, for example, that the employee has a cold, a dentist appointment, or an appointment with an attorney regarding a domestic violence matter. In such cases, a contractor could not ask, for purposes of approving or rejecting the request to use paid sick leave, when the cold began or how severe it is, what type of doctor the employee is seeing or for what purpose, or for any detail regarding the circumstances of the domestic violence.
The request similarly need not provide extensive details regarding the employee's relationship with an individual for whom the employee is caring or will care; it need only inform the contractor that the employee has a family or family-like relationship with the individual. Simply stating, for example, that the employee's son has a stomach bug, the employee's wife was injured in a car accident, or the employee's father needs assistance going to a doctor's appointment is sufficient. If the employee's request for paid sick leave involves providing care for an individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship, the employee need only assert that a family or family-like relationship exists, such as by stating that the employee needs to care for her ill grandmother or needs to accompany a man who is like a brother to him to a doctor's appointment. Although a contractor may ask questions to determine if the use of paid sick leave is justified, such as inquiring of an employee who asks to take leave to care for a close friend who was in a car accident whether that friend is someone whom the employee considers to be like family, the contractor may not demand intimate details upon receiving a positive response to such an inquiry. Although the Department recognizes that paid sick leave is available for only particular uses, it interprets Executive Order 13706 as intending to provide paid sick leave in a manner that is not burdensome for employees and does not allow significant intrusion into their personal lives by their employers.
To the extent reasonably feasible, the request should provide an estimate of the timing and amount of such leave needed; this requirement is satisfied by stating that the sick employee hopes only to be out for 1 day, that the child's dentist appointment is on a particular date at 10:00 a.m. and is not anticipated to take more than an hour, or that the appointment with the attorney is on a particular date at 2:00 p.m. and will likely continue for the remainder of the work day. The contractor may not hold an employee to the estimate provided in the request; for example, the sick employee could return to work in the afternoon if she recovers more quickly than she expected, and an employee can use more than an hour of paid sick leave (provided she has more than 1 hour available for use) if the dentist appointment runs longer than anticipated.
A request to use paid sick leave is acceptable if the employee directs it to the appropriate personnel pursuant to a contractor's policy or, in the absence of a formal policy, any personnel who typically receive requests for other types of leave on behalf of the contractor, such as a supervisor or human resources department staff. The Department notes that as explained elsewhere and required by §§ 13.5(e)(1)(ii) and 13.25(d), when an employee requests leave for the purposes described in proposed § 13.5(c)(1)(iv),
Proposed § 13.5(d)(2) provides that if the need to use paid sick leave is foreseeable, the employee's request shall be made at least 7 calendar days in advance, whereas if the employee is unable to request leave at least 7 calendar days in advance, the request shall be made as soon as is practicable. The term
If an employee has not complied with the requirements of proposed § 13.5(d)(2), a contractor may properly deny the employee's request to use paid sick leave. For example, if an employee arranges a doctor's appointment for his son 3 weeks in advance but does not submit a request to use paid sick leave until 2 days before the appointment, the contractor may properly deny that request. Denial of the request would not be proper, however, if the need for leave was not foreseeable and the employee made the request as soon as was practicable, such as if upon making the request 2 days in advance, the employee explained that his husband had planned to take their son to the appointment, but the husband learned on the morning the employee submitted the request that the husband would be unavailable at the time of the appointment, and the couple decided that the employee would have to take the son instead.
Proposed § 13.5(d)(3) addresses a contractor's response to an employee's request to use paid sick leave. Proposed § 13.5(d)(3)(i) provides that a contractor may communicate its grant of a request to use paid sick leave either orally or in writing provided that the contractor also complies with the requirement in § 13.5(a)(2) to inform the employee in writing of the amount of paid sick leave the employee has available for use.
Proposed § 13.5(d)(3)(ii) provides that a contractor shall communicate any denial of a request to use paid sick leave in writing, with an explanation for the denial. It further provides that denial is appropriate if, for example, the employee did not provide sufficient information about the need for paid sick leave; the reason given is not consistent with the uses of paid sick leave described in proposed § 13.5(c)(1); the employee did not indicate when the need would arise; the employee has not accrued, and will not have accrued by the date of leave anticipated in the request, a sufficient amount of paid sick leave to cover the request (in which case, if the employee will have any paid sick leave available for use, only a partial denial is appropriate); or the request is to use paid sick leave during time the employee is scheduled to be performing non-covered work. The proposed text also explains that if the denial is based on insufficient information provided in the request, such as if the employee did not state the time of an appointment with a health care provider, the contractor must permit the employee to submit a new, corrected request. It further notes that if the denial is based on an employee's request to use paid sick leave during time she is scheduled to be performing non-covered work, the denial must be supported by records adequately segregating the employee's time spent on covered and non-covered contracts.
Proposed § 13.5(d)(3)(iii) provides that a contractor shall respond to any request to use paid sick leave as soon as is practicable after the request is made. As proposed, it further explains that although the determination of when it is practicable for a contractor to provide a response will take into account the individual facts and circumstances, it should in many circumstances be practicable for the contractor to respond to a request immediately or within a few hours. The proposed provision further explains that in some instances, such as if it is unclear at the time of the request whether the employee will be working on or in connection with a covered or non-covered contract at the time for which paid sick leave is requested, as soon as practicable could mean within a day or no longer than within a few days.
Proposed § 13.5(e) implements section 2(i) of the Executive Order, which addresses certification and documentation for leave of 3 or more consecutive workdays. Under proposed § 13.5(e)(1)(i), a contractor may require certification issued by a health care provider to verify the need for paid sick leave used for the purposes listed in proposed § 13.5(c)(1)(i), (ii), or (iii) only if the employee is absent for 3 or more consecutive full workdays. Under this provision, a contractor may not require certification to justify the use of paid sick leave for any amount of time shorter than 3 consecutive full workdays. For instance, if an employee is scheduled to work from 9am to 5pm on Monday, Tuesday, and Wednesday, and he is unable to come to work at all during those times because he is hospitalized due to a severe infection, his employer may require that he provide certification to show that he was in the hospital. If the employee instead uses 4 hours of paid sick leave on Monday because his daughter's school nurse calls in the early afternoon to say his daughter has a fever and must be taken home, all 8 hours on Tuesday because he stays home with his ill daughter, and another 2 hours on Wednesday because his daughter isn't well enough to go to school on time, his employer may not require certification because he has not used paid sick leave for all of his scheduled time on 3 consecutive full workdays. A proposed definition of
Proposed § 13.5(e)(1)(ii) addresses documentation to verify the use of paid sick leave for the purposes listed in proposed § 13.5(c)(1)(iv),
Proposed § 13.5(e)(1)(ii) also provides that the contractor may only require that such documentation contain the minimum necessary information establishing the need for the employee to be absent from work. For example, the documentation could consist of a note from a social worker at a victim services organization stating that the employee received services from the organization related to being a victim of domestic violence and moved to a new home for reasons related to the domestic violence, as well as a receipt from a moving company or a note from a landlord that indicates the date(s) of the move; it need not name the perpetrator of the domestic violence, the nature of the acts that constitute domestic violence, the addresses of the old or new homes, or any other details beyond those sufficient to make clear that the time was used for a purpose that justifies the use of paid sick leave. As another example, documentation could consist of a letter from a legal services attorney or sexual assault victim advocate who is assisting an employee who is a victim of sexual assault in completing the paperwork and filing for a civil protection order or restraining order, explaining that the employee spent time (consisting of most business hours over 3 consecutive days) with the attorney or advocate preparing for the hearing, including completing the petition for the court's order and obtaining a time for the hearing, and attending the hearing, including waiting at the court house and attending the proceedings; the letter would not need to explain the circumstances of the sexual assault, name the person(s) accused of the sexual assault, or
Proposed § 13.5(e)(1)(ii) further provides that the contractor shall not disclose any verification information and shall maintain confidentiality about the domestic abuse, sexual assault, or stalking as required by § 13.25(d).
Proposed § 13.5(e)(2), which is derived from the FMLA regulations at 29 CFR 825.122(k), provides that if certification or documentation is to verify the illness, injury, or condition, need for diagnosis, care, or preventive care, or activity related to domestic violence, sexual assault, or stalking of an individual related to the employee as described in proposed § 13.5(c)(1)(iii), a contractor may also require the employee to provide reasonable documentation or a statement of the family or family-like relationship. Proposed § 13.5(e)(2) further explains that this documentation may take the form of a simple written statement from the employee or could be a legal or other document proving the relationship, such as a birth certificate or court order. As under the FMLA, a written statement from the employee need not be notarized. Additionally, the contractor is entitled to examine any legal or other documentation provided, but the employee is entitled to the return of any official document submitted for this purpose, such as a birth certificate. The Department also notes that if an employee has already submitted proof of a family or family-like relationship to the contractor for some other purpose, such as providing a marriage certificate in order to obtain health care benefits for the employee's spouse, such proof is sufficient to confirm the family relationship for purposes of paid sick leave, and the contractor may not require additional documentation.
Proposed § 13.5(e)(3) address timing with respect to certification and documentation. Proposed § 13.5(e)(3)(i) provides that a contractor may only require certification or documentation if the contractor informs an employee before the employee returns to work that certification or documentation will be required to verify the use of paid sick leave if the employee is absent for 3 or more consecutive full workdays. This time limit is necessary because without notice at the time the employee or individual cared for by the employee has the condition or need justifying the use of paid sick leave, it could become difficult or even impossible for the employee to obtain certification. For example, if an employee has the flu for 4 days, without knowing that the contractor wishes her to provide certification from a health care provider verifying that she was sick, she might well recover fully without contacting a doctor. A contractor's general policy, if made clear to employees (such as in an employee handbook), requiring certification of the use of paid sick leave for absences of 3 or more consecutive full workdays suffices to meet this requirement.
Proposed § 13.5(e)(3)(ii) further provides that a contractor may require the employee to provide certification or documentation within 30 days of the first day of the 3 or more consecutive full workdays of paid sick leave but may not set a shorter deadline for its submission. This requirement is set forth in section 2(i) of the Executive Order. 80 FR 54698.
The Department proposes to provide in § 13.5(e)(3)(iii) that while a contractor is waiting for or reviewing certification or documentation, it must treat the employee's otherwise proper request for 3 or more consecutive full workdays of paid sick leave as valid. Additionally, the proposed provision explains that if the contractor ultimately does not receive certification or documentation, or if the certification or documentation the employee provides is insufficient to verify the employee's need for paid sick leave, the contractor may, within 10 calendar days of the deadline for receiving the certification or documentation or within 10 calendar days of the receipt of the insufficient certification or documentation, whichever occurs first, retroactively deny the employee's request to use paid sick leave. Certification or documentation could be insufficient, for example, because it does not describe a need for leave consistent with the permitted reasons for using paid sick leave or because, if the reason for leave was for a purpose other than that described in proposed § 13.5(c)(1)(iv), it was not created or signed by a health care provider or a health care provider's representative. Proposed § 13.5(e)(3)(iii) further provides that if the contractor retroactively rejects the employee's request, the contractor may recover the value of the pay and benefits the employee received but to which the employee was not entitled, including through deduction from any sums due to the employee (
Proposed § 13.5(e)(4) provides that a contractor may contact the health care provider or other individual who created or signed the certification or documentation only for purposes of authenticating the document or clarifying its contents and further explains that the contractor may not request additional details about the medical or other condition referenced, seek a second opinion, or otherwise question the substance of the certification. Authentication means verifying that the health care provider or other individual did in fact create or sign the certification. Clarifying means asking what illegible handwriting or other unreadable text says or asking for an explanation of the meaning of words used or information contained in the certification. Under this proposal, which is consistent with requirements regarding certification under the FMLA,
Proposed § 13.5(e)(4) further provides that to make contact with the health care provider or other individual who created or signed the certification or documentation, the contractor must use a human resources professional, a leave administrator, or a management official. This requirement is derived from a regulatory provision under the FMLA.
Proposed § 13.5(e)(4) also addresses the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule, Pub. L. 104-191, 110 Stat. 1936 (1996), which governs the privacy of individually identifiable health information created or held by HIPAA-covered entities and the requirements of which are set forth at 45 CFR parts 160 and 164. Specifically, it provides that the HIPAA Privacy Rule requirements must be satisfied when individually identifiable health information of an employee is shared with a contractor by a HIPAA-covered health care provider. As is true for purposes of the FMLA, if an employee's certification is unclear and the employee chooses not to provide the contractor with authorization allowing the contractor to clarify the certification with the health care provider (and does not otherwise clarify the certification), the contractor may deny an employee's request to use paid sick leave.
Proposed § 13.5(f) addresses the interaction between the paid sick leave required by Executive Order 13706 and part 13 with other laws as well as other paid time off policies. Proposed § 13.5(f)(1) implements section 2(l) of the Executive Order by providing that nothing in the Order or part 13 shall excuse noncompliance with or supersede any applicable Federal or State law, any applicable law or municipal ordinance, or a collective bargaining agreement requiring greater paid sick leave or leave rights than those established under the Executive Order and part 13.
Proposed § 13.5(f)(2) addresses the interaction between paid sick leave and the requirements of the SCA and DBA, thereby implementing section 2(f) of the Executive Order. Proposed § 13.5(f)(2)(i) explains that paid sick leave required by Executive Order 13706 and part 13 is in addition to a contractor's obligations under the SCA and DBA, and a contractor may not receive credit toward its prevailing wage or fringe benefit obligations under those Acts for any paid sick leave provided in satisfaction of the requirements of Executive Order 13706 and part 13. The SCA and DBA both provide that fringe benefits furnished to employees in compliance with their requirements do not include any benefits “required by Federal, State, or local law.” 41 U.S.C. 6703(2) (SCA); 40 U.S.C. 3141(2)(B) (DBA);
Proposed § 13.5(f)(2)(ii) provides that a contractor may count the value of any paid sick time provided in excess of the requirements of Executive Order 13706 and part 13 (and any other law) toward its obligations under the SCA or DBA in keeping with the requirements of those Acts. In particular, a contractor may take credit for such paid sick time provided in compliance with the SCA requirements regarding fringe benefits as described in 29 CFR 4.170 through 4.177 or with the DBA requirements regarding fringe benefits as described in 29 CFR 5.20 through 5.32.
Proposed § 13.5(f)(3) addresses the interaction of paid sick leave required by Executive Order 13706 and part 13 with the FMLA. It provides that a contractor's obligations under the Executive Order and part 13 have no effect on its obligations to comply with, or ability to act pursuant to, the FMLA. It further provides that paid sick leave may be substituted for (that is, may run concurrently with) unpaid FMLA leave under the same conditions as other paid time off pursuant to 29 CFR 825.207. It also explains that as to time off that is designated as FMLA leave and for which an employee uses paid sick leave, all notices and certifications that satisfy the FMLA requirements set forth at 29 CFR 825.300 through 825.308 will satisfy the request for leave and certification requirements of proposed §§ 13.5(d) and (e). For example, although under the Executive Order and part 13 an employee's request to use paid sick leave need only be made at least 7 days in advance if the need for leave is foreseeable, under the FMLA, such notice must be made at least 30 days in advance pursuant to 29 CFR 825.302(a). If an employee seeks to use paid sick leave for an FMLA-qualifying reason (and thus both types of leave will run concurrently), such as if she needs surgery, the contractor may require that she comply with the FMLA's notice requirements, which will satisfy the requirements of the Executive Order and part 13; specifically, when she notifies the contractor of the date of her surgery (that is 30 days in the future) and likely recovery period, she will have complied with the requirements of § 13.5(d) to provide oral or written notice of a need for leave that justifies the use of paid sick leave, and the expected duration of the leave, at least 7 days in advance. Similarly, although under the Executive Order and part 13, a contractor may not require certification of the need to use paid sick leave unless the employee uses more than 3 consecutive full workdays of paid sick leave, a contractor is permitted to require certification from an employee for a shorter period of FMLA-designated leave as provided in 29 CFR 825.305. If an employee is concurrently using paid sick leave and FMLA leave, a contractor may require certification as permitted under the FMLA even if certification for paid sick leave would not be permitted under Executive Order 13706 and part 13 (such as, for example, if the employee only needed to use 1 day of leave). If that certification supported the use of FMLA leave for an employee's serious health condition, it would be more than sufficient to serve as the certification issued by a health care provider for use of 3 consecutive full workdays of paid sick leave should such certification become necessary. Even if the certification was insufficient to demonstrate that an employee was entitled to use FMLA leave (such as because although the employee is ill,
Proposed § 13.5(f)(4) addresses the interaction of paid sick leave required by Executive Order 13706 and part 13 with paid sick time required by State or local law. As proposed, it explains that a contractor's compliance with a State or local law requiring that employees be provided with paid sick time does not excuse the contractor from compliance with its obligations under the Executive Order 13706 or part 13. It further provides that a contractor may, however, satisfy its obligations under the Order and part 13 by providing paid sick time that fulfills the requirements of a State or local law provided that the paid sick time is accrued and may be used in a manner that meets or exceeds the requirements of the Order and part 13. In other words, a contractor whose employees perform work on or in connection with covered contracts in States, counties, or municipalities that have statutes or ordinances requiring that employees be provided with paid sick time must comply with both those laws and the Executive Order. But that contractor is permitted, at least for purposes of the Executive Order and part 13, to fulfill both obligations simultaneously. If, for example, a State law requires that employees receive up to 40 hours of paid sick time, a contractor is not necessarily required to provide employees performing on or in connection with covered contracts in that State an additional 56 hours of paid sick leave; if the contractor provides paid sick time in compliance with both the State law and the Executive Order and part 13, the contractor need only provide up to 56 hours total of paid sick leave. Because the requirements of State and local laws and the Order and part 13 will rarely be identical, to satisfy both, a contractor will likely need to comply with the requirements that are more generous to employees. For example, a contractor could satisfy both a county law that requires employees to earn at least 1 hour of paid sick time for every 40 hours worked and the Executive Order by allowing employees to earn 1 hour of paid sick leave for every 30 hours worked. Or a contractor could satisfy both a State statute that allows employers to limit employees' use of paid sick time to 40 hours per year and the Executive Order by not limiting use per year (although accrual and carryover limits, which would effectively limit use, might still apply). Similarly, a contractor could satisfy both a municipal ordinance that does not permit an employer to require certification of the reason for using paid sick time under any circumstances and the Executive Order and part 13 by choosing not to require certification for the use of paid sick time even if an employee uses such leave for more than 3 consecutive days.
Proposed § 13.5(f)(5) addresses the interaction between the paid sick leave requirements of Executive Order 13706 and part 13 and an employer's paid time off policies, explaining that the Order and part 13 need not have any effect on a contractor's voluntary paid time off policy, whether provided pursuant to a collective bargaining agreement or otherwise. Whether as a practical matter the requirement to provide paid sick leave under the Order and part 13 affects the amount or types of other leave a contractor provides or a union negotiates is not an issue within the Department's rulemaking authority.
Proposed § 13.5(f)(5) also provides that a contractor's existing paid time off policy (if provided in addition to the fulfillment of SCA or DBA obligations, if applicable) will satisfy the requirements of the Executive Order and part 13 if various conditions are met. First, the paid time off must be made available to all employees described in proposed § 13.3(a)(2) (other than those excluded by proposed § 13.4(e)). Second, employees must be permitted to use the paid time off for at least all of the purposes described in proposed § 13.5(c)(1). Third, the paid time off must be provided in a manner and an amount sufficient to comply with the rules and restrictions regarding the accrual of paid sick leave set forth in proposed § 13.5(a) and regarding maximum accrual, carryover, reinstatement, and payment for unused leave set forth in proposed § 13.5(b). Fourth, the paid time off must be provided pursuant to policies sufficient to comply with the rules and restrictions regarding use of paid sick leave set forth in proposed § 13.5(c), requests for leave set forth in proposed § 13.5(d), and certification and documentation set forth in proposed § 13.5(e), at least with respect to any paid time off used for the purposes described in proposed § 13.5(c)(1). Finally, the paid time off must be protected by the prohibitions against interference, discrimination, and recordkeeping violations described in proposed § 13.6 and the prohibition against waiver of rights described in proposed § 13.7, at least with respect to any paid time off used for the purposes described in proposed § 13.5(c)(1).
In other words, a contractor may use its paid time off policy to satisfy its obligations under the Order and part 13, but only if the policy complies with all of the accrual-related requirements of the Executive Order and part 13—including, but not limited to, allowing employees to accrue at least 1 hour of leave for every 30 hours worked as that term is defined for purposes of part 13, not limiting annual accrual at any less than 56 hours, allowing carryover of leave from the previous accrual year that does not count toward any limit on annual accrual in the new accrual year, and reinstating leave for an employee rehired by the same or a successor contractor within 12 months of a job separation. And a contractor may only use its paid time off policy to satisfy its obligations under the Order and part 13 if when an employee seeks to use or does use leave for the purposes described in proposed § 13.5(c)(1), all of which must be permissible uses of the paid leave, the request, any required certification, and use of the leave comply with all of the specifications of this proposed part. This requirement includes, but is not limited to, allowing employees to take leave in increments of no greater than 1 hour, not setting limits on the amount of leave that may be used per year or at once, not making the use of leave contingent on finding a replacement worker or fulfilling operational needs, requiring employees to make requests for leave no longer than 7 days in advance of the need or as soon as is practicable if the need for leave is not foreseeable, denying requests for leave in writing with an explanation for the denial that is in accordance with the permissible reasons for denial under this proposed rule, and requiring certification or documentation of the leave only if the employee uses leave for more than 3 or more consecutive full workdays and only requiring the minimum information necessary to verify the leave. Furthermore, a contractor may only use its paid time off policy to satisfy its obligations under the Order and part 13 if when an employee seeks to use or does use leave for the purposes described in proposed § 13.5(c)(1), that leave is treated as protected by the prohibitions on interference and discrimination in this proposed part (described below), meaning that, for example, the request for or use of leave cannot be used as a negative factor in any hiring or promotion decision and cannot be the basis for discipline, including by being counted in a no fault attendance policy.
The Department notes that if, for example, a contractor does not permit an employee to use the paid time off for the purposes described in proposed § 13.5(c)(1)(iv) related to domestic violence, sexual assault, or stalking, its paid time off policy would not satisfy its obligations under the Executive Order and part 13. Accordingly, the contractor could choose to amend its paid time off policy to address the omission or could provide paid sick leave in addition to paid time off. Similarly, if a contractor's policy allowed the contractor to deny an employee's request for leave to be used for one of the purposes described in proposed § 13.5(c)(1) based on operational needs, that policy would not satisfy the contractor's obligations under the Executive Order and part 13.
Although under this proposed provision, a contractor need not treat vacation or other uses of leave under its paid time off policy identically to the way it treats paid sick leave, the Department will consider any aspects of a paid time off policy that create significant barriers to an employee's using the time as paid sick leave as interference with the employee's accrual or use under the Order or part 13 in violation of proposed § 13.6(a) or, if appropriate, as discrimination in violation of proposed § 13.6(b). For example, although a contractor need not allow vacation time to be taken in no greater than 1-hour increments, it would constitute a violation of proposed § 13.6(a) if a contractor were to require employees to use all of the time provided in its paid time off policy at once should the employee ask to take vacation, such that any employee who took any vacation in an accrual year would automatically have no paid time off remaining for the purposes described in proposed § 13.5(c)(1). Similarly, it would constitute a violation of proposed § 13.6(a) if a contractor required employees to request leave for vacation 1 month in advance and would not allow an employee who had scheduled such leave and who became, or had a family member who became, unexpectedly ill to instead use paid time off for that purpose (and cancel the other upcoming leave, or take it as unpaid leave).
Proposed § 13.6 describes and prohibits acts that constitute violations of the requirements of Executive Order 13706 and part 13.
Proposed § 13.6(a)(1) provides that a contractor may not in any manner interfere with an employee's accrual or use of paid sick leave as required by Executive Order 13706 or part 13. Proposed § 13.6(a)(2) includes a non-exclusive list of examples of interference. Interference includes miscalculating the amount of paid sick leave an employee has accrued, such as if a contractor does not include all of an employee's hours worked in calculating accrual. Interference also includes denying or unreasonably delaying a response to a proper request to use paid sick leave, such as if a contractor denies a request to use paid sick leave for a dentist's appointment because the contractor does not believe a dentist is a health care provider, a contractor denies a request to use paid sick leave to accompany the employee's sister to a court proceeding regarding stalking because the contractor does not believe an employee can use paid sick leave for a family member's legal proceeding related to stalking, or if a contractor does not respond to an employee's timely request for paid sick leave until after the need for leave has passed (provided the request was made sufficiently in advance of the need). In addition, interference includes discouraging an employee from using paid sick leave or reducing an employee's accrued paid sick leave by more than the amount of such leave used. Transferring the employee to work on non-covered contracts to prevent the accrual or use of paid sick leave, including scheduling an employee's non-covered work to fall at the time for which the employee has requested to use paid sick leave for the purpose of avoiding approving the request (rather than for a lawful reason, such as for a legitimate business purpose), also constitutes interference. Interference also includes disclosing confidential information provided in certification or other documentation provided to verify the need to use paid sick leave or making the use of paid sick leave contingent on the employee's finding a replacement worker or the fulfillment of the contractor's operational needs.
Proposed § 13.6(b) is an anti-discrimination provision implementing section 2(k) of Executive Order 13706. Proposed § 13.6(b)(1) provides that a contractor may not discharge or in any other manner discriminate against an employee for: (i) Using, or attempting to use, paid sick leave as provided for under Executive Order 13706 and part 13; (ii) filing any complaint, initiating any proceeding, or otherwise asserting any right or claim under Executive Order 13706 and part 13; (iii) cooperating in any investigation or testifying in any proceeding under Executive Order 13706 and part 13; or (iv) informing any other person about his or her rights under Executive Order 13706 and part 13. Proposed § 13.6(b)(2) addresses what constitutes discrimination, a term the Department intends to be understood broadly, by noting that discrimination includes, but is not limited to, a contractor's considering any of the actions described in proposed § 13.6(b)(1) as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions, or a contractor's counting paid sick leave under a no fault attendance policy.
This provision will serve the important purpose of ensuring effective enforcement of the Executive Order, which will depend on complaints from employees. The Department wishes to note several interpretations of the provision, all of which it also noted in the Minimum Wage Executive Order rulemaking in connection with a comparable antidiscrimination provision. 79 FR 60666-67. First, consistent with the Supreme Court's interpretation of the FLSA's antiretaliation provision, proposed § 13.6(b) would protect employees who file oral as well as written complaints.
In addition, the anti-discrimination provision would apply in situations where there is no current employment relationship between the parties; for example, it would protect from
Proposed § 13.6(c) provides that a contractor's failure to make and maintain or to make available to WHD records for inspection, copying, and transcription as required by proposed § 13.25, or any other failure to comply with the requirements of that proposed provision, constitutes a violation of Executive Order 13706, part 13, and the underlying contract. This proposed provision is derived from paragraph (g)(3) of the contract clause included in the Minimum Wage Executive Order Final Rule as well as analogous provisions in the SCA and DBA. 29 CFR 4.6(g)(3) (SCA); 29 CFR 5.5(a)(3)(iii) (DBA).
Proposed § 13.7 provides that employees cannot waive, nor may contractors induce employees to waive, their rights under Executive Order 13706 or part 13. The Department included a provision prohibiting the waiver of rights in the regulations implementing the Minimum Wage Executive Order and believes it is appropriate to adopt the same policy here.
In the Minimum Wage Executive Order rulemaking, the Department noted that an employee's rights and remedies under the FLSA, including payment of minimum wage and back wages, cannot be waived or abridged by contract. 79 FR 60667 (citing
Proposed subpart B of part 13, which is largely modeled on subpart B of the Minimum Wage Executive Order implementing regulations, 29 CFR 10.11-10.12, establishes the requirements for the Federal Government to implement and comply with Executive Order 13706. Proposed § 13.11 addresses contracting agency requirements, and proposed § 13.12 explains the requirements placed upon the Department of Labor.
Proposed § 13.11(a) implements section 2(a) of Executive Order 13706 by directing that the contracting agency shall include the Executive Order paid sick leave contract clause set forth in appendix A of part 13 in all covered contracts and solicitations for such contracts, as described in proposed § 13.3, except for procurement contracts subject to the FAR. Proposed § 13.11(a) further provides that the required contract clause directs, as a condition of payment, that all employees performing work on or in connection with covered contracts must be permitted to accrue and use paid sick leave as required by Executive Order 13706 and part 13. It also provides that for procurement contracts subject to the FAR, contracting agencies shall use the clause that will be set forth in the FAR to implement part 13, and that the FAR clause will accomplish the same purposes as the clause set forth in appendix A and be consistent with the requirements set forth in part 13.
Proposed § 13.11(a) is effectively identical to 29 CFR 10.11(a), the analogous provision in the Minimum Wage Executive Order Final Rule. As explained in that rulemaking,
Proposed § 13.11(b) explains a contracting agency's obligations in the event that it fails to include the contract clause in a covered contract. Proposed § 13.11(b) first provides that where the Department of Labor or the contracting agency discovers or determines, whether before or subsequent to a contract award, that a contracting agency made an erroneous determination that Executive Order 13706 and part 13 did not apply to a particular contract and/or failed to include the applicable contract clause in a contract to which the Executive Order and part 13 apply, the contracting agency, on its own initiative or within 15 calendar days of notification by an
Proposed § 13.11(c) provides that a contracting officer shall, upon his or her own action or upon written request of the Administrator, withhold or cause to be withheld from the prime contractor under the contract or any other Federal contract with the same prime contractor, so much of the accrued payments or advances as may be necessary to pay employees the full amount owed to compensate for any violation of Executive Order 13706 or part 13. It further provides that in the event of any such violation, the agency may, after authorization or by direction of the Administrator and written notification to the contractor, take action to cause suspension of any further payment or advance of funds until such violations have ceased. Such amounts would be based on the estimated monetary relief, including any pay and/or benefits denied or lost by reason of the violation or other monetary losses sustained as a direct result of the violation, described in proposed § 13.44. The SCA, DBA, and the Minimum Wage Executive Order's implementing regulations provide for withholding to ensure the availability of monies for payment to covered workers when a contractor or subcontractor has failed to comply with its obligations to pay required wages (including fringe benefits) under those authorities. 29 CFR 4.6(i); 29 CFR 5.5(a)(2); 29 CFR 10.11(c). Withholding likewise is an appropriate remedy under this Executive Order for all covered contracts because the Order directs the Department to adopt SCA, DBA, and Minimum Wage Executive Order enforcement processes to the extent practicable and to exercise authority to obtain compliance with the Order. 80 FR 54699. Consistent with withholding procedures under the SCA and DBA, which were also adopted in the Minimum Wage Executive Order rulemaking, proposed § 13.11(c) allows the contracting agency and the Department to withhold or cause to be withheld funds from the prime contractor not only under the contract on which violations of the paid sick leave requirements of Executive Order 13706 and part 13 occurred, but also under any other contract that the prime contractor has entered into with the Federal Government. 29 CFR 4.6(i); 29 CFR 5.5(a)(2); 29 CFR 10.11(c). Finally, a withholding remedy is consistent with the requirement in section 2(a) of the Executive Order that compliance with the specified obligations is an express “condition of payment” to a contractor or subcontractor. 80 FR 54699.
Proposed § 13.11(c) also provides that any failure to comply with the requirements of Executive Order 13706 or part 13 may be grounds for termination of the right to proceed with the contract work. In such event, the contracting agency may enter into other contracts or arrangements for completion of the work, charging the contractor in default with any additional cost. This language is essentially identical to language included in the analogous provision in the Minimum Wage Executive Order rulemaking.
Proposed § 13.11(d) describes a contracting agency's responsibility to suspend further payment or advance of funds to a contractor that fails to make available for inspection, copying, and transcription any of the records identified in proposed § 13.25. The proposal requires contracting agencies to take action to suspend payment or advance of funds under these circumstances upon their own action, or upon the direction of the Administrator and notification of the contractor. Proposed § 13.11(d) is derived from paragraph (g)(3) of the Minimum Wage Executive Order contract clause, 79 FR 60731, and is consistent with the analogous provisions of the SCA and DBA regulations, 29 CFR 4.6(g)(3); 29 CFR 5.5(a)(3)(iii).
Proposed § 13.11(e) describes a contracting agency's responsibility to forward to the WHD any complaint alleging a contractor's non-compliance with Executive Order 13706 or part 13, as well as any information related to the complaint. Although the Department proposes in § 13.41 that complaints be filed with the WHD rather than with contracting agencies, the Department recognizes that some employees or other interested parties nonetheless may file formal or informal complaints concerning alleged violations of the Executive Order or part 13 with contracting agencies. Proposed § 13.11(e)(1) therefore specifically requires the contracting agency to transmit the complaint-related information identified in proposed § 13.11(e)(2) to the WHD's Office of Government Contracts Enforcement within 14 calendar days of receipt of a complaint alleging a violation of the Executive Order or part 13, or within 14 calendar days of being contacted by the WHD regarding any such complaint.
Proposed § 13.11(e)(2) describes the contents of any transmission under proposed § 13.11(e)(1). Specifically, it provides that the contracting agency shall forward to the Office of Government Contracts Enforcement any: (i) Complaint of contractor noncompliance with Executive Order 13706 or part 13; (ii) available statements by the worker, contractor, or any other person regarding the alleged violation; (iii) evidence that the Executive Order paid sick leave contract clause was included in the contract; (iv) information concerning known settlement negotiations between the parties, if applicable; and (v) any other relevant facts known to the contracting agency or other information requested by the Wage and Hour Division.
Proposed § 13.11(e) is nearly identical to 29 CFR 10.11(d) as promulgated by the Minimum Wage Executive Order Final Rule, which was derived from analogous provisions in the Department's regulations implementing the Nondisplacement Executive Order. 79 FR 60669 (citing 29 CFR 9.11(d)). As in the Minimum Wage Executive Order rulemaking, the Department believes proposed § 13.11(e), which includes an obligation to send such complaint-related information to WHD even absent a specific request (
Proposed § 13.11(f) would provide that a contracting officer shall provide to a successor contractor any predecessor contractor's certified list, provided to the contracting officer pursuant to proposed § 13.26, of the amounts of unused paid sick leave that employees have accrued. This requirement would facilitate compliance by successor contractors with proposed § 13.5(b)(3), which requires that paid sick leave be reinstated for employees rehired by a
Proposed § 13.12 addresses the Department's obligations under the Executive Order. Specifically, proposed § 13.12(a)(1) states that the Administrator will publish and maintain on Wage Determinations OnLine (WDOL),
Proposed § 13.12(a)(2) provides that the Administrator will also publish a notice on all wage determinations issued under the DBA and SCA that Executive Order 13706 creates a requirement to allow employees performing work on or in connection with contracts covered by Executive Order 13706 and part 13 to accrue and use paid sick leave, as well as an indication of where to find more complete information about that requirement.
Proposed § 13.12(b), which is modeled on 29 CFR 10.12(d), addresses the Department's obligation to notify a contractor of a request to the contracting agency for the withholding of funds or a request for the suspension of payment or advance of funds. Under proposed § 13.11(c), the Administrator may direct that payments due on the covered contract or any other contract between the contractor and the Federal Government be withheld as may be considered necessary to provide for monetary relief for violations of Executive Order 13706 or part 13. Under proposed § 13.11(d), the Administrator may direct that the contracting agency suspend payment or advance of funds. If the Administrator makes the requests contemplated by proposed § 13.11(c) or (d), proposed § 13.12(b) would require the Administrator and/or the contracting agency to notify the affected prime contractor of the Administrator's withholding request to the contracting agency. Although it is only necessary that one party—either the Administrator or the contracting agency—provide the notice, the other may choose in its discretion to provide notice as well.
Proposed subpart C describes the requirements with which contractors must comply under Executive Order 13706 and part 13. It sets forth the obligation to include the applicable Executive Order paid sick leave contract clause in subcontracts and lower-tier contracts to comply with the contract clause. Proposed subpart C also sets forth contractor requirements pertaining to deductions, kickbacks, recordkeeping, a list of employees' accrued paid sick leave at the time a contract concludes, notice, and timing of pay.
Proposed § 13.21(a), which is adopted from 29 CFR 10.21 as promulgated by the Minimum Wage Executive Order Final Rule, requires the contractor, as a condition of payment, to abide by the terms of the applicable Executive Order paid sick leave contract clause referred to in proposed § 13.11(a). The applicable contract clause will contain the obligations with which the contractor must comply on the covered contract and will reflect the contractor's obligations as described in part 13.
Proposed § 13.21(b) states that contractors must include the applicable contract clause in any covered subcontracts and shall require, as a condition of payment, that subcontractors include the clause in all lower-tier subcontracts. Under the proposal, the prime contractor and upper-tier contractors will be responsible for compliance by any subcontractor or lower-tier subcontractor with Executive Order 13706 and part 13, regardless of whether the contract clause was included in the subcontract. This responsibility on the part of prime and upper-tier contractors for subcontractor compliance parallels that of the SCA and DBA.
Proposed § 13.22 requires contractors to allow all employees performing work on or in connection with a covered contract to accrue and use paid sick leave as required by the Executive Order and part 13. Although contractors must comply with the Order and part 13 in its entirety, the Department notes that contractors' paid sick leave obligations are described in detail in proposed subpart A (particularly proposed § 13.5, which addresses the accrual and use of paid sick leave, and proposed § 13.6, which describes prohibited acts).
Proposed § 13.23 states that contractors may only make deductions from the pay and benefits of an employee who is using paid sick leave under the limited circumstances set forth in the proposed provision. The reference to “pay and benefits” in proposed § 13.23 has the same meaning as the reference to pay and benefits in proposed § 13.5(c)(3), discussed above.
Proposed § 13.23 permits deductions required by Federal, State, or local law, including Federal or State withholding of income taxes.
Proposed § 13.24 requires that all paid sick leave used by employees
Proposed § 13.25 explains the recordkeeping and related requirements for contractors. The obligations set forth in proposed § 13.25 are derived from the FLSA, SCA, DBA, FMLA and Executive Order 13658.
Proposed § 13.25(a)(1)-(6) require contractors to make and maintain for each employee: Name, address, and Social Security number; the employee's occupation(s) or classification(s); the rate or rates of wages paid to the employee; the number of daily and weekly hours worked by the employee; any deductions made; and the total wages paid each pay period. Contractor obligations to maintain the categories of records set forth in § 13.25(a)(1)-(6) derive from and are consistent across the FLSA, SCA, and DBA (with the exception of the requirement to preserve records for no less than 3 years after the contact expires, which applies under the DBA and SCA but not the FLSA). An exception to the requirement in proposed § 13.25(a)(4) to keep records of an employee's hours worked is provided in proposed § 13.25(c), as described below. Therefore, in conjunction with proposed § 13.25(c), these recordkeeping requirements impose almost no new burdens on contractors. Moreover, with respect to both the categories of records set forth in proposed § 13.25(a)(1)-(6) and those set forth in proposed § 13.25(a)(7)-(15) below, the recordkeeping requirements set forth in this section are necessary and appropriate for the enforcement of Executive Order 13706 and part 13 because they require the maintenance and preservation of records necessary to investigate potential violations of and obtain compliance with the Order, consistent with sections 3(a) and 4(a) of the Order.
Proposed § 13.25(a)(7) requires contractors to make and maintain copies of notifications to employees of the amount of paid sick leave the employees have accrued as required under proposed § 13.5(a)(2). Proposed § 13.25(a)(8) requires contractors to maintain copies of employees' requests to use paid sick leave, if in writing, or, if not in writing, any other records of employees' requests.
Proposed § 13.25(a)(9) requires contractors to make and maintain records of the dates and amounts of paid sick leave used by employees and further specifies that unless a contractor's paid time off policy satisfies the requirements of Executive Order 13706 and part 13 as described in proposed § 13.5(f)(5), contractors must designate the leave in their records as paid sick leave pursuant to Executive Order 13706. Proposed § 13.25(a)(10) requires contractors to make and maintain copies of any written denials of employees' requests to use paid sick leave, including explanations for such denials, as required under proposed § 13.5(d)(3). Proposed § 13.25(a)(11) requires contractors to make and maintain records relating to the certification and documentation a contractor may require an employee to provide under proposed § 13.5(e), including copies of any certification or documentation provided by an employee. Proposed § 13.25(a)(12) requires contractors to make and maintain any other records showing any tracking of or calculations related to an employee's accrual and/or use of paid sick leave.
Proposed § 13.25(a)(13) requires contractors to make and maintain copies of any certified list of employees' accrued, unused paid sick leave provided to a contracting officer in compliance with proposed § 13.26. Proposed § 13.25(a)(14) requires contractors to maintain any certified list of employees' accrued, unused paid sick leave received from the contracting agency in compliance with proposed § 13.11(f). Finally, proposed § 13.25(a)(15) requires contractors to maintain a copy of the relevant covered contract.
Proposed § 13.25(b) relates to the segregation of employees' covered and non-covered work for a single contractor. It provides that if a contractor wishes to distinguish between an employee's covered and non-covered work (such as time spent performing work on or in connection with a covered contract versus time spent performing work on or in connection with non-covered contracts or time spent performing work on or in connection with a covered contract in the United States versus time spent performing work outside the United States, or to establish that time spent performing solely in connection with covered contracts constituted less than 20 percent of an employee's hours worked during a particular workweek), the contractor must keep records or other proof reflecting such distinctions. It further provides that only if the contractor adequately segregates the employee's time will time spent on non-covered contracts be excluded from hours worked counted toward the accrual of paid sick leave, and that similarly, only if that contractor adequately segregates the employee's time may a contractor properly deny an employee's request to take leave under proposed § 13.5(d) on the ground that the employee was scheduled to perform non-covered work during the time she asked to use paid sick leave. This language reflects the policies described in the discussions of §§ 13.3(c), 13.4(e), 13.5(a)(1)(i), 13.5(c)(1), and 13.5(d)(3)(ii) with regard to a contractor's segregation of hours worked for purposes of coverage as well as accrual and use of paid sick leave. As explained with regard to those sections, requiring contractors who wish to distinguish between covered and non-covered time to keep adequate records reflecting that distinction is consistent with the treatment of hours worked on SCA- and non-SCA-covered contracts,
Proposed § 13.25(c) excuses a contractor from maintaining records of the employee's number of daily and weekly hours worked as otherwise required under proposed § 13.25(a)(4), if the SCA, DBA, and FLSA do not require the contractor to keep records of the employee's hours worked, such as because the employee is employed in a bona fide executive, administrative, or professional capacity as those terms are defined in 29 CFR part 541, and the
Proposed § 13.25(d) addresses requirements related to the confidentiality of records. Proposed § 13.25(d)(1) requires a contractor to maintain as confidential in separate files/records from the usual personnel files any records relating to medical histories or domestic violence, sexual assault, or stalking created by or provided to a contractor for purposes of Executive Order 13706, whether of an employee or an employee's child, parent, spouse, domestic partner, or other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship. Proposed § 13.25(d)(2) requires records or documents created to comply with the recordkeeping requirements in part 13 that are subject to the confidentiality requirements of the Genetic Information Nondiscrimination Act of 2008 (GINA), Pub. L. 110-233, 122 Stat. 881 (2008), and/or Americans with Disabilities Act (ADA), 42 U.S.C. 12101
Proposed § 13.25(d)(3) prohibits the disclosure of any documentation used to verify the need to use 3 or more consecutive days of paid sick leave for the purposes listed in proposed § 13.5(c)(1)(iv), and requires the contractor to maintain confidentiality about any domestic violence, sexual assault, or stalking, unless the employee consents or the disclosure is required by law.
Proposed § 13.25(e) requires contractors to permit authorized representatives of WHD to conduct interviews with employees at the worksite during normal working hours. This provision is derived from similar provisions under the SCA and DBA, 29 CFR 4.6(g)(4) (SCA); 29 CFR 5.5(a)(3)(iii), and will facilitate WHD's ability to enforce the Order and part 13.
Proposed § 13.25(f) states that nothing in part 13 limits or otherwise modifies the contractor's recordkeeping obligations, if any, under the DBA, SCA, FLSA, FMLA, Executive Order 13658, their implementing regulations, or other applicable law.
Proposed § 13.26 provides that upon completion of a covered contract, a predecessor prime contractor shall provide to the contracting officer a certified list of the names of all employees entitled to paid sick leave under Executive Order 13706 and part 13 who worked on or in connection with the covered contract or any covered subcontract(s) at any point during the 12 months preceding the date of completion of the contract, the date each such employee separated from the contract or any covered subcontract(s) if prior to the date of the completion of the contract, and the amount of paid sick leave each such employee had available for use as of the date of completion of the contract or the date each such employee separated from the contract or subcontract. This requirement would (in conjunction with proposed § 13.11(f)) facilitate compliance by successor contractors with proposed § 13.5(b)(3), which requires that paid sick leave be reinstated for employees rehired by a successor contractor within 12 months of the job separation from the predecessor contractor. The terms predecessor contract and successor contract are defined in proposed § 13.2.
Proposed § 13.27 addresses the obligations of contractors with respect to notice to employees of their rights under Executive Order 13706 and part 13. Proposed § 13.27(a) requires that contractors notify all employees performing work on or in connection with a covered contract of the paid sick leave requirements of Executive Order 13706 and part 13 by posting a notice provided by the Department of Labor in a prominent and accessible place at the worksite so it may be readily seen by employees. The Department derived this proposal from the Executive Order 13658 implementing regulations at 29 CFR 10.29(b);
Proposed § 13.27(b), derived from the Executive Order 13658 implementing regulations at 29 CFR 10.29(c), permits contractors that customarily post notices to employees electronically to post the notice electronically, provided such electronic posting is displayed prominently on any Web site that is maintained by the contractor, whether external or internal, and customarily used for notices to employees about terms and conditions of employment.
Proposed § 13.28 describes the time by which a contractor must compensate employees for hours during which they used paid sick leave. Under the proposed provision, a contractor shall provide such compensation no later than one pay period following the end of the regular pay period in which the paid sick leave was used. The timing of the payment obligation imposed is consistent with both the SCA's and Executive Order 13658's implementing regulations,
Proposed subpart D implements section 4 of Executive Order 13706, which grants the Secretary “authority for investigating potential violations of and obtaining compliance with” the Order and complies with section 3(c) of the Order, which directs that the regulations the Secretary issues should, to the extent practicable, incorporate existing procedures, remedies, and enforcement processes under the FLSA, SCA, DBA, FMLA, VAWA, and Executive Order 13658. 79 FR 54699. Proposed subpart D is substantially similar to subpart D of 29 CFR part 10, which sets forth the remedies, procedures, and enforcement processes under the Minimum Wage Executive Order.
Specifically, proposed subpart D incorporates many of the provisions of the Minimum Wage Executive Order regulations, which in turn incorporate FLSA, SCA, and DBA remedies, procedures, and enforcement processes, as well as certain enforcement procedures set forth in the Department's regulations implementing the Nondisplacement Executive Order. Proposed subpart D differs in some respects from the analogous provisions under the Minimum Wage Executive Order rulemaking because of the differences between minimum wage
The Department proposes a procedure for filing complaints in § 13.41 identical to that which appears in 29 CFR 10.41, the section of the Minimum Wage Executive Order regulations that addresses complaints. Proposed § 13.41(a) provides that any employee, contractor, labor organization, trade organization, contracting agency, or other person or entity that believes a violation of the Executive Order or part 13 has occurred may file a complaint with any office of the WHD. It also provides that no particular form of complaint is required; a complaint may be filed orally or in writing, and the WHD will accept a complaint in any language if the complainant is unable to file in English. Proposed § 13.41(b) states the well-established policy of the Department with respect to confidential sources.
Proposed § 13.42, which is identical to 29 CFR 10.42, establishes an informal complaint resolution process for complaints filed with the WHD. The provision allows WHD, after obtaining the necessary information from the complainant regarding the alleged violations, to contact the party against whom the complaint is lodged and attempt to reach an acceptable resolution through conciliation.
Proposed § 13.43, which outlines WHD's investigative authority, is identical to 29 CFR 10.43. That section of the Minimum Wage Executive Order regulations was derived primarily from regulations implementing the SCA and DBA.
In § 13.44, the Department sets forth proposed remedies and sanctions for violations of the Order and part 13. Proposed § 13.44(a) provides for remedies for violations of the prohibition on interference with the accrual or use of paid sick leave described in proposed § 13.6(a). Proposed § 13.44(a) provides that when the Administrator determines that a contractor has interfered with an employee's accrual or use of the paid sick leave in violation of § 13.6(a), the Administrator will notify the contractor and the relevant contracting agency of the interference and request the contractor to remedy the violation. It additionally proposes that if the contractor does not remedy the violation, the Administrator shall direct the contractor to provide any appropriate relief to the affected employee(s) in the Administrator's investigation findings letter issued pursuant to proposed § 13.51. The Department further proposes that § 13.44(a) provide that such relief may include any pay and/or benefits denied or lost by reason of the violation; other actual monetary losses sustained as a direct result of the violation; or appropriate equitable or other relief. Furthermore, as proposed, relief would include an amount equaling any monetary relief as liquidated damages unless such amount is reduced by the Administrator because the violation was in good faith and the contractor had reasonable grounds for believing it had not violated the Order or part 13. The types of relief available under proposed § 13.44(a) are derived from the FMLA, 29 U.S.C. 2617(a)(1), 2617(b)(2), and its implementing regulations, 29 CFR 825.400(c). Important aspects of these FMLA remedies, such as the inclusion of liquidated damages, are also part of the FLSA scheme.
Under the proposed regulatory text, an example of a possible remedy includes payment for time for which a contractor improperly denied a request to use paid sick leave such that the employee took unpaid leave that should have been treated as paid sick leave; in that case, the damages would be the pay and benefits the employee would have received for that time pursuant to proposed § 13.5(c)(3), and the award would include an equal amount of liquidated damages unless the violation was made in good faith and the contractor had reasonable grounds for believing it had not violated the Order or part 13. As another example, if a contractor improperly denied a request to use paid sick leave such that an employee came to work and hired a babysitter to care for a sick child with whom the employee wished to stay home, the remedy would be the amount the employee spent on the child care, and the award would include an equal amount of liquidated damages unless the violation was made in good faith and the contractor had reasonable grounds for believing it had not violated the Order or part 13. In this example, relief would not include lost pay or benefits because the employee did not lose pay or benefits due to the violation. Equitable relief for violations of proposed § 13.6(a) could include, but would not be limited to, requiring the contractor to allow for accrual and use
Proposed § 13.44(a) also provides that the Administrator may direct that payments due on the contract or any other contract between the contractor and the Federal Government be withheld as may be necessary to provide any appropriate monetary relief, and that, upon the final order of the Secretary that the monetary relief is due, the Administrator may direct the relevant contracting agency to transfer the withheld funds to the Department for disbursement. These portions of the proposed provision are identical to language in the Minimum Wage Executive Order final rule.
Proposed § 13.44(b) sets out remedies for violations of the prohibition on discrimination in proposed § 13.6(b). It provides that when the Administrator determines that a contractor has discriminated against an employee in violation of proposed § 13.6(b), the Administrator will notify the contractor and the relevant contracting agency of the discrimination and request that the contractor remedy the violation. If the contractor does not remedy the violation, the Administrator shall direct the contractor to provide any appropriate relief, including but not limited to employment, reinstatement, promotion, restoration of leave, or lost pay and/or benefits, in the Administrator's investigation findings letter issued pursuant to proposed § 13.51. As proposed, § 13.44(a) also provides that an amount equaling any monetary relief may be awarded as liquidated damages unless such amount is reduced by the Administrator because the violation was in good faith and the contractor had reasonable grounds for believing the contractor had not violated the Order or part 13. This language is derived from the FMLA remedies at 29 U.S.C. 2617(a)(1) and 29 CFR 825.400(c);
Proposed § 13.44(c) addresses the remedies for violations of the recordkeeping requirements in proposed subpart C. It provides that when a contractor fails to comply with the requirements of proposed § 13.25 in violation of proposed § 13.6(c), the Administrator will request that the contractor remedy the violation. Proposed § 13.44(c) further provides that if a contractor fails to produce required records upon request, the contracting officer, upon direction of an authorized representative of the Department of Labor, or under its own action, shall take such action as may be necessary to cause suspension of any further payment or advance of funds on the contract until such time as the violations are discontinued. Proposed § 13.44(c) is derived from paragraph (g)(3) of the Minimum Wage Executive Order contract clause, the analogous provision of the SCA regulations, 29 CFR 4.6(g)(3), and the analogous provision of the DBA regulations, 29 CFR 5.5(a)(3)(iii).
Proposed § 13.44(d), which is effectively identical to the corresponding provision in the Minimum Wage Executive Order rulemaking, 29 CFR 10.44(c), allows for the remedy of debarment. Specifically, it provides that whenever a contractor is found by the Secretary to have disregarded its obligations under Executive Order 13706 or part 13, such contractor and its responsible officers, and any firm, corporation, partnership, or association in which the contractor or responsible officers have an interest, shall be ineligible to be awarded any contract or subcontract subject to the Executive Order for a period of up to three years from the date of publication of the name of the contractor or responsible officer on the excluded parties list currently maintained on the System for Award Management Web site,
Debarment is a long-established remedy for a contractor's failure to fulfill its labor standards obligations under the SCA and the DBA,
Proposed § 13.44(e) allows for initiation of an action, following a final order of the Secretary, against a contractor in any court of competent jurisdiction to collect underpayments when the amounts withheld under proposed § 13.11(c) are insufficient to reimburse all monetary relief due. Proposed § 13.44(e) also authorizes initiation of an action, following the final order of the Secretary, in any court of competent jurisdiction when there are no payments available to withhold. Such circumstances could arise, for example, if at the time the Administrator discovers a contractor owes pay and/or benefits to employees, no payments remain owing under the contract or another contract between the same contractor and the Federal Government, or if the covered contract is a concessions contract under which the contractor does not receive payments from the Federal Government. Proposed § 13.44(e) additionally provides that any sums the Department recovers shall be paid to affected employees to the extent possible, but that sums not paid to employees because of an inability to do so within three years would be transferred into the Treasury of the United States. Proposed § 13.44(e) is derived from the analogous provision of the Minimum Wage Executive Order rulemaking, 29 CFR 10.44(d), which in turn was derived from the SCA, 41 U.S.C. 6705(b)(2).
In proposed § 13.44(f), the Department addresses what remedy is available when a contracting agency fails to include the contract clause in a contract
Pursuant to section 4 of Executive Order 13706, proposed subpart E establishes and describes the administrative proceedings to be conducted under the Order. In compliance with section 3(c) of the Order, subpart E incorporates, to the extent practicable, the DBA, SCA and Executive Order 13658 administrative procedures necessary to remedy potential violations and ensure compliance with the Executive Order. Indeed, the Department has substantially modeled this subpart E on subpart E of the Minimum Wage Executive Order regulations, which was primarily derived from the rules governing administrative proceedings conducted under the DBA and SCA. 79 FR 60682. The administrative procedures included in this subpart also closely adhere to existing procedures of the Department's Office of Administrative Law Judges and Administrative Review Board (ARB).
Proposed § 13.51, which the Department derived primarily from the DBA's implementing regulations at 29 CFR 5.11, addresses how the Administrator will process disputes regarding a contractor's compliance with part 13. Proposed § 13.51(a) provides that the Administrator or a contractor may initiate a proceeding. Proposed § 13.51(b)(1) provides that when it appears that relevant facts are at issue in a dispute covered by proposed § 13.51(a), the Administrator will notify the affected contractor(s) and the prime contractor, if different, of the investigative findings by certified mail to the last known address. If the Administrator determines there are reasonable grounds to believe the contractor(s) should be subject to debarment, the investigative findings letter would so indicate.
Proposed § 13.51(b)(2) requires a contractor desiring a hearing concerning the investigative findings letter to request a hearing by letter postmarked within 30 calendar days of the date of the Administrator's letter. It further requires the request to set forth those findings that are in dispute with respect to the violation(s) and/or debarment, as appropriate, and to explain how such findings are in dispute, including by reference to any applicable affirmative defenses.
Proposed § 13.51(b)(3) requires the Administrator, upon receipt of a timely request for hearing, to refer the matter to the Chief Administrative Law Judge by Order of Reference for designation of an Administrative Law Judge (ALJ) to conduct such hearings as may be necessary to resolve the disputed matter in accordance with the procedures set forth in 29 CFR part 6. It also requires the Administrator to attach a copy of the Administrator's letter, and the response thereto, to the Order of Reference that the Administrator sends to the Chief Administrative Law Judge.
Proposed § 13.51(c)(1) applies when it appears there are no relevant facts at issue and there is not at that time reasonable cause to institute debarment proceedings. It requires the Administrator to notify the contractor, by certified mail to the contractor's last known address, of the investigative findings and to issue a ruling on any issues of law known to be in dispute. Proposed § 13.51(c)(2)(i) applies when a contractor disagrees with the Administrator's factual findings or believes there are relevant facts in dispute. It allows the contractor to advise the Administrator of such disagreement by letter postmarked within 30 calendar days of the date of the Administrator's letter. The response must explain in detail the facts alleged to be in dispute and attach any supporting documentation.
Proposed § 13.51(c)(2)(ii) requires that the information submitted in the response alleging the existence of a factual dispute must be timely in order for the Administrator to examine such information. Where the Administrator determines there is a relevant issue of fact, the Administrator will refer the case to the Chief Administrative Law Judge as under proposed § 13.51(b)(3). If the Administrator determines there is no relevant issue of fact, the Administrator will so rule and advise the contractor accordingly.
Proposed § 13.51(c)(3) applies where a contractor desires review of an Administrator's ruling under proposed § 13.51(c)(1) or the final sentence of proposed § 13.51(c)(2)(ii). It requires a contractor to file any petition for review with the ARB postmarked within 30 calendar days of the Administrator's ruling, with a copy thereof to the Administrator. It further requires the petitioner to file its petition in accordance with the procedures set forth in 29 CFR part 7.
Proposed § 13.51(d) provides that the Administrator's investigative findings letter will become the final order of the Secretary if a timely response to the letter is not made or a timely petition for review is not filed. It additionally provides that if a timely response or a timely petition for review is filed, the investigative findings letter will be inoperative unless and until the decision is upheld by an ALJ or the ARB, or the letter otherwise becomes a final order of the Secretary.
Proposed § 13.52, which is identical to the analogous provision in the Minimum Wage Executive Order regulations, 29 CFR 10.52, which the Department primarily derived from the DBA implementing regulations at 29 CFR 5.12, 79 FR 60683, addresses debarment proceedings. Proposed § 13.52(a)(1) provides that whenever any contractor is found by the Secretary of Labor to have disregarded its obligations to employees or subcontractors under Executive Order or part 13, such contractor and its responsible officers,
Proposed § 13.52(b)(1) provides that where the Administrator finds reasonable cause to believe a contractor has committed a violation of the Executive Order or part 13 that constitutes a disregard of its obligations to its employees or subcontractors, the Administrator will notify by certified mail to the last known address, the contractor and its responsible officers (and any firms, corporations, partnerships, or associations in which the contractor or responsible officers are known to have an interest) of the finding. Pursuant to proposed § 13.52(b)(1), the Administrator would additionally furnish those notified a summary of the investigative findings and afford them an opportunity for a hearing regarding the debarment issue. Those notified would have to request a hearing on the debarment issue, if desired, by letter to the Administrator postmarked within 30 calendar days of the date of the letter from the Administrator. The letter requesting a hearing would need to set forth any findings that are in dispute and the reasons therefore, including any affirmative defenses to be raised. Proposed § 13.52(b)(1) also requires the Administrator, upon receipt of a timely request for hearing, to refer the matter to the Chief Administrative Law Judge by Order of Reference, to which would be attached a copy of the Administrator's investigative findings letter and the response thereto, for designation to an ALJ to conduct such hearings as may be necessary to determine the matters in dispute. Proposed § 13.52(b)(2) provides that hearings under § 13.52 will be conducted in accordance with 29 CFR part 6. If no timely request for hearing is received, the Administrator's findings will become the final order of the Secretary.
Proposed § 13.53, as well as proposed §§ 13.54-13.57, are largely identical to the corresponding provisions in the Minimum Wage Executive Order rulemaking, 29 CFR 10.53-.57, and are derived from the SCA and DBA rules of practice for administrative proceedings contained in 29 CFR part 6. Proposed § 13.53(a) provides that upon receipt of a timely request for a hearing under proposed § 13.51 (where the Administrator has determined that relevant facts are in dispute) or proposed § 13.52 (debarment), the Administrator will refer the case to the Chief Administrative Law Judge by Order of Reference, to which would be attached a copy of the investigative findings letter from the Administrator and the response thereto, for designation of an ALJ to conduct such hearings as may be necessary to decide the disputed matters. It further provides that a copy of the Order of Reference and attachments thereto will be served upon the respondent and that the investigative findings letter and the response thereto will be given the effect of a complaint and answer, respectively, for purposes of the administrative proceeding.
Proposed § 13.53(b) states that at any time prior to the closing of the hearing record, the complaint or answer may be amended with permission of the ALJ upon such terms as the ALJ shall approve, and that for proceedings initiated pursuant to proposed § 13.51, such an amendment could include a statement that debarment action is warranted under proposed § 13.52. It further provides that such amendments will be allowed when justice and the presentation of the merits are served thereby, provided no prejudice to the objecting party's presentation on the merits will result. It additionally states that when issues not raised by the pleadings were reasonably within the scope of the original complaint and were tried by express or implied consent of the parties, they will be treated as if they had been raised in the pleadings, and such amendments could be made as necessary to make them conform to the evidence. Proposed § 13.53(b) further provides that the presiding ALJ may, upon reasonable notice and upon such terms as are just, permit supplemental pleadings setting forth transactions, occurrences, or events that have happened since the date of the pleadings and that are relevant to any of the issues involved. It also authorizes the ALJ to grant a continuance in the hearing, or leave the record open, to enable the new allegations to be addressed.
Proposed § 13.54(c) provides that parties may at any time prior to the ALJ's receipt of evidence or, at the ALJ's discretion, at any time prior to issuance of a decision, agree to dispose of the matter, or any part thereof, by entering into consent findings and an order disposing of the proceeding. Proposed § 13.54(b) provides that any agreement containing consent findings and an order disposing of a proceeding in whole or in part shall also provide: (1) That the order shall have the same force and effect as an order made after full hearing; (2) that the entire record on which any order may be based shall consist solely of the Administrator's findings letter and the agreement; (3) a waiver of any further procedural steps before the ALJ and the ARB regarding those matters which are the subject of the agreement; and (4) a waiver of any right to challenge or contest the validity of the findings and order entered into in accordance with the agreement. Proposed § 13.54(c) provides that within 30 calendar days of receipt of any proposed consent findings and order, the ALJ will accept the agreement by issuing a decision based on the agreed findings and order, provided the ALJ is satisfied with the proposed agreement's form and substance. It further provides that if the agreement disposes of only a part of the disputed matter, a hearing shall be conducted on the matters remaining in dispute.
Proposed § 13.55 addresses the ALJ's proceedings and decision. Proposed § 13.55(a) provides that the Office of Administrative Law Judges has jurisdiction to hear and decide appeals concerning questions of law and fact from the Administrator's investigative findings letters issued under proposed § 13.51 and/or proposed § 13.52.
Proposed § 13.55(b) provides that each party may file with the ALJ proposed findings of fact, conclusions of law, and a proposed order, together with a supporting brief expressing the reasons for such proposals, within 20 calendar days of filing of the transcript (or a longer period if the ALJ permits). It also provides that each party will serve such documents on all other parties.
Proposed § 13.55(c)(1) requires an ALJ to issue a decision within a reasonable period of time after receipt of the proposed findings of fact, conclusions of law, and order, or within 30 calendar days after receipt of an agreement containing consent findings and an order disposing of the matter in whole. It further provides that the decision will contain appropriate findings, conclusions of law, and an order and be served upon all parties to the
Proposed § 13.55(d) provides that the Equal Access to Justice Act (EAJA), as amended, 5 U.S.C. 504, does not apply to proceedings under part 13. The proceedings proposed are not required by an underlying statute to be determined on the record after an opportunity for an agency hearing. Therefore, an ALJ has no authority to award attorney's fees and/or other litigation expenses pursuant to the provisions of the EAJA for any proceeding under part 13.
Proposed § 13.55(e) provides that if an ALJ concludes that a violation of the Executive Order or part 13 occurred, the final order shall mandate action to remedy the violation, including any monetary or equitable relief described in proposed § 13.44. It also requires an ALJ to determine whether an order imposing debarment is appropriate, if the Administrator has sought debarment.
Proposed § 13.55(f) provides that the ALJ's decision will become the final order of the Secretary, provided a party does not timely appeal the matter to the ARB.
The Department proposes § 13.56 as the process to apply to petitions for review to the ARB from ALJ decisions. Proposed § 13.56(a) provides that within 30 calendar days after the date of the decision of the ALJ, or such additional time as the ARB grants, any party aggrieved thereby who desires review must file a petition for review with supporting reasons in writing to the ARB with a copy thereof to the Chief Administrative Law Judge. It further requires the petition to refer to the specific findings of fact, conclusions of law, and order at issue and that a petition concerning a debarment decision state the disregard of obligations to employees and subcontractors, or lack thereof, as appropriate. It additionally requires a party to serve the petition for review, and all supporting briefs, on all parties and on the Chief Administrative Law Judge. It also states that a party must timely serve copies of the petition and all supporting briefs on the Administrator and the Associate Solicitor, Division of Fair Labor Standards, Office of the Solicitor, U.S. Department of Labor.
Proposed § 13.56(b) provides that if a party files a timely petition for review, the ALJ's decision will be inoperative unless and until the ARB issues an order affirming the decision, or the decision otherwise becomes a final order of the Secretary. It further provides that if a petition for review concerns only the imposition of debarment, the remainder of the ALJ's decision will be effective immediately. It additionally states that judicial review will not be available unless a timely petition for review to the ARB is first filed. Failure of the aggrieved party to file a petition for review with the ARB within 30 calendar days of the ALJ decision will render the decision final, without further opportunity for appeal.
Proposed § 13.57 outlines the ARB proceedings under the Executive Order. Proposed § 13.57(a)(1) states the ARB has jurisdiction to hear and decide in its discretion appeals from the Administrator's investigative findings letters issued under proposed § 13.51(c)(1) or the final sentence of proposed § 13.51(c)(2)(ii), Administrator's rulings issued under proposed § 13.58, and from ALJ decisions issued under proposed § 13.55. It further provides that in considering the matters within its jurisdiction, the ARB will be the Secretary's authorized representative and will act fully and finally on behalf of the Secretary. Proposed § 13.57(a)(2)(i) identifies the limitations on the ARB's scope of review, including a restriction on passing on the validity of any provision of part 13 and a general prohibition on receiving new evidence in the record, because the ARB is an appellate body and must decide cases before it based on substantial evidence in the existing record. Proposed § 13.57(a)(2)(ii) prohibits the ARB from granting attorney's fees or other litigation expenses under the EAJA.
Proposed § 13.57(b) requires the ARB to issue a final decision within a reasonable period of time following receipt of the petition for review and to serve the decision by mail on all parties at their last known address, and on the Chief ALJ, if the case involved an appeal from an ALJ's decision. Proposed § 13.57(c) directs the ARB's order to mandate action to remedy a violation, including any monetary or equitable relief described in proposed § 13.44, if the ARB concludes a violation occurred. If the Administrator has sought debarment, the ARB will determine whether a debarment remedy is appropriate.
Finally, proposed § 13.57(d) provides that the ARB's decision will become the Secretary's final order in the matter.
Proposed § 13.58 sets forth a procedure for addressing questions regarding the application and interpretation of the rules contained in part 13. Proposed § 13.58(a), which the Department derived primarily from the DBA's implementing regulations at 29 CFR 5.13, provides that such questions can be referred to the Administrator. It further provides that the Administrator will issue an appropriate ruling or interpretation related to the question. Additionally, under proposed § 13.58(a), requests for rulings under this section shall be addressed to the Administrator, Wage and Hour Division, U.S. Department of Labor, Washington, DC 20210.
Any interested party can, pursuant to proposed § 13.58(b), appeal a final ruling of the Administrator issued pursuant to proposed § 13.58(a) to the ARB within 30 calendar days of the date of the ruling.
Because Executive Order 13706 requires inclusion of a contract clause in covered contracts, the Department has set forth the text of a proposed contract clause in appendix A to part 13. As required by the Order, the proposed contract clause specifies employees must earn not less than 1 hour of paid sick leave for every 30 hours worked. Consistent with the Secretary's authority to obtain compliance with the Order, as well as the Secretary's responsibility to issue regulations implementing the requirements of the Order that incorporate, to the extent practicable, existing procedures, remedies, and enforcement processes under the FLSA, SCA, DBA, FMLA, VAWA and Executive Order 13658, the additional provisions of the contract clause are based on the statutory text or implementing regulations of these five statutes and Executive Order 13658 and are intended to obtain compliance with the Order.
The introduction to the contract clause provides that the proposed clause must be included by the contracting agency in all contracts, contract-like instruments, and solicitations to which Executive Order 13706 applies, except for procurement contracts subject to the Federal Acquisition Regulation (FAR). For procurement contracts subject to the FAR, contracting agencies shall use the
Proposed paragraph (a) of the contract clause set forth in appendix A provides that the contract in which the clause is included is subject to Executive Order 13706, the regulations issued by the Secretary of Labor at 29 CFR part 13 to implement the Order's requirements, and all the provisions of the contract clause.
Proposed paragraph (b) identifies the contractor's general paid sick leave obligations. Paragraph (b)(1) stipulates that contractors must permit each employee engaged in the performance of the contract by the prime contractor or any subcontractor, regardless of any contractual relationship that may be alleged to exist between the contractor and the employee, to earn not less than 1 hour of paid sick leave for every 30 hours worked. It further provides that the contractor must allow accrual and use of paid sick leave as required by the Executive Order and 29 CFR part 13, particularly the accrual, use, and other requirements set forth in 29 CFR 13.5 and 13.6, which are incorporated by reference in the contract.
The first sentence of proposed paragraph (b)(2), which reflects requirements in proposed §§ 13.23 and 13.24 and was derived from the contract clauses applicable to contracts subject to the SCA, DBA and Executive Order 13706,
Proposed paragraph (b)(3) provides that the prime contractor and any upper-tier subcontractor shall be responsible for the compliance by any subcontractor or lower-tier subcontractor with the requirements of Executive Order 13706, 29 CFR part 13, and this clause. This responsibility on the part of prime and upper-tier contractors for subcontractor compliance parallels that of the SCA, DBA and Executive Order 13658.
Proposed paragraphs (c) and (d) of the contract clause are derived primarily from the contract clauses applicable to contracts subject to the SCA, DBA and Executive Order 13658,
Proposed paragraph (d) states the circumstances under which the contracting agency and/or the Department may suspend or terminate a contract, or debar a contractor, for violations of the Executive Order. It provides that in the event of a failure to comply with any term or condition of the Executive Order, 29 CFR part 13, or the clause, the contracting agency may on its own action, or after authorization or by direction of the Department and written notification to the contractor, take action to cause suspension of any further payment, advance or guarantee of funds until such violations have ceased. Paragraph (d) additionally provides that any failure to comply with the contract clause may constitute grounds for termination of the right to proceed with the contract work and, in such event, for the Federal Government to enter into other contracts or arrangements for completion of the work, charging the contractor in default with any additional cost. Paragraph (d) also provides that a breach of the contract clauses may be grounds to debar the contractor as provided in proposed 29 CFR part 13.52.
Proposed paragraph (e), which implements section 2(f) of the Executive Order, provides that the paid sick leave required by the Executive Order, 29 CFR part 13, and the clause is in addition to a contractor's obligations under the SCA and DBA, and that a contractor may not receive credit toward its prevailing wage or fringe benefit obligations under those Acts for any paid sick leave provided in satisfaction of the requirements of the Executive Order and 29 CFR part 13.
Proposed paragraph (f), which implements section 2(l) of the Executive Order, provides that nothing in Executive Order 13658 or 29 CFR part 13 shall excuse noncompliance with or supersede any applicable Federal or State law, any applicable law or municipal ordinance, or a collective bargaining agreement requiring greater paid sick leave or leave rights than those established under Executive Order 13760 and 29 CFR part 13. Proposed § 13.5(f)(2)(i) and proposed § 13.1(b) also implement sections 2(f) and 2(l) of the Executive Order, and the preamble discussions related to proposed § 13.5(f)(2)(i) and proposed § 13.1(b) accordingly describe the operation of paragraphs (e) and (f) in greater detail.
Proposed paragraph (g) sets forth recordkeeping and related obligations that are consistent with the Secretary's authority under section 4 of the Order to obtain compliance with the Order, and that the Department views as essential to determining whether the contractor has satisfied its obligations under the Executive Order. The Department derived the obligations set forth in paragraph (g) from the FLSA, SCA, DBA, FMLA and Executive Order 13658. The recordkeeping obligations proposed in paragraph (g) duplicate those in proposed § 13.25; a description of those obligations accordingly appears in the preamble related to § 13.25.
Proposed paragraph (h) requires the contractor to both insert the contract clause in all its covered subcontracts and to require its subcontractors to include the clause in any covered lower-tier subcontracts.
Proposed paragraph (i), which is derived from the SCA contract clause, 29 CFR 4.6(n), and the Executive Order 13658 contract clause, 79 FR 60731, sets forth the certifications of eligibility the contractor makes by entering into the contract. Paragraph (i)(1) stipulates that
Proposed paragraph (j) implements section 2(k) of the Executive Order. The text of paragraph (j) mirrors the proposed regulatory text at proposed §§ 13.6(a) and § 13.6(b). A full description of the operation of the proposed contractor obligations not to interfere with or discriminate against employees with respect to the accrual or use of paid sick leave accordingly appears in the preamble related to proposed §§ 13.6(a) and § 13.6(b).
Proposed paragraph (k) provides that employees cannot waive, nor may contractors induce employees to waive, their rights under Executive Order 13706, 29 CFR part 13, or the clause. As discussed in greater detail in the preamble related to proposed § 13.7, the Department included a provision prohibiting the waiver of rights in the regulations implementing the Minimum Wage Executive Order and believes it is appropriate to adopt the same policy here.
Proposed paragraph (l) requires that contractors notify all employees performing work on or in connection with a covered contract of the paid sick leave requirements of Executive Order 13706, 29 CFR part 13, and the clause by posting a notice provided by the Department of Labor in a prominent and accessible place at the worksite so it may be readily seen by employees. It additionally permits contractors that customarily post notices to employees electronically to post the notice electronically, provided such electronic posting is displayed prominently on any Web site that is maintained by the contractor, whether external or internal, and customarily used for notices to employees about terms and conditions of employment. The notice obligations contained in paragraph (l) mirror those contained in proposed § 13.27(a)-(b), which the Department derived from the Minimum Wage Executive Order implementing regulations at 29 CFR 10.29(b)-(c). The preamble related to those sections contains a discussion of the Department's rationale for including the particular notice obligation it is proposing. Proposed paragraph (m) is based on section 5(b) of the Executive Order and provides that disputes related to the application of the Executive Order to the contract shall not be subject to the contract's general disputes clause. Instead, such disputes shall be resolved in accordance with the dispute resolution process set forth in 29 CFR part 10. Paragraph (m) also provides that disputes within the meaning of the clause include disputes between the contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the workers or their representatives.
As part of its continuing effort to reduce paperwork and respondent burden, the Department conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3506(c)(2)(A). This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. The PRA typically requires an agency to provide notice and seek public comments on any proposed collection of information contained in a proposed rule.
Additionally, under proposed § 13.25, if a contractor wishes to distinguish between an employee's covered and non-covered work, the contractor must keep records reflecting such distinctions.
The Department notes that many of the proposed recordkeeping requirements in this NPRM related to paid sick leave are new requirements. As a result, the Department will create a new information collection titled “Government Contractor Paid Sick Leave” and submit it to OMB for approval under OMB control number 1235-0NEW. A new information collection request (ICR) has been submitted to the OMB that would provide PRA authorization for control
The WHD obtains PRA clearance under control number 1235-0021 for an information collection covering complaints alleging violations of various labor standards that the agency administers and enforces. An ICR has been submitted to revise the approval to incorporate the provisions in this proposed rule applicable to complaints and adjust burden estimates to reflect any increase in the number of complaints filed against contractors who fail to comply with the paid sick leave requirements of Executive Order 13706 and 29 CFR part 13.
Subpart E of this proposed rule establishes administrative proceedings to resolve investigation findings. Particularly with respect to hearings, the rule imposes information collection requirements. The Department notes that information exchanged between the respondent in a civil or an administrative action and the agency in order to resolve the action would be exempt from PRA requirements.
Information and technology: There is no particular order or form of records prescribed by the proposed regulations. A contractor may meet the requirements of this proposed rule using paper or electronic means. The WHD, in order to reduce burden caused by the filing of complaints that are not actionable by the agency, uses a complaint filing process that has complainants discuss their concerns with WHD professional staff. This process allows agency staff to refer complainants raising concerns that are not actionable under wage and hour laws and regulations to an agency that may be able to offer assistance.
Public comments: The Department seeks comments on its analysis that this NPRM creates a slight paperwork burden associated with ICR 1235-0021 but does not create a paperwork burden on the regulated community of the information collection provisions contained in ICR 1235-0018. Additionally, the Department seeks comments on its analysis that this NPRM creates a new paperwork burden on the regulated community as described in the new information collection provisions contained in ICR 1235-0NEW. Commenters may send their views to the Department in the same way as all other comments (
The OMB and the Department are particularly interested in comments that:
• Evaluate whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Total burden for the recordkeeping and complaint process information collections, including the burdens that will be unaffected by this proposed rule and any changes are summarized as follows:
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of an intended regulation and to propose or adopt a regulation only upon a reasoned determination that the intended regulation's net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity) justify its costs. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits where possible, reducing costs, harmonizing rules, and promoting flexibility.
Under Executive Order 12866, the Office of Management and Budget (OMB) must determine whether a regulatory action is a “significant regulatory action,” which includes an action that has an annual effect of $100 million or more on the economy. Significant regulatory actions are subject to review by OMB. As described below, this proposed rule is economically significant. Therefore, the Department has prepared a Preliminary Regulatory Impact Analysis (PRIA) in connection with this proposed rule as required under section 6(a)(3) of Executive Order 12866, and OMB has reviewed the proposed rule.
Executive Order 13706 (EO) provides that employees can earn up to seven days of paid sick leave annually on specified categories of contracts with the Federal Government where either the solicitation has been issued, or the contract has been awarded outside the solicitation process, on or after January 1, 2017. The Executive Order states that the Federal Government's procurement interests in economy and efficiency are promoted when the Federal Government contracts with sources that allow their employees to earn paid sick leave.
The Department estimated the number of employees who would as a result of the Executive Order and this proposed rule receive some amount of paid sick leave,
The Department also estimated costs and transfer payments associated with this rulemaking. During the first 10 years the rule is in effect, average annualized direct employer costs are estimated to be $18.4 million. (This estimation assumes a 7 percent real discount rate; hereafter, unless otherwise specified, average annualized values will be presented using a 7 percent real discount rate.) This estimated annualized cost includes $6.0 million for regulatory familiarization, $5.6 million for initial implementation costs, $2.5 million for recurring implementation costs, and $4.3 million for administrative costs. For a discussion of how the Department estimated these numbers, please
Transfer payments are transfers of income from employers to employees. Estimated average annualized transfer payments are $250.1 million per year over 10 years. Lastly, the Department estimated deadweight loss (DWL). DWL occurs when a market operates at less than optimal equilibrium output, which happens anytime the conditions for a perfectly competitive market are not met, including due to a labor market intervention. The Department estimated that average annualized DWL will be $526,000 per year during the first ten years of the rule. This will be primarily due to a decrease in employment that may be caused by the proposed rule.
The following terminology and abbreviations will be used throughout this Regulatory Impact Analysis (RIA).
ATUS: American Time Use Survey.
BLS: Bureau of Labor Statistics.
CPI-U: Consumer Price Index for all urban consumers.
CPS: Current Population Survey.
DWL: Deadweight loss, which is the loss of economic efficiency that can occur when the market equilibrium for a good or service is not achieved.
ECEC: Employer Costs for Employee Compensation.
FY: Fiscal year. The Federal fiscal year is from October 1 through September 30.
NCS: National Compensation Survey.
OES: Occupational Employment Statistics.
PTO: Paid time-off.
Price elasticity of labor demand (with respect to wage): The percentage change in labor hours demanded in response to a one percent increase in wages.
Real dollars (2014$): Dollars adjusted using the CPI-U to reflect their purchasing power in 2014.
RIA: Regulatory Impact Analysis. This will be used to reference the analysis conducted to assess the impact of this regulation.
SAM: System for Award Management
SBA: Office of Advocacy of the U.S. Small Business Administration.
This section explains the methodology the Department used to estimate the number of affected employees. The first step in estimating the number of affected employees is determining the total number of employees working on Federal contracts (“Federal contract employees”). However, there are no data on the number of Federal contract employees. To estimate the number of Federal contract employees, the Department employed the approach used in the Department's final rule implementing Executive Order 13658.
After determining the total number of Federal contract employees, the Department estimated the share who will receive additional days of paid sick leave due to the rulemaking. The 2015 NCS provides data on the percentage of employees with paid sick leave and the annual number of days of leave that each employee receives. This distribution allowed the Department to estimate the number of employees who receive less than the amount of paid sick leave required under the proposed rule. Note that the Executive Order generally measures paid sick leave in hours but because the NCS tabulates paid sick leave in days, the Department converted sick leave hours to days to use the NCS. The Department assumes 8 hours worked per day, so the Executive Order provides a maximum accrual of 7 days of paid sick leave annually. The 2015 NCS does not provide data for the agriculture industry. Therefore, the Department supplemented the 2015 NCS data on paid sick leave with data from the 2011 ATUS Leave Module.
First, the Department estimated the number of employees who work on federal contracts that will be covered by the Executive Order. This represents the number of “potentially affected workers.” Then the Department estimated the share of potentially affected workers who will receive new or additional paid sick leave as a result of the EO. These workers are referred to as “affected.”
The Department estimated the number of potentially affected employees by taking the ratio of Federal contracting expenditure to total output, by industry, and applying this ratio to total employment in that industry (Table 2). This analysis was conducted at the 2-digit NAICS level. The Department derived total Federal contracting expenditure from USASpending.gov data, which tabulates data on Federal contracting through the Federal Procurement Data System—Next Generation (FPDS-NG). The Congressional Budget Office (CBO) has stated that this is the “only comprehensive source of information about federal spending on contracts.”
The Department multiplied the ratio of covered-to-gross output by private sector employment at the industry level to estimate the share of employees working on covered contracts. The Department combined these ratios and employment figures from the 2014 OES for each 2-digit NAICS industry.
Because the EO only applies to “new contracts,” coverage of the estimated total number of potentially affected employees (1.2 million) will occur on a staggered year-by-year basis. The Department accordingly needed to devise a method to estimate at what rate the staggered coverage would occur. The Executive Order defines a new contract to be either one for which a solicitation has been issued, or for which the contract has been awarded outside the solicitation process, on or after January 1, 2017. Consistent with the Department's approach in the rulemaking implementing Executive Order 13658,
Next the Department used the 2015 NCS to determine how many of the potentially affected employees already receive paid sick leave. The 2015 NCS estimates that nationally 61 percent of all private sector employees currently receive some paid sick leave.
The Department separated the 231,300 employees potentially impacted in Year 1 into approximately 198,200 full-time employees and 33,100 part-time employees.
Additionally, some employees who currently receive paid sick leave will also be affected by the proposed rule if they receive less than the required number of days. To determine how many of these employees are affected the Department used NCS data on the distribution of days of leave. The 2015 NCS provides the share of employees with a range of days of paid sick leave (
The Department distributed the share of employees within each NCS category (
To estimate the number of affected employees the Department summed the number of employees with less than 7 days of paid sick leave (7 days with 8 hours of paid leave per day is equal to the maximum of 56 hours of paid sick leave). The Department estimates 72,700 contract employees have access to paid sick leave but receive fewer than 7 days of paid sick leave (48.4 percent of workers with some paid sick leave) and are thus classified as affected employees. Next, the Department estimated the number of additional paid sick leave days these employees would need to receive to meet Executive Order 13706. This was done somewhat differently for full-time and part-time employees. For full-time employees with no paid sick leave the Department estimated they will receive 7 additional
To estimate the additional number of paid sick days per year that would accrue to part-time employees as a result of the rule, the Department first had to estimate hours of paid sick leave per year currently available to these workers.
To estimate paid sick leave hours currently available to part-time employees required additional calculations because the NCS reports
Next, the Department calculated the total hours of paid sick leave per year that might accrue to a part-time worker as a result of this EO. Because paid sick leave is accrued at a rate of 1 hour per every 30 hours worked, the Department divided mean annual hours worked for part-time workers in an industry by 30 to estimate the number of hours of paid sick leave required under the EO. The difference between hours of paid sick leave currently available per year and hours of paid sick leave per year required under the EO results in the additional hours that accrue to part-time workers. This was then divided by 8 to express the additional paid sick hours in terms of standardized 8-hour days. Table 6 presents the adjusted numbers for part-time employees.
A total of 153,800 employees were estimated to be affected in Year 1 (Table 4). The total number of additional days of paid sick leave is then calculated by multiplying the number of employees affected by the number of additional days of paid sick leave provided by the proposed rulemaking (Table 5 and Table 6). The Department estimated that the proposed rulemaking will result in a total of 681,700 additional days of paid sick leave provided (563,000 days for full-time workers and 118,700 days for part-time workers).
To estimate the number of affected employees in later years, the Department calculated the average annual geometric growth rate in employment based on the ten-year employment projection for 2012 to 2022 from BLS' Employment Projections program. Table 7 shows the number of affected employees in Years 1 through 10, along with the number of employees with no paid sick leave, with some paid sick leave, and by full-time/part-time status. The share of employees working full-time in 2014 and the share of employees with no paid sick leave were applied to projected years.
This section presents direct employer costs, transfer payments and DWL associated with the proposed rulemaking. These impacts were projected for 10 years. The Department estimated average annualized direct employer costs of $18.4 million, transfer payments of $250.1 million and DWL of $526,000. As these numbers demonstrate, the largest impact of the proposed rulemaking will be the transfer of income from employers to employees.
The Department quantified three direct employer costs: (1) Regulatory familiarization costs; (2) implementation costs; and (3) recurring administrative costs. Other employer costs are considered qualitatively. Certain key inputs to the cost calculations, such as the amount of time required for regulatory familiarization and other compliance-related activities, are uncertain due to lack of data, and we therefore request comment and data that would allow for refinement of these estimates.
The proposed rulemaking would impose regulatory familiarization costs on contractors that have or expect to have EO-covered contracts because such contractors will need to determine whether they are in compliance with the paid sick leave requirements. According to the General Services Administration's (GSA) System for Award Management (SAM) in August 2015 there were 543,900 Federal contracting firms.
The Department drafted this proposed rule consistent with the directive in section 3(c) of the Executive Order that any regulations issued pursuant to the Order should, to the extent practicable, incorporate existing definitions and procedures from the FLSA, SCA, DBA, FMLA, VAWA and Executive Order 13658. As a result, contractors will likely already be familiar with many of the requirements the proposed rule imposes. For example, the Department expects that most, if not all, contractors that Executive Order 13706 will cover are either parties to contracts that Executive Order 13658 already covers, or will be parties to contracts Executive Order 13658 covers by the time the contractor enters into a contract that Executive Order 13706 covers. Contract, and employee, coverage under Executive Order 13658 and Executive Order 13706 are virtually identical, and the difference in coverage in Executive Order 13706,
In addition, the proposed rule's fundamental obligations are to allow covered employees to accrue an hour of paid sick leave for every thirty hours worked on covered contracts, and to use such accrued sick leave for the reasons specified in section 2(c) of Executive Order 13706. Once contract coverage is established, familiarization with these obligations is not overly complicated. The Department accordingly believes, as it similarly believed in the Executive Order 13658 proposed rulemaking, that to understand Executive Order's 13706 basic obligations, contractors will generally only need to review the contract clause, which the Department expects will constitute approximately two pages in the
The Department understands that the proposed rule imposes requirements beyond the fundamental obligations described above, and that contractors should seek to familiarize themselves with these requirements. However, the contract clause specifically describes some of these other obligations, including recordkeeping and notice requirements, the obligation not to interfere with an employee's use or accrual of paid sick leave, and the obligation not to discriminate against an employee for exercising certain rights. Moreover, to the extent contractors seek
For these reasons, the Department estimated that contractors will, on average, use one hour of a human resources manager's time for regulatory familiarization purposes.
Using the estimate of one hour of a human resources manager's time for regulatory familiarization purposes, the Department estimated regulatory familiarization costs to be $45.1 million ($79.96 per hour x 1 hour x 564,400 contractors) (Table 8). A contractor likely would only familiarize itself with the rule once it is poised to have a covered contract (
Firms will incur implementation costs. The Department believes some of these costs may be incurred in Year 1 but others will be incurred as workers become covered. Therefore, the Department modeled this in two parts. First, firms will incur upfront implementation costs (
Thus, implementation costs comprise both a fixed cost (
As noted above, the Department estimated there are 564,400 Federal contracting firms. The Department estimated initial implementation costs separately for firms with a paid sick leave policy in place and firms who would need to create a policy.
Firms may incur recurring administrative costs associated with maintaining records of paid sick leave and adjusting scheduling. The Department assumed an HR worker will spend on average an additional fifteen minutes per affected employee annually on ongoing administrative costs. We believe these costs will be negligible because employers already have systems in place and already incur many of these costs for employees who take sick leave (both paid or unpaid). For example, managers may need to adjust scheduling when workers take time off due to illness regardless of whether that sick leave is paid or unpaid. Under these assumptions, administrative costs in Year 1 will total $1.1 million ($27.30 × (15 minutes/60 minutes) × 153,800 employees). Although these costs are relatively small in Year 1, they will occur annually and thus be a significant share of costs in the long run.
Table 9 shows estimated costs for each of the first 10 years as well as average annualized costs over the same period. Regulatory familiarization and initial implementation costs will only accrue in Year 1 but recurring implementation costs and recurring administrative costs will accrue in multiple years. Recurring implementation costs are incurred over the first 5 years since the Department has estimated it will take five years for the universe of covered contracts to become “new.”
When estimating projected costs the Department used the same method used for Year 1 but used projected wages and numbers of affected employees. The Department calculated the average annual geometric growth rate in median nominal wages from CPS data between 2005 and 2014. The geometric growth rate is the constant annual growth rate that when compounded yields the last historical year's wage. The CPI-U was then used to convert this nominal growth rate to a real growth rate. The employment growth rate was calculated as the geometric annual growth rate based on the ten-year employment projection for 2012 to 2022 from BLS' Employment Projections program.
In addition to the costs discussed above, there may be additional costs that have not been quantified. These include potential costs to consumers and reduced production. However, based on similar rules in states and municipalities, the Department expects these costs to be small.
To calculate transfer payments, the Department has assumed solely for purposes of discussion and ease of presentation that no offsetting cost- and productivity-related benefits will be realized as a result of the Executive Order and this proposed rule. As discussed in Section C.v, however, numerous benefits of providing paid sick leave under in the Executive Order can be expected, and such benefits can be expected to accompany the transfer payments and other costs discussed above and below.
The most important factor in determining transfer payments is the number of additional days of paid sick leave for which employees will be compensated. In order to estimate transfer payments the Department needed to:
• Assign a monetary value to these days of paid sick leave taken.
• Determine what share of the additional 681,700 days of paid sick leave accrued (calculated above in Section B.ii) will be taken.
The proposed rule requires contractors to provide an employee the same pay and benefits for hours of paid sick leave used that the employee would have received had he been working. Thus, the Department needed to estimate both a base hourly wage for affected employees and a base hourly benefit rate. The Department assumed an eight hour work day to place a monetary value on the transfer payment associated with a day of paid sick leave used. The Department used data from the 2014 CPS to estimate base hourly wage rates by industry and full-time status. The Department is not aware of a data source to precisely determine an average base hourly benefit rate of affected employees. The SCA nationwide fringe benefit rate, which applies to most contracts covered by the SCA, currently is $4.27 per hour. Because many of the contracts covered by the Executive Order will be subject to the SCA, and many employees performing on or in connection with contracts covered by the Executive Order but not covered by the SCA will nonetheless be performing service-related work similar in character to work performed by SCA-covered service employees, the Department estimated that most affected employees will average a base hourly benefit rate of $4.27.
Although the Executive Order will allow employees to accrue up to 56 hours of paid sick leave annually, many employees will not use all paid sick leave that they accrue (and many others will not work a sufficient number of hours on covered contracts to accrue 56 hours of paid sick leave in an accrual year). If employees take less than the full amount of paid sick leave accrued, then transfer payments must be adjusted to include only some of the additional days accrued. The Department expects employees on average to use fewer days than allocated. To estimate the share of accrued days employees will use, the
Therefore, of the 681,700 days of additional paid sick leave accrued, 250,900 days are estimated to be taken and result in transfer payments. Using wage data by industry results in Year 1 transfer payments of $58.9 million (Table 11). This is 0.03 percent of revenue from federal contracts for these firms (since many covered contractors garner revenue from private work, the transfer payment estimate is almost certainly a lower percentage of their total revenues). If all days of paid sick leave were used, transfers would be $151.5 million in Year 1 or 0.07 percent of federal contracting revenues.
To project transfers, the Department projected wage growth (as discussed in Section C.ii.4) and employment growth (as discussed in Section B.ii). The real growth rate for benefit payments was calculated using the geometric growth rate in nominal SCA benefit rates between 2006 and 2015 and converted to a real rate using the CPI-U.
The Department based its method of calculating transfers on the number of full-time-equivalent (FTE) employees working on Federal contracts. To the extent that Federal contract work is conducted by part-time employees or split between employees, these transfer estimates may be overestimates. The current method attributes the full-time hours worked on a Federal contract to one employee. For example, if that employee currently receives five paid sick leave days per year, he or she would receive a transfer of two additional days of paid sick leave. If instead half this work was completed by one employee and half by another employee, the Executive Order would require that each receive 3.5 sick days per year; however, since each employee already receives 5 days of paid sick leave, there would be no incremental transfer. The Department estimated that the maximum size of the overestimate due to the assumption of FTE employees is $18.1 million in Year 1 (30.7 percent of the $58.9 million in total transfers).
Another consideration is that some of the transfers may be reduced by employer responses to the rule. Employers may reduce vacation time, reduce wages, or increase health insurance premiums in order to diminish some of their increased costs. (These outcomes may be unlikely in the short run due to stickiness of wages.) Employers may also reallocate days of leave to keep benefits the same. For example, an employer who used to provide 5 sick days and 5 vacation days could now provide 5 sick days, 3 vacation days, and 2 days that can be used for any purpose. This would leave exactly zero employer-employee transfers because an employee could take 7 days paid sick leave if necessary but could still only take a maximum of 5 days of vacation. (Provided the policy met the requirements of section 2 of the Order and this proposed rule and employees could use paid sick leave accrued for the same purposes and under the same conditions as described in the Order and this proposed rule, the employer would be in compliance and transfers would be zero). We invite comment that would allow for these potential employer responses to be incorporated into our quantitative estimates of the rule's impact.
Finally the Department notes that regardless of the direct impact on contract costs, there are other important channels through which the proposed rule might affect government expenditures. The transfer of income resulting from this proposed rulemaking may result in the reduction of social assistance, and thus decreased government expenditures, although the effects are likely to be small. Studies have shown that the more paid family leave an employee receives, the less likely he/she is to utilize various social assistance programs. For example, a 2012 study by Rutgers University's Center for Women and Work showed that women who received paid maternity leave reported spending $413 less in public assistance in the year after their child was born than women who took no leave after childbirth.
Deadweight loss (DWL) occurs when a market operates at less than optimal equilibrium output. This typically results from an intervention that sets, in the case of a labor market, compensation above their equilibrium level.
The DWL resulting from this proposed rulemaking was estimated based on the average decrease in hours worked and increase in average hourly compensation (again, without accounting for offsetting benefits of the Executive Order and the proposed rule). As the cost of labor rises due to the requirement to pay sick leave, the demand for labor decreases, which results in fewer hours worked. To calculate the DWL, the annual increase in compensation (
Using these values the Department calculated DWL per affected employee (Table 13). This was multiplied by the number of affected employees to estimate total DWL; $126,900 in Year 1. Projected DWL is shown in Table 14. Average annualized DWL during the first ten years the rule is in effect is estimated to be $526,000.
There are a variety of benefits associated with this rule; however, due to data limitations these are not monetized. The following benefits are discussed qualitatively: Improved employee health, improved health of dependents, increased productivity, improved firm profits, reduced hiring costs, decreased healthcare expenditures, and job growth.
Multiple studies have shown that paid sick leave greatly reduces the chance of employee injury and/or exposure. When sick employees attend their jobs, they engage in a practice known as “presenteeism.” Understandably, presenteeism is detrimental to productivity, and increases the probability of workplace injury and illness, resulting in greater employer and employee costs. In one study from the American Journal of Public Health, researchers used data from multiple industries (construction, retail, manufacturing, health care, etc.) to show that employees with access to paid sick leave were 28 percent less likely to incur a non-fatal work injury than their counterparts without paid sick leave.
A potential positive externality of the sick-day proposed rulemaking is its indirect effect on the health of an employee's dependents (
Some studies have suggested there may be a positive relationship between paid sick leave and profits. In one such study from 2001, researchers discovered that having a paid sick leave policy had a positive effect on firms' profits.
The Department expects the costs to employers of paying for sick time will be partially offset by increased employee productivity. This increased productivity will occur through numerous channels, such as improved health, retention, and effort. When workers attend work sick they tend to have diminished productivity. Goetzel et al. (2004) found that on-the-job productivity loss due to sickness represented 18 percent to 60 percent of employer costs associated with 10 health conditions.
A strand of economic research, commonly referred to as “efficiency wage” theory, considers how an increase in compensation may be met with greater productivity.
Providing paid sick leave to employees has been associated with decreased job separations. In one 2013 study, the author showed that paid sick leave is associated with a decrease in the probability of job separation of 25 percent.
Shaw, J. D. (2011). Turnover Rates and Organizational Performance: Review, Critique, and Research Agenda.
Dube, A., Lester,T.W., & Reich, M.. 2013. Minimum Wage Shocks, Employment Flows and Labor Market Frictions. IRLE Working Paper #149-13.
By providing paid sick leave, employers may experience lower job turnover, resulting in higher productivity and lower hiring costs, which both would positively impact profits (the benefit of increased productivity was discussed above). Multiple studies demonstrate an inverse relationship between sick leave pay and employee turnover. One 2003 study from the University of Michigan found that when employers in upstate New York implemented a paid sick leave policy, they experienced modest reductions in employee turnover.
The potential reduction in turnover is a function of several variables: the current wage, hours worked, turnover rate, industry, and occupation. Additionally, the estimated cost of replacing a separated employee, and providing paid sick leave to an employee, vary significantly based on factors such as industry and geographic region.
As noted earlier, contractors may pass along part or all of the increased cost to the government in the form of higher contract prices. If the benefits from increased productivity and reduced turnover occur, then government expenditures will not rise by the full monetized value of the newly taken sick leave.
One positive externality of mandating paid sick leave benefits would be that employees could mitigate future health costs by more frequently investing in preventive care. For example, employees would likely use paid sick leave to visit a physician, who could diagnose illnesses and other ailments before they become more serious and more costly to patients. Studies analyzing data from the 2008 National Health Interview Survey show that, if provided paid sick leave, employees were 12 percent more likely to have visited a doctor in the past year.
One critique of the proposal to mandate paid leave has been that the transfer of income from employers to employees might result in increased unemployment. However, various studies have argued the opposite, claiming that paid sick leave might yield greater job growth. Recently, it has been shown that counties in which a city has implemented paid sick leave have experienced greater job growth than neighboring counties with no cities with paid leave laws. San Francisco County, for example, saw a 3.5 percent increase in employment between the years of 2006 (when a paid sick leave law was implemented) and 2010, while the five counties surrounding it experienced an employment decrease of 3.4 percent on average (the analysis did not control for other characteristics that may affect employment or assess statistical significance).
The Department notes that Executive Order 13706 delegates to the Secretary the authority only to issue regulations to “implement the requirements of this order.” Because the Executive Order itself establishes the basic paid sick leave requirements that the Department is responsible for implementing, many potential regulatory alternatives would be beyond the scope of the Department's authority in issuing this proposed rule. The Department considered a range of alternatives to determine the correct balance between providing benefits to employees and imposing compliance costs on covered contractors. For illustrative purposes only, this section presents an alternative to the provisions set forth in this proposed rule. The Department notes, however, that it considers this alternative to be beyond the scope of the Department's authority under the Executive Order.
This alternative considers how transfer payments would be affected if employees could accrue an unlimited number of hours of paid sick leave as long as they kept a maximum balance of 56 hours. For example, if paid sick leave is used periodically throughout the year, an employee who works 80 hours per week could accrue and use 138.7 hours of paid sick leave (80 hours × 52 weeks × accrual rate of one hour per 30 hours worked (
The Regulatory Flexibility Act of 1980 (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), hereafter jointly referred to as the RFA, requires agencies to prepare regulatory flexibility analyses and make them available for public comment when they propose regulations that will have a significant economic impact on a substantial number of small entities.
The RFA defines a “small entity” as a (1) small not-for-profit organization, (2) small governmental jurisdiction, or (3) small business. The Department used SBA's entity size standards to classify entities as small for the purpose of this analysis. SBA establishes separate standards for each 6-digit NAICS industry code, and standard cutoffs are typically based on either the average annual number of employees or average annual receipts. For example, the SBA has two widely used size standards: 500 employees for manufacturing, and $7 million in annual receipts for nonmanufacturing services.
The number of contracting entities was estimated based on the GSA's System for Award Management (SAM) for August 2015 (543,900).
The number of employees in small contracting firms is unknown. The Department estimated the share of total Federal contracting expenditures in the USASpending data associated with firms labeled as small, by industry. The Department then applied these shares to all affected employees to estimate the share of affected employees in small firms. However, based on 2015 NCS data, smaller firms are less likely to offer sick leave pay, and therefore employees in small firms are more likely to be affected. The Department adjusted for this using data from the 2015 NCS on the distribution of employees with paid sick leave by employer size. For these purposes, small businesses were approximated as those having less than 500 employees. The Department found that employees in firms with less than 500 employees were 1.1 times more likely to not have paid sick leave than employees in all firms. Therefore, the Department multiplied the estimated share of affected employees working for small firms (
Employers would need to keep additional records for affected employees if the NPRM were to be made final without change. As indicated in this analysis, the NPRM would require the accrual of paid sick leave. This would result in an increase in employer burden, which was estimated in the PRA portion (section VI.) of this NPRM. Note that the burdens reported for the PRA section of this NPRM include the entire information collection and not merely the additional burden estimated as a result of this NPRM.
Small entities will also have regulatory familiarization, implementation, administrative, and payroll costs (
Estimated regulatory familiarization costs and initial implementation costs in Year 1 apply to nearly all small Federal contractors. Regulatory familiarization costs were assumed to take 1 hour of time in Year 1, on average across firms of all sizes. An hour of a human resource manager's time was valued at $79.96 per hour.
In addition to upfront implementation costs, firms will experience recurring implementation costs as employees gradually become covered. As each employee is affected, the firm will need to spend some time updating the accounting systems used to track paid sick leave. Therefore, implementation costs are modeled as a function of newly affected employees for the first five years.
To calculate payroll costs, the Department began with total transfers estimated in SectionV.C.iii, then multiplied the ratio of affected employees in small firms to all affected employees by total transfers. This yields the share of transfers occurring in small Federal contractor firms, $18.7 million in Year 1 (Table 19). This is 32 percent of total transfers, for all contracting firms, in Year 1. As noted in V.C.iii, total transfers may be an overestimate if contractors tend to perform work for multiple clients, rather than working exclusively on Federal contracts. This may be especially pertinent for small business since according to a report by American Express Open, Federal contracting comprises 19 percent of revenues for small contracting firms.
To estimate whether these costs and transfers will have a detrimental impact to small entities they are compared to total revenues. Based on Survey of United States Businesses (SUSB) data, small Federal contractors had total annual revenues of $1.4 trillion in 2014 from all sources (Table 21).
To estimate average annualized costs to small contracting firms the Department projected small business costs and transfers forward 9 years. To do this the Department calculated the ratio of affected employees in small firms to all affected employees in Year 1, then multiplied this ratio by the 10-year projections of national costs and transfers (
This NPRM provides no differing compliance and reporting requirements for small entities.
The Department believes it has chosen the most effective option that implements the EO, and results in the least burden. Taking no regulatory action does not address the Department's concerns discussed above (
Pursuant to section 603(c) of the RFA, the following alternatives are to be addressed:
i. Differing compliance or reporting requirements for small entities. To establish differing compliance or reporting requirements for small businesses would undermine the impact of the rule. The Department makes available a variety of resources to employers for understanding their obligations and achieving compliance. Therefore the Department has not proposed differing compliance or reporting requirements for small businesses.
ii. The clarification, consolidation, or simplification of compliance and reporting requirements for small entities. The Department makes available a variety of resources to employers for understanding their obligations and achieving compliance. As such, the Department has not proposed clarification, consolidation, or simplification of the rule.
iii. The use of performance rather than design standards. The Department makes available a variety of resources to employers for understanding their
iv. An exemption from coverage of the rule, or any part thereof, for such small entities.
To exempt small businesses from the proposed rulemaking would undermine the impact of the rule. The Department makes available a variety of resources to employers for understanding their obligations and achieving compliance. Therefore, the Department has not proposed a “small business” exemption.
The Department is not aware of any federal rules that duplicate, overlap, or conflict with this NPRM.
The Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1532, requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing any Federal mandate that may result in excess of $100 million (adjusted annually for inflation) in expenditures in any one year by State, local, and tribal governments in the aggregate or by the private sector. The current (2015) threshold after adjustment for inflation is approximately $157,000,000.
As explained in the economic analysis set forth in the section discussing Executive Orders 12866 and 13563 above, the Department estimates that the proposed rule may result in transfers of up to $315 million per year (beginning in 2021), with steady increases up to that level over the intervening years). Because this proposed rule applies only to contracts for which the solicitation will be issued on or after January 1, 2017, contractors would have the information necessary to factor into their bids the labor costs resulting from the paid sick leave requirement, and thus it may be likely that the Federal Government would bear the burden of the transfers. However, most contracts covered by this proposed rule are paid through appropriated funds, and how Congress and agencies respond to rising bids is subject to political processes whose unpredictability limits the Department's ability to project rule-induced outcomes. The Department therefore acknowledges that this proposed rule may yield effects that make it subject to UMRA requirements. The Department carried out the requisite cost-benefit analysis in preceding sections of this document.
The Department has (1) reviewed this rule in accordance with Executive Order 13132 regarding federalism and (2) determined that it does not have federalism implications. The proposed rule would 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 proposed rule would not have tribal implications under Executive Order 13175 that would require a tribal summary impact statement. The proposed rule would not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.
The undersigned hereby certifies that the proposed rule would not adversely affect the well-being of families, as discussed under section 654 of the Treasury and General Government Appropriations Act, 1999.
This proposed rule would have no environmental health risk or safety risk that may disproportionately affect children.
A review of this proposed rule in accordance with the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321
This proposed rule is not subject to Executive Order 13211. It will not have a significant adverse effect on the supply, distribution, or use of energy.
This proposed rule is not subject to Executive Order 12630 because it does not involve implementation of a policy that has takings implications or that could impose limitations on private property use.
This proposed rule was drafted and reviewed in accordance with Executive Order 12988 and will not unduly burden the Federal court system. The proposed rule was: (1) Reviewed to eliminate drafting errors and ambiguities; (2) written to minimize litigation; and (3) written to provide a clear legal standard for affected conduct and to promote burden reduction.
Administrative practice and procedure, Construction, Government contracts, Law enforcement, Paid sick leave, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, the Department of Labor proposes to amend Title 29 part 13 of the Code of Federal Regulations by adding part 13 to read as follows:
4 U.S.C. 301; Executive Order 13706, 80 FR 54697; Secretary's Order 01-2014, 79 FR 77527.
(a)
(b)
(c)
For purposes of this part:
(1) A biological, adopted, step, or foster son or daughter of the employee;
(2) A person who is a legal ward or was a legal ward of the employee when that individual was a minor or required a legal guardian;
(3) A person for whom the employee stands
(4) A child, as described in paragraphs (1) through (3) of this definition, of an employee's spouse or domestic partner.
(1) Felony or misdemeanor crimes of violence (including threats or attempts) committed:
(i) By a current or former spouse, domestic partner, or intimate partner of the victim;
(ii) By a person with whom the victim shares a child in common;
(iii) By a person who is cohabitating with or has cohabitated with the victim as a spouse, domestic partner, or intimate partner;
(iv) By a person similarly situated to a spouse of the victim under domestic or family violence laws of the jurisdiction in which the victim resides or the events occurred; or
(v) By any other adult person against a victim who is protected from that person's acts under the domestic or family violence laws of the jurisdiction in which the victim resides or the events occurred.
(2) Domestic violence also includes any crime of violence considered to be an act of domestic violence according to State law.
(1) The contract is renewed;
(2) The contract is extended, unless the extension is made pursuant to a term in the contract as of December 31, 2016 providing for a short-term limited extension; or
(3) The contract is amended pursuant to a modification that is outside the scope of the contract.
(1) A biological, adoptive, step, or foster parent of the employee, or a person who was a foster parent of the employee when the employee was a minor;
(2) A person who is the legal guardian of the employee or was the legal guardian of the employee when the employee was a minor or required a legal guardian;
(3) A person who stands
(4) A parent, as described in paragraphs (1) through (3) of this definition, of an employee's spouse or domestic partner.
(a) This part applies to any new contract with the Federal Government, unless excluded by § 13.4, provided that:
(1)(i) It is a procurement contract for construction covered by the Davis-Bacon Act;
(ii) It is a contract for services covered by the Service Contract Act;
(iii) It is a contract for concessions, including any concessions contract excluded from coverage under the Service Contract Act by Department of Labor regulations at 29 CFR 4.133(b); or
(iv) It is a contract in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public; and
(2) The wages of employees performing on or in connection with such contract are governed by the Davis-Bacon Act, the Service Contract Act, or the Fair Labor Standards Act, including employees who qualify for an exemption from the Fair Labor Standards Act's minimum wage and overtime provisions.
(b) For contracts covered by the Service Contract Act or the Davis-Bacon Act, this part applies to prime contracts only at the thresholds specified in those statutes. For procurement contracts where employees' wages are governed by the Fair Labor Standards Act, this part applies when the prime contract exceeds the micro-purchase threshold, as defined in 41 U.S.C. 1902(a). For all other prime contracts covered by Executive Order 13706 and this part and for all subcontracts awarded under prime contracts covered by Executive Order 13706 and this part, this part applies regardless of the value of the contract.
(c) This part only applies to contracts with the Federal Government requiring performance in whole or in part within the United States. If a contract with the Federal Government is to be performed in part within and in part outside the United States and is otherwise covered by the Executive Order and this part, the requirements of the Order and this part would apply with respect to that part of the contract that is performed within the United States.
(d) This part does not apply to contracts for the manufacturing or furnishing of materials, supplies, articles, or equipment to the Federal Government that are subject to the Walsh-Healey Public Contracts Act, 41 U.S.C. 6501
(a)
(b)
(c)
(d)
(e)
(a)
(i) For purposes of Executive Order 13706 and this part, hours worked includes all time for which an employee is or should be paid, meaning time an employee spends working or in paid time off status, including time when the employee is using paid sick leave or any other paid time off provided by the contractor. To properly exclude time spent on non-covered work from an employee's hours worked that count toward the accrual of paid sick leave, a contractor must accurately identify in its records the employee's covered and non-covered hours worked.
(ii) A contractor shall calculate an employee's accrual of paid sick leave no less frequently than at the conclusion of each workweek. A contractor need not allow an employee to accrue paid sick leave in increments smaller than 1 hour for completion of any fraction of 30 hours worked. Any such fraction of hours worked shall be added to hours worked for the same contractor in subsequent workweeks to reach the next 30 hours worked provided that the next workweek in which the employee performs on or in connection with a covered contract occurs within the same accrual year.
(iii) If a contractor is not obligated by the Service Contract Act, Davis-Bacon Act, or Fair Labor Standards Act to keep records of an employee's hours worked, such as because the employee is employed in a bona fide executive, administrative, or professional capacity as those terms are defined in 29 CFR part 541, the contractor may, as to that employee, calculate paid sick leave accrual by tracking the employee's actual hours worked or by using the assumption that the employee works 40 hours on or in connection with a covered contract in each workweek. If such an employee regularly works fewer than 40 hours per week on or in connection with covered contracts, whether because the employee splits time between covered and non-covered contracts or because the employee is part-time, the contractor may allow the employee to accrue paid sick leave based on the employee's typical number of hours worked on covered contracts per workweek.
(2) A contractor shall inform an employee, in writing, of the amount of paid sick leave that the employee has accrued but not used:
(i) No less than monthly;
(ii) At any time when the employee makes a request to use paid sick leave;
(iii) Upon the employee's request for such information, but no more often than once a week;
(iv) Upon a separation from employment; and
(v) Upon reinstatement of paid sick leave pursuant to paragraph (b)(3) of this section.
(3) A contractor may choose to provide an employee with at least 56 hours of paid sick leave at the beginning of each accrual year rather than allowing the employee to accrue such leave based on hours worked over time. In such circumstances, the contractor need not comply with the accrual requirements described in paragraph (a)(1) of this section. The contractor must, however, allow carryover of paid sick leave as required by paragraph (b)(2) of this section, and although the contractor may limit the amount of paid sick leave an employee may carry over to no less than 56 hours, the contractor may not limit the amount of paid sick leave an employee has available for use at any point as is otherwise permitted by paragraph (b)(3) of this section.
(b)
(2) Paid sick leave shall carry over from one accrual year to the next. Paid sick leave carried over from the previous accrual year shall not count toward any limit the contractor sets on annual accrual.
(3) A contractor may limit the amount of paid sick leave an employee is permitted to have available for use at any point to not less than 56 hours. Accordingly, even if an employee has accrued fewer than 56 hours of paid sick leave since the beginning of the accrual year, the employee need only be permitted to accrue additional paid sick leave if the employee has fewer than 56 hours available for use.
(4) Paid sick leave shall be reinstated for employees rehired by the same contractor or a successor contractor within 12 months after a job separation. This reinstatement requirement applies whether the employee leaves and returns to a job on or in connection with a single covered contract or works for a single contractor on or in connection with more than one covered contract, regardless of whether the employee remains employed by the contractor in between periods of working on covered contracts. It also applies if an employee takes a job on or in connection with a covered successor contract after working for a different contractor on or in connection with the predecessor contract, including when an employee is entitled to a right of first refusal of employment from the successor contractor under Executive Order 13495.
(5) Nothing in Executive Order 13706 or this part shall require a contractor to make a financial payment to an employee for accrued paid sick leave that has not been used upon a separation from employment. If a contractor nevertheless makes such a payment, whether voluntarily or pursuant to a collective bargaining agreement, that payment shall have no effect on the contractor's, or a successor contractor's, obligation to reinstate an employee's accrued paid sick leave upon rehiring the employee within 12 months of the separation pursuant to paragraph (b)(4) of this section.
(c)
(i) Physical or mental illness, injury, or medical condition of the employee;
(ii) Obtaining diagnosis, care, or preventive care from a health care provider by the employee;
(iii) Caring for the employee's child, parent, spouse, domestic partner, or any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship who has any of the conditions or needs for diagnosis, care, or preventive care described in paragraphs (c)(1)(i) or (ii) of this section or is otherwise in need of care; or
(iv) Domestic violence, sexual assault, or stalking, if the time absent from work is for the purposes otherwise described in paragraphs (c)(1)(i) or (ii) of this section or to obtain additional counseling, seek relocation, seek assistance from a victim services organization, take related legal action, including preparation for or participation in any related civil or criminal legal proceeding, or assist an individual related to the employee as described in paragraph (c)(1)(iii) of this section in engaging in any of these activities.
(2) A contractor shall account for an employee's use of paid sick leave in increments of no greater than 1 hour.
(i) A contractor may not reduce an employee's accrued paid sick leave by more than the amount of leave the employee actually takes, and a contractor may not require an employee to take more leave than is necessary to address the circumstances that precipitated the need for the leave, provided that the leave is counted using an increment of no greater than 1 hour.
(ii) The amount of paid sick leave used may not exceed the hours an employee would have worked if the need for leave had not arisen.
(3) A contractor shall provide to an employee using paid sick leave the same pay and benefits the employee would have received had the employee not used paid sick leave.
(4) A contractor may not limit the amount of paid sick leave an employee may use per year or at once.
(5) A contractor may not make an employee's use of paid sick leave contingent on the employee's finding a replacement worker to cover any work time to be missed or on the fulfillment of the contractor's operational needs.
(d)
(2) If the need for leave is foreseeable, the employee's request shall be made at least 7 calendar days in advance. If the employee is unable to request leave at least 7 calendar days in advance, the request shall be made as soon as is practicable. When an employee becomes aware of a need to take paid sick leave less than 7 calendar days in advance, it should typically be practicable for the employee to make a request for leave either the day the employee becomes aware of the need to take paid sick leave or the next business day. In all cases, however, the determination of when an employee could practicably make a
(3)(i) A contractor may communicate its grant of a request to use paid sick leave either orally or in writing provided that the contractor also complies with the requirement in paragraph (a)(2) of this section to inform the employee in writing of the amount of paid sick leave the employee has available for use.
(ii) A contractor shall communicate any denial of a request to use paid sick leave in writing, with an explanation for the denial. Denial is appropriate if, for example, the employee did not provide sufficient information about the need for paid sick leave; the reason given is not consistent with the uses of paid sick leave described in paragraph (c)(1) of this section; the employee did not indicate when the need would arise; the employee has not accrued, and will not have accrued by the date of leave anticipated in the request, a sufficient amount of paid sick leave to cover the request (in which case, if the employee will have any paid sick leave available for use, only a partial denial is appropriate); or the request is to use paid sick leave during time the employee is scheduled to be performing non-covered work. If the denial is based on insufficient information provided in the request, such as if the employee did not state the time of an appointment with a health care provider, the contractor must permit the employee to submit a new, corrected request. If the denial is based on an employee's request to use paid sick leave during time she is scheduled to be performing non-covered work, the denial must be supported by records adequately segregating the employee's time spent on covered and non-covered contracts.
(iii) A contractor shall respond to any request to use paid sick leave as soon as is practicable after the request is made. Although the determination of when it is practicable for a contractor to provide a response will take into account the individual facts and circumstances, it should in many circumstances be practicable for the contractor to respond to a request immediately or within a few hours. In some instances, however, such as if it is unclear at the time of the request whether the employee will be working on or in connection with a covered or non-covered contract at the time for which paid sick leave is requested, as soon as practicable could mean within a day or no longer than within a few days.
(e)
(ii) A contractor may only require documentation from an appropriate individual or organization to verify the need for paid sick leave used for the purposes described in paragraph (c)(1)(iv) of this section only if the employee is absent for 3 or more consecutive full workdays. The contractor may only require that such documentation contain the minimum necessary information establishing a need for the employee to be absent from work. The contractor shall not disclose any verification information and shall maintain confidentiality about the domestic abuse, sexual assault, or stalking, as required by § 13.25(d).
(2) If certification or documentation is to verify the illness, injury, or condition, need for diagnosis, care, or preventive care, or activity related to domestic violence, sexual assault, or stalking of an individual related to the employee as described in paragraph (c)(1)(iii) of this section, a contractor may also require the employee to provide reasonable documentation or a statement of the family or family-like relationship. This documentation may take the form of a simple written statement from the employee or could be a legal or other document proving the relationship, such as a birth certificate or court order.
(3)(i) A contractor may only require certification or documentation if the contractor informs an employee before the employee returns to work that certification or documentation will be required to verify the use of paid sick leave if the employee is absent for 3 or more consecutive full workdays.
(ii) A contractor may require the employee to provide certification or documentation within 30 days of the first day of the 3 or more consecutive full workdays of paid sick leave but may not set a shorter deadline for its submission.
(iii) While a contractor is waiting for or reviewing certification or documentation, it must treat the employee's otherwise proper request for 3 or more consecutive full workdays of paid sick leave as valid. If the contractor ultimately does not receive certification or documentation, or if the certification or documentation the employee provides is insufficient to verify the employee's need for paid sick leave, the contractor may, within 10 calendar days of the deadline for receiving the certification or documentation or within 10 calendar days of the receipt of the insufficient certification or documentation, whichever occurs first, retroactively deny the employee's request to use paid sick leave. In such circumstances, the contractor may recover the value of the pay and benefits the employee received but to which the employee was not entitled, including through deduction from any sums due to the employee (
(4) A contractor may contact the health care provider or other individual who created or signed the certification or documentation only for purposes of authenticating the document or clarifying its contents. The contractor may not request additional details about the medical or other condition referenced, seek a second opinion, or otherwise question the substance of the certification. To make such contact, the contractor must use a human resources professional, a leave administrator, or a management official. The employee's direct supervisor may not contact the employee's health care provider unless there is no other appropriate individual who can do so. The requirements of the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule, set forth at 45 CFR parts 160 and 164, must be satisfied when individually identifiable health information of an employee is shared with a contractor by a HIPAA-covered health care provider.
(f)
(2)
(ii) A contractor may count the value of any paid sick time provided in excess of the requirements of Executive Order 13706 and this part (and any other law) toward its obligations under the Service
(3)
(4)
(5)
(a)
(2) Interference includes, but is not limited to, miscalculating the amount of paid sick leave an employee has accrued, denying or unreasonably delaying a response to a proper request to use paid sick leave, discouraging an employee from using paid sick leave, reducing an employee's accrued paid sick leave by more than the amount of such leave used, transferring the employee to work on non-covered contracts to prevent the accrual or use of paid sick leave, disclosing confidential information provided in certification or other documentation provided to verify the need to use paid sick leave, or making the use of paid sick leave contingent on the employee's finding a replacement worker or the fulfillment of the contractor's operational needs.
(b)
(i) Using, or attempting to use, paid sick leave as provided for under Executive Order 13706 and this part;
(ii) Filing any complaint, initiating any proceeding, or otherwise asserting any right or claim under Executive Order 13706 or this part;
(iii) Cooperating in any investigation or testifying in any proceeding under Executive Order 13706 or this part; or
(iv) Informing any other person about his or her rights under Executive Order 13706 or this part.
(2) Discrimination includes, but is not limited to, a contractor's considering any of the actions described in paragraph (b)(1) of this section as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions, or a contractor's counting paid sick leave under a no fault attendance policy.
(c)
Employees cannot waive, nor may contractors induce employees to waive, their rights under Executive Order 13706 or this part.
(a)
(b)
(c)
(d)
(e)
(2)
(i) Complaint of contractor noncompliance with Executive Order 13706 or this part;
(ii) Available statements by the worker, contractor, or any other person regarding the alleged violation;
(iii) Evidence that the Executive Order paid sick leave contract clause was included in the contract;
(iv) Information concerning known settlement negotiations between the parties, if applicable; and
(v) Any other relevant facts known to the contracting agency or other information requested by the Wage and Hour Division.
(f)
(a)
(2)
(b)
(a) The contractor, as a condition of payment, shall abide by the terms of the applicable Executive Order paid sick leave contract clause referred to in § 13.11(a).
(b) The contractor shall include in any covered subcontracts the applicable Executive Order paid sick leave contract clause referred to in § 13.11(a) and shall require, as a condition of payment, that the subcontractor include the contract clause in any lower-tier subcontracts. The prime contractor and any upper-tier contractor shall be responsible for the compliance by any subcontractor or lower-tier subcontractor with the requirements of Executive Order 13706 and this part, whether or not the contract clause was included in the subcontract.
The contractor shall allow all employees performing work on or in connection with a covered contract to accrue and use paid sick leave as required by Executive Order 13706 and this part.
The contractor may make deductions from the pay and benefits of an employee who is using paid sick leave only if such deduction qualifies as a:
(a) Deduction required by Federal, State, or local law, such as Federal or State withholding of income taxes;
(b) Deduction for payments made to third parties pursuant to court order;
(c) Deduction directed by a voluntary assignment of the employee or his or her authorized representative; or
(d) Deduction for the reasonable cost or fair value, as determined by the Administrator, of furnishing such employee with “board, lodging, or other facilities,” as defined in 29 U.S.C. 203(m) and part 531 of this title.
All paid sick leave used by employees performing on or in connection with covered contracts must be paid free and clear and without subsequent deduction (except as set forth in § 13.23), rebate, or kickback on any account. Kickbacks directly or indirectly to the contractor or to another person for the contractor's benefit for the whole or part of the paid sick leave are prohibited.
(a) The contractor and each subcontractor performing work subject to Executive Order 13706 and this part shall make and maintain during the course of the covered contract, and preserve for no less than three years thereafter, records containing the information specified in paragraphs (a)(1) through (15) of this section for each employee and shall make them available for inspection, copying, and transcription by authorized representatives of the Wage and Hour Division of the U.S. Department of Labor:
(1) Name, address, and Social Security number of each employee;
(2) The employee's occupation(s) or classification(s);
(3) The rate or rates of wages paid;
(4) The number of daily and weekly hours worked;
(5) Any deductions made;
(6) The total wages paid each pay period;
(7) A copy of notifications to employees of the amount of paid sick leave the employees have accrued as required under § 13.5(a)(2);
(8) A copy of employees' requests to use paid sick leave, if in writing, or, if not in writing, any other records reflecting such employee requests;
(9) Dates and amounts of paid sick leave used by employees (unless a contractor's paid time off policy satisfies the requirements of Executive Order 13706 and part 13 as described in § 13.5(f)(5), leave must be designated in records as paid sick leave pursuant to Executive Order 13706);
(10) A copy of any written denials of employees' requests to use paid sick leave, including explanations for such denials, as required under § 13.5(d)(3);
(11) Any records relating to the certification and documentation a contractor may require an employee to provide under § 13.5(e), including copies of any certification or documentation provided by an employee;
(12) Any other records showing any tracking of or calculations related to an employee's accrual and/or use of paid sick leave;
(13) A copy of any certified list of employees' unused paid sick leave provided to a contracting officer in compliance with § 13.26;
(14) Any certified list of employees' unused paid sick leave received from the contracting agency in compliance with § 13.11(f); and
(15) The relevant covered contract.
(b) If a contractor wishes to distinguish between an employee's covered and non-covered work (such as time spent performing work on or in connection with a covered contract versus time spent performing work on or in connection with non-covered contracts or time spent performing work on or in connection with a covered contract in the United States versus time spent performing work outside the United States, or to establish that time spent performing solely in connection with covered contracts constituted less than 20 percent of an employee's hours worked during a particular workweek), the contractor must keep records or other proof reflecting such distinctions. Only if the contractor adequately segregates the employee's time will time spent on non-covered contracts be excluded from hours worked counted toward the accrual of paid sick leave. Similarly, only if that contractor adequately segregates the employee's time may a contractor properly deny an employee's request to take leave under § 13.5(d) on the ground that the employee was scheduled to perform non-covered work during the time she asked to use paid sick leave.
(c) If a contractor is not obligated by the Service Contract Act, Davis-Bacon Act, or Fair Labor Standards Act to keep records of an employee's hours worked, such as because the employee is employed in a bona fide executive, administrative, or professional capacity as those terms are defined in 29 CFR part 541, and the contractor chooses to use the assumption permitted by § 13.5(a)(1)(iii), the contractor is excused from the requirement in paragraph (a)(4) of this section to keep records of the employee's number of daily and weekly hours worked.
(d)(1) Records relating to medical histories or domestic violence, sexual assault, or stalking, created by or provided to a contractor for purposes of Executive Order 13706, whether of an employee or an employee's child, parent, spouse, domestic partner, or other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship, shall be maintained as confidential records in separate files/records from the usual personnel files.
(2) If the confidentiality requirements of the Genetic Information Nondiscrimination Act of 2008 (GINA) and/or the Americans with Disabilities Act (ADA) apply to records or documents created to comply with the recordkeeping requirements in this part, the records and documents must also be maintained in compliance with the confidentiality requirements of the GINA and/or ADA as described in 29 CFR 1635.9 and 29 CFR 1630.14(c)(1), respectively.
(3) The contractor shall not disclose any documentation used to verify the need to use 3 or more consecutive days of paid sick leave for the purposes listed in § 13.5(c)(1)(iv) (as described in § 13.5(d)(2)) and shall maintain confidentiality about any domestic abuse, sexual assault, or stalking, unless the employee consents or when disclosure is required by law.
(e) The contractor shall permit authorized representatives of the Wage and Hour Division to conduct interviews with employees at the worksite during normal working hours.
(f) Nothing in this part limits or otherwise modifies the contractor's recordkeeping obligations, if any, under the Davis-Bacon Act, the Service Contract Act, the Fair Labor Standards Act, the Family and Medical Leave Act, Executive Order 13658, their implementing regulations, or other applicable law.
Upon completion of a covered contract, a predecessor prime contractor shall provide to the contracting officer a certified list of the names of all employees entitled to paid sick leave under Executive Order 13706 and this part who worked on or in connection with the covered contract or any covered subcontract(s) at any point during the 12 months preceding the date of completion of the contract, the date each such employee separated from the contract or covered subcontract(s) if prior to the date of the completion of the contract, and the amount of paid sick leave each such employee had available for use as of the date of completion of the contract or the date each such employee separated from the contract or subcontract.
(a) The contractor must notify all employees performing work on or in connection with a covered contract of the paid sick leave requirements of Executive Order 13706 and this part by posting a notice provided by the Department of Labor in a prominent and accessible place at the worksite so it may be readily seen by employees.
(b) Contractors that customarily post notices to employees electronically may post the notice electronically, provided such electronic posting is displayed prominently on any Web site that is maintained by the contractor, whether external or internal, and customarily used for notices to employees about terms and conditions of employment.
The contractor shall compensate an employee for time during which the employee used paid sick leave no later than one pay period following the end of the regular pay period in which the paid sick leave was used.
(a) Any employee, contractor, labor organization, trade organization, contracting agency, or other person or entity that believes a violation of the Executive Order or this part has occurred may file a complaint with any
(b) It is the policy of the Department of Labor to protect the identity of its confidential sources and to prevent an unwarranted invasion of personal privacy. Accordingly, the identity of any individual who makes a written or oral statement as a complaint or in the course of an investigation, as well as portions of the statement which would reveal the individual's identity, shall not be disclosed in any manner to anyone other than Federal officials without the prior consent of the individual. Disclosure of such statements shall be governed by the provisions of the Freedom of Information Act (5 U.S.C. 552,
After receipt of a complaint, the Administrator may seek to resolve the matter through conciliation.
The Administrator may investigate possible violations of the Executive Order or this part either as the result of a complaint or at any time on his or her own initiative. As part of the investigation, the Administrator may conduct interviews with the relevant contractor, as well as the contractor's employees at the worksite during normal work hours; inspect the relevant contractor's records (including contract documents and payrolls, if applicable); make copies and transcriptions of such records; and require the production of any documentary or other evidence the Administrator deems necessary to determine whether a violation, including conduct warranting imposition of debarment, has occurred. Federal agencies and contractors shall cooperate with any authorized representative of the Department of Labor in the inspection of records, in interviews with employees, and in all aspects of investigations.
(a)
(b)
(c)
(d)
(e)
(f)
(a) This section sets forth the procedures for resolution of disputes of fact or law concerning a contractor's compliance with this part. The procedures in this section may be initiated upon the Administrator's own motion or upon request of the contractor.
(b)(1) In the event of a dispute described in paragraph (a) of this section in which it appears that relevant facts are at issue, the Administrator will notify the affected contractor(s) and the prime contractor (if different) of the investigative findings by certified mail to the last known address.
(2) A contractor desiring a hearing concerning the Administrator's investigative findings letter shall request such a hearing by letter postmarked within 30 calendar days of the date of the Administrator's letter. The request shall set forth those findings that are in dispute with respect to the violations and/or debarment, as appropriate, explain how the findings are in dispute including by making reference to any affirmative defenses.
(3) Upon receipt of a timely request for a hearing, the Administrator shall refer the case to the Chief Administrative Law Judge by Order of Reference, to which shall be attached a copy of the investigative findings letter from the Administrator and response thereto, for designation to an Administrative Law Judge to conduct such hearings as may be necessary to resolve the disputed matters. The hearing shall be conducted in accordance with the procedures set forth in 29 CFR part 6.
(c)(1) In the event of a dispute described in paragraph (a) of this section in which it appears that there are no relevant facts at issue, and where there is not at that time reasonable cause to institute debarment proceedings under § 13.52, the Administrator shall notify the contractor(s) of the investigative findings by certified mail to the last known address, and shall issue a ruling in the investigative findings letter on any issues of law known to be in dispute.
(2)(i) If the contractor disagrees with the factual findings of the Administrator or believes that there are relevant facts in dispute, the contractor shall so advise the Administrator by letter postmarked within 30 calendar days of the date of the Administrator's letter. In the response, the contractor shall explain in detail the facts alleged to be in dispute and attach any supporting documentation.
(ii) Upon receipt of a timely response under paragraph (c)(2)(i) of this section alleging the existence of a factual dispute, the Administrator shall examine the information submitted. If the Administrator determines that there is a relevant issue of fact, the Administrator shall refer the case to the Chief Administrative Law Judge in accordance with paragraph (b)(3) of this section. If the Administrator determines that there is no relevant issue of fact, the Administrator shall so rule and advise the contractor accordingly.
(3) If the contractor desires review of the ruling issued by the Administrator under paragraph (c)(1) or the final sentence of (c)(2)(ii) of this section, the contractor shall file a petition for review thereof with the Administrative Review Board postmarked within 30 calendar days of the date of the ruling, with a copy thereof to the Administrator. The petition for review shall be filed in accordance with the procedures set forth in 29 CFR part 7.
(d) If a timely response to the Administrator's investigative findings letter is not made or a timely petition for review is not filed, the Administrator's investigative findings letter shall become the final order of the Secretary. If a timely response or petition for review is filed, the Administrator's letter shall be inoperative unless and until the decision is upheld by an Administrative Law Judge or the Administrative Review Board or otherwise becomes a final order of the Secretary.
(a) Whenever any contractor is found by the Secretary of Labor to have disregarded its obligations to employees or subcontractors under Executive Order 13706 or this part, such contractor and its responsible officers, and any firm, corporation, partnership, or association in which such contractor or responsible officers have an interest, shall be ineligible for a period up to three years to receive any contracts or subcontracts subject to Executive Order 13706 from the date of publication of the name or names of the contractor or persons on the excluded parties list currently maintained on the System for Award Management Web site,
(b)(1) Whenever the Administrator finds reasonable cause to believe that a contractor has committed a violation of Executive Order 13706 or this part which constitutes a disregard of its obligations to employees or subcontractors, the Administrator shall notify by certified mail to the last known address or by personal delivery, the contractor and its responsible officers (and any firms, corporations, partnerships, or associations in which the contractor or responsible officers are known to have an interest), of the finding. The Administrator shall afford such contractor and any other parties notified an opportunity for a hearing as to whether debarment action should be taken under Executive Order 13706 or this part. The Administrator shall furnish to those notified a summary of the investigative findings. If the contractor or any other parties notified wish to request a hearing as to whether debarment action should be taken, such a request shall be made by letter to the Administrator postmarked within 30 calendar days of the date of the investigative findings letter from the Administrator, and shall set forth any findings which are in dispute and the reasons therefor, including any affirmative defenses to be raised. Upon receipt of such timely request for a hearing, the Administrator shall refer the case to the Chief Administrative Law Judge by Order of Reference, to which shall be attached a copy of the investigative findings letter from the Administrator and the response thereto, for designation of an Administrative Law Judge to conduct such hearings as may be necessary to determine the matters in dispute.
(2) Hearings under this section shall be conducted in accordance with the procedures set forth in 29 CFR part 6. If no hearing is requested within 30 calendar days of the letter from the Administrator, the Administrator's findings shall become the final order of the Secretary.
(a) Upon receipt of a timely request for a hearing under § 13.51 (where the Administrator has determined that relevant facts are in dispute) or § 13.52 (debarment), the Administrator shall refer the case to the Chief
(b) At any time prior to the closing of the hearing record, the complaint (investigative findings letter) or answer (response) may be amended with the permission of the Administrative Law Judge and upon such terms as the Administrative Law Judge may approve. For proceedings pursuant to § 13.51, such an amendment may include a statement that debarment action is warranted under § 13.52. Such amendments shall be allowed when justice and the presentation of the merits are served thereby, provided there is no prejudice to the objecting party's presentation on the merits. When issues not raised by the pleadings are reasonably within the scope of the original complaint and are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings, and such amendments may be made as necessary to make them conform to the evidence. The presiding Administrative Law Judge may, upon reasonable notice and upon such terms as are just, permit supplemental pleadings setting forth transactions, occurrences, or events that have happened since the date of the pleadings and that are relevant to any of the issues involved. A continuance in the hearing may be granted or the record left open to enable the new allegations to be addressed.
(a) At any time prior to the receipt of evidence or, at the Administrative Law Judge's discretion prior to the issuance of the Administrative Law Judge's decision, the parties may enter into consent findings and an order disposing of the proceeding in whole or in part.
(b) Any agreement containing consent findings and an order disposing of a proceeding in whole or in part shall also provide:
(1) That the order shall have the same force and effect as an order made after full hearing;
(2) That the entire record on which any order may be based shall consist solely of the Administrator's findings letter and the agreement;
(3) A waiver of any further procedural steps before the Administrative Law Judge and the Administrative Review Board regarding those matters which are the subject of the agreement; and
(4) A waiver of any right to challenge or contest the validity of the findings and order entered into in accordance with the agreement.
(c) Within 30 calendar days after receipt of an agreement containing consent findings and an order disposing of the disputed matter in whole, the Administrative Law Judge shall, if satisfied with its form and substance, accept such agreement by issuing a decision based upon the agreed findings and order. If such agreement disposes of only a part of the disputed matter, a hearing shall be conducted on the matters remaining in dispute.
(a)
(b)
(c)
(2) If the respondent is found to have violated Executive Order 13706 or this part, and if the Administrator requested debarment, the Administrative Law Judge shall issue an order as to whether the respondent is to be subject to the excluded parties list, including findings that the contractor disregarded its obligations to employees or subcontractors under the Executive Order or this part.
(d)
(e)
(f)
(a)
(b)
(a)
(2)
(ii) The Equal Access to Justice Act, as amended, does not apply to proceedings under this part. Accordingly, the Administrative Review Board shall have no authority to award attorney's fees and/or other litigation expenses pursuant to the provisions of the Equal Access to Justice Act for any proceeding under this part.
(b)
(c)
(d)
(a) Questions regarding the application and interpretation of the rules contained in this part may be referred to the Administrator, who shall issue an appropriate ruling. Requests for such rulings should be addressed to the Administrator, Wage and Hour Division, U.S. Department of Labor, Washington, DC 20210.
(b) Any interested party may appeal to the Administrative Review Board for review of a final ruling of the Administrator issued under paragraph (a) of this section. The petition for review shall be filed with the Administrative Review Board within 30 calendar days of the date of the ruling.
The following clause shall be included by the contracting agency in every contract, contract-like instrument, and solicitation to which Executive Order 13706 applies, except for procurement contracts subject to the Federal Acquisition Regulation (FAR):
(a)
(b)
(2) The contractor shall provide paid sick leave to all employees when due free and clear and without subsequent deduction (except as otherwise provided by 29 CFR 13.24), rebate, or kickback on any account. The contractor shall provide pay and benefits for paid sick leave used no later than one pay period following the end of the regular pay period in which the paid sick leave was taken.
(3) The prime contractor and any upper-tier subcontractor shall be responsible for the compliance by any subcontractor or lower-tier subcontractor with the requirements of Executive Order 13706, 29 CFR part 13, and this clause.
(c)
(d)
(e) The paid sick leave required by Executive Order 13706, 29 CFR part 13, and this clause is in addition to a contractor's obligations under the Service Contract Act and Davis-Bacon Act, and a contractor may not receive credit toward its prevailing wage or fringe benefit obligations under those Acts for any paid sick leave provided in satisfaction of the requirements of Executive Order 13706 and 29 CFR part 13.
(f) Nothing in Executive Order 13706 or 29 CFR part 13 shall excuse noncompliance with or supersede any applicable Federal or State law, any applicable law or municipal ordinance, or a collective bargaining agreement requiring greater paid sick leave or leave rights than those established under Executive Order 13706 and 29 CFR part 13.
(g)
(i) Name, address, and Social Security number of each employee;
(ii) The employee's occupation(s) or classification(s);
(iii) The rate or rates of wages paid;
(iv) The number of daily and weekly hours worked;
(v) Any deductions made;
(vi) The total wages paid each pay period;
(vii) A copy of notifications to employees of the amount of paid sick leave the employee has accrued, as required under 29 CFR 13.5(a)(4);
(viii) A copy of employees' requests to use paid sick leave, if in writing, or, if not in writing, any other records reflecting such employee requests;
(ix) Dates and amounts of paid sick leave taken by employees (unless a contractor's paid time off policy satisfies the requirements of Executive Order 13706 and part 13 as described in § 13.5(f)(5), leave must be designated in records as paid sick leave pursuant to Executive Order 13706);
(x) A copy of any written denials of employees' requests to use paid sick leave, including explanations for such denials, as required under 29 CFR 13.5(d)(3);
(xi) Any records reflecting the certification and documentation a contractor may require an employee to provide under 29 CFR 13.5(e), including copies of any certification or documentation provided by an employee;
(xii) Any other records showing any tracking of or calculations related to an employee's accrual or use of paid sick leave;
(xiii) A copy of any certified list of employees' accrued, unused paid sick leave provided to a contracting officer in compliance with 29 CFR 13.26;
(xiv) Any certified list of employees' accrued, unused paid sick leave received from the contracting agency in compliance with 29 CFR 13.11(f); and
(xv) A copy of the relevant covered contract.
(2) If a contractor wishes to distinguish between an employee's covered and non-covered work, the contractor must keep records or other proof reflecting such distinctions. Only if the contractor adequately segregates the employee's time will time spent on non-covered contracts be excluded from hours worked counted toward the accrual of paid sick leave. Similarly, only if that contractor adequately segregates the employee's time may a contractor properly refuse an employee's request to use paid sick leave on the ground that the employee was scheduled to perform non-covered work during the time she asked to use paid sick leave.
(3) In the event a contractor is not obligated by the Service Contract Act, the Davis-Bacon Act, or the Fair Labor Standards Act to keep records of an employee's hours worked, such as because the employee is exempt from the FLSA's minimum wage and overtime requirements, and the contractor chooses to use the assumption permitted by 29 CFR 13.5(a)(1)(iii), the contractor is excused from the requirement in paragraph (1)(d) of this section to keep records of the employee's number of daily and weekly hours worked.
(4)(i) Records relating to medical histories or domestic violence, sexual assault, or stalking, created for purposes of Executive Order 13706, whether of an employee or an employee's child, parent, spouse, domestic partner, or other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship, shall be maintained as confidential records in separate files/records from the usual personnel files.
(ii) If the confidentiality requirements of the Genetic Information Nondiscrimination Act of 2008 (GINA) and/or the Americans with Disabilities Act (ADA) apply to records or documents created to comply with the recordkeeping requirements in this contract clause, the records and documents must also be maintained in compliance with the confidentiality requirements of the GINA and/or ADA as described in 29 CFR 1635.9 and 29 CFR 1630.14(c)(1), respectively.
(iii) The contractor shall not disclose any documentation used to verify the need to use 3 or more consecutive days of paid sick leave for the purposes listed in 29 CFR 13.5(c)(1)(iv) (as described in 29 CFR 13.5(e)(1)(ii)) and shall maintain confidentiality about any domestic abuse, sexual assault, or stalking, unless the employee consents or when disclosure is required by law.
(5) The contractor shall permit authorized representatives of the Wage and Hour Division to conduct interviews with employees at the worksite during normal working hours.
(6) Nothing in this contract clause limits or otherwise modifies the contractor's recordkeeping obligations, if any, under the Davis-Bacon Act, the Service Contract Act, the Fair Labor Standards Act, the Family and Medical Leave Act, Executive Order 13658, their respective implementing regulations, or any other applicable law.
(h) The contractor (as defined in 29 CFR 13.2) shall insert this clause in all of its covered subcontracts and shall require its subcontractors to include this clause in any covered lower-tier subcontracts.
(i)
(2) No part of this contract shall be subcontracted to any person or firm whose name appears on the list of persons or firms ineligible to receive Federal contracts currently maintained on the System for Award Management Web site,
(3) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001.
(j)
(2) A contractor may not discharge or in any other manner discriminate against any employee for:
(i) Using, or attempting to use, paid sick leave as provided for under Executive Order 13706 and 29 CFR part 13;
(ii) Filing any complaint, initiating any proceeding, or otherwise asserting any right or claim under Executive Order 13706 or 29 CFR part 13;
(iii) Cooperating in any investigation or testifying in any proceeding under Executive Order 13706 or 29 CFR part 13; or
(iv) Informing any other person about his or her rights under Executive Order 13706 or 29 CFR part 13.
(k)
(l)
(m)
Bureau of Land Management.
Proposed rule.
The Bureau of Land Management (BLM) proposes to amend existing regulations that establish the procedures used to prepare, revise, or amend land use plans pursuant to the Federal Land Policy and Management Act (FLPMA). The proposed rule would enable the BLM to more readily address landscape-scale resource issues, such as wildfire, habitat connectivity, or the demand for renewable and non-renewable energy sources and to respond more effectively to environmental and social changes. The proposed rule would further emphasize the role of science in the planning process and the importance of evaluating the resource, environmental, ecological, social, and economic conditions at the onset of planning. The proposed rule would affirm the important role of other Federal agencies, State and local governments, Indian tribes, and the public during the planning process, and would enhance opportunities for public involvement and transparency during the preparation of resource management plans. Finally, the proposed rule would make revisions to clarify existing text and use plain language to improve the readability of the planning regulations.
Please submit comments on or before April 25, 2016.
You may submit comments by any of the following methods:
You may submit comments on the proposed collection of information by fax or electronic mail as follows:
Please indicate “Attention: OMB Control Number 1004-XXXX,” regardless of the method used. If you submit comments on the proposed collection of information please provide the BLM with a copy of your comments at one of the addresses shown above.
Leah Baker, Branch Chief (Acting), Planning and NEPA, at 202-912-7282, for information relating to the BLM's national planning program or the substance of this proposed rule. For information on procedural matters or the rulemaking process, you may contact Charles Yudson at 202-912-7437. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339, to contact these individuals. You will receive a reply during normal business hours.
The BLM initiated this rulemaking as part of a broader effort known as “Planning 2.0” to improve the land use planning procedures required by FLPMA. The BLM follows these procedures to prepare and amend resource management plans that guide future BLM decisions on the public lands. Planning 2.0 responds to a 2011 BLM strategic review that identified challenges and opportunities for the BLM and to recent Executive and Secretarial direction that encourages science-based decision-making; landscape-scale management approaches; adaptive management techniques to manage for uncertainty; and active coordination and collaboration with partners and stakeholders. In this proposed rule, the BLM proposes targeted changes to the existing planning regulations in 43 CFR subparts 1601 and 1610 and explains the rationale.
In 2011, the BLM released a strategic plan titled “Winning the Challenges of the Future: A Roadmap for Success in 2016” (the Roadmap). This plan identified several challenges for the BLM in managing the public lands consistent with its statutory direction “that management be on the basis of multiple use and sustained yield unless otherwise specified by law” (43 U.S.C. 1701(a)(7)). Management of the public lands in the 21st century is made more complex by increasing population growth and urbanization in the West, diversifying use activities on the public lands, demand for renewable and non-renewable energy sources, increasing conflicts between resource uses and conservation objectives, and landscape-scale resource issues such as climate change or wildfire. The Roadmap also identified new opportunities for the BLM due to the broad availability of Internet access and rapid acceleration in technologies as well as heightened expectations for services on the part of those who use and enjoy the public lands. Given these challenges and opportunities, the Roadmap called for a more “nimble” approach to planning that is responsive to a rapidly changing environment and conditions.
In addition, recent Presidential and Secretarial policies and strategic direction emphasize the value in applying landscape-scale management approaches to address climate change, wildfire, energy development, habitat conservation, restoration, and mitigation of impacts on Federal lands. The BLM has developed strategies and tools to support this approach by advancing the role of science in public lands management, standardizing data gathering, developing landscape assessments, requiring monitoring and evaluation to guide adaptive management strategies, and advancing the use of geospatial data and technology.
Through Planning 2.0, the BLM aims to improve the land use planning process in order to apply this policy and strategic direction and to complement related efforts within the BLM. Further, the Planning 2.0 initiative aims to incorporate lessons-learned and best practices developed over the last ten to fifteen years of resource management planning and respond to public sentiment that the planning process is, at times, cumbersome and slow to complete. Specifically, Planning 2.0 seeks to achieve three goals: (1) Improve the BLM's ability to respond to social and environmental change in a timely manner; (2) provide meaningful opportunities for other Federal agencies, State and local governments, Indian tribes, and the public to be involved in the development of BLM resource management plans; and (3) improve the BLM's ability to address landscape-scale resource issues and to apply landscape-scale management approaches. The Planning 2.0 initiative includes this proposed rule and a forthcoming revision of the BLM
Planning 2.0 is informed, in part, by public input. In May 2014, the BLM
Section 202 of FLPMA (43 U.S.C. 1712) directs the Secretary of the Interior to “develop, maintain, and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands” (43 U.S.C. 1712(a)) and outlines requirements for developing and revising land use plans. In particular, section 202(f) (43 U.S.C. 1712(f)) directs the Secretary of the Interior, by regulation, to “establish procedures . . . to give Federal, State, and local governments and the public, adequate notice and opportunity to comment upon and participate in the formulation of plans and programs relating to the management of the public lands.” The BLM first developed land use planning regulations in 1979 (44 FR 46386, August 7, 1979). The BLM made significant revisions to the regulations in 1983 (48 FR 20364, May 5, 1983) and revised them again in 2005 (70 FR 14561, March 23, 2005).
The proposed rule would revise two subparts of the existing regulations, 43 CFR subparts 1601 (Planning) and 1610 (Resource Management Planning). Proposed changes in subpart 1601 would revise the purpose, objective, responsibilities, definitions, and principles sections. Proposed changes in subpart 1610 would describe the general framework for resource management planning, including the components of a resource management plan; update the public notification and public comment provisions; establish an assessment to determine and describe baseline conditions that would occur before initiating the preparation of a resource management plan; establish new opportunities for public involvement earlier in the planning process; clarify plan approval and protest procedures; strengthen the monitoring and evaluation requirements; modify the amendment and maintenance provisions; update the provisions for designating areas of critical environmental concern (ACECs); and make other clarifying edits. These revisions are discussed in detail in the section-by-section analysis of this preamble. In both subparts, we propose changes to improve readability and understanding of the planning regulations to support effective collaboration and public involvement during the planning process.
The proposed rule would explain the responsibilities for preparing or amending a resource management plan to acknowledge that planning areas may extend beyond traditional BLM administrative boundaries such as Field Offices or States. References to the “Field Manager” would be replaced with the “responsible official,” as the BLM official responsible for preparing and amending a resource management plan. References to the “State Director” would be replaced with the “deciding official,” as the BLM official responsible for supervisory review, including plan approval.
The proposed rule would make the BLM Director responsible for determining the deciding official and the planning area for resource management plans and for plan amendments that cross State boundaries. For plan amendments that do not cross State boundaries, the deciding official would be responsible for determining the planning area.
Under the existing and proposed regulations, a resource management plan provides management direction that guides future management decisions within a planning area. The proposed rule would explain this function in greater detail by distinguishing between the components of a resource management plan that provide planning-level management direction (“plan components”) and “implementation strategies” that would guide future actions consistent with the management direction in the plan (“implementation strategies”). As proposed, plan components would include goals, objectives, designations, resource use determinations, monitoring standards, and, where appropriate, lands identified as available for disposal from BLM administration under section 203 of FLPMA. Implementation strategies would describe potential actions the BLM may take in the future in order to achieve the goals and objectives, as well as procedures for monitoring and evaluating the resource management plan implementation. Implementation strategies would be developed during the planning process but are not plan components in and of themselves.
Under the proposed rule, plan components would be changed through plan amendment or revision procedures where the BLM determined that monitoring and evaluation findings, new high quality information, new or revised policy, a proposed action, or other relevant changes in circumstances warranted a substantive change to management direction. A plan component may be adjusted through maintenance to correct a typographical or mapping error, or to reflect minor changes in mapping or data. Implementation strategies as proposed could be updated at any time without triggering a plan amendment, but would conform with the plan components and would be made available for public review at least 30 days before they can be implemented.
The proposed rule would add a new planning assessment requirement before initiating the preparation of a resource management plan or a plan amendment for which an environmental impact statement (EIS) will be prepared (EIS-level amendments). The planning assessment is intended to assist the BLM and the public in understanding the current baseline in regards to resource, environmental, ecological, social, and economic conditions in the planning area. During the planning assessment, the BLM would describe these conditions and current management. The BLM would also identify the role of the public lands in addressing landscape-scale resource issues or in supporting national, regional, or local policies, strategies, or plans. The planning assessment would inform the preparation of the resource management plan or EIS-level amendments.
The planning assessment process would include the BLM arranging for relevant data and information to be gathered, identifying relevant plans or strategies for consideration, providing opportunities for other agencies, State and local governments, Indian tribes, and the public to provide existing data, information, plans, or strategies for consideration in the planning assessment, and identifying relevant public views concerning resource, environmental, ecological, social, or economic conditions of the planning area. The proposed rule would require that the BLM use high quality information (including the best available scientific information) to inform the planning process; any
The proposed rule would use the term “public involvement” instead of “public participation” to be more consistent with the terms used in FLPMA. The proposed rule also would restructure the public involvement provisions in section 1610.2 to indicate more clearly where in the land use planning process the BLM would provide for public notice, public review, or public comment. In the proposed rule, the BLM would make new commitments to announce public involvement opportunities in planning on the BLM Web site and by posting a notice at the BLM offices located within the planning area. The BLM would also notify individuals or groups that ask to receive notice of public involvement opportunities relating to a planning effort by written or electronic means, such as email correspondence.
The proposed rule would add new public involvement opportunities. First, the proposed planning assessment would include an opportunity for other Federal agencies, State and local government, Indian tribes, and the public to provide data or information or to suggest policies, strategies, guidance or plans to inform the BLM planning process and would require the BLM to identify public views in relation to resource, environmental, ecological, social, or economic conditions. Second, the proposed rule would require that BLM offices make the preliminary resource management alternatives, the rationale for alternatives, and the basis for the impacts analysis available for public review in advance of issuing the draft resource management plan and draft EIS. Public review of the preliminary alternatives prior to issuance of the draft resource management plan and draft EIS would enable the public to raise any concerns with the BLM before the BLM conducts the impacts analysis of the management plan alternatives.
The proposed rule would address several procedural requirements for plan amendments to improve consistency and integration with NEPA procedures. Specifically, the proposed rule would require the publication of a notice of intent (NOI) to prepare a plan amendment to align with the requirements of the Council on Environmental Quality (CEQ) NEPA regulations; and the public comment period on a draft plan amendment to align with the CEQ regulations and guidance regarding public comment on draft EISs. The proposed rule would change the requirements for selecting a preferred alternative to align more closely with the requirements of the Department of the Interior (DOI) NEPA implementation regulations.
The proposed rule would clarify the protest procedures to provide more detailed information on what constitutes a valid protest issue and for consistency with the proposed terminology for plan components. The BLM would provide a new opportunity for the public to submit protests electronically through methods specified for each resource management plan or plan amendment. The proposed rule would clarify that proposed resource management plans (including plan revisions) and plan amendments are subject to protest. The proposed rule would provide the opportunity for a party that previously participated in the preparation of a resource management plan or plan amendment to identify why a plan component is believed to be inconsistent with Federal laws or regulations applicable to public lands, or the purposes, policies and programs of such laws and regulations before the final decision to approve the plan. The proposed rule would clarify that the focus of a protest is to identify and remedy inconsistency with Federal laws and regulations or the purposes, policies, and programs of such laws and regulations.
The proposed rule would address the transition from the existing planning regulations to those that result from this proposal, including resource management plans currently in preparation.
You may submit comments on this proposed rule by mail, personal or messenger delivery, or electronic mail.
Written comments on the proposed rule should be specific, should be confined to issues pertinent to the proposed rule, and should explain the reason for any recommended change. When possible, comments should reference the specific section or paragraph of the proposed rule that the comment is addressing.
The BLM need not consider or include in the Administrative Record for the final rule, comments that it receives after the close of the comment period (see
Comments, including names and street addresses, will be available for public review at the U.S. Department of the Interior, Bureau of Land Management, 20 M Street SE., Room 2134LM, Washington, DC 20003 during regular hours (7:45 a.m. to 4:15 p.m.), Monday through Friday, except holidays. They also will be available at the Federal eRulemaking Portal:
You may submit comments on the proposed collection of information by fax or electronic mail as follows:
Please indicate “Attention: OMB Control Number 1004-XXX,” regardless of the method used. If you submit comments on the proposed collection of information, please provide the BLM with a copy of your comments at one of the addresses shown above.
Before including your address, telephone number, email address, or other personal identifying information
The Bureau of Land Management (BLM) manages more than 245 million acres of land, the most of any Federal agency. This land, known as the National System of Public Lands, is primarily located in 12 Western states, including Alaska. The BLM also administers 700 million acres of sub-surface mineral estate throughout the nation. The BLM's mission is to manage and conserve the public lands for the use and enjoyment of present and future generations under the mandate of multiple-use and sustained yield. In Fiscal Year 2014, the BLM generated $5.2 billion in receipts from public lands.
The Federal Land Policy and Management Act of 1976 (FLPMA), as amended, is the BLM ”organic act” that establishes the agency's mission to manage the public lands on the basis of multiple-use and sustained yield, unless otherwise specified by law. Through FLPMA, the BLM is directed to manage the public lands in a manner which recognizes the nation's need for natural resources from the public lands, provides for outdoor recreation and other human uses, provides habitat for fish and wildlife, preserves and protects certain public lands in their natural condition, and protects the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values. The BLM develops goals and objectives to guide management through the land use planning process under section 202 of FLPMA.
Section 202(a) of FLPMA requires the Secretary of the Interior, with public involvement, to “develop, maintain, and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands.” Among other provisions, section 202(c) of FLPMA requires the Secretary, in developing and revising land use plans: To use and observe the principles of multiple use and sustained yield; to use an interdisciplinary approach to achieve integrated consideration of physical, biological, economic, and other sciences; to give priority to the designation and protection of ACECs; to use the inventory of public lands, resources and other values, to the extent it is available; to consider both present and potential uses of public lands; to consider the relative scarcity of values; to weigh long-term benefits against short term benefits; to provide for compliance with applicable pollution control laws; and to coordinate with other Federal departments and agencies, Indian tribes, and the States and local governments.
Section 202(f) of FLPMA directs the Secretary to provide for public involvement and to establish procedures by regulation “to give Federal, State, and local governments and the public, adequate notice and opportunity to comment upon and participate in the formulation of plans and programs relating to the management of the public lands.” Under FLPMA, the Secretary administers the public lands through the BLM.
The BLM issued regulations establishing a land use planning system for BLM-managed public lands, as prescribed in FLPMA, in 1979 (44 FR 46386). These regulations established the term “resource management plan” (RMP) for the land use plans mandated by FLPMA, to replace the then-existing “management framework plans.” The BLM revised these regulations in 1983 to clarify the planning process and “eliminate burdensome, outdated, and unneeded provisions” (48 FR 20364). These regulations were amended again in 2005 (70 FR 14561) to make clear the role of cooperating agencies in the land use planning process and to emphasize the importance of working with Federal and State agencies and local and tribal governments through cooperating agency relationships in developing, amending, and revising the BLM's resource management plans.
The BLM planning process is a collaborative process, which involves Federal agencies, Indian tribes, State and local governments, and the public at various steps, while retaining decision-making authority within the BLM. Cooperating agencies play an important role in the development of resource management plans. Early in the planning process, the BLM invites eligible governmental entities to serve as cooperating agencies, and the BLM is committed to collaborating with cooperating agencies during several steps of the process. Resource management plans are generally established based on a BLM Field Office or District Office boundary and prepared by an interdisciplinary team under the direction of a BLM field or district manager. The BLM State Directors provide oversight and guidance to the field or district managers and the BLM State Directors approve the resource management plan. The BLM Director provides high-level guidance and renders a decision on any public protests of the proposed plan, and when necessary, inconsistencies with State and local plans that are raised by the Governor through a consistency review process.
As outlined in 43 CFR subparts 1601 and 1610, the steps of the planning process are fully integrated with the requirements of the National Environmental Policy Act (NEPA).
Next, the BLM develops criteria to guide the development of the resource management plan. The planning criteria ensure that the resource management plan is tailored to the planning issues and that the BLM avoids unnecessary data collection and analyses. The BLM summarizes the planning issues and planning criteria in a scoping report, which is made available to the public. The BLM continues to refine the planning issues and the planning criteria throughout the development of the draft resource management plan.
To aid in the planning process, the BLM arranges for the collection or assembly of data and information, which are then analyzed to determine the ability of the resources to respond to the planning issues as well as any management opportunities. The resulting “analysis of the management situation” provides the basis for the BLM's development of a range of reasonable alternatives and analysis of the environmental impacts of these alternatives, as required by the NEPA. The BLM presents the range of alternatives in a single integrated draft resource management plan and draft EIS and identifies its preferred alternative.
The BLM provides the proposed resource management plan and final EIS to the Governor(s) of any State(s) the plan falls within for a 60-day consistency review period. During this period, the Governor may identify any inconsistencies between State and local plans and the proposed resource management plan. This step, including the process of resolving identified inconsistencies, ensures that BLM has satisfied the FLPMA section 202(a)(9) requirement that the BLM keep apprised of State, local, and tribal land use plans and assist in resolving, to the extent practical and consistent with Federal law, inconsistencies between Federal and non-Federal government plans. Concurrent with the Governor's consistency review, the BLM provides a 30-day period during which members of the public who have an interest that may be adversely affected by the approval of the proposed resource management plan and who participated in the planning process may protest approval of the proposed resource management plan. The BLM Director renders a decision on any protest, which serves as the final decision of the DOI, and is not subject to an administrative appeal.
Following approval of the resource management plan, the BLM conducts monitoring and evaluation at intervals established in the plan to assess the need for maintenance, revision, or amendment of the plan. Maintenance is provided as needed to address minor changes in data. An amendment or plan revision is initiated in response to monitoring and evaluation findings, new data, new or revised policy, a change in circumstances, or a proposed action that would not be in conformance with the approved resource management plan. The BLM undertakes a resource management plan revision when monitoring and evaluation findings, new data, new or revised policy, and changes in circumstances affect the entire plan or major portions of the plan.
The proposed rule would maintain the general process for developing, revising, amending, and maintaining a resource management plan, as described, while proposing specific changes to improve the process in a number of ways.
The proposed rule would respond to needs identified by the BLM and related Presidential and Secretarial direction. In 2011, the BLM released a strategic plan titled “Winning the Challenges of the Future: A Roadmap for Success in 2016” (the Roadmap). This document highlighted the increasing complexity the BLM faces in managing for multiple-use and sustained yield on the public lands. Population growth and urbanization in the West, a diversifying portfolio of use activities, demand for renewable and non-renewable energy sources, and the proliferation of landscape-scale environmental change agents such as climate change, wildfire, or invasive species create challenges that require that the BLM develop new strategies and approaches to effectively manage the public lands. Simultaneously, the rapid acceleration in technologies such as the Internet, telecommunications, and analytical tools, including geospatial tools, have brought new opportunities combined with new expectations for services to be provided by land management agencies. Given the foundational nature of land use planning, a process that establishes direction for future management activities on the public lands, the Roadmap recognized the need for the BLM's resource management plans to address these challenges and respond to emerging opportunities. The Roadmap also recognized the importance of an efficient planning process, one that can effectively integrate new information and new technologies as they become available in order to keep resource management attuned to changing conditions on the ground and newly available information.
Specifically, the Roadmap set the following goal for the BLM to accomplish by the year 2016: “Adopt a proactive and nimble approach to planning that allows us to work collaboratively with partners at different scales to produce highly useful decisions that adapt to the rapidly changing environment and conditions” (page 10). Following the publication of the Roadmap, the BLM chartered a team of BLM managers and planning staff to assess the current status of the BLM's resource management plans and develop recommendations to improve the process for developing resource management plans. The proposed rule, in part, would implement the recommendations for achieving the goals set forth in the Roadmap.
In addition, the proposed rule would respond to and advance direction set forth in several Executive or Secretarial Orders and related policies and strategies. This direction demonstrates an increasing emphasis within the DOI, and the Federal Government, on the use of science-based, collaborative, landscape-scale approaches to natural resource management. Recent Presidential and Secretarial direction provided to DOI bureaus and agencies emphasize the importance of this approach for resource management planning.
Effective collaboration is a central theme in recent Presidential and Secretarial directives, beginning with the President's 2009 Open Government Directive (M-10-06). This directive describes the three principles of transparency, participation, and collaboration as the cornerstone of an open government by promoting accountability to the public, sharing of information, and partnerships and cooperation within the Federal Government, across all levels of government, and between the government and private institutions. In 2012, the Office of Management and Budget (OMB) and the CEQ issued the “Memorandum on Environmental Collaboration and Conflict Resolution.” This memorandum directs Federal departments and agencies to ensure they effectively explore opportunities for up-front collaboration in their planning and decision-making processes to address different perspectives and potential conflicts and thereby promote improved outcomes, including fewer appeals and less litigation.
Multiple directives related to climate change also emphasize the importance of collaboration, science, adaptive management, and the need for landscape-scale approaches to resource management. “Secretarial Order 3289—Addressing the Impacts of Climate Change on America's Water, Land, and Other Natural and Cultural Resources,” issued on September 14, 2009, and amended on February 22, 2010, directs DOI bureaus and agencies to work together, with other Federal, State, tribal and local governments, and private landowners, to develop landscape-level strategies for understanding and responding to climate change impacts. The Departmental Manual chapter on climate change policy (523 DM 1), issued on December 20, 2012, similarly directs DOI bureaus and agencies to “promote landscape-scale, ecosystem-based management approaches to
Likewise, recent directives associated with renewable energy development and mitigation practices emphasize the importance of a collaborative, landscape-scale approach. “Secretarial Order 3285—Renewable Energy Development by the Department of the Interior,” issued on March 11, 2009, and amended on February 22, 2010, identified renewable energy production, development, and delivery as one of the Department's highest priorities and called on bureaus and agencies to carry out this priority by collaborating with one another and with governmental and tribal partners, local communities, and private landowners. In particular, this Order highlighted the need to identify and prioritize specific locations that are well-suited to large-scale renewable energy production as well as the electric transmission infrastructure and transmission corridors needed to deliver the energy produced.
A landscape-scale approach to planning is integral to realizing renewable energy development, in addition to other priorities on Federal lands. “Secretarial Order 3330—Improving Mitigation Policies and Practices of the Department of the Interior,” issued on October 31, 2013, called for the development of a DOI-wide mitigation strategy, which would use a landscape-scale approach to identify and facilitate investments in key conservation priorities in a region. The April 2014 report, “A Strategy for Improving the Mitigation Policies and Practices of The Department of the Interior,” provides direction to implement such an approach. And the Departmental Manual was revised in October 2015, to include direction to all bureaus and agencies for implementation of this approach to resource management (600 DM 6).
The Presidential Memorandum “Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment,” issued in November 2015, affirmed the importance of applying a landscape-scale approach by directing agencies that “[l]arge-scale plans and analysis should inform the identification of areas where development may be most appropriate, where high natural resource values result in the best locations for protection and restoration, or where natural resource values are irreplaceable” (80 FR 68743).
Finally, “Secretarial Order 3336—Rangeland Fire Prevention, Management and Restoration,” issued on January 5, 2015, directs DOI bureaus and agencies to use landscape-scale approaches to address fire prevention, management, and restoration in the Great Basin; and to establish protocols for monitoring the effectiveness of fuels management, post-fire, and long-term restoration treatments and a strategy for adaptive management to modify management practices or improve land treatments when necessary.
Collectively, these directives identify the importance of science-based decision-making; landscape-scale management approaches; adaptive management techniques to manage for uncertainty; and active coordination and collaboration with partners and stakeholders. The BLM believes that changes to the resource management planning process will assist in effectively implementing these directives.
Together, the Roadmap and the recent policy and strategic direction described in this preamble informed the BLM's decision to revise its resource management planning process. The BLM's Planning 2.0 initiative responds to this opportunity. Through Planning 2.0, the BLM seeks to improve the resource management planning process, including the development, amendment, and maintenance of resource management plans. The BLM has developed three targeted goals to guide the Planning 2.0 initiative:
To achieve these three goals, the BLM is proposing to amend specific provisions of the land use planning regulations (43 CFR part 1600). The proposed regulatory revisions are the subject of this rule. Separately, the BLM also is revising the Land Use Planning Handbook to provide detailed guidance to implement these regulations. We have taken a coordinated approach to ensure that these two efforts mutually support the achievement of the Planning 2.0 goals and provide consistent requirements and guidance for developing and amending resource management plans.
In recent years, the BLM has taken several steps toward the goals identified in the “Related Executive and Secretarial Direction” section of this preamble, including tools to aid science-based decision-making; landscape-scale management approaches; the use of adaptive management techniques to manage for uncertainty; and active coordination and collaboration with partners and stakeholders. These steps include crafting new policies and strategies and introducing innovative data and information technology tools. The Planning 2.0 initiative supports the implementation of these other important BLM efforts, and is mutually supported by these other efforts. Here we describe several other BLM efforts and how they relate to the goals of Planning 2.0, even though they are beyond the scope of this rulemaking.
In partnership with the Landscape Conservation Cooperatives (LCCs) and other Federal agencies, the BLM has worked to develop Rapid Ecoregional Assessments (REAs) in the western United States.
In 2013, the BLM issued the “Draft—Regional Mitigation Manual Section (MS)-1794” as interim guidance, which promotes consideration of mitigation within a broader regional context and development of mitigation strategies. Mitigation strategies identify, evaluate, and communicate potential mitigation needs and mitigation measures in a geographic area. Under this draft guidance, the BLM has worked collaboratively with partners to develop regional mitigation strategies in several key areas while also developing guidance consistent with Secretarial Order 3330. This guidance, which provides for a landscape-scale approach to mitigation, is consistent with the Planning 2.0 goal to apply landscape-scale management approaches. The Planning 2.0 initiative will support effective implementation of the regional mitigation policy by ensuring that resource management plans, like mitigation, are grounded in sound science, applied at a broader regional context, and that the mitigation hierarchy process is applied in the development and implementation of a resource management plan.
The BLM is implementing its “Assessment, Inventory, and Monitoring (AIM) Strategy” (2011), which was developed to standardize data collection and retrieval so information is comparable over time and can be readily accessed and shared. The AIM Strategy provides a process for the BLM to collect quantitative information on the status, condition, trend, amount, location, and spatial pattern of renewable resources on the nation's public lands. The BLM strategy, “Advancing Science in the BLM: An Implementation Strategy” (2015), outlines goals and an action plan for integrating science into multiple-use land management decisions in a consistent manner. Both strategies improve the BLM's ability to employ science-based decision-making and apply adaptive management techniques using standardized monitoring data that can be analyzed and applied at multiple scales. These steps are essential to achieving the Planning 2.0 goals.
In addition, the BLM is implementing its “Geospatial Services Strategic Plan” (GSSP) (2008), which will provide the high-quality mapping products needed to develop and support adaptive, landscape-scale management approaches. The GSSP establishes a governance model for the management of BLM's geospatial information and institutes a structure to coordinate the use of geospatial technology within the BLM. The GSSP also addresses data management, data acquisitions, data standards, and the establishment of corporate data themes. Geospatial transformation is essential for achieving all three Planning 2.0 goals. In addition to supporting science-based, landscape-scale, adaptive management approaches, advances in geospatial technology support the use of new and innovative methods for public involvement. For example, the development and deployment of BLM's ePlanning platform, an online national register for land use planning and NEPA documents, provides a dynamic and interactive link between text, such as land use plans, and the supporting geospatial data. The ePlanning platform enables the BLM to make documents and maps available to the public via the Internet for review and comment and provides a searchable register for NEPA and land use planning projects (
Finally, the BLM is strengthening its commitment to partnerships and cooperating agencies. The BLM's “National Strategy and Implementation Plan to Support and Enhance Partnerships, 2014-2018” (2014), highlights the importance of partnerships to achieving the BLM's mission, and creates a national framework for improved coordination in support of partnerships across the BLM. The updated BLM publication,
The BLM has conducted public outreach and engagement activities as a part of the Planning 2.0 initiative. This outreach is consistent with section 2(c) of “Executive Order 13563—Improving Regulation and Regulatory Review” (76 FR 3822), which encourages agencies to seek the views of those who are likely to be affected by a rulemaking before issuing a proposed rule. The outreach for the overall Planning 2.0 initiative includes the proposed rule and a forthcoming revision of the Land Use Planning Handbook. The BLM launched the Planning 2.0 initiative in May 2014 by seeking public input on how the land use planning process could be improved. The BLM developed a Web site for the initiative (
The BLM has conducted external outreach to BLM partners and internal outreach to BLM staff in State, District, and Field Offices. External outreach included multiple briefings provided to the Federal Advisory Committee Act chartered RACs; a briefing for State Governor representatives coordinated through the Western Governors Association; a briefing for State Fish and Wildlife Agency representatives coordinated through the Association of Fish and Wildlife Agencies; multiple briefings for other Federal agencies; a webinar for interested local government representatives coordinated through the National Association of Counties; and meetings with other interested parties upon request.
Since May 2014, over 6,000 groups and individuals submitted written comments for BLM's consideration. This information was summarized into a written report and made available on the Planning 2.0 Web site on February 3, 2015. The input received through written submissions and the public listening sessions covered a broad range of topics and opinions, which are summarized in this preamble and described in more detail in the “Planning 2.0 Public Input Summary Report” (2015). The summary report is available on the Planning 2.0 Web site (
A large number of comments focused on how to integrate adaptive management into resource management plans. While nearly all comments supported the goal of “a more dynamic and efficient planning process,” many commenters were concerned that resource management plans could become so “dynamic” that they become meaningless. Many comments suggested that the BLM establish achievable and measurable objectives to guide future decisions, as well as indicators and thresholds for resource condition in resource management plans. While some commenters believed that the BLM should have the ability to increase or reduce resource protections established in the resource management plan if site-specific conditions warrant, many commenters were concerned that such an adaptive management approach might allow activities that otherwise conflict with the other resource management plan goals and objectives.
Some commenters suggested that efficiencies could be gained by developing standardized decision language, prohibiting overlapping designations, and working with partners to avoid duplication of efforts. Commenters requested that the BLM improve data collection and management by including non-BLM data sources in resource management plans; providing better public access to BLM data; establishing standards for monitoring in resource management plans; designating timeframes to modify management based on monitoring results; and identifying enforceable actions if monitoring does not occur.
Public comments affirmed the value of public participation as essential to the success of any land use plan. Several commenters expressed the need for broad, comprehensive stakeholder participation and requested that the BLM conduct strategic and targeted outreach at the onset of all planning efforts to reach stakeholders. Commenters also encouraged the BLM to collaborate with other Federal agencies, which often manage adjacent lands, and to conduct outreach to Indian tribes.
Numerous commenters suggested two new opportunities for public involvement in the planning process. Outreach before initiating the NEPA scoping process could be used to identify preliminary stakeholders and management issues, solicit input about resource data needed for resource management plan development, and encourage stakeholders to contribute inventory information. Additionally, a public review of preliminary management alternatives could occur between public scoping and the publication of the draft resource management plan and draft EIS to help BLM refine the range of alternatives to address public concern.
The BLM also received comments on different ways to effectively engage the public. Several commenters requested that the BLM leverage Web-, tele-, and video-conference technology to reach a larger audience while also providing meaningful involvement opportunities for members of the public without technological access. Commenters also described a broad range of best practices for public participation and encouraged the BLM to implement these practices in the planning process.
Several commenters proposed instituting a landscape level planning process in which the BLM would evaluate public lands, establish priority areas for conservation and priority areas for development, set desired conditions at the ecoregional level, and then allocate allowable uses and make special designations at the field office level. Conversely, some commenters questioned the utility of landscape level planning. It is important to many stakeholders that resource management plans provide specific, local context, and clearly articulate for local users how the BLM will manage public lands close to them. Some commenters were concerned that it would be shortsighted for the BLM to limit development only to those priority areas identified in an ecoregional plan, as future technological advances could make new unforeseeable areas appropriate for development.
Many comments urged the BLM to integrate the DOI mitigation policy, “Improving Mitigation Policies and Practices of the Department of the Interior” (Secretarial Order 3330), into the land use planning process. Public comments also stated that effective landscape planning should be fully integrated with the NEPA process and provide clear direction for considering State and private lands. At the same time, commenters cautioned that the
In addition to input on how to meet Planning 2.0 goals, many public comments contained recommendations on how the BLM should address specific resources, uses, and special designations in resource management plans. These comments are summarized in the “Planning 2.0 Public Input Summary Report” (2015), available on the Planning 2.0 Web site (
As part of the Planning 2.0 initiative, the BLM proposes revising specific provisions of the land use planning regulations (43 CFR part 1600). The BLM is also revising the Land Use Planning Handbook. After careful consideration, the BLM believes that such an approach would most effectively advance the goals of the Planning 2.0 initiative by ensuring that the land use planning regulations and the Land Use Planning Handbook provide clear and consistent direction leading to improved stewardship of the public lands and resources. In the following paragraphs we explain how the proposed changes to the planning regulations would serve the overall goals of the Planning 2.0 initiative.
Under the proposed rule, the BLM would distinguish between the planning-level management direction that guides all future management decisions (plan components) and the information that may be included with a resource management plan that describes how the BLM intends to implement future actions consistent with the planning-level management direction (implementation strategies). This distinction is essential for applying a landscape-scale management approach, which requires consideration of a broader regional context when developing planning-level management direction. Such consideration is difficult to achieve when planning-level management direction is integrated with detailed information about implementing future actions. This distinction would also facilitate the use of adaptive-management approaches when developing future actions consistent with the management direction in the resource management plan.
The proposed changes would emphasize that land use planning is grounded in high quality information, including the best available scientific information, and that the future actions taken consistent with a resource management plan should be based on the high quality information at the time the action is proposed.
The proposed changes would also emphasize the importance of assessing resource, environmental, ecological, social, and economic conditions at multiple scales and before initiating the preparation of a resource management plan, in order to apply science-based decision-making and inform management decisions at appropriate scales.
The proposed changes would add new opportunities for collaboration in the land use planning process and emphasize the importance of early public involvement in order to engage different perspectives and ensure planning is responsive to public needs and values. Proposed changes would promote increased communication with and transparency to the public by providing for the use of electronic communications and information technology, in addition to traditional methods of communication. The BLM believes that enhanced collaboration would promote a more efficient planning process and improved outcomes by ensuring that diverse viewpoints are considered early and often. In particular, the BLM anticipates that considering diverse viewpoints early in the planning process, when they can help inform the development of the resource management plan and supporting NEPA analysis, would help the BLM avoid the need to re-start the planning process or supplement the NEPA analysis based on issues raised later in the process after considerable work has been completed. At the same time, the proposed rule would eliminate some
In revisions to both subpart 1601 and 1610, the BLM proposes to update existing text to reflect current style guidelines and to use plain language, consistent with the “Presidential Memorandum on Plain Language in Government Writing” (63 FR 31885), which directs Federal Agencies to consider rewriting existing regulations in plain language if the opportunity is available. These changes would facilitate improved readability and understanding of the planning regulations, which would support effective collaboration during the planning process.
(1) Amend the responsibilities section with the addition of the new terms “responsible official” and “deciding official.”
(2) Provide for BLM Director determination of the deciding official and the planning area for resource management plans and for plan amendments that cross State boundaries, and deciding official determination of the planning area for all other plan amendments.
(3) Distinguish between “plan components” (
(4) Require specific and measurable plan objectives to improve implementation, monitoring and evaluation, transparency, and accountability.
(5) Add new public involvement opportunities during the early steps of the planning process, including an opportunity to provide data and other information to inform the planning process and public review of preliminary resource management alternatives, the rationale for alternatives, and the procedures, assumptions, and indicators to be used in the effects analysis (“basis for analysis”).
(6) Add new commitments to transparency (
(7) Add a new requirement for an assessment of resource, environmental, ecological, social, and economic conditions which will be made available to the public and provide important baseline information before initiating the preparation of a resource management plan or a plan amendment
(8) Remove the requirement to publish a NOI in the
(9) Reduce the minimum public comment period for draft EIS-level plan amendments from 90 days to 45 days for consistency with NEPA requirements and to facilitate an efficient amendment process. Reduce the minimum public comment period for draft resource management plans from 90 days to 60 days to allow for the addition of new early opportunities for public involvement (
(10) Replace the requirement that the BLM identify a single preferred alternative in a draft resource management plan and draft EIS with a new requirement that the BLM identify “one or more” preferred alternatives for more consistency with DOI NEPA implementation regulations that apply to draft EISs (43 CFR 46.425(a)).
(11) Affirm the legal requirements for consistency with the land use plans of other Federal agencies, State and local governments, and Indian tribes for consistency with FLPMA and improved clarity.
(12) Amend the protest section to clarify what constitutes a valid protest and the requirements for submitting a protest.
(13) Amend the resource management plan maintenance section to clarify the limitations of its use and to provide transparency to the public when changes are made through plan maintenance.
(14) Amend the ACEC provisions for improved clarity.
(15) Replace the requirement to publish a notice in the
(16) Remove the requirement to provide a 60 day public comment period on the draft resource management plan or plan amendment when an ACEC is involved for better integration of ACEC consideration into the overall planning process and consistency with NEPA requirements.
(17) Clarify the specific requirements of the Governor's consistency review and provide the BLM Director discretion to notify the public of his or her decision by means other than the
The proposed rule would revise part 1600, including subparts 1601 (Planning) and 1610 (Resource Management Planning). Proposed revisions in subpart 1601 would update and introduce new definitions and revise the purpose, objective, responsibilities, environmental impact statement policy, and principles sections.
Proposed subpart 1610 would be reorganized to improve readability. The proposed revisions would describe guidance and general requirements, and resource management plan components; update the public involvement provisions; establish an assessment of baseline conditions in the planning area before the BLM initiates the preparation of a resource management plan and EIS-level amendments; revise the steps in the planning process to increase transparency and add new opportunities for public involvement; clarify resource management plan approval and protest procedures; modify the monitoring and evaluation, amendment, and maintenance provisions; update the provisions for designating ACECs; and make clarifying edits.
The following paragraphs present a section-by-section analysis of key proposed changes under each subpart compared to the current regulations.
The BLM would make several style changes throughout both subparts, such as replacing the Bureau of Land Management with the acronym “BLM” and the Federal Land Policy and Management Act with the acronym “FLPMA,” for improved readability. We would replace the word “title” with “part” throughout both subparts for consistency with current style guidelines. We also would replace the word “shall” with “will” throughout both subparts for improved readability, unless otherwise noted. We would replace “plan” with “resource management plan,” where appropriate, and “amendment” with “plan amendment” throughout both subparts to improve consistency and precision in use of terminology.
Finally, we propose to remove most references to resource management plan “revisions” throughout both subparts. Revisions would be included in the definition of a resource management plan (see proposed § 1601.0-5) and must comply with all of the requirements of these regulations for preparing and approving a resource management plan (see proposed § 1610.6-8). Differentiating between the preparation of a new resource management plan and the revision of a resource management plan is unnecessary and confusing. For example, if the BLM revises portions of more than one existing resource management plan, it is unclear whether the resulting resource management plan would be considered a new resource management plan or a revised resource management plan. Under the proposed and existing regulations, there is no substantive difference between a resource management plan and a resource management plan revision, therefore both would be considered a “resource management plan.”
The only proposed changes to this section are to introduce the acronym “BLM,” which is used throughout the part and to remove the words “and revision” for the reasons previously described. There would be no substantive change to this section.
The BLM proposes to revise the stated objectives of resource management planning to reflect FLPMA and remove vague or inaccurate language. In the first sentence, we propose to remove the phrase “maximize resource values for the public through a rational, consistently applied set of regulations and procedures.” The term “maximize resource values” is vague and therefore inappropriate in regulations and a “rational, consistently applied set of regulations and procedures” is an objective of developing planning regulations, but not an objective of resource management planning.
Proposed changes to this section would also replace the phrase “concept of multiple use management” in the first sentence of this section with the phrase “principles of multiple use and sustained yield on public lands unless otherwise provided by law.” This change is consistent with FLPMA, which directs the BLM to “use and observe the principles of multiple use and sustained yield” in the development and revision of land use plans (43 U.S.C. 1712(c)(1)). The proposed change also acknowledges that in some situations the BLM must use and observe the principles of other legal authorities. For instance, national monuments established under the Antiquities Act of 1906 (16 U.S.C. 431-433) must use and observe the principles specific to their establishment. The word “appropriate” would be removed from before “Federal agencies” in the first sentence. This
The BLM proposes to add an additional objective of resource management planning to the regulations, which is to “ensure that the public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide for outdoor recreation and human use, and which recognizes the Nation's need for domestic sources of minerals, food, timber, and fiber from the public lands.” This proposed change would incorporate language from FLPMA (see 43 U.S.C. 1701(a)(8) and (a)(12)) to identify in the planning regulations the general management objectives that apply to the public lands and therefore apply to all resource management plans. While this is a change in the regulations, it would simply affirm statutory direction and not change existing practice or policy.
We propose to remove the final sentence in this section, “resource management plans are designed to guide and control future management actions and development of subsequent, more detailed and limited scope plans for resources and uses.” This sentence does not accurately describe the objectives of resource management planning; rather it describes the function of a resource management plan. Under the proposed rule, elements of the removed sentence would be revised and incorporated into the proposed definition for “plan components” (for more information, see the discussion on “plan components” at the preamble for proposed § 1601.0-5).
The BLM proposes this section, which is identical to that in the existing regulations.
The BLM proposes to revise paragraph (a) of this section to use active voice, stating “[t]he Secretary and the Director provide national level policy and procedure guidance for planning.” There would be no change in the meaning of this sentence or in the associated responsibilities. In the second sentence, we propose to establish a new responsibility for the BLM Director to determine the deciding official (a proposed new term defined in § 1601.0-5) and the planning area for resource management plans and for plan amendments that cross State boundaries. This is a change from existing regulations, where the deciding official is the State Director and the default planning area is a field office area, unless otherwise authorized by the State Director (see existing § 1610.1(b)). Although the BLM is able to establish a different planning area under existing regulations, the proposed rule would align with the BLM's intent to no longer rely on the field office area as the default resource management plan boundary and specify that the BLM Director is the appropriate employee to determine the deciding official and the planning area for resource management plans and plan amendments that cross State boundaries.
In making these changes, the BLM acknowledges that conservation, resource management, development activities, or other priorities such as landscape-scale mitigation may benefit from planning area boundaries that cross traditional BLM administrative boundaries and may require greater coordination of land use planning across BLM States and national level programs.
In paragraph (b) of this section, the BLM proposes to replace references to “State Directors” with “deciding officials” and to use active voice by stating “deciding officials provide quality control” instead of existing language which states that “State Directors will provide quality control” to improve readability. There would be minimal changes in the responsibilities associated with this role in the planning process. Although the BLM expects that BLM State Directors would continue to be the deciding official for resource management plans located within their BLM State boundaries (or an equivalent BLM Official should the boundaries of administrative oversight change in the future), in some situations a different deciding official may be appropriate. For example, a single BLM State Director could be the deciding official for a resource management plan or plan amendment that crosses State boundaries, and this would be determined by the BLM Director (see paragraph (a) of this section).
Deciding officials would be responsible for “quality control and supervisory review, including approval, for the preparation and amendment of resource management plans and related [EISs] or [EAs].” Proposed changes would clarify that deciding officials are responsible for quality control and supervisory review of plan amendments, in addition to resource management plans. These proposed changes are consistent with current practice and policy.
We propose to specify that deciding officials would determine the planning area for plan amendments that do not cross State boundaries, consistent with current practice and policy. The BLM requests public comment on the proposed responsibilities for the determination of the planning area for plan amendments. In particular, the BLM requests public comment on whether a different distinction than “crossing State boundaries” should be used to differentiate between amendments where the Director would determine the planning area and amendments where the deciding official would determine the planning area.
We propose to remove the requirement that deciding officials “provide additional guidance, as necessary, for use by Field Managers.” This language is unnecessary in the regulations. Deciding officials may provide guidance, as described in proposed § 1610.1-1, but this is only one of their many responsibilities during the planning process that are all encompassed by “supervisory review.” It is unnecessary and inappropriate to identify the provision of guidance as a unique responsibility. The BLM intends no change in practice or policy by removing “guidance” from the responsibilities section.
We also propose to remove the requirement that deciding officials “file draft and final [EISs].” This language is unnecessary and redundant with the requirement that deciding officials provide supervisory review for “related [EISs]” which would include supervisory review of filing the documents. Current BLM practice is for the deciding official to delegate the responsibility of filing EISs or EAs. The proposed change would be consistent with current practice.
Proposed changes in paragraph (c) of this section would replace references to “Field Managers” with “responsible officials” (a proposed new term defined in § 1601.0-5) and provide that responsible officials would prepare resource management plans and plan amendments, and related EISs and EAs. As discussed in the preamble to the proposed definitions in 1601.0-5, the term “responsible official” is adapted
The proposed changes are intended to facilitate planning across traditional BLM administrative boundaries. For instance, if the planning area for a resource management plan or plan amendment is larger than the BLM Field Office administrative boundary in order to address a landscape-scale resource issue, the BLM Field Manager may not be the most appropriate BLM employee to prepare the resource management plan or plan amendment. These changes are consistent with current practices used by the BLM. There are several examples where a BLM District Manager is the responsible official for the preparation or amendment of a resource management plan, such as the resource management plan currently under preparation for the Carson City District in Nevada.
We propose to include the preparation of related “EAs” as a responsibility of responsible officials. The proposed change would fix an existing inconsistency in the regulations. Responsible officials prepare plan amendments and either an EIS or an EA could be prepared to inform the plan amendment. Responsible officials would therefore be responsible for the preparation of a related EA, in addition to related EISs. The BLM intends no change in practice or policy from this addition.
We propose to remove the final sentence of paragraph (c) of this section, which requires that “State Directors must approve these documents.” Under the proposed rule, deciding officials would approve these documents, as discussed in paragraph (b) of this section.
The BLM proposes to add the definitions of fourteen new terms: Deciding official, High quality information, Implementation strategies, Indian tribe, Mitigation, Plan amendment, Plan components, Plan maintenance, Plan revision, Planning area, Planning assessment, Planning issue, Responsible official, and Sustained yield. The BLM proposes to also revise the existing definitions of: Areas of Critical Environmental Concern or ACEC, Conformity or conformance, Cooperating agency, Local government, Officially approved and adopted resource-related (land use) plans, and Resource management plan. The BLM proposes to remove the definitions of: Consistent, Eligible cooperating agency, Field Manager, Guidance, and Resource area or field office. The following paragraphs describe the proposed changes to these definitions and the rationale for each. This analysis does not discuss the definitions of terms that are proposed without amendment.
The proposed rule would provide a more precise definition of conformance, which would assist the BLM and the public in identifying whether a proposed action is in conformance with an approved resource management plan. The proposed rule would also remove the words “plan amendment” from the end of the definition. These words are not necessary; an approved plan amendment is encompassed by an approved resource management plan (
We also propose to add the words “appropriate” and “scope of their expertise” to the last sentence to indicate that cooperating agencies will participate in the planning process as feasible and “appropriate,” given the “scope of their expertise” and constraints of their resources. The added language would reinforce the fact
In connection with this change, we propose to delete the words “federally recognized” from five locations where the existing regulations refer to “federally recognized Indian tribes.” These references were added under the 2005 revision to the regulations (70 FR 14561), but other existing references to Indian tribes were not amended at that time. Consequently, the existing regulations are inconsistent in their use of terminology. The references to “federally recognized” Indian tribes would no longer be necessary as a result of the proposed definition, which includes only federally recognized Indian tribes. The five references are identified and clarified in the corresponding sections of this preamble.
It is important to note that the proposed rule would not affect government-to-government consultation with federally recognized Indian tribes during the preparation or amendment of a resource management plan. The proposed rule also would not affect implementation of the “Department of the Interior Policy on Consultation with Alaska Native Claims Settlement Act (ANCSA) Corporations” (2012). The BLM would continue to conduct government-to-government consultation with federally recognized Indian tribes and would also continue to consult with ANCSA corporations during the preparation and amendment of resource management plans, consistent with DOI policy.
This proposed change would mean that the requirements of § 1610.3-2(a) would apply to the “land use plans” of other Federal agencies, State and local governments, and Indian tribes, but would not apply to the “policies, programs, and processes.” There would be no regulatory requirements for consistency with the “policies, programs, and processes” of other Federal agencies, State and local governments, and Indian tribes. This proposed change is consistent with section 202(c)(9) of FLPMA. For more information, see the discussion on consistency requirements at the preamble for proposed § 1610.3-2.
Proposed language would clarify that the term “resource management plan” includes plan revisions. The proposed change would improve understanding that the revision of a resource management plan follows the same procedures as the preparation of a new resource management plan (see proposed § 1610.6-7).
We propose to revise existing language at the end of this definition to read “approval of a resource management plan is not a final implementation decision on actions which require further specific plans, process steps, or decisions under specific provisions of law and regulations.” The decision to approve a resource management plan is therefore not an approval of future actions within the planning area that require subsequent plans (such as a mining plan of operations), process steps (such as site-specific NEPA-analysis), or decisions (such as the decision to approve the action based on the site-specific NEPA analysis).
We propose to replace the word “plan” with “resource management plan” and to replace the word “shall” with “will” throughout this section, for the reasons previously described.
The BLM proposes this section, which is identical to that in the existing regulations.
In the first sentence of this section, we propose edits to replace “shall” with “will” for the reasons previously described, and “the Federal Land Policy and Management act of 1976” with FLPMA. The BLM intends no change in practice or policy from these proposed changes.
The second sentence of this section would be revised to state that the BLM will consider the impacts of resource management plans on resource, environmental, ecological, social and economic conditions at appropriate scales, rather than just on “local economies.” This broader range of conditions would include the consideration of impacts to local economies, in addition to the impacts on other conditions. The revised language more accurately describes current practice when considering impacts and would provide useful information for the deciding official. It is also important that these impacts be considered at appropriate scales. For example, it is important that the deciding official is aware of the socioeconomic impacts of a resource of national significance found within the planning area, such as the Federal Helium Reserve, which the BLM administers near Amarillo, Texas. The new language is consistent with the Planning 2.0 goals of addressing landscape-scale resource issues.
Finally, we propose edits to use active voice in the last sentence of this section and to require that the BLM consider the impacts of resource management plans on adjacent or nearby Federal and non-Federal lands, as well as the uses of adjacent or nearby Federal and non-Federal lands. The new language is consistent with the Planning 2.0 goals of addressing landscape-scale resource issues and would facilitate coordination and collaboration with adjacent Federal land managers and landowners, as appropriate.
We propose to change the heading of § 1610.1 by replacing the word guidance with framework. The broader heading would reflect the entire section as revised.
Many of the provisions of existing § 1610.1 would be found in §§ 1610.1-1, 1610.1-2, and 1610.1-3 of the proposed rule. Those sections are discussed in greater detail as follows.
Proposed § 1610.1-1 would address the development of guidance for resource management planning and general requirements for the preparation and amendment of resource management plans.
Proposed § 1610.1-1(a) contains provisions of existing § 1610.1(a). This section would still refer to planning guidance, but we propose to replace references to “State Director” with “deciding official” and references to “Field Manager” with “responsible official.” These changes are consistent with changes made throughout this proposed rule to facilitate planning across traditional BLM administrative boundaries. We propose to specify that the word “plan” refers to a “resource management plan.”
Proposed § 1610.1-1(a)(1) contains provisions of existing § 1610.1(a)(1), which explains that guidance may include “Policy established through Presidential, Secretarial, Director, or deciding official approved documents, so long as such policy is consistent with the Federal laws and regulations applicable to public lands.” We propose to remove existing language limiting this guidance to “National level policy” to also include policy developed at the deciding official level as another type of guidance that may be developed to help the responsible official prepare a resource management plan. We also propose to remove existing language that provides examples of policy, such as “appropriately developed resource management commitments.” These examples are unnecessary in the regulations and do not adequately cover the broad range of policy examples that could be included as guidance. The BLM intends no change in practice or policy from the proposed changes to this section. Rather, the proposed changes are intended to improve readability and reaffirm that the BLM may only develop or apply policy that is consistent with Federal laws and regulations.
Proposed § 1610.1-1(a)(2) contains most of the provisions found in existing § 1610.1(a)(2) with some revisions. We propose to remove existing § 1610.1(a)(3). This section would no longer be necessary because guidance developed at the deciding official level would be incorporated into proposed § 1610.1-1(a)(1). The proposed changes would remove existing requirements for the State Director to reconsider inappropriate guidance during the planning process. This language is vague and confusing, as it does not define what it means for guidance to be “inappropriate.” The BLM must comply with the requirements of Federal laws and regulations applicable to public lands and therefore guidance developed to inform the preparation of a resource management plan must also comply with Federal laws and regulations applicable to the public lands.
We propose to remove existing § 1610.1(b), which states “a resource management plan shall be prepared and maintained on a resource or field office area basis, unless the State Director authorizes a more appropriate area.” This language is no longer necessary because proposed § 1601.0-4 describes the responsibilities for determining future planning areas. For more information, see the discussion on the determination of planning areas at the preamble for proposed § 1601.0-4.
Proposed § 1610.1-1(b) would contain the provisions of existing § 1610.1(c). The proposed section would make several style changes: Changing “shall” to “will”, and abbreviating “Bureau of Land Management” to “BLM” in the last sentence. The first sentence would be revised to read “the BLM will use a systematic interdisciplinary approach in the preparation and amendment of resource management plans to achieve integrated consideration of physical, biological, ecological, social, economic, and other sciences.” The proposed language is consistent with section 202(c)(2) of FLPMA and would highlight the objective of using an interdisciplinary approach, as described in FLPMA, as well as the importance of integrated consideration of sciences in the planning process.
In the second sentence of proposed § 1610.1-1(b), we propose to replace the word “disciplines” with “expertise,” to reflect that BLM staff may have expertise outside of their formal discipline, and an “interdisciplinary approach” should be based on expertise, not formal disciplines. This proposed change is consistent with current practice. We propose to add the word “resource” before values, to clearly identify what type of values this sentence applies to and to specify that “the expertise of the preparers will be appropriate to . . . the principles of multiple use and sustained yield, or other applicable law.” No change in meaning, practice, or policy is intended by these proposed changes.
Finally, we propose to replace “Field Manager” with “responsible official” in the last sentence of proposed § 1610.1-1(b). This change would be consistent with other changes in terminology in this proposed rule.
Proposed § 1610.1-1(c) would state that the BLM will use high quality information to inform the preparation, amendment, and maintenance of resource management plans. High quality information includes the best available scientific information, but the requirement extends to other information as well. For example, “Traditional Ecological Knowledge” (TEK) refers to the knowledge specific to a location acquired by indigenous and local peoples over hundreds and thousands of years through direct contact with the environment. Under the proposed rule, TEK would be considered a type of high quality information that could inform the preparation, amendment, and maintenance of resource management plans, so long as the TEK is relevant to the planning effort and documented using methodologies designed to maintain accuracy and reliability, and to avoid bias, corruption, or falsification, such as ethnographic research methods.
As the BLM considers what constitutes high quality information for purposes of the planning process, the BLM is mindful of its obligations under the Information Quality Act, section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554, H.R. 5658), and implementing guidelines of OMB,
In addition, the BLM intends that the March 2015 publication, “Advancing Science in the BLM: An Implementation Strategy,” will inform a responsible official's consideration of high quality information. This publication describes several principles and practices that pertain to the identification and consideration of high quality information in resource management planning. They include: Using the best available scientific knowledge relevant to a problem or decision, including peer-reviewed literature where it exists; acknowledging, describing, and documenting assumptions and uncertainties; and using quantitative data when it exists, together with professional scientific expertise from within and outside the BLM.
Together, these requirements, policies, and strategies relating to high quality information, including scientific information, will guide responsible officials as they consider information for planning purposes. The BLM anticipates that including the BLM's commitment to using high quality information in the planning regulations, and operating consistent with Departmental policy on scientific integrity and BLM's strategy for advancing science, would result in greater consistency in how BLM field, district, and State offices identify and use information, including scientific information, throughout the land use planning process. The proposed change would simply reaffirm current practice and policy.
Proposed § 1610.1-2 would describe the components of a resource management plan. The existing definition of “resource management plan” lists eight elements that a plan “generally establishes” (see existing § 1601.0-5(n)). The proposed rule would revise these elements and divide them into “plan components” and “implementation strategies” (see proposed § 1610.1-3). The plan components would provide planning-level direction with which future management activities and decisions must be consistent (
Proposed § 1610.1-2 describes the following six “plan components” which every resource management plan will include: Goals, objectives, designations, resource use determinations, monitoring and evaluation standards, and certain lands identified as available for disposal, as applicable. Plan components provide planning-level management direction and would therefore only be changed through plan amendments or revisions under proposed new § 1610.1-2(c), although typographical and mapping errors, or minor changes in mapping or data associated with a plan component could continue to be updated through plan maintenance, consistent with current BLM policy and practice (see proposed § 1610.6-4). The approval of plan components would be subject to protest procedures (see proposed § 1610.6-2).
This proposed distinction between plan components and implementation strategies would facilitate the preparation of landscape-minded resource management plans. The proposed rule would more clearly distinguish between the planning-level management direction reflected in the plan components of an approved resource management plan and related implementation strategies, which facilitate the implementation of future actions consistent with the plan components, but would not be considered a component of the resource management plan. By doing so, the proposed rule would enable the BLM to provide planning-level management direction through the development of plan components, while using adaptive approaches to implement future actions under the plan. It would also provide consistency throughout the BLM in how plans are structured. The following paragraphs discuss plan components in detail.
The six proposed plan components are based on the first four elements and the eighth element described in the existing definition of a resource management plan (see existing §§ 1601.0-5(n)(1) through 1601.0-5(n)(4) and 1601.0-5(n)(8)). Under the proposed rule, these elements would be called plan components and each component would be provided a distinct name and a precise definition to facilitate understanding and consistent implementation.
Proposed §§ 1610.1-2(a)(1) and 1610.1-2(a)(2) describe the first two types of plan components—goals and objectives.
The
Second, the
Measurable objectives would be defined using the most appropriate scale of measurement for that objective. For example, an objective to manage an area as visual resource class one, two, or three is based on an ordinal scale of measurement. An ordinal scale ranks categories in order (1st, 2nd, 3rd, etc.), but there is no relative degree of difference between the categories. In contrast, an objective related to managing for a specific proportion of vegetation cover (
To the extent practical, objectives should identify standards to mitigate undesirable effects to resource conditions and should provide integrated consideration of resource, environmental, ecological, social, and economic factors (see 43 U.S.C. 1712(c)(2)). The proposed changes would support implementation of the BLM mitigation policy through the development of standards to be used for mitigating undesirable effects to resource conditions. For example, an objective might identify a mitigation standard for no net loss to a sensitive species would provide a standard to guide future authorizations in avoiding, minimizing, and compensating for any unavoidable remaining impacts to the sensitive species. The proposed changes would also support the use of adaptive management where appropriate, as a measurable objective could identify a threshold that triggers a response, such as the initiation of a plan amendment. If such a threshold were identified as part of a measurable objective, the BLM would use the monitoring and evaluation process to determine whether the threshold had been met (see the discussion on monitoring and evaluation at the preamble for proposed § 1610.6-4).
Although both goals and objectives are currently described in the definition of a resource management plan as an element that is “generally” included (see existing § 1601.0-5(n)), the proposed rule would explicitly require the inclusion of goals and objectives; this proposed change is consistent with current BLM policy established in the existing Land Use Planning Handbook. The proposed rule would also provide clarity on the definition of the terms, which would improve understanding and consistency in implementation.
Proposed § 1610.1-2(b) would describe four additional plan components that are developed either to achieve the goals and objectives of the resource management plan, or to comply with applicable legal requirements or policies, consistent with the principles of multiple use and sustained yield or other applicable law, such as national monuments established under the Antiquities Act of 1906 (16 U.S.C. 431-433), which must use and observe the principles specific to their establishment. These four plan components include designations, resource use determinations, monitoring and evaluation standards, and lands identified as available for disposal, as applicable. These plan components would also provide planning-level management direction while supporting
Paragraph (b)(1) of this section describes “
Planning designations would be identified through the BLM land use planning process in order to achieve the goals and objectives of the plan or to comply with applicable legal requirements or policies. An example of existing designations or allocations that would become planning designations that could be identified in order to achieve the goals and objectives of the plan is a research natural area, a special recreation management area, a backcountry conservation area, a wildlife corridor area, or a solar energy zone. An example of a planning designation that would be identified in order to comply with applicable legal requirements or policies is an ACEC. The BLM intends to develop a list of planning designations available for use during the planning process as part of the forthcoming revision of the Land Use Planning Handbook. It is not, however, the BLM's intention that all public lands would be included in a planning designation; rather, the proposed rule and the forthcoming revision of the Land Use Planning Handbook would clarify that this is an existing planning tool that is available during the planning process to highlight and prioritize unique or special areas that require management that is different from surrounding lands.
Non-discretionary designations, in contrast, are identified by the President, Congress, or the Secretary of the Interior pursuant to other legal authorities. For instance, Under the Wilderness Act of 1964, Congress has the exclusive authority to designate or change the boundaries of wilderness areas. The BLM and other Federal land management agencies manage wilderness areas consistent with Congressional direction. The BLM manages National Conservation Areas (NCA) and similarly designated lands such as Cooperative Management and Protection Areas, Outstanding Natural Areas, and one Forest Reserve (the Headwaters Forest Reserve in northern California) pursuant to Congressional direction.
Non-discretionary designations made by the Secretary of the Interior, Congress, or the President are not established or amended through the BLM land use planning process. These non-discretionary designations would, however, be identified in a resource management plan, and management direction for the designation, including plan components, would be developed, consistent with the over-arching direction provided in the proclamation, legislation, or order through which the non-discretionary designation was established.
There would be no substantive change in the proposed rule, other than identifying designations as a plan component and specifying that planning designations can be applied either to achieve the goals and objectives of the resource management plan or to comply with legal requirements or policies. Further, the proposed rule would clarify the difference between a designation and other plan components, such as a resource use determination. The BLM believes that differentiating between resource use determinations and designations in the regulations would help to improve general understanding of terminology.
The proposed rule would provide a more precise characterization of land use allowances, exclusions, and restrictions than the existing definition of a resource management plan. This proposed change would improve understanding and consistency in implementation, as well as consistent use of terminology. The BLM intends no substantive change in practice associated with this new terminology; however, under the proposed rule there would be changes in how the various parts of a resource management plan are categorized.
For example, under this proposed rule, some common “management actions” described in resource management plans prepared under the existing planning regulations would be classified as “resource use determinations,” such as any explicit restrictions to an allowed use at the land use planning level. For example, mineral lease stipulations such as No Surface Occupancy or Controlled Surface Use would be considered resource use determinations, as these constraints represent restrictions to an allowed use that are explicitly required at the land use planning level. This is important because resource use determinations would be changed only through plan amendments or revisions. This proposed change would not represent a change in current practice under the existing regulations, as planning-level restrictions to an allowed use are currently subject to protest procedures and may be changed only through plan amendments. Rather, the proposed change would ensure that restrictions to an allowed use, using current planning terminology, are classified as a resource use determination under the proposed new definitions.
In addition, under the proposed descriptions of planning designations and resource use determinations, the BLM affirms that both planning designations and resource use
For example, under the existing planning regulations, the BLM applied both approaches when developing the “Approved Resource Management Plan Amendments and Record of Decision (ROD) for Solar Energy Development in Six Southwestern States” (Western Solar Energy Plan). The Western Solar Energy Plan developed a list of areas where utility-scale solar energy development was prohibited. Some of these areas were defined by explicit geographic boundaries, such as lands in the Ivanpah Valley in California and Nevada. Others were defined by the presence of a specific land use designation in an applicable land use plan (
Lands identified as available for disposal from BLM administration under section 203 of FLPMA would constitute the final type of plan component and would replace the existing element of a resource management plan described as “land areas . . . for transfer from Bureau of Land Management Administration” (see existing § 1601.0-5(n)(1)). Section 203 of FLPMA provides for the sale of tracts of public land where the Secretary (implemented by the BLM under delegated authority) determines through the land use planning process that the sale meets specified criteria. The proposed rule would specify that lands identified as available for disposal under section 203 of FLPMA would be considered a plan component, however disposal of lands may not be applicable to every resource management plan. For example, it is unlikely that a resource management plan developed for a national monument or national conservation area would identify lands as available for disposal. As a plan component, identification of lands as available for disposal would only be changed through amendment or revision, consistent with current BLM policy.
The BLM requests public comment on the proposed plan components. In particular, the BLM requests public comment on the distinction between planning designations, which identify areas where specific resources or uses would be prioritized, and resource use determinations, which identify areas where specific uses would be excluded, restricted, or allowed, and whether these two components should be combined into a single plan component. For example, resource use determinations could be revised to be a type of planning designation.
Proposed § 1610.1-3 describes other types of information, called implementation strategies, that may be developed in conjunction with a resource management plan and included as an appendix to the resource management plan, but do not represent planning level management direction and are not considered components of the resource management plan. Implementation strategies provide examples of how the BLM intends to implement future actions consistent with the planning-level management direction. For example, an implementation strategy might describe an integrated pest management strategy to address invasive species, including potential actions the BLM may take such as active removal of invasive species, and the methods BLM may use to take these actions. This strategy would be designed to achieve a measurable objective, such as a desired plant community composition.
Implementation strategies provide examples of how the BLM might achieve the resource management plan objectives, but in any particular resource management plan they would not provide an exhaustive list of every future action the BLM might take to achieve the resource management plan's objectives. Nor do they represent a commitment or a decision to implement the potential actions described in the implementation strategy. A future implementation decision occurs after adoption of a plan. As a result, future actions associated with, or incorporating an implementation strategy, would not occur until the implementation stage and would therefore require site-specific NEPA analysis and compliance with other relevant laws before a final decision is made and any action is taken.
Unlike the plan components, implementation strategies could be updated at any time to incorporate new information and such updates do not require a plan amendment or plan maintenance (for more information see the discussion at the preamble for paragraph (c) of this section).
Proposed § 1610.1-3 would describe two types of implementation strategies: Management measures and monitoring procedures. The proposed rule affirms that the development of other types of implementation strategies may occur through future policy and guidance, as is currently the case.
Under this proposed rule, management measures could include resource management practices, best management practices, standard operating procedures, the preparation of more detailed and specific plans, or other measures as appropriate. Management measures developed in conjunction with a resource management plan would not be an exhaustive catalog of possible approaches, but would only describe future actions that the BLM may take, consistent with the plan components. Specific examples of management measures include the application of vegetation treatments to improve wildlife habitat or reduce fuel-loading for wildfire prevention; re-vegetation to achieve restoration objectives; or identification of the need to prepare a travel management plan for a particular area.
As proposed, the BLM would update a list of management measures, as needed, to reflect new information such as changes in resource conditions or a BLM determination that the management measure is not effective in achieving the goals and objectives of the resource management plan based on the results of monitoring and evaluation. The proposed rule would facilitate the use of adaptive approaches for implementation and improve the BLM's ability to respond to and incorporate new information. At the same time, a particular management measure, if and when implemented, would support progress toward the measureable objectives of the resource management plan and must be implemented consistent with all plan components, thus changes made to the list of management measures would be constrained by the parameters of the measurable plan objectives and other plan components. For example, if a management measure described the BLM's intent to implement habitat improvements through vegetation manipulation in an area in order to achieve a vegetation related plan objective, and the results of monitoring and evaluation indicated over time that habitat improvements were resulting in a negative impact on vegetation objectives, the BLM could update the list of management measures to remove or update the ineffective methods. Site-specific NEPA analysis would be conducted before any management measure was implemented.
Management measures, as the rule proposes, might be included with a resource management plan, and would be either examples of, or likely approaches that, indicate to the public how the BLM intends to implement future actions consistent with the plan, but the approval of a resource management plan does not represent a final decision for a management measure nor does it constrain BLM's discretion to develop management measures to apply to future implementation decisions. The final decision for a future action associated with a management measure would occur at the implementation stage and would require site-specific NEPA analysis. Any changes made to the list of management measures described in a resource management plan would be made available for public review at least 30 days prior to their implementation.
In addition, the BLM would provide for any public involvement required by NEPA before authorizing the implementation of site-specific actions. For example, preparation of an EA, or documenting reliance on a categorical exclusion (if available), or determination of NEPA adequacy before authorizing implementation of a vegetation management treatment to improve wildlife habitat; or the preparation of an EIS before authorizing a right-of-way application that incorporated best management practices identified in the resource management plan.
Although management measures would represent a new term and category in the planning regulations, the types of actions that would be included as management measures and the process for updating that information would be consistent with current BLM practice and interpretation of the existing planning regulations. For example, the BLM often provides a list of best management practices associated with permitted activities as an appendix to the resource management plan. The proposed changes would provide clarification in the regulations and improve consistency in implementation across the BLM.
Monitoring procedures would also be a type of implementation strategy under proposed § 1610.1-3(a)(2). Monitoring procedures would describe methods for monitoring the resource management plan, consistent with the monitoring standards (see proposed § 1610.1-2(b)(3)). Under the proposed rule, these procedures would be updated as new information becomes available—either as monitoring technology develops, for instance, or more is known about the resource being monitored. For example, advances in remote sensing and geospatial technologies have provided more accurate and cost effective methods to monitor vegetation and wildlife activity in recent years and will likely continue to improve in the future; under the proposed rule these advances in technology could be incorporated into revised monitoring procedures. For a detailed discussion of monitoring and evaluation, see the preamble for § 1610.6-4.
Proposed § 1610.1-3(b) would state that implementation strategies are not a plan component but are intended to assist the BLM in implementing the plan components. The proposed language affirms that an implementation strategy does not provide planning-level management direction and is therefore not a component of the resource management plan; implementation strategies must, however, be in conformance with the resource management plan. Nonetheless, the BLM intends that implementation strategies would be included as appendices to the resource management plan and made available for public review in conjunction with the publication of the proposed resource management plan (see proposed § 1610.5-5).
Proposed § 1610.1-3(c) would explain that implementation strategies could be updated at any time in the future in response to new information and these updates would not require a plan amendment or the formal public involvement and interagency coordination process described in proposed §§ 1610.2 and 1610.3. This is because implementation strategies are not plan components. Rather, they are simply provided as background information to help the public have a better understanding of what a future site specific implementation action might look like. It is important to note that implementation strategies, and future updates to implementation strategies, would be subject to the high quality information requirement described in proposed § 1610.1-1(c). The BLM would be required to make any changes to implementation
The BLM requests public comments on the proposed distinction between plan components and implementation strategies. In particular, the BLM requests public comments on the procedures for updating implementation strategies, including the need for, timing and potential scope of public involvement.
In the heading of this section and throughout the planning regulations, the BLM proposes to replace the term “public participation” with “public involvement” to be more consistent with FLPMA. The BLM intends no change in practice or meaning from this proposed revision. Public involvement is central to the BLM land use planning process under FLPMA. Section 202(a) directs the Secretary, “with public involvement” and consistent with FLPMA, to “develop, maintain, and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands. . . .” Section 202(f) requires that the Secretary “allow an opportunity for public involvement and by regulation shall establish procedures . . . to give Federal, State, and local governments and the public, adequate notice and opportunity to comment upon and participate in the formulation of plans and programs relating to the management of the public lands.” Section 103(d) of FLPMA broadly defines the term “public involvement” as “the opportunity for participation by affected citizens in rule making, decision making, and planning with respect to the public lands, including public meetings or hearings held at locations near the affected lands, or advisory mechanisms, or such other procedures as may be necessary to provide public comment in a particular instance.”
The BLM interprets this definition as encompassing notice by varied means, including by making a planning document available electronically (
In addition, the BLM proposes to distinguish in the regulations between making a document “available for public review” and specifically requesting public comments. Where the BLM makes documents available for public review, the BLM believes it is important for the public to have an opportunity to see the BLM's progress. The public is welcome to bring any questions or concerns to the BLM's attention based on public review and the BLM will consider their input. In these circumstances, however, the BLM is not requesting comments and does not provide a time-period for submission of comments or anticipate formally summarizing or responding to any public comments received. This is not a change from existing practice, but would clarify the BLM's intent when we use this terminology.
In contrast, where the BLM “requests written comments,” the BLM will provide a minimum of 30 days for response (see proposed § 1610.2-2(a)). As appropriate, the BLM also summarizes and responds to substantive comments. For example, the BLM summarizes public comments raised during scoping, develops planning issues based on the comments, and issues a scoping report. Similarly, the BLM summarizes and responds to substantive public comments submitted on a draft resource management plan and draft EIS.
In some situations, the BLM may request written comments, but would not provide a written response. For example, the BLM may request public comment on a draft EA-level amendment without issuing a written response. Again, this is not a change from existing practice, but would clarify to the public the BLM's intent when we use this terminology.
We propose to restructure § 1610.2 to clearly indicate the different aspects of public involvement in the land use planning process. General provisions are followed by specific sections, including: Public notice; public comment periods; and availability of the resource management plan. The following table and paragraphs explain the specific proposed changes to § 1610.2 and the supporting rationale. They also request public comments on specific provisions.
Proposed § 1610.2(a) remains relatively unchanged from existing regulations and would state that the BLM will provide the public with opportunities to become meaningfully involved in and comment on the preparation and amendment of resource management plans. We propose removing references to “related
We also propose to remove language on giving “early notice of planning activities” from this section. This language is vague and unnecessary because proposed § 1610.2-1(e) would carry forward the existing requirement that the BLM notify the public at least 15 days before any public involvement activities. The BLM would provide further advance notice beyond the 15-day requirement to the extent possible, consistent with current practice.
Proposed § 1610.2(a) would also carry forward the existing requirement that public involvement in the planning process conform to the requirements of NEPA and its associated implementing regulations. The word “shall” would be replaced with “will” and the paragraph would be revised to use active voice for improved readability.
Existing § 1610.2(b) requires the BLM to publish a planning schedule early in each fiscal year in order to advise the public of the status of each plan being prepared or scheduled to start during the year, the major planning actions expected during the fiscal year, and the projected new planning starts for the next three fiscal years. The BLM proposes to revise this requirement. Proposed § 1610.2(c) would replace existing § 1610.2(b) and would require the BLM to post the status of each resource management plan in process of preparation or scheduled to be started on the BLM's Web site before the close of each fiscal year. The BLM often does not know its budget, priorities, or on-the-ground needs several years in advance; in recent years the BLM has operated under a continuing resolution to the budget for several months into the fiscal year, and is therefore unable to accurately predict a planning schedule with the specificity required in existing regulations.
The BLM's current practice is to post a planning schedule for resource management plans currently under preparation or approved to initiate preparation of a resource management plan on the national BLM planning Web site when this information is available. The proposed change would give the BLM flexibility in communicating its planning schedule, including by posting the schedule electronically, and would be consistent with current practice. It would also reflect the fact that budgetary constraints and the need to address new and emerging resource issues make it difficult to accurately predict a planning schedule beyond the current fiscal year.
Proposed paragraph (c) of this section would not include the related requirement for requesting public comments on the projected new planning starts so that comments can be considered when refining priorities. The proposed change would make the planning regulations consistent with current BLM practice, but would represent a change from existing regulations.
Proposed § 1610.2(b) would be adapted from § 1610.2(d) and (e) of the existing planning regulations. It would maintain the existing requirement that public involvement activities conducted by the BLM be documented by a record or summary of the principal issues discussed and comments made. It further provides that the record or summary would be available to the public and open for 30 days to any participant who wishes to review the record or summary. There would be no change in BLM operation or impact on the public under the proposed rule. For example, the BLM would continue to prepare a scoping report following the identification of planning issues (see proposed § 1610.5-1) summarizing scoping meetings and written scoping comments under proposed § 1610.2(b).
Existing § 1610.2(c) requires the BLM to publish a Notice in the
Proposed § 1610.2-1 would describe the requirements for when and how the BLM would provide public notice related to opportunities for public involvement. We also propose to replace the word “shall” with “will” throughout these sections for improved readability.
Proposed § 1610.2-1(a) contains the provisions of existing § 1610.2(f) with edits for consistency with other proposed changes and lists the steps in the planning process when the BLM would notify the public and provide opportunities for public involvement in the preparation of a resource management plan, or an EIS-level amendment, as appropriate, to the areas and people involved. The steps would be: (1) Preparation of the planning assessment, as appropriate; (2) Identification of planning issues; (3) Review of the preliminary resource management alternatives and rationale for alternatives; (4) Review of the procedures, assumptions, and indicators, as outlined in the basis for analysis; (5) Comment on the draft resource management plan; and (6) Protest of the proposed resource management plan. These steps would include new opportunities for public involvement early in the planning process, such as during the planning assessment, as appropriate. The words “as appropriate” are included with the “preparation of the planning assessment” because the planning assessment would not be required for minor EIS-level amendments or when an existing planning assessment is determined to be adequate to inform the preparation of an EIS-level amendment. Each of these new opportunities is addressed in the corresponding section of this section-by-section analysis.
The BLM is also considering the option where the provisions of proposed § 1610.2-1(a) would apply to the preparation of a resource management plan, but would not apply to EIS-level amendments. The BLM recognizes that EIS-level amendments tend to be smaller in scope than the preparation of a resource management plan, and therefore, it may be appropriate to provide different opportunities for public involvement. Under this alternative, the proposed rule would describe the steps when the BLM would notify the public and provide opportunities for public involvement in the preparation of an EIS-level amendment, as appropriate to the areas and people involved. These steps would include: (1) Identification of planning issues; (2) Comment on the draft resource management plan; and (3) Protest of the proposed resource management plan. The BLM requests public comment on this alternative option and whether EIS-level amendments require the same opportunities for public involvement as when the BLM prepares a resource management plan.
Proposed § 1610.2-1(b) would list the steps in the planning process when the BLM would notify the public and provide opportunities for public involvement in the preparation of a plan amendment where an EA is prepared
The existing regulations do not require that BLM provide opportunities for public involvement during the identification of planning issues for EA-level amendments, however the BLM often chooses to provide such opportunities. Under the proposed rule, public involvement would be required when identifying planning issues for EA-level amendments. The proposed change would support the goal of establishing early opportunities for public involvement in the planning process, including EA-level amendments. The proposed rule would not, however, require that the BLM request public comment on draft EA-level amendments, consistent with the existing regulations. The BLM often chooses to request public comments on draft EA-level amendments, and in such circumstances the public would be provided 30 calendar days for response (see proposed § 1610.2-2(a)).
Proposed § 1610.2-1(c) through (e) would be general provisions that apply whenever the BLM provides public notice relating to the preparation or amendment of a resource management plan. Under proposed § 1610.2-1(c), we propose new requirements that the BLM announce opportunities for public involvement by posting a notice on the BLM Web site and at all BLM offices within the planning area.
These new requirements would be consistent with current practice in many BLM offices and would ensure consistency in implementation throughout the BLM. This new provision would provide certainty to the public on where they could find information on all public involvement opportunities. The BLM anticipates providing additional notifications using formats that are relevant and accessible to the various publics interested in or affected by the planning effort. For example, the BLM could also post an announcement at a local library, post-office, or other frequently visited location; issue a local, regional, or national press release; notify community leaders of the opportunity; or post an announcement using various social media. The use of these additional formats would vary based on the location and public interest in the planning effort.
Proposed § 1610.2-1(d) provides that individuals or groups could ask the BLM to notify them of opportunities for public involvement related to the preparation and amendment of a resource management plan. The BLM would notify those individuals or groups through written or electronic means, such as a letter sent by U.S. mail or email.
Under existing regulations (§ 1610.2(d)), the Field Manager must maintain a mailing list of those individuals or groups known to be interested in or affected by a resource management plan or that have asked to be placed on the list and notify those individuals or groups of public participation activities. The proposed change would remove the requirement for the BLM to maintain a list of groups or individuals “known to be interested in or affected by a resource management plan,” which places an unnecessary burden on the BLM to find contact information for groups or individuals that may not be readily available. The proposed rule would instead require the BLM to notify any groups or individuals that have explicitly requested to be notified of opportunities for public involvement.
Finally, under proposed § 1610.2-1(e), the BLM would continue to notify the public at least 15 days before any public involvement activities where the public is invited to attend, such as a public meeting. This requirement is the same as that in § 1610.2(e) of the existing regulations. It is intended to allow members of the public to plan their schedules and make arrangements to attend scoping meetings, “open house” style workshops, or other public meetings that are part of the BLM land use planning process. The BLM would provide further advance notice beyond the 15-day requirement to the extent possible, consistent with current practice.
Proposed § 1610.2-1(f)(1) provides that when initiating the identification of planning issues, in addition to posting a notice on the BLM's Web site and at all BLM offices in the planning area and providing direct notice in writing to those individuals or groups who have requested notification, the BLM would also publish a notice in appropriate local media, including in newspapers of general circulation in the planning area. This requirement would apply regardless of the level of NEPA analysis (
Proposed § 1610.2-1(f)(2), which applies more narrowly, provides that the BLM would also publish a NOI in the
This provision, would remove the requirement to publish a NOI in the
Removing the requirement to publish an NOI for EA-level amendments would also improve efficiency and reduce the cost of amendments that have no
The proposed rule would not include the existing language from § 1610.2(c) allowing the Field Manager to decide whether it is appropriate to publish a notice in media in adjoining States. This language is no longer needed. As proposed, § 1610.2-1(f) would allow the BLM discretion to identify “appropriate local media,” and this encompasses media in adjoining states. There is not expected to be a change implementation of this requirement.
Proposed § 1610.2-1(f)(3) outlines the information that would be included in the notices described in § 1610.2-1(f)(1) and (2) and contains the provisions of existing § 1610.2(c)(1) through (8), respectively, as follows.
There would be no changes to the requirement in proposed paragraph (f)(3)(i) of this section. We propose to specify in proposed paragraph (f)(3)(ii) of this section that the “plan” in reference is a “resource management plan.” There would be no changes to the requirement in proposed paragraph (f)(3)(iii) of this section. In proposed paragraph (f)(3)(iv) of this section, we would replace “disciplines” with “expertise,” to reflect that BLM staff may have expertise outside of their formal discipline, and an “interdisciplinary approach” should be based on expertise, not formal disciplines. We would also specify that the “plan” in reference is a “resource management plan” and the purpose of having a range of expertise represented is to “achieve an interdisciplinary approach.” There would be no substantive change in practice or policy. In proposed paragraph (f)(3)(v), we would add language indicating that the notice should include the kind and extent of public involvement activities “as known at the time.” Although there would be no substantive change in practice or policy, this would clarify that the BLM may always provide additional opportunities for public involvement as planning proceeds. There would be no substantive changes to the requirements in proposed paragraphs (f)(3)(vi) through (f)(3)(viii) of this section.
The BLM believes the proposed approach, as described in paragraphs (a) through (f) of this section, would provide an effective method of public notification, because it relies on a combined approach of: (1) Posting such notices on the BLM's Web site and at BLM offices in the planning area; (2) Providing direct notice by email or in writing to those individuals or groups who have requested notification; (3) Providing notice in the
Proposed § 1610.2-1(g) contain the provisions of existing § 1610.2(f)(5) and provide that if the BLM intends to select an alternative that is substantially different than the proposed resource management plan, the BLM would notify the public and provide an opportunity for public comment on the change. These requirements are intended to ensure that the public has an opportunity to comment on important changes that are made late in the planning process, such as those that result from protest resolution or the recommendations of a Governor during the Governor's consistency review.
Proposed § 1610.2-1(h) would require the BLM to notify the public when a resource management plan or plan amendment has been approved, consistent with current practice. The BLM expects to post this notification on the BLM Web site, at the local BLM office where the plan was prepared, and by direct notification to those individuals and groups that have asked to receive notice of specific planning efforts. This notification would help those who are interested to stay up-to-date on plans and increase transparency.
Proposed § 1610.2-1(i) would establish a new requirement that the BLM notify the public any time changes are made to an approved resource management plan through plan maintenance and make those changes available to the public at least 30 days before the change is implemented. The proposed change would provide transparency to the public on minor changes made to plan components, such as the correction of typographical or mapping errors or to reflect minor changes in mapping or data. The BLM expects that this notification would be provided by posting the changes to the BLM Web site.
Proposed § 1610.2-1(j) would require that the BLM also notify the public any time a change is made to an implementation strategy and make those changes available to the public at least 30 days before their implementation. This notification would provide transparency to the public on changes to implementation strategies, such as management measures or monitoring procedures (for more information, see the discussion on implementation strategies at the preamble for proposed § 1610.1-3(c)).
Proposed § 1610.2-2(a) through (c) would address the length of public comment periods and would replace most of existing § 1610.2(e). Proposed § 1610.2-2(a) provides that when requesting written comments, the BLM would provide a comment period of at least 30 calendar days, unless a longer period is required by law or regulation. For example, when the BLM requests scoping comments, a minimum 30 day comment period would be required; if the BLM offers a public comment period for a plan amendment where an EA is prepared, a minimum 30 day comment period would be required. This section maintains the requirement from existing § 1610.2(e) to provide at least 30 calendar days for public comment, while clarifying that in certain circumstances the BLM is legally required to offer a longer comment period.
Proposed § 1610.2-2(b) describes the public comment period the BLM would provide for draft EIS-level amendments. Proposed § 1610.2-2(b) states that the BLM would provide at least 45 calendar days for public comment on the draft plan amendment and draft EIS. This would be shorter than the 90-day public comment period that applies to all EIS-level plan amendments under the existing planning regulations, but would be consistent with existing NEPA requirements. The BLM believes that aligning planning requirements with NEPA requirements would make the planning process, as well as the NEPA process, less confusing to the public.
Proposed § 1610.2-2(c) describes the public comment period the BLM would provide for draft resource management plans and draft EISs. Proposed § 1610.2-2(c) states that the BLM would provide at least 60 calendar days for public comment on the draft resource management plan and draft EIS. This would be shorter than the 90-day public comment period that applies to all draft resource management plans under the existing planning regulations. Proposed § 1610.2-2(c) would retain the existing
The BLM believes it is appropriate to reduce the length of public comment periods on draft EIS-level amendments and draft resource management plans because the public would be provided an opportunity to review the preliminary resource management alternatives, rationale for alternatives, and the basis for analysis prior to the publication of the draft EIS-level amendment or draft resource management plan (see proposed §§ 1610.5-2 and 1610.5-3). This would be a change from current policy where the public is not provided an opportunity to review these items until the publication of the draft EIS-level amendment or draft resource management plan. The BLM believes that providing earlier opportunities for public review of the resource management alternatives, rationale for alternatives, and the basis for analysis while also reducing the length of public comment periods for draft EIS-level amendments and draft resource management plans, would provide the appropriate balance between providing new opportunities for meaningful public involvement, while still maintaining an efficient timeline for preparing EIS-level amendments and resource management plans.
Because plan amendments are narrower in scope than the preparation of a resource management plan, the BLM believes that it would be appropriate to specify a slightly shorter public comment period for EIS-level amendments than for draft resource management plans in the regulations. The proposed rule would allow responsible officials discretion to offer longer public comment periods or grant extensions as appropriate, on a case-specific basis. The BLM requests public comment on the proposed changes and how the BLM could otherwise maintain an efficient timeline for the preparation of EIS-level amendments and resource management plans while also providing for meaningful public involvement.
Consistent with the existing regulations, the proposed rule would not explicitly address situations where the BLM prepares an EA for a plan amendment (EA-level amendment) and the BLM offers an opportunity for public comment. In this situation, however, the BLM would provide at least 30 calendar days for public comment on the draft plan amendment, unless a longer period is required by law or regulation, consistent with the requirements of proposed § 1610.2-1(c). The public comment period would begin on the date the BLM notifies the public of the availability of the draft plan amendment and EA.
While the BLM often offers a public comment period on an EA-level plan amendment, NEPA does not require one,
The following table provides a comparison of some public involvement opportunities in the proposed rule for EA-level amendments, EIS-level amendments, and resource management plans.
Proposed § 1610.2-3 addresses the availability of resource management plans. Proposed § 1610.2-3(a) would contain revised language from existing § 1610.2(g) and require that the BLM make copies of the draft, proposed, and approved resource management plan or plan amendment reasonably available for public review. The proposed rule would require, at a minimum, that the BLM make copies of these documents available electronically and at all BLM offices within the planning area.
For example, the BLM could make documents available electronically by posting documents on the BLM Web site, or if high-speed Internet access is limited in an area, by sending participants a Compact Disc or a USB flash drive in the mail. The BLM would also make resource management plans available for public viewing at all BLM offices within the planning area. While this is a change from existing regulations, it is consistent with current practice for most BLM offices. The proposed language would replace the existing requirements to make copies of the resource management plan available at the State, District, and Field office (see existing §§ 1610.2(g)(1) through (3)) and copies of supporting documents available at the office where the plan was prepared. The proposed changes would increase electronic availability of documents and change the BLM offices where the document is required to be available for viewing.
We propose to remove the existing requirement to make “supporting documents” available to the public as this term is vague and it is unclear what is considered a supporting document. The BLM makes key supporting documents, such as a biological opinion or other relevant reports, available to the public as appendices to the resource management plan or plan amendment. These types of supporting documents would therefore be posted on the BLM's Web site or made available at BLM offices within the planning area. The BLM would not, however, post the entire project file, including email records or other types of communication, to the BLM's Web site or make the entire project file available at BLM offices within the planning area. This would be inconsistent with current practice and policy and would place an unnecessary burden on the BLM. These types of supporting documents are made available to the public through other means, such as a Freedom of Information Act request.
The proposed requirements to make resource management plans available electronically reflect that digital technology and Internet access is far more widely available than it was when these regulations were last updated. These proposed requirements would advance BLM policy on transitioning to electronic distribution of NEPA and planning documents (IM 2013-144, Transitioning from Printing Hard Copies
The BLM recognizes, however, that there are many communities with limited technological and Internet availability, such as rural communities and some environmental justice communities.
Proposed § 1610.2-3(b) would clarify the requirements in existing § 1610.2(g) that the BLM would make single printed copies of a resource management plan available to individual members of the public upon request during the public involvement process, and that after the BLM has approved a plan, the BLM may charge a fee for additional printed copies. The BLM is considering an alternative option in the regulations to make these copies available through digital means, such as a compact disc or other digital storage device, instead of printed copies. This option would allow the agency to continue to move away from printing paper copies in the future as technology continues to become more available to the public. The BLM requests public comment on whether making a printed copy of resource management plans available to individual members of the public is necessary, or if a digital copy of resource management plan would be appropriate.
Proposed § 1610.2-3(b) would also maintain the language in existing § 1610.2(g) concerning fees for reproducing requested documents beyond those used as part of the public involvement process, although it refers to a “resource management plan” instead of a “revision” and “public involvement” instead of “public participation.” This word change would reflect changes made throughout this proposed rule and the use of the FLPMA term “public involvement.” These proposed changes would not be a change in practice or policy.
We propose to remove existing § 1610.2(j) and (k). The BLM prepared the coal program regulations simultaneously with the first land use planning regulations under FLPMA in the late 1970's and certain coal-related provisions remain in 43 CFR subpart 1610. The BLM believes that these coal-related provisions are inappropriate in the planning regulations, as they are either duplicative of the coal program regulations, or reference procedures that are inconsistent with current practice and policy.
Existing § 1610.2(j) requires consultation with surface owners when resource management plans involve areas of potential mining for coal by means other than underground mining. Input and consent from a qualified surface owner is required at the leasing stage under 43 CFR 3427.1, therefore existing 1610.2(j) is duplicative of the consultation requirements at 43 CFR 3427.1 and unnecessary.
Existing § 1610.2(k) would also be removed in the proposed rule. Existing § 1610.2(k) is consistent with a process of “regional coal leasing,” described in subpart 3420, which the BLM used in designated coal production regions (defined in § 3400.5) at the time the planning regulations were originally published. Since 1990, all coal production regions have been decertified and the BLM now uses the “lease by application” process described in subpart 3425, where approval for coal leasing is conducted for each individual application, as opposed to at the resource management plan level. Since publication of the resource management plan only designates areas as open to coal leasing and no longer approves coal leases over the entire open area, this public hearing is no longer appropriate. Under the “lease by application” process, a hearing would be held for each coal lease application, consistent with the BLM coal regulations at § 3425.4(a)(1) and current BLM practice. Removing § 1610.2(k) would help reduce confusion, avoid redundancy with existing requirements in the coal regulations, and keep coal specific requirements in the coal regulations, where they are more appropriate. These proposed regulatory changes would not be a change in current practice or policy.
We propose to remove the words “federally recognized” before Indian tribes throughout §§ 1610.3-1 and 1610.3-2 for consistent use in terminology. These references would no longer be necessary with the inclusion of the proposed definition for Indian tribes in § 1601.0-5. We also propose to replace the word “shall” with “will” throughout these sections, unless otherwise indicated, and to specify that a “plan” is a “resource management plan” for improved readability. These proposed changes would not be a change in practice or policy.
The BLM proposes to add introductory language to proposed § 1610.3-1(a) to clarify that this section describes the “objectives of coordination.” The BLM proposes to amend § 1610.3-1(a) by replacing the reference to “State Directors and Field Managers” with “the BLM” because the responsibility of coordination are those of the BLM and they extend beyond any individual. The BLM proposes a similar change in proposed § 1610.3-1(c), where “State Directors and District and Area Managers” would be replaced with “[t]he BLM.” It is the BLM's responsibility to provide other Federal agencies, State and local governments, and Indian tribes opportunity for review, advice, and suggestion on issues and topics which may affect or influence other agency or other government programs. Elsewhere throughout proposed § 1610.3-1(b) through (f), we would replace references to “Field Manager(s)” with “responsible official(s)” and we would replace references to “State Director(s)” with “deciding official(s).” The new terms,
We propose to add language to the first sentence of proposed § 1610.3-1(a) to clarify that coordination is accomplished “to the extent consistent with Federal laws and regulations applicable to public lands, and the purposes, policies and programs of such laws and regulations.” There would be no change from current practice or policy. The BLM only wishes to clarify that BLM must comply with Federal laws and regulations.
In proposed paragraph (a)(3) of this section, the word “practicable” would be replaced with “practical” for improved readability and consistency with FLPMA (see 43 U.S.C. 1712(c)(9)). Proposed paragraph (a)(4) of this section would remove the word “public” from “early public notice” for improved clarity. The BLM intends no change in practice or policy from these proposed changes.
We propose to add introductory language to proposed § 1610.3-1(b) to indicate that this section describes procedures and requirements related to “cooperating agencies.” This paragraph would also be broken down into subparagraphs to improve readability and would be revised as follows.
The first sentence of proposed § 1610.3-1(b) would be revised to state “[w]hen preparing a resource management plan, the responsible official will follow applicable regulations regarding the invitation of eligible governmental entities (see 43 CFR 46.225) to participate as cooperating agencies. We would replace “developing” with “preparing” for consistent use in terminology. The BLM intends no change in meaning or practice. We also propose to replace “eligible Federal agencies, State and local governments, and Indian tribes” with “eligible governmental entities” for consistency with the DOI NEPA regulations, and to specify that the responsible official will follow applicable regulations regarding the invitation of eligible governmental entities, including the DOI NEPA regulations at 43 CFR 46.225. The BLM intends no change in practice or policy from these proposed changes.
The second sentence of proposed § 1610.3-1(b) would be revised to reflect the fact that a plan is not amended by an EIS, rather the EIS is prepared to inform the amendment.
We propose to remove the last three sentences of existing § 1610.3-1(b), which state that “State Directors and Field Managers will consider any requests of other Federal agencies, state and local governments, and federally recognized Indian tribes for cooperating agency status. Field Managers who deny such requests will inform the State Director of the denial. The State Director will determine if the denial is appropriate.” This existing language is unnecessary with the new proposed language that responsible officials will follow applicable regulations regarding the invitation of eligible governmental entities to participate as cooperating agencies.
Proposed paragraph (b)(1) of this section would describe that a memorandum of understanding (MOU) will be used for a non-Federal cooperating agency and will include a commitment to maintain confidentiality of documents and deliberations prior to their public release. The proposed change is consistent with the DOI NEPA implementation regulations (see 43 CFR 46.225(d)). Although a written agreement is not explicitly required for Federal cooperating agencies, the BLM often chooses to prepare such an agreement to clarify the roles and responsibilities of all parties. No change in practice or policy is intended by the addition of proposed paragraph (b)(1).
Proposed paragraph (b)(2) would identify the various steps during the planning process when the responsible official would collaborate with cooperating agencies. The BLM promulgated regulations in 2005 (70 FR 14561), which required BLM Field Managers to collaborate with cooperating agencies at steps throughout the planning process (see existing § 1610.4). The proposed change would consolidate these references that are currently inserted throughout existing § 1610.4 and identify additional steps where cooperating agencies would be involved, including the preparation of the planning assessment and the preparation of the proposed resource management plan and implementation strategies. The BLM intends no change in practice or policy by consolidating these references; rather, the BLM believes that consolidating these references provides improved readability and clarity. The BLM, however, requests public comment on this proposed change and whether the existing format (
Under the proposed rule, the BLM would provide an additional role for cooperating agencies during the new planning assessment step. While NEPA regulations require a lead agency to invite cooperating agencies to participate in the NEPA process “at the earliest possible time” (40 CFR 1501.6(a)(1);
The BLM further recognizes that DOI NEPA regulations and the proposed rule (see paragraph (b)(1) of this section) would require the BLM to work with non-Federal cooperating agencies to develop a MOU that outlines agencies' respective roles, assignments, schedules, and other commitments and such a cooperating agency MOU may not yet be completed during the planning assessment step.
Nonetheless, the BLM does not foresee any problems working with eligible governmental entities without an MOU during the planning assessment step, because this step primarily involves information gathering by the BLM. Additionally, the BLM believes the planning assessment would afford the BLM and eligible governmental entities alike valuable time to build working relationships and share information that would inform the planning assessment and contribute to the formation of fruitful cooperating agency relationships. However, the BLM may need to withhold confidential information, such as locations of sensitive cultural resources, until an MOU has been formalized. The BLM requests comments on how to engage with eligible governmental entities during the proposed planning assessment step, prior to memorializing a cooperating agency relationship.
We propose to add introductory language to proposed § 1610.3-1(c) to indicate that this section describes general “coordination requirements” and to divide the existing paragraph (c) into three separate paragraphs (proposed paragraphs (c), (c)(1), and (c)(2)) for improved readability.
Proposed paragraph (c)(1) of this section would provide that “deciding officials should seek the input of the Governor(s) on the timing, scope and coordination of resource management planning; definition of planning areas; scheduling of public involvement activities; and resource management opportunities and constraints on public lands.” Proposed changes would replace “policy advice” with “input” because the topics listed in this provision are not “policy,” therefore the phrase “policy advice” is inaccurate. We propose to replace “plan components” with
The BLM proposes to remove existing § 1610.3-1(d). This section is unnecessary and inappropriate in the regulations. FLPMA provides direction that BLM's resource management plans must be consistent with State, local, and tribal land use plans to the extent practical and to the extent consistent with Federal laws and regulations. Any guidance developed to inform the preparation of a resource management plan would also be required to be consistent with Federal law (see proposed § 1610.1-1(a)(1)), and would therefore be mindful of FLPMA requirements for consistency. Further, guidance is an internal BLM process, which does not constitute a formal decision regarding resource management.
Proposed § 1610.3-1(c)(3) would contain the provisions of existing § 1610.3-1(e) and would be revised to reflect proposed changes to § 1610.2 concerning public involvement and to use active voice for improved readability. The proposed rule would specify that State procedures for coordination with Federal agencies would be followed, “if such procedures exist.” The BLM intends no change in practice or policy from this added language; rather, we would clarify that such procedures can only be followed if they exist.
The second sentence of proposed § 1610.3-1(c)(3) would be revised to state that “[t]he responsible official will notify Federal agencies, the elected heads of county boards, other local government units, and elected government officials of Indian tribes that have requested to be notified or that the responsible official has reason to believe would be interested in the resource management plan or plan amendment.” We would clarify that heads of county boards are “elected” and would replace “Tribal Chairmen” and “Alaska Native Leaders” with “elected government officials of Indian tribes” to reflect the fact that not all government officials of Indian tribes are referred to as “Chairmen” and for consistent use in terminology. The proposed definition of “Indian tribe” would encompass “Tribal Chairmen” and “Alaska Native Leaders.” No change in practice or policy is intended by these proposed word changes. The second sentence would also rephrase the existing requirement for BLM to notify Federal agencies, the elected heads of county boards, other local government units, and elected government officials of Indian tribes that the responsible official has reason to believe would be “concerned with” the resource management plan or plan amendment to those that would be “interested in” the resource management plan or plan amendment. This would be consistent with current BLM practice and would reflect the fact that the BLM believes that any interest in the resource management plan or amendment, not just concern, warrants notification.
Proposed § 1610.3-1(c)(4) would contain the provisions of existing § 1610.3-1(f). We propose to replace “resource management plan proposals” with “resource management plans and plan amendments” to clarify that this step refers to all of the opportunities for public involvement described in § 1610.2, and not just the “proposed” resource management plan. The BLM intends no change from current practice or policy.
We propose to revise and move the final sentence of existing § 1610.3-1(f) to proposed § 1610.3-2(a)(3). The existing language refers to consistency requirements and is therefore more appropriately addressed in § 1610.3-2.
Proposed § 1610.3-1(d) would contain the provisions of existing § 1610.3-1(g). We propose to add introductory language to proposed § 1610.3-1(d) to indicate that this section describes requirements related to “resource advisory councils.” No substantive changes are proposed to this section.
The BLM proposes to replace the word “shall” with “will” throughout this section for improved readability.
We propose to revise existing § 1610.3-2(a) to read as follows: “Resource management plans will be consistent with officially approved or adopted land use plans of other Federal agencies, State and local governments and Indian tribes to the maximum extent the BLM finds practical and consistent with the purposes of FLPMA and other Federal law and regulations applicable to public lands, and the purposes, policies and programs of such laws and regulations.” The proposed language would reflect FLPMA requirements for consistency with the land use plans of other Federal agencies, State and local governments and Indian tribes (see section 202(c)(9) of FLPMA). Proposed language would specify that these land use plans must be “officially approved or adopted” (see the definition for “officially approved or adopted land use plans” in proposed § 1601.0-5). These proposed changes would represent a change from current regulations, but would be consistent with current BLM practice and statutory direction provided by FLPMA.
We propose to remove existing § 1610.3-2(b). The existing section exceeds the statutory requirements of section 202(c)(9) of FLPMA by providing that in the absence of officially approved and adopted plans, resource management plans should be consistent with “policies and programs” of other Federal agencies, State and local governments, and Indian tribes. The BLM believes that such “policies and programs” should be reflected in the land use plans of other Federal agencies, State and local governments, and Indian tribes, and therefore would be adequately considered through the consideration of their land use plans. Further, it is inappropriate for the BLM to seek consistency with policies and programs that may or may not be officially approved or adopted by the Federal agencies, State and local governments, and Indian tribes. We also propose to remove references to consistency with “policies and programs” from throughout § 1610.3-2. The proposed changes represent a change from the existing regulations.
Proposed § 1610.3-2(a)(1) would revise and replace existing section 1610.3-2(c). The first two references to “State Directors and Field Managers” in the first sentence would be replaced with “the BLM,” because the requirement to keep apprised of State and local governmental and Indian tribal policies, plans, and programs is attributed to the BLM, rather than specific employees. We would also replace “practicable” with “practical” for improved readability. These proposed changes would not be a change in practice or policy.
Proposed § 1610.3-2(a)(1) would specify that “BLM will, to the extent practical, keep apprised of the officially approved and adopted land use plans of State and local governments and Indian tribes and give consideration to those plans that are germane in the development of resource management plans.” We would remove the words “policies and programs” (for more
Proposed § 1610.3-2(a)(2) contains a provision from existing § 1610.3-2(c). We propose to replace “accountable for ensuring consistency” with “required to address the consistency requirements of this section.” The BLM cannot “ensure” consistency, but seeks consistency to the extent practical and to the extent consistent with Federal laws and regulations and the purposes, policies, and programs of such laws and regulations. For example, if a State, local, or tribal land use plan was not consistent with a Federal law, the BLM would not be able to ensure consistency with the State, local, or tribal land use plan. The BLM also proposes to replace the reference to State Directors and Field Managers (“they”) with “responsible official,” thereby providing that the BLM will not be accountable for addressing the consistency requirements of 1610.3-2 if the “responsible official” has not received written notice of an apparent inconsistency from State and local governments or Indian tribes, rather than “State Directors and Field Managers.” Because the responsible official would be the BLM employee who is delegated the authority to prepare a resource management plan or plan amendment, it is important that the responsible official receives written notice of an apparent inconsistency so that it can be considered during the planning process. The BLM cannot ensure that notice sent to someone other than the responsible official would be redirected and delivered in a reasonable time-frame, although we would attempt to do so to the best of our ability.
The proposed change would provide clarity to State and local government officials and Indian tribes of the appropriate BLM official to notify of inconsistencies; however, it would also reduce the number of individuals that could be notified under the existing regulations from two individuals (the State Director and Field Manager) to one individual in the proposed rule (the responsible official). The BLM believes that the proposed change would improve the BLM's ability to consider potential inconsistencies at the earliest time possible, thereby promoting efficiency in the planning process.
Proposed § 1610.3-2(a)(3) would contain the provisions of existing § 1610.3-1(f). There would be no substantive changes to this section except to use active voice and consistent terminology for improved readability.
In other provisions of proposed § 1610.3-2 references to “Field Manager(s)” would be replaced with “responsible official(s)” and references to “State Director(s)” would be replaced with “deciding official(s)” to reflect these individuals' roles or responsibilities.
Proposed § 1610.3-2(b) contains the provisions of existing § 1610.3-2(e). Proposed changes would provide consistency with edits made throughout § 1610.3-2 and make clarifying edits to the existing Governor's consistency review provision. These changes are intended to provide clarity and ensure consistency with current BLM practice and with FLPMA. The proposed changes would help to eliminate confusion in the existing provision. The proposed rule would also break these provisions into multiple paragraphs to improve readability.
The proposed section would replace references to “State Director” with “deciding official” consistent with the new terms used throughout these proposed regulations and would replace “shall” with “will” for improved readability, unless otherwise noted. There would be no change in practice or policy.
The proposed rule would specify that the document submitted to the Governor by the deciding official would identify “relevant” known inconsistencies with “officially approved and adopted land use plans of State and local governments.” Proposed changes would limit the inconsistencies identified by the deciding official to those that are relevant and to inconsistencies with officially approved and adopted land use plans, consistent with proposed §§ 1601.0-5 and 1610.3-2(a).
Proposed § 1610.3-2(b)(1) would state that within 60 days after receiving a proposed plan or amendment, the Governor(s) may submit a written document to the deciding official identifying inconsistencies with the officially approved and adopted land use plans of State and local governments and provide recommendations to remedy them. Proposed new language would clarify that the Governor's recommendations should address identified inconsistencies with State and local plans, rather than other aspects of a resource management plan. This language would not preclude the BLM from considering or responding to a Governor's recommendations on other subjects, but it would underscore that the BLM's focus at this late stage of the planning process is on consistency with State or local plans. There would be no change in meaning or practice associated with the proposed change other than focusing the Governor's review on consistency with officially approved and adopted State and local plans.
Proposed § 1610.3-2(b)(1)(ii) would introduce a new provision, where the Governor may waive or shorten the 60-day consistency review period in writing. This provision would facilitate a more efficient planning process by reducing the length of the review period in situations where the Governor has no comments to submit. For example, if representatives from the Governor's Office participated as cooperators and found the plan to be adequately consistent with officially approved and adopted State and local plans, then the Governor may have no further comments and wish to expedite the review period. This change is consistent with current practice under the existing regulations, as the Governor is not precluded from waiving or shortening the consistency review period under the existing regulations. The addition of this language, however, would provide more transparency to the public on the Governor's consistency review process and affirm the availability of this option for the Governor.
The BLM welcomes public comments and suggestions on ways to improve the Governor's consistency review to make it more effective and efficient for both the Governor and the BLM. In this proposed rule, the BLM has identified additional opportunities early in the process to identify the officially approved and adopted land use plans of State and local governments or Indian tribes and resolve inconsistencies between those plans and the resource management plan alternatives that the BLM would consider. In light of these early opportunities, the BLM is considering whether to adjust the timeline or appeal process for the Governor's consistency review and requests public comments and suggestions on these issues.
Proposed § 1610.3-2(b)(2) would retain existing language that the plan or amendment would be presumed to be consistent if the Governor(s) does not respond to the BLM within the 60-day period, however, revisions would improve readability. There would be no change in practice or meaning associated with these revisions.
Proposed § 1610.3-2(b)(3) would clarify existing language and reflect terms used in this proposed rule. It would provide that “[i]f the document submitted by the Governor(s) recommends substantive changes that
Under proposed § 1610.3-2(b)(4), the deciding official (revised from the State Director) would notify the Governor(s) in writing of his or her decision regarding the Governor(s)' recommendations. We propose new requirements that the notification include the deciding official's reason for the decision and that the notification be mandatory, replacing the existing requirement to notify the Governor only if their recommendations are not accepted. These proposed changes would not be a change in practice or policy, other than ensuring that the Governor is notified of any decision related to the Governor's recommendations.
Proposed paragraph (b)(4)(i) of this section would maintain the existing process by which the Governor(s) may submit a written appeal to the BLM Director within 30 days after receiving the deciding official's decision.
Proposed paragraphs (b)(4)(ii) of this section would replace existing language requiring the BLM Director to accept the recommendations of the Governor(s) if the BLM Director determines that the recommendations “provide for a reasonable balance between the national interest and the State's interest.” We propose to instead state that the BLM Director will consider the Governor(s)' comments in rendering a decision. The proposed change would be consistent with current practice and reflect that the BLM Director must consider many factors when rendering a decision, including whether the Governor(s)' recommendations are consistent with Federal laws and regulations applicable to public lands, such as FLPMA.
Proposed paragraph (b)(4)(ii) of this section would retain the existing requirement, with clarifying edits, that the BLM Director will notify the Governor(s) in writing of his or her decision regarding the appeal. In addition, proposed paragraph (b)(4)(ii) of this section would replace the existing requirement to publish the reasons for the BLM's decision in the
The BLM believes that it would be appropriate to move away from relying on
Existing § 1610.4 consists only of the section heading “Resource management planning process.” This section is revised as follows.
Proposed § 1610.4, “Planning assessment,” would combine and revise the existing steps for inventory data and information collection (existing § 1610.4-3) and the analysis of the management situation (AMS) (existing § 1610.4-4) into a new planning assessment step. The planning assessment would occur before the BLM initiates the preparation of a resource management plan and would be consistent with the nature, scope, scale, and timing of the planning effort. This change would result in a more informed scoping process; however, several existing provisions would be removed because they would no longer be relevant at this early stage. These changes are described in detail at each corresponding section of the proposed planning assessment.
The proposed planning assessment would include new opportunities for public involvement, coordination with other Federal agencies, State and local governments, and Indian tribes, and collaboration with cooperating agencies. The BLM anticipates that greater coordination, collaboration and public involvement, particularly early in the planning process, would result in efficiencies by ensuring that the BLM considers a wide range of relevant policies, information, and perspectives even before scoping.
The proposed planning assessment is intended to help the BLM better understand resource, environmental, ecological, social, and economic conditions, and identify public views and resource management priorities for the planning area. The planning assessment would occur early in the process, before the formal initiation of a planning effort and before the steps that the BLM traditionally has taken first—namely, the identification of issues and the development of planning criteria. The BLM believes that conducting an upfront assessment would provide useful baseline information to inform subsequent steps, such as the preparation of a preliminary purpose and need statement, the identification of planning issues, and the formulation of resource management alternatives. The planning assessment would include new opportunities for collaboration and public involvement and measures that would increase transparency. Further, the proposed planning assessment would be similar to the assessment procedures in the U.S. Forest Service 2012 Planning Rule (
Proposed § 1610.4 serves as an introduction and provides that the planning assessment would be required before the BLM initiates the preparation of a resource management plan.
Proposed § 1610.4-1(a) would address “information gathering” and would replace and enhance the existing inventory data and information collection requirements (see existing § 1610.4-3), providing that the responsible official would follow the four requirements described in proposed paragraphs (a)(1) through (a)(4) of this section.
Under paragraph (a)(1) of this section, the responsible official would arrange for relevant resource, environmental, ecological, social, economic, and institutional data or information to be
Proposed paragraph (a)(1) of this section would encompass the BLM's statutory obligation for inventory of “public lands and their resource and other values,” as described in section 201(a) of FLPMA, and would also provide for the gathering and consideration of the best available scientific information, or other types of high quality information, provided by sources outside of the BLM.
The proposed rule would not carry forward language from existing § 1610.4-3 requiring that “new information and inventory data. . . emphasize significant issues and decisions with the greatest potential impact.” At this early stage in the planning process, the BLM recognizes that all significant issues may not yet be known and without conducting a broad assessment, the BLM may not be able to reasonably identify all of the significant issues. At the same time, the BLM must conduct a planning assessment based on reasonable budgets and timeframes, and therefore must limit the scope of its data and information gathering to that which is “relevant” to the incipient planning process. The BLM intends that “relevant” data and information would include inventory of the land and resources (see 43 U.S.C. 1711(a)) and any other available high quality information, including the best available scientific information relevant to the planning process and necessary to address the applicable factors described in proposed § 1610.4(c).
We propose to include a provision to avoid unnecessary data-gathering, similar to the existing provision in the development of planning criteria regulations (see existing § 1610.4-2(a)(2)). The BLM intends to emphasize that inventory data and information gathered for the planning assessment should be geared to inform the overall planning process, including subsequent monitoring and implementation of the resource management plan. The responsible official would determine what information is relevant to the planning process based on available resources and existing requirements, such as inventory of the land and resources that is required under FLPMA, the previous results of monitoring and evaluation, or existing assessments or strategies that overlay the planning area.
In paragraph (a)(2) of this section, we propose a new regulatory requirement, consistent with current practice, that the responsible official “[i]dentify relevant national, regional, or local policies, guidance, strategies or plans for consideration in the planning assessment,” such as Executive Orders issued by the President, Secretarial Orders issued by the Secretary of the Interior, DOI or BLM policy, BLM Director or deciding official guidance, mitigation strategies, interagency initiatives, State or multi-State resource plans, or local government resource plans. Recent examples might include: Secretarial Order 3336—
Identifying such policies and strategies up front is important because successful planning needs to be informed by, and advance, policies and strategies that cross traditional administrative boundaries. This step would also enable the BLM Director and the deciding official to provide guidance on resource management priorities for a planning effort before the formal initiation of the planning effort (see proposed § 1610.1-1(a)).
In paragraph (a)(3) of this section, we propose to add a new regulatory requirement that the responsible official “[p]rovide opportunities for other Federal agencies, State and local governments, Indian tribes and the public to provide existing data and information or suggest other policies, guidance, strategies, or plans” for the BLM to consider in the planning assessment. For example, a State wildlife agency might ask the BLM to consider a conservation plan for a sensitive species; a member of the public might ask the BLM to consider the results of a peer-reviewed study relevant to the planning area; or a recreation user group might ask the BLM to consider data identifying areas of high recreation use in the planning area. This opportunity would be provided through a general request for information from the public. In addition to accepting written input, the BLM may provide opportunities through in-person meetings or workshops, webinars, collaborative Web sites, or other innovative information gathering techniques.
This proposed requirement would establish a new public involvement opportunity during the planning assessment, which would support the Planning 2.0 goal to provide new and enhanced opportunities for collaborative planning. It would also help the BLM consider relevant data and information in the planning assessment.
Proposed paragraph (a)(4) of this section would require that the BLM identify relevant public views concerning resource, environmental, ecological, social, or economic conditions of the planning area. The BLM anticipates that these views would be identified by hosting public meetings, although the BLM may also use other techniques, such as a collaborative Web site, for example. Proposed paragraph (a)(4) would help the Bureau to better understand public values in relation to the planning area, including what is important to the public, where important areas are located, and why these areas and values are important to members of the public. Under current practice, the BLM identifies public views during the identification of planning issues. By providing this opportunity during the planning assessment, the BLM would be able to summarize public views in the planning assessment report (see proposed § 1610.4(d)). This would provide increased transparency, would help to inform the preparation of a
The BLM requests public comments on whether the regulations should describe any other types of information that may be relevant to the planning assessment.
Proposed § 1610.4 (b) would address “information quality” for the planning assessment. The responsible official would evaluate the data and information gathered or provided to the BLM to determine if it is “high quality information appropriate for use in the planning assessment, and to identify any data gaps or further information needs.” In this new step, the BLM would evaluate what information is high quality and therefore appropriate for use in the planning assessment, as discussed in the preamble to proposed §§ 1601.0-5 and 1610.1-1(c). Although the BLM currently uses high quality information to inform the planning process, we believe that including this new step in the planning regulations is important because it clearly communicates to the public that any information submitted to the BLM must meet this standard in order to be further considered in the planning assessment. After identifying the information appropriate for use in the planning assessment, the responsible official, in collaboration with any cooperating agencies, would use this information to assess the resource, environmental, ecological, social, and economic conditions of the planning area.
Proposed § 1610.4(c) would describe the factors that the responsible official would consider when assessing the resource, environmental, ecological, social, and economic conditions of the planning area for the planning assessment. The responsible official would consider and document these factors whenever they are applicable, however, the responsible official would not be limited to the proposed factors.
These factors would contain elements from the nine factors in § 1610.4-4(a) through (i) of the existing planning regulations, which outline the AMS. The proposed planning assessment would also include some factors that were not included in the existing regulations regarding the AMS (see existing § 1610.4-4). These new factors are intended to help inform the planning process and include types of information the BLM may already consider under the existing regulations. The inclusion of these factors in the regulations would provide the public with a better understanding of the types of information that would be considered during the preparation of a resource management plan. The BLM anticipates no direct impacts to the public from these proposed additions. The following paragraphs highlight the proposed changes and rationale.
Proposed paragraph (c)(1) of this section would revise existing § 1610.4-4(a), providing that the BLM consider “the types of resource management authorized by FLPMA and other relevant authorities” during the planning assessment. We propose to replace Federal Land Policy and Management Act with the acronym FLPMA, replace “resource use and protection” with “resource management” and replace “legislation” with “authorities.” There would no change in meaning or practice associated with these edits.
Proposed paragraph (c)(2) of this section would include “land status and ownership, existing resource uses, infrastructure, and access patterns in the planning area.” This factor, although often included in the AMS under current practice, is not identified in the current regulations and would provide important baseline information on current uses within the planning area to inform the identification of planning issues and the formulation of alternatives, and to identify opportunities or need for cross-boundary collaboration with adjacent landowners.
Proposed paragraph (c)(3) of this section would refer to current resource, environmental, ecological, social, and economic conditions, and any known trends related to these conditions. This information is typically included in the AMS under current practice, but is not identified in the current regulations. It is important that current conditions serve as a starting point for the planning assessment. This information provides the basis for the affected environment and assists in the identification of planning issues and formulation of a reasonable range of alternatives for analysis. Trends in resource or other conditions, such as economic trends, wildlife population trends, or recreation use trends, could also provide useful information for the planning process. If this information were available, the BLM would consider it during the planning assessment.
Proposed paragraph (c)(4) of this section would refer to “known resource thresholds, constraints, or limitations.” This would modify and expand on existing § 1610.4-4(i), which refers to “critical threshold levels which should be considered in the formulation of planned alternatives.” Known resource thresholds would be identified based on the best available scientific information. For instance, a known threshold might include a minimum viable population number for an endangered species as determined by the U.S. Fish and Wildlife Service, or a minimum area of critical habitat, such as breeding grounds or winter range, as determined by peer-reviewed scientific research. The BLM believes this concept is important to the planning process because it would inform the development of plan components in the resource management plan, including disturbance limits, mitigation standards, or decision points for applying adaptive management. For example, a land use plan could establish an objective to support viable populations for a sensitive species by protecting important habitat. If a known threshold for the species was identified in the planning assessment, this information could be used to establish a decision point to consider a plan amendment if the population numbers dropped below the threshold.
Proposed paragraph (c)(4) of this section would also refer to known resource constraints or limitations. Under this new provision, the BLM would identify any known constraints or limitations to resource management that should be considered in order to effectively manage resources consistent with its multiple use and sustained yield mandate, including any known and potential conflicts between multiple uses. For example, the BLM may identify uses that are known to be incompatible with important habitat for a sensitive species based on the best available scientific information in order to provide for the long-term sustainability of the species.
The BLM would also identify any related or indirect constraints to resource management. For example, wildfire propensity in an area might provide a constraint to future allowed uses, because in addition to use disturbance, the protection of habitat for a sensitive species could also be affected by natural disturbance; or rights-of-way corridors might be constrained by natural features in certain areas, limiting where a transmission corridor could be located on the landscape. The BLM does not anticipate that all resource limitations would be identified at this stage of planning; many would be identified later through the formulation of alternatives and the estimation of their effects. At this early stage in planning, the BLM would identify known limitations based on best available scientific information, such as peer-reviewed research. This information would be useful to inform the identification of planning issues and
Proposed paragraph (c)(5) of this section would refer to areas of potential importance within the planning area. This information is typically included in the AMS under current practice, but is not identified in the current regulations. The identification of these areas would inform the identification of planning issues and the formulation of alternatives. The following paragraphs describe the different types of “areas of importance” that would be included. Although a planning assessment could describe other areas of importance, the BLM requests public comment on any other areas of importance that should be required in the planning regulations.
Proposed paragraph (c)(5)(i) of this section would refer to areas of tribal, traditional, or cultural importance. These could include areas important for subsistence use, important cultural sites, traditional cultural properties, or a cultural landscape. Although the BLM would identify these areas during the planning assessment, sensitive or confidential areas may not be made available to the public or included in the planning assessment report.
Proposed paragraph (c)(5)(ii) of this section would refer to habitat for special status species, including state and/or federally listed threatened and endangered species.
Proposed paragraph (c)(5)(iii) of this section would refer to other areas of key fish and wildlife habitat such as big game wintering and summer areas, bird nesting and feeding areas, habitat connectivity or wildlife migration corridors, and areas of large and intact habitat. The identification of these areas is important at the onset of planning, as fish and wildlife habitat often crosses jurisdictional-boundaries and conservation of such habitat may require landscape-scale management approaches.
Proposed paragraph (c)(5)(iv) of this section would refer to areas of ecological importance, such as areas that increase the ability of terrestrial and aquatic ecosystems within the planning area to adapt to, resist, or recover from change. For example, areas of ecological importance might include refugia identified to help sensitive species respond to the effects of climate change or wetlands that help to buffer the effects of weather fluctuations by storing floodwaters and maintaining surface water flow during dry periods.
Proposed paragraph (c)(5)(v) of this section would refer to lands with wilderness characteristics, candidate wild and scenic rivers, or areas of significant scenic value.
Proposed paragraph (c)(5)(vi) of this section would refer to areas of significant historical value, including paleontological sites.
Proposed paragraph (c)(5)(vii) of this section would refer to existing designations in the planning area, such as wilderness, wilderness study areas, wild and scenic rivers, national scenic or historic trails, or existing ACECs.
Proposed paragraph (c)(5)(viii) of this section would refer to areas with potential for renewable or non-renewable energy development or energy transmission.
Proposed paragraph (c)(5)(ix) of this section would refer to areas of importance for recreation activities or access. These might include high use recreation sites or areas with limited access points.
Proposed paragraph (c)(5)(x) of this section would refer to areas of importance for public health and safety, such as abandoned mine lands or natural hazards.
Proposed paragraph (c)(6) of this section would refer to dominant ecological processes, disturbance regimes, and stressors, such as drought, wildland fire, invasive species, and climate change. This information is not identified in the current regulations, but would be useful to inform the formulation of alternatives and assess the need for adaptive management approaches or cross-boundary collaboration with other land managers. For example, halting the spread of invasive species may require collaboration between adjacent landowners such as the BLM, the USFS, or willing private landowners.
Proposed paragraph (c)(7) of this section would be adapted from the beginning of existing § 1610.4-4(d), which directs BLM to consider the “estimated sustained levels of the various goods, services and uses that may be attained” and would instead refer to identifying the “various goods and services that people obtain from the planning area, including ecological services.” In this proposed factor, the phrase “goods and services” would include the many ecological services (
“Ecosystem goods and services include a range of human benefits resulting from appropriate ecosystem structure and function, such as flood control from intact wetlands and carbon sequestration from healthy forests. Some involve commodities sold in markets, for example, (forest products resulting from) timber production. Others, such as wetlands protection and carbon sequestration, do not commonly involve markets, and thus reflect nonmarket values.”
As proposed, this section would only refer to “goods and services,” and remove the word “uses,” because “uses” in this context are encompassed by the phrase “goods and services.” This proposed change would help to avoid confusion with the development of resource use determinations, which are also referred to as “allowable uses” in the existing Land Use Planning Handbook. At this early stage in the planning process, the BLM believes it is appropriate to identify the goods and services that people could obtain from the planning area, but it is not yet appropriate to establish allowable uses (resource use determinations). The proposed word change would help to avoid confusion, but there is no intended change in meaning.
Proposed paragraph (c)(7)(i) of this section would also incorporate language from existing § 1610.4(g), which directs the BLM to consider the “degree of local dependence on resources from public lands.” The BLM would instead consider the degree of local, regional, national, or international dependence on goods and services. “Resources” would be replaced with “goods and services” to provide a more precise explanation of what the BLM considers in regards to those resources. For example, the BLM could identify the degree of local dependence on potable water from groundwater recharge in the planning area (
In addition to the degree of local dependence on goods and services, the BLM may also consider the degree of regional, national, or international
Proposed paragraph (c)(7)(ii) would incorporate language from existing § 1610.4-4(c) and would refer to “available forecasts and analyses related to the supply and demand for these goods and services.” We propose to broaden this provision to include both supply and demand and to apply to “goods and services,” including ecological services, instead of “resource demands.” Proposed paragraph (c)(7)(iii) of this section would refer to “the estimated sustained levels of the various goods and services that may be produced based on a sustained yield basis.” For example, the BLM could estimate the sustained levels of potable water from groundwater recharge based on the current and projected rainfall averages for an area.
This factor is adapted from existing § 1610.4-4(d) which links estimated sustained levels to those that may be attained “under existing biological and physical conditions and under differing management practices and degrees of management intensity which are economically viable under benefit cost or cost effectiveness standards prescribed in national or State Director [deciding official] guidance.” We propose to simplify the language in this factor for improved readability and understanding. At this early stage in the planning process, the BLM believes that the planning assessment should focus on the capability of resources to provide goods and services on a sustained yield basis. This information is important for the development of resource management plans based on the principles of multiple use and sustained yield and would assist the BLM in developing a range of alternatives that is consistent with our FLPMA mandate.
In addition to these changes, we propose to remove some of the factors that are currently described in § 1610.4-4 regarding the AMS and not include them in the planning assessment.
The proposed planning assessment would not include “specific requirements and constraints to achieve consistency with policies, plans and programs of other Federal agencies, State and local government agencies and Indian tribes” (see existing § 1610.4-4(e)). At this early stage in the process, the BLM would identify these plans, but would not have sufficient information to identify “requirements and constraints” related to consistency, as the BLM would not yet be developing resource management alternatives. This step is more appropriately considered when developing the draft resource management plan.
Paragraph (c) of this section would also not include “[o]pportunities to meet goals and objectives defined in national and State Director guidance” (see existing § 1610.4-4(b)). This language would no longer be necessary, because proposed § 1610.4(a)(2) would direct the responsible official to identify BLM guidance that is relevant to the planning assessment. This proposed section would ensure that the responsible official considers BLM guidance.
We would also not carry forward into the planning assessment “Opportunities to resolve public issues and management concerns” (see existing § 1610.4-4(f)). The planning assessment would typically be conducted before the identification of planning issues and the BLM may not yet have the information necessary to resolve public issues and management concerns. The BLM would instead identify these opportunities during the formulation of alternatives (see proposed § 1610.5-2). We believe that this is the appropriate step to consider these opportunities because it allows the BLM to consider more than one opportunity and compare their impacts through the effects analysis (see proposed § 1610.4-5). The proposed change would be consistent with current practice and policy, as the AMS is currently prepared after the identification of planning issues.
We also propose removing “the extent of coal lands which may be further considered under provisions of § 3420.2-3(a) of this title” from the existing regulations (see existing § 1610.4-4(h)) because it references a regulation that does not currently exist (§ 3420.2-3(a)). Removing § 1610.4-4(h) would help reduce confusion, avoid redundancy with existing requirements in the coal regulations, and keep coal specific requirements in the coal regulations, where they are more appropriate. These proposed changes would not be a change in practice or policy.
Proposed § 1610.4(d) states that the responsible official would document the planning assessment in a report made available for public review and this report would include the identification and rationale for potential ACECs. The responsible official would post the report on the BLM Web site and make copies available at BLM offices within the planning area and other locations, as appropriate. The proposed provision would introduce a new requirement for the BLM, as the current regulations do not require the AMS be made available to the public. The planning assessment report would be made available before scoping so that it can inform the scoping process and help in the identification of planning issues. The BLM intends that the planning assessment would inform stakeholders' input throughout the development of the resource management plan and provide increased transparency to the planning process.
Proposed § 1610.4(d) would also establish that, to the extent practical, the BLM should make non-sensitive geospatial information used in the planning assessment available to the public on the BLM's Web site. The proposed change would provide for public transparency and support meaningful public involvement in the planning process.
Finally, proposed § 1610.4(e) would require that the BLM conduct a planning assessment before initiating the preparation of an EIS-level amendment. The planning assessment would only apply to the geographic area being considered for amendment and the content of the planning assessment would only include information relevant to the plan amendment. For example, if the BLM was considering an amendment solely to a visual resource class, the planning assessment would only consider information relevant to a potential change in visual resource class within the geographic area of the potential amendment. The deciding official would have the discretion to waive the requirement to conduct a planning assessment for EIS-level amendments for minor amendments or if an existing planning assessment is determined to be adequate. For example, if a resource management plan was recently completed and there was no significant new information of relevance to the plan amendment, the existing planning assessment would be determined adequate and used to inform the preparation of the EIS-level amendments. Similarly, if an EIS-level amendment was proposing “minor” changes to a plan component, then a planning assessment may not be necessary.
The BLM is also considering including a specific regulatory provision
This section serves as an introduction to §§ 1610.5-1 through 1610.5-5, which outline the process the BLM would follow when preparing a resource management plan, or an EIS-level plan amendment, under section 202 of FLPMA. These sections would be based on existing § 1610.4 “Resource management planning process.” Other revisions from the existing regulations are discussed in the appropriate sections of this preamble.
The BLM proposes to remove existing § 1610.4-2 “Development of Planning Criteria.” This section would no longer be necessary under the proposed rule. Existing paragraph (a)(1) of this section would be incorporated into proposed new § 1610.5-2(b). Existing paragraph (a)(2) of this section would be incorporated into proposed §§ 1610.4(a)(1) and 1610.5-3(a). For more information, see the discussion at the preamble for proposed §§ 1610.4(a)(1), 1610.5-2(b), and 1610.5-3(a)). The BLM also proposes to remove existing §§ 1610.4-3 “Inventory data and information collection” and 1610.4-4 “Analysis of the management situation” and combine many of the provisions into new § 1610.4 “Planning assessment.” Finally, we propose to remove existing § 1610.4-9 “Monitoring and evaluation” and incorporate many of the provisions into proposed § 1610.6-4.
We propose to remove the words “federally recognized” before Indian tribes throughout these sections for consistent use in terminology. These references would no longer be necessary with the inclusion of the proposed definition for Indian tribes in § 1601.0-5. We propose to remove the phrase “in collaboration with any cooperating agencies” from throughout these sections. These references would be consolidated and moved to proposed § 1610.3-1(b)(3) (for more information, see the discussion on “cooperating agencies” at proposed § 1610.3-1(b)(3). We propose to replace “shall” with “will” throughout these sections for improved readability.
The BLM proposes to base this section on existing § 1610.4-1, with revisions to clarify existing text, ensure consistency with other proposed changes, and to require the preparation of a preliminary purpose and need statement.
Proposed paragraph (a) of this section would establish a new requirement for the BLM to prepare a preliminary statement of purpose and need and to make this statement available for public review when initiating the identification of planning issues. The statement of purpose and need would be informed by Director and deciding official guidance, public views, the planning assessment, the results of previous monitoring and evaluation, and Federal laws and regulations, and the purposes, policies, and programs of such laws and regulations. Preparation of a statement of purpose and need is currently required under the DOI NEPA implementation regulations (see 43 CFR 46.415(a) and 46.420(a)(1)). The proposed rule would establish a new additional requirement that the preliminary statement of purpose and need be made available to the public before the identification of planning issues. The proposed change would provide transparency to the public and support the Planning 2.0 goal to provide earlier opportunities for public involvement.
Although the BLM would not formally request public comment on the preliminary statement of purpose and need, the public would be welcome to provide feedback. This is important because the statement of purpose and need informs the development of all subsequent steps in the preparation of a resource management plan. For example, the BLM does not formulate or analyze a resource management alternative (see §§ 1610.5-2 and 1610.5-3) unless it is consistent with the statement of purpose and need.
Proposed paragraph (b) of this section is based on existing § 1610.4-1. In this section, the BLM would remove “[a]t the outset of the planning process,” due to the new planning assessment and the preparation of a preliminary statement of purpose and need, both of which would occur prior to the identification of planning issues. An upfront planning assessment would result in more information on resource, environmental, ecological, social and economic conditions for the planning area being available to the public and the BLM during the identification of planning issues. There would be no impact from this proposed change, other than the availability of more information at this point in the process.
The type of suggestions provided by the public would be revised from the existing regulations (see existing § 1610.4-1) to include “concerns, needs, opportunities, conflicts, or constraints related to resource management.” We propose to remove “resource use, development, and protection opportunities” as these are encompassed by the proposed language and are therefore unnecessary. There would be no change from current practice.
The final sentence of proposed paragraph (b) of this section would state that the identification of planning issues “should be integrated” with the scoping process required by regulations implementing the NEPA. The proposed language would not represent a change in practice or policy, rather we would clarify that although the identification of planning issues should be integrated with the NEPA scoping process, these are two distinct steps with distinct regulatory requirements. The BLM must comply with the planning regulations and the regulations implementing the NEPA during the preparation or amendment of a resource management plan.
Proposed paragraph (b) of this section would also reflect new terms used throughout this proposed rule. The term “Field Manager” would be replaced with “responsible official” to maintain consistency with other proposed changes. The term “planning issue” would replace “issues” for consistency with the newly added definition for planning issues (see § 1601.0-5) and to clarify what type of “issues” are intended. The term “information” would be added, to clarify that the BLM analyzes data and information when we determine planning issues, consistent with current BLM practice. The “planning assessment,” as proposed, would replace the existing examples of other available data. The planning assessment would include the existing examples, thus the proposed change would be consistent with new terminology introduced in the proposed rule (see proposed § 1610.4), but would not represent a change from current practice in the types of available data and information that the BLM analyzes.
Here, and throughout the proposed rule, we use the term “information” consistent with the definition of information provided in the OMB “Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies” (67 FR 8452). “ `Information' means any
Proposed § 1610.5-2 would be based on existing § 1610.4-5. We propose to revise the heading of this section to read “[f]ormulation of resource management alternatives.” The proposed change would add the words “resource management” to more precisely describe the alternatives and for consistent use in terminology. No change in practice or policy is intended by the proposed change.
Paragraph (a) of this section describes the requirements for developing resource management alternatives. In the first sentence in paragraph (a) of this section, the BLM proposes to add introductory language indicating that this section describes “[a]lternatives development,” for improved readability and to remove the phrase, “At the direction of the Field Manager,” because it is the obligation of the BLM, not of any individual, to consider all reasonable resource management alternatives and develop several for detailed study. The BLM proposes to add the abbreviation “alternatives” for “resource management alternatives” for improved readability.
Proposed paragraph (a)(1) of this section would require that the alternatives developed be informed by Director or deciding official guidance, the planning assessment, and the planning issues. Proposed language would replace the existing requirement that alternatives “reflect the variety of issues and guidance applicable to resource uses.” The proposed language is consistent with other proposed changes and more accurately describes the information that informs the development of alternatives. The statement of purpose and need would also inform the development of alternatives, but this would occur through the planning issues. There would be no substantive change from current practice or policy, other than the availability of the planning assessment to inform the development of alternatives.
Proposed paragraph (a)(2) of this section would be based on the fourth sentence of existing § 1610.4-5, and would state that “[i]n order to limit the total number of alternatives analyzed in detail to a manageable number for presentation and analysis, reasonable variations may be treated as sub-alternatives.” We propose to replace the phrase “all reasonable variations shall be treated as subalternatives” with “reasonable variations may be treated as subalternatives.” The proposed change would provide the BLM flexibility to develop subalternatives when appropriate, but would not explicitly require the use of subalternatives. In some instances, it may be appropriate to develop a new alternative, rather than a subalternative. In other situations, a subalternative may not be necessary because it is already covered under the full spectrum of examples in existing alternatives. The proposed changes would be consistent with CEQ guidance that “when there are a very large number of alternatives, only a reasonable number of examples, covering the full spectrum of examples, must be analyzed.”
Proposed paragraph (a)(3) of this section would be based on the fifth sentence of existing § 1610.4-5. Under this proposed paragraph, the BLM would include a no action alternative. We propose to replace “resource use” with “resource management” because the no-action alternative applies to resource management in general, and not just resource use. There would be no change in practice or policy from the proposed change.
Proposed paragraph (a)(4) of this section would be based on the sixth sentence of existing § 1610.4-5. Under this proposed paragraph, the BLM would note in the resource management plan any alternatives that are eliminated from detailed study, along with the rationale for their elimination. No substantive changes would be made to this sentence.
Proposed new paragraph (b) of this section would establish a new requirement that the BLM describe the rationale for the differences between alternatives. This requirement would incorporate and expand on the requirements of existing § 1610.4-2(a)(1) that the resource management plan be “tailored to the issues previously identified.” The proposed rationale for alternatives would include: A description of how each alternative addresses the planning issues, consistent with the principles of multiple use and sustained yield, or other applicable law; a description of management direction that is common to all alternatives; and a description of how management direction varies across alternatives to address the planning issues. The BLM believes that the rationale for alternatives would provide transparency to the public on the reasons for the formulation of alternatives and would ensure that the resource management plan is “tailored to the issues previously identified.”
Proposed paragraph (c) of this section would add a new public involvement opportunity. The responsible official would make the preliminary resource management alternatives and the preliminary rationale for these alternatives available for public review prior to the publication of the draft resource management plan and draft EIS. The BLM intends that the preliminary alternatives and rationale for alternatives ordinarily would be made available for public review prior to the estimation of effects of alternatives.
This public review would serve as a “check” of the preliminary alternatives and would afford the public an opportunity to bring to the BLM's attention any possible alternatives that may have been overlooked before the BLM conducts the environmental impact analysis and prepares a draft resource management plan and draft EIS. The BLM anticipates that this review would increase efficiency by avoiding the need to re-do or supplement NEPA analyses if alternatives are identified during the public comment period on the draft resource management plan and draft EIS. Accordingly, the BLM would build time for this public review of preliminary alternatives and rationale for alternatives into their planning schedules. This public review would also increase transparency in the BLM's planning process.
As previously discussed, the BLM does not request written comments when making documents available for public review. However, the public is welcome to contact the BLM with any appropriate concerns.
We expect that generally the preliminary alternatives and rationale for alternatives would be posted on the BLM's Web site and made available at BLM offices within the planning area. The BLM may consider hosting public
Nonetheless, in some situations, such as when the BLM is under an accelerated schedule to address time-sensitive resource management concerns, the public review of preliminary alternatives and rationale for alternatives may not be practical. For example, a resource management plan amendment might require an accelerated schedule to address the rapid proliferation of a new use in an area which contains sensitive resources. The BLM is therefore considering the alternative options of requiring a public review of preliminary alternatives “to the extent practical” or requiring a public review of preliminary alternative when preparing a resource management plan, but not for EIS-level amendments. The BLM requests public comment on whether the public review of preliminary alternatives and rationale for alternatives should be required in all situations, including EIS-level amendments.
Proposed paragraph (d) of this section would state that the BLM may change the preliminary alternatives and the preliminary rationale for alternatives as planning proceeds, if it determines that public suggestions or other new information make such changes necessary. The proposed language supports BLM's intent to consider public input on the preliminary alternatives and make changes accordingly.
Proposed § 1610.5-3 would be based on existing § 1610.4-6 and incorporate elements of existing § 1610.4-2(a)(2).
Proposed paragraph (a) of this section would establish a new requirement that the responsible official identify the procedures, assumptions, and indicators that will be used to estimate the environmental, ecological, social, and economic effects of the alternatives considered in detail. These procedures, assumptions, and indicators would be referred to as the “basis for analysis.” Although this would be a new requirement in the planning regulations, there are existing examples where the BLM has developed a “basis for analysis” before conducting an effects analysis. For example, in the preparation of the western Oregon resource management plans, the BLM described the analytical methodology the BLM intended to use to estimate the effects of alternatives and made this available to the public.
Paragraph (a)(1) of this section would require that the responsible official make the preliminary basis for analysis available for public review prior to the publication of the draft resource management plan and draft EIS. The BLM expects that in most situations this information would be made available to the public concurrently with the preliminary alternatives and rationale for alternatives and prior to conducting the effects analysis. As previously discussed, the BLM does not request written comments when making documents available for public review. However, the public is welcome to contact the BLM with any appropriate concerns.
For the same reasons described as for the preliminary alternatives, the BLM is considering requiring a public review of the basis for analysis “to the extent practical” or requiring a public review of the basis for analysis when preparing a resource management plan, but not for plan amendments. The BLM requests public comment on whether the public review of the basis for analysis should be required every time the BLM prepares a resource management plan or an EIS-level amendment.
This paragraph is adapted from an existing requirement of § 1610.4-2(a)(2) that the “BLM avoids unnecessary . . . analyses.” The BLM believes that identifying the basis for analysis and making that information available to the public would provide a more precise description in the regulations of how to avoid unnecessary analyses than existing language. The proposed change would also support the Planning 2.0 goal to provide early opportunities for meaningful public involvement.
Proposed paragraph (a)(2) of this section would explain that the BLM could change the preliminary basis for analysis as planning proceeds to respond to new information, including public suggestions.
Proposed paragraph (b) of this section is adapted from existing § 1610.4-6 and adds the introductory phrase “[e]ffects analysis” for improved readability. The term “Field Manager” would be replaced with “responsible official” for the reasons previously explained. The word “shall” would be replaced with “will” throughout this section for improved readability.
In the first sentence of paragraph (b) of this section, “physical, biological, economic, and social effects” would be replaced with “environmental, ecological, economic, and social effects” for consistent use in terminology. The proposed language encompasses the existing terminology. The BLM intends no change in practice or policy from the proposed change in terminology.
In the second sentence of paragraph (b) of this section, the proposed rule would replace “planning criteria” with “basis for analysis” and add “planning assessment.” The proposed language would state, “the estimation of effects must be guided by the basis for analysis, the planning assessment, and procedures implementing NEPA.” Planning criteria would no longer be required under the proposed rule; the planning assessment and the basis for analysis would instead provide the appropriate information to guide the effects analysis. Proposed changes would incorporate new terminology used in the proposed rule.
This section would be based on existing § 1610.4-7. This proposed section replaces references to the “Field Manager” with “responsible official,” references to “State Director” with “deciding official,” and makes grammatical edits. The heading of the section would be revised to include the new provision in paragraph (a) of this section regarding the preparation of the draft resource management plan.
Proposed paragraph (a) of this section would state that the responsible official will prepare a draft resource management plan based on the Director and deciding official guidance, the planning assessment, the planning issues, and the estimation of the effects of alternatives. This new language would highlight the unique step in the BLM land use planning process of preparing a draft resource management plan, consistent with current practice, and it would facilitate public understanding of the planning process outlined in § 1610.5. There would be no change from existing requirements associated with this new language, other than to reflect new terminology in this proposed rule and more broadly describe the information the BLM would use to prepare the draft resource management plan and draft EIS.
Proposed paragraph (a) of this section would further state that the draft resource management plan and draft EIS would evaluate the alternatives, identify one or more preferred alternatives, and explain the rationale for the preference. We propose to remove “estimate their effects according to the planning criteria” because planning criteria would no longer be prepared under the proposed rule and the estimation of effects of alternatives is already
The BLM is also considering whether to further revise paragraph (a) of this section for consistency with the DOI NEPA regulations, to read: “. . . identify the preferred alternative or alternatives, if one or more exist.” Under this alternative, the BLM might select a single preferred alternative, multiple preferred alternatives, or no preferred alternative. The BLM expects that in most situations a single preferred alternative would be selected, consistent with current practice; however, there may be instances in which either several may be identified, or where none of the alternatives are preferred. The latter instances, in particular, are rare, and usually occur when a plan amendment is being initiated in conjunction with decision-making regarding a site-specific proposal, and it is unclear which of possibly several project alternatives, each designed to reduce adverse environmental consequences, might be preferred. For this reason, the BLM is also considering whether to include a specific regulatory provision addressing these circumstances, to clarify that these are the only kinds of instances in which a preferred alternative need not be identified. The BLM requests public comment on these three alternative options for selection of preferred alternatives.
Regardless of which approach is carried forward into the final rule, the forthcoming revision of the Land Use Planning Handbook will provide more detailed guidance on the selection of preferred alternatives.
Finally, we would replace the requirement to select a preferred alternative that “best meets Director and State Director guidance” with a requirement to explain the rationale for the preferred alternative(s). There are many factors that might influence the selection of a preferred alternative, in addition to Director or deciding official guidance, such as assessment findings, public involvement, local planning priorities, and identified planning issues. The preferred alternative(s) must be consistent with Federal laws, regulation, and policy guidance, and would represent the alternative that the deciding official believes is most responsive to the planning issues and the planning assessment, which includes Director and deciding official guidance.
Proposed paragraph (b) of this section would be based on existing § 1610.4-7 with clarifying edits. “Draft plan and [EIS]” would be replaced with “draft resource management plan and draft [EIS].” “Governor” would be pluralized to acknowledge that a resource management plan may cross State boundaries and in that situation the draft resource management plan should be provided to the Governors of all States involved. We propose to add a reference to proposed § 1610.3-1(c) to improve readability of the regulations text. There would be no change in practice or policy from these proposed edits.
Proposed § 1610.5-5 would be based on existing § 1610.4-8. The BLM proposes to revise the heading to this section to include “preparation of implementation strategies.” Proposed changes to paragraph (a) of this section would replace the reference to the “Field Manager,” stating that the “responsible official” would evaluate the comments received after publication of the draft resource management plan and draft EIS and would prepare the proposed resource management plan and final EIS.
Proposed paragraph (b) of this section would provide that the responsible official prepare implementation strategies for the proposed resource management plan, as appropriate. The proposed language would clarify that should the responsible official determine that implementation strategies are appropriate, then this is the step during the preparation of a resource management plan when these strategies are developed. As previously described, implementation strategies assist in implementing future actions consistent with the plan components, but the implementation strategies are not a component of the resource management plan. Implementation strategies describe potential actions that the BLM may take in the future or methods for monitoring, but the BLM would not make a decision on future actions associated with an implementation strategy until conducting site-specific NEPA analysis. The BLM would prepare implementation strategies for the proposed resource management plan, as appropriate. The BLM would not prepare implementation strategies for draft resource management alternatives and would not be required to conduct NEPA analysis for the implementation strategies.
Proposed paragraph (c) of this section would require that the deciding official publish the proposed resource management plan and file the final EIS with the EPA. The proposed rule would no longer detail the BLM's internal review process. We propose removing references to internal steps such as “supervisory review” because these are better established through BLM policy. There would be no change to existing policy or practice, but the proposed rule would leave the BLM with discretion about how to conduct its internal review process.
Proposed paragraph (c) of this section would also provide that the BLM publish any implementation strategies prepared for the proposed resource management plan in conjunction with the proposed resource management plan. The BLM expects that in most situations the implementation strategies would be published as appendices to the proposed resource management plan. In unique circumstances, however, the implementation strategies may be published after the proposed resource management plan.
Proposed § 1610.6 is adapted from existing § 1610.5. We propose to replace “use” with “implementation” in the heading to proposed § 1610.6 to more accurately describe the provisions of this section. We also propose to replace the word “shall” with “will,” unless otherwise noted, throughout these sections for improved readability. The BLM intends no change from current practice or policy.
This section is adapted from existing § 1610.5-1. We propose to replace “and administrative review” with “and implementation” in the heading of this section to focus this section on resource management plan approval and implementation. Similarly, we propose to delete the existing first paragraph, which refers to internal procedures such as “supervisory review and approval.” The BLM's internal review procedures are better established through BLM policy.
Paragraphs (a), (b), and (c) of this section contain the provisions of existing § 1610.5-1. The BLM proposes edits to this section to improve understanding of existing requirements, but does not anticipate any change in implementation from existing regulations.
Under proposed paragraph (a) of this section, the deciding official would approve a resource management plan, or EIS-level amendment, no earlier than 30 days after the EPA publishes a
Proposed § 1610.6-1(b) would contain some language from existing paragraph (b), with some clarifying edits. In addition to existing provisions stating that plan approval would be withheld until after protests have been resolved, paragraph (b) of this proposed section would also clarify an existing requirement to provide public notice and opportunity for public comment if the BLM intends to select a different alternative, or portion of an alternative, than the proposed resource management plan or plan amendment. Such a change may result from the BLM's decision on a protest or from the BLM's consideration of inconsistencies identified by a Governor. The proposed rule would revise this sentence to explain “if, after publication of a proposed resource management plan or plan amendment, the BLM intends to select an alternative that is encompassed by the range of alternatives in the final [EIS] or [EA] but is substantially different than the proposed resource management plan or plan amendment, the BLM will notify the public and request written comments on the change before the resource management plan or plan amendment is approved.” The proposed language would more precisely describe what is meant by the existing phrase “any significant change made to the proposed plan.” The BLM intends no change from current practice or policy; rather the proposed change would provide a more precise description of existing requirements.
Proposed § 1610.6-1(c) contains language from the last sentence of existing paragraph (b) of existing § 1610.5-1 and provides that the approval of a resource management plan or a plan amendment for which an EIS is prepared must be documented in a concise public ROD, consistent with NEPA requirements (40 CFR 1505.2). Current language refers to “the approval,” and the proposed change would specify that a ROD would be prepared for approval of a resource management plan or EIS-level amendment. Approvals of EA-level amendments need not be documented in a ROD; however, current BLM policy requires the preparation of a decision record to document these decisions (see BLM NEPA Handbook, H-1790-1).
Proposed § 1610.6-2 contains the protest procedures found at existing § 1610.5-2. The BLM proposes to amend this section to update the procedures for the public's submission and the BLM's action on protests of a resource management plan or plan amendment.
Under the introductory text in proposed paragraph (a) of this section, we propose to clarify that a person who participated in the preparation of the resource management plan or plan amendment and has an interest which “may be adversely affected” by the approval of a proposed resource management plan or plan amendment may protest such approval. We propose to replace “planning process” with “the preparation of the resource management plan or plan amendment” to more precisely describe what steps of the “planning process” apply to paragraph (a) and for consistency with other proposed changes. Under current practice, the BLM generally considers the “planning process” to mean the preparation of a resource management plan or plan amendment. Under the proposed rule, we wish to clarify that the preparation of a resource management plan is just one step of the planning process. Other steps include the planning assessment, the approval of the resource management plan, the implementation of the resource management plan, monitoring and evaluation, and future modification of the resource management plan through plan maintenance, amendment, or revision. A person may only submit a protest, however, if they participated in the preparation of the resource management plan or plan amendment.
We also propose to remove language stating that any person who has an interest which “is or may be” adversely affected by the approval or amendment of a resource management plan may protest such approval or amendment. Instead, we would state that any person who has an interest which “may be” adversely affected by the approval of a proposed resource management plan or plan amendment may protest such approval. We would replace the phrase “is or may be” with “may be” to eliminate duplicative and unnecessary language. An interest that “may be adversely affected” includes an already affected interest. The proposed change would improve readability only; the BLM intends no change to the meaning of this provision.
Existing § 1610.5-2(a)(1) would be split into paragraphs (a)(1) and (a)(2) of proposed § 1610.6-2 and would contain requirements for filing protests, including new provisions for electronic submission.
Proposed paragraph (a)(1) of this section, “Submission,” would describe the procedures for submitting a protest. A new provision would state that the protest may be filed as a hard-copy or electronically and the responsible official would specify protest filing procedures for a resource management plan or plan amendment (beyond these general requirements in the planning regulations). Under the existing regulations, a protest must be filed as a hard-copy. Although the BLM would continue to accept hard-copy protest submissions, providing an additional option for electronic submission would reduce a burden on the public by reducing the expense associated with mailing a hard-copy. An electronic format would also streamline the processing of protests, since the protest would already be digitized, thereby eliminating a step from the process. Further, a protest sent by mail may take many days to arrive at the appropriate BLM office and delay the start of the BLM's protest resolution process. Electronic options for protest submission would promote a more efficient protest resolution process. The proposed rule provides flexibility for how protests would be submitted electronically to the BLM. The BLM expects to provide an electronic submission option either through email submission or through the BLM Web site.
Although the BLM believes that electronic submission will promote efficiency, it is also important to note that providing an electronic option for protest submission could also lead to an increased burden on the agency by increasing the number of protest submissions, such as form letters. In this
Proposed paragraph (a)(2) of this section, “Timing,” would maintain the existing time periods for submitting a protest, but make edits for improved readability and understanding. There would be no changes to existing requirements. For resource management plans and EIS-level amendments, protests must be filed within 30 days after the date the EPA publishes a NOA of the final EIS in the
Proposed § 1610.6-2(a)(3), “Content Requirements,” would outline the required content of a protest. Proposed paragraph (a)(3)(i) of this section would include a new requirement that protesting parties include their email address (if available) in addition to other identifying information in the protest letter in order to facilitate BLM communications with protesting parties in the event of a question regarding a protest or its filing. It often is easier to communicate by email than by telephone and this requirement would be in line with the BLM's acceptance of protests electronically under proposed § 1610.6-2(a)(1).
Proposed paragraph (a)(3)(ii) of this section would require a statement of how the protestor participated in the planning assessment or the preparation of the resource management plan. This would be a change from existing language that requires a statement of the issue or issues being protested, which would be included in proposed paragraph (a)(2)(iii) of this section. Although existing paragraph (a) states that only a person who participated in the preparation of a resource management plan may submit a protest, proposed paragraph (a)(3)(ii) would place the burden on the protestor to demonstrate their eligibility for submitting a protest. This proposed requirement would make it easier for the BLM to determine eligibility to protest and more efficiently respond to all protests.
Proposed paragraph (a)(3)(iii) would replace the requirement to provide a “statement of the part or parts of the plan or amendment being protested” with a new requirement to identify the plan component(s) believed to be inconsistent with Federal laws or regulations applicable to public lands, or the purposes, policies and programs of such laws and regulations. The proposed change would be consistent with other proposed changes (see proposed § 1610.1-2). Plan components provide planning-level management direction. The final decision to approve a resource management plan or plan amendment represents the final decision to approve the planning level management direction, which will guide all subsequent management decisions.
In contrast, implementation strategies are not subject to protest because they are not a component of the resource management plan. These strategies describe how the BLM may implement future actions that are consistent with the resource management plan, but consideration of a proposed implementation-level action, along with an implementation strategy comes at the implementation stage when the future action is taken. For example, management measures describes actions the BLM may take to implement a future action consistent with the plan components, but the final decision to implement the action would come at a later point in time and would require site-specific NEPA analysis. The decision to implement the future action associated with the implementation strategy would be subject to appeal, or other administrative remedy as appropriate, when that future decision is approved. A management measure to apply a habitat improvement in an area, for example, would require site-specific NEPA analysis and an associated decision. The site-specific decision would be subject to an appeals process at that time.
Proposed paragraph (a)(3)(iv) would require the protest to include a concise explanation of why the plan component(s) is believed to be inconsistent with Federal laws or regulations applicable to public lands, or the purposes, policies and programs of such laws and regulations, and identification of the associated issue(s) raised during the planning process. This provision would replace the final sentence of existing paragraph (a)(1)(iv) of this section. We are proposing to require that protests include more specific grounds for challenging a plan component than the existing regulations, which require only “(a) concise statement explaining why the State Director's decision is believed to be wrong.” More specific grounds for protests would help the BLM to identify, understand, and respond thoughtfully to valid protest issues, such as inconsistencies with Federal laws or regulations.
This proposed change would also provide a more clear distinction between the protest process and the earlier public comment period on a draft resource management plan and draft EIS. The earlier public comment period offers an opportunity to comment on a wide variety of matters relating to a draft plan. The protest procedures, in contrast, are intended to focus the BLM Director's attention on aspects of a proposed resource management plan that may be inconsistent with legal requirements or policies. The proposed changes are not a change from existing practice or policy. The BLM believes that the proposed change would more effectively communicate to the public what the BLM considers when addressing protests.
Proposed paragraph (a)(3)(v) of this section retains the existing requirement that protests include a copy of all documents addressing the issue(s) raised that the protesting party submitted during the planning process or an indication of the date the issue(s) were discussed for the record. These documents or dates would assist the BLM in responding to protests.
Proposed paragraph (a)(4) of this section on “availability” would establish a new requirement that protests would be made available to the public upon request and this would be independent of existing requirements under the Freedom of Information Act. This commitment would demonstrate the value the BLM places on public involvement in resource management planning. The BLM intends for this commitment to ensure transparency and consistency in practice. The BLM is exploring how to make protests available in a timely and efficient manner, including by posting all protest submissions to the BLM Web site, and welcomes public comments on this issue.
Proposed paragraph (b) of this section would reiterate the existing requirement in existing § 1610.6-1(b) that the BLM Director render a decision on all protests before approving a resource management plan or plan amendment, except as otherwise provided in 1610.6-1(b) that approval would be withheld on any portion of a resource management plan or plan amendment where the protest has not been resolved. This means that the BLM could choose to approve the portions of the resource management plan not being protested, while withholding approval on the portion being protested, until final
Proposed paragraph (b) would further provide that the BLM notify protesting parties of the decision and would make both the decision and the reasons for the decision on the protest available to the public. The BLM expects that these typically would be posted on the BLM Web site and shared with individuals or groups that have requested email notice in conjunction with the preparation or amendment of a resource management plan. We propose removing the requirement that the BLM send its decision on a protest to the protesting parties by certified mail, return receipt requested. The BLM believes that the wide availability and ease of use of the Internet and electronic communications make these means of notifying the public well-suited for sharing protest decisions with the public. Electronic communications allow the BLM flexibility to make protest decisions available to a potentially large number of protesting parties or members of the public without an overly burdensome workload. These means would also be consistent with BLM policy promoting the use of electronic communications in the land use planning process.
The final sentence of proposed paragraph (b) would reflect existing § 1610.5-2(b) and explain that the BLM Director's decision is the final decision of the Department of the Interior. This decision may be subject to judicial review. The BLM proposes to change “shall be” to “is,” to comply with more recent style conventions and improve readability. However, there would be no substantive change to this paragraph.
Proposed paragraph (c) of this section would add a new provision stating that the BLM Director may dismiss any protest that does not meet the requirements of this section. For example, the BLM may dismiss protests where protestors lack standing or protests that are incomplete or untimely. The proposed text does not represent a change in requirements or in existing practice. The BLM Director may currently dismiss protests that do not meet the regulatory requirements. The BLM believes that adding this text would more effectively communicate to potential protestors that their protest may be dismissed if it does not meet the requirements for submission.
Proposed § 1610.6-3 would be based on existing § 1610.5-3. In proposed paragraph (a) of this section, we propose to remove the phrase “as well as budget or other action proposals to higher levels in the Bureau of Land Management and Department.” All future authorizations and actions must conform to the approved resource management plan, thus this language is confusing and unnecessary. No change from current practice is intended by this proposed change. We also propose to add the words “plan components,” stating “All future resource management authorizations and actions . . . must conform to the plan components of the approved resource management plan.” The proposed edits would be consistent with the definition of “plan components” in proposed § 1601.0-5 and the requirements of proposed § 1610.1-2 and would more precisely describe how the BLM interprets conformance.
In paragraph (b) of this section, we propose specifying that the “plan” referenced is a “resource management plan” and that the requirements of this section also apply following the approval of a plan amendment. We propose replacing “Field Manager” with the “BLM.” As previously described, replacing the “Field Manager” with the “BLM” acknowledges responsibilities that might be fulfilled by a BLM employee other than a Field Manager.
Throughout this section, we propose replacing “shall” with “will,” unless otherwise noted. Proposed revisions throughout this section would only be for improved readability or improved understanding of existing practice or policy.
Proposed new § 1610.6-4 would address monitoring and evaluation of resource management plans following their approval and would incorporate much of the existing language from existing § 1610.4-9 with edits for consistency with other proposed changes. The BLM would monitor and evaluate the resource management plan in accordance with the monitoring and evaluation standards and the monitoring procedures (see proposed §§ 1610.1-2(b)(3) and 1610.1-3(a)(2)) to determine whether there is sufficient cause to warrant amendment or revision of the resource management plan or for other purposes, such as evaluating the effectiveness of implementation strategies.
The final sentence of proposed § 1610.6-4 would establish a new requirement that the BLM document the evaluation of the resource management plan in a report made available for public review. The BLM believes that sharing this information with the public would provide transparency during the implementation of a resource management plan.
Proposed § 1610.6-5 would be based on existing § 1610.5-4 to explain the reasons for updating resource management plans through plan maintenance and to identify the parameters for plan maintenance. Under both existing and proposed regulations, maintenance represents minor changes and updates to a resource management plan that would not change any fundamental aspects of the plan. As proposed, maintenance would not change a plan component, except to correct typographical or mapping errors or to reflect minor changes in mapping or data. Unless otherwise indicated, we propose to replace “shall” with “will” throughout this section for improved readability.
We propose to delete “and supporting components” from the first sentence of this section to avoid confusion. The existing regulations are unclear on what is meant by “supporting components” in this provision. Supporting information, such as a visual resources
We also propose to replace “shall be maintained” with “may be maintained” in the first sentence. The proposed change would reflect the fact that plans are maintained as necessary, and the BLM has the discretion to assess the urgency of the need to maintain the plan when weighed against available budgets and competing workload priorities.
The proposed rule would also revise the areas described in the regulations that may be updated through plan maintenance. We propose to expand existing language stating that plans are maintained as necessary to “reflect minor changes in data” with language stating the plans would be maintained as necessary “to correct typographical or mapping errors or to reflect minor changes in mapping or data.” The proposed language provides a more precise and accurate description of changes that are made using plan maintenance under the existing regulations.
We propose to remove language limiting maintenance “to further refining or documenting a previously approved decision incorporated in the plan” as well as language indicating that “maintenance must not result in the expansion in the scope of resource uses or restrictions, or change the terms, conditions, and decisions of the approved plan.” Instead, the proposed rule would state that maintenance must not change a plan component of the approved resource management plan, except to correct typographical or mapping errors, or to reflect minor changes in data. The proposed change would make the maintenance provisions consistent with other proposed changes. The plan components would encompass the “scope of resource uses or restrictions” and the “terms, conditions, and decisions” of the approved resource management plan, therefore there would be no substantive change from current policy.
Existing language is retained which indicates that maintenance is not considered a plan amendment and therefore does not require the same public involvement, interagency coordination, or NEPA analysis as plan amendments. This language is still relevant and applicable because plan components (
We propose to replace the words “shall not” with “does not” where the existing regulations state that maintenance “shall not” require the formal public involvement and interagency coordination process described under §§ 1610.2 and 1610.3. This proposed change would deviate from other proposed changes where we would replace “shall” with “will.” No change in meaning or practice is intended by the proposed change. The BLM believes that in this sentence, the proposed language provides better readability and ease of understanding.
Finally, we propose to remove existing language which requires maintenance to be documented in plans and supporting records and instead add a new requirement for the BLM to notify the public when changes are made to an approved resource management plan through plan maintenance and make those changes available to the public at least 30 days prior to their implementation. While the proposed rule does not specify how the BLM would do so, we anticipate that changes would be posted on the BLM Web site and available at BLM offices within the planning area, with direct notice sent to those individuals and groups that have requested such notice. The forthcoming revision of the Land Use Planning Handbook will provide more detailed guidance on how the BLM will make different types of plan maintenance available to the public. The BLM requests public comment on whether and if so how plan maintenance should be made available to the public.
Proposed § 1610.6-6 would be based on existing § 1610.5-5. We propose to amend this section by updating language to be consistent with other changes in this proposed rule. Unless otherwise indicated, “shall” would be replaced with “will” or “must,” for improved readability.
Paragraph (a) of this section would revise the undesignated introductory text in existing § 1610.5-5 to explain that a plan component may be changed through amendment. This represents a change from the existing regulations, which provide that a resource management plan may be changed by amendment. The proposed change is necessary for consistency with changes to § 1610.1, which distinguish between plan components and implementation strategies. As explained in § 1610.1-2 of this preamble, plan components would represent management level direction and would only be changed through amendment or revision.
We propose that an amendment “may” be initiated when the BLM determines that monitoring and evaluation findings, new high quality information, including best available scientific information, new or revised policy, a proposed action, “or other relevant changes in circumstances” warrant a change to one or more plan components of the approved plan. The proposed change would replace “shall be initiated” with “may be initiated” to reflect the fact that the BLM must consider available budgets and competing workload priorities when making the determination to initiate a plan amendment.
We also propose edits to make this section easier to read, clarifying that an amendment must be made “in conjunction” with an EA or EIS. We would replace the word “through” with “in conjunction” because the EA or EIS informs the amendment, but is not the mechanism through which the amendment is made. We propose to clarify that the procedures for plan amendments include public involvement (see proposed § 1610.2), interagency coordination and consistency (see § 1610.3), and protest procedures (see proposed § 1610.6-2). We would retain the existing provision that the BLM must evaluate the effect of the amendment on the plan and that if the amendment under consideration is in response to a specific proposal, the requisite analysis for the proposal and the amendment may occur simultaneously. This is consistent with NEPA regulations asking Federal agencies to integrate NEPA with other planning processes (see 40 CFR 1500.2(c) and 1500.4(k)).
Proposed paragraph (b) of this section concerns an amendment for which an EA does not disclose significant impacts and would be revised by replacing references to the “Field Manager” with
We propose to eliminate the existing requirement that the amendment process follow the same procedures as for preparing and approving a resource management plan. Instead, the proposed rule would identify in relevant sections where EIS-level amendments follow the same procedures for preparing and approving a resource management plan. Although the same procedures would be required for most steps of preparing a resource management plan, the proposed change would allow for EIS-level amendments to have a different time period for public comment on the draft plan amendment than for draft resource management plans. EIS-level plan amendments would be subject to a 45-day public comment period on the draft plan amendment and draft EIS, instead of a 60-day public comment period on a draft resource management plan and draft EIS (see proposed § 1610.2-2). The BLM believes the 45-day public comment period, which is consistent with the CEQ requirement (see 40 CFR 1506.10(c)) would be sufficient for many amendments and that this shorter public comment period would improve efficiency when an amendment is warranted. However, the regulations would not prevent the BLM from offering a longer public comment period or extending the public comment period on a draft resource management plan amendment and draft EIS in any particular case, if the planning process would benefit from more than 45 days for public comments. We expect to provide more detailed guidance in the forthcoming revision of the Land Use Planning Handbook on situations that may warrant a longer comment period than the minimum required under NEPA.
We also propose to remove existing language that consideration for an EIS-level amendment is limited to “that portion of the plan being amended.” This existing language contradicts the requirement from proposed paragraph (a) that the “effect of the amendment on other plan components must be evaluated.” For example, if an amendment would preclude the BLM from achieving other goals and objectives of the approved resource management plan that are not explicitly addressed in the amendment, this is important information for the BLM to be aware of.
Paragraph (c) of this section would be adapted from the existing provision of § 1610.5-5(b) that “if several plans are being amended simultaneously, a single [EIS] may be prepared to cover all amendments” for improved readability. Instead, this provision would state that “if the BLM amends several resource management plans simultaneously, a single programmatic [EIS] or [EA] may be prepared to address all amendments.”
Proposed § 1610.6-7 would be based on existing § 1610.5-6. We propose to revise this section to improve readability and more clearly explain when the BLM would prepare a revision. In the first sentence of the section the clause that states “a resource management plan shall be revised . . .” would be replaced with “the BLM may revise a resource management plan. . . .” The proposed rule would use active voice to clearly show that the BLM would be revising the plan, but it also changes the text from a requirement “shall” to the discretionary term “may.” In both existing regulations and this proposed rule, the revision would occur “as necessary.” This change would reflect the fact that the BLM must consider many factors including available budgets, competing workload priorities, and development of new policy when making the determination to revise a resource management plan. While this is a change in the regulations, current BLM practice does take these factors into account when determining what is necessary, so no change in implementation is expected. The proposed rule would more clearly demonstrate this to the public.
The proposed changes would also state that in addition to monitoring and evaluation findings, new data, or new or revised policy, “other relevant changes in circumstances” that affect an entire plan or major portions of a plan may require a plan revision. This does not represent a change in practice, but rather reflects the fact that other changes in circumstances could warrant a plan revision. For example, proliferation of the demand for energy development in an area could result in a plan revision if the BLM believed that a plan revision was necessary to adequately address this demand and consider impacts at a regional-scale. This section would maintain the existing requirement that revisions must comply with all of the requirements of the planning regulations for preparing and approving a resource management plan, with minor edits to improve readability.
Proposed § 1610.6-8 would be based on existing § 1610.5-7. We propose minor edits in this section with no intended change in practice or policy. We would replace the “Bureau of Land Management” with the “BLM,” which has already been introduced in this part. We would also replace a reference to the “Field Manager” to “the BLM,” as the action described applies more to the agency than any particular individual. We would replace “use” with “rely on” for more accurate use of language.
The BLM proposes to replace “there are situations of mixed ownership” with “including mixed ownership” in the first sentence of proposed 1610.6-8 for improved readability. No change in meaning is intended by this proposed change.
We propose to add a reference to tribal plans in proposed paragraph (a) of this section, which lists those other agency plans that may be used as the basis for a BLM action. We also propose to replace “public participation” with “public involvement,” consistent with FLPMA and proposed changes throughout this proposed rule.
We propose to add language to paragraphs (a) and (b) of this section clarifying that in order for the BLM to rely on or adopt another agency's plan, that plan must be consistent with “Federal laws and regulations applicable to public lands, and the purposes, policies and programs of such laws and regulations.” For example, the other agency's plan must comply with NEPA. The proposed change would be consistent with current practice and policy.
We propose to remove “to comply with law and policy applicable to public lands” from proposed paragraph (b) because that language would no longer be necessary with the added text.
We propose to remove the final sentence of existing § 1610.5-7 which provides that “The decision to approve the land use analysis and to lease coal is made by the Departmental official who has been delegated the authority to issue coal leases.” This language is unnecessary in the planning regulations.
Finally, the reference to § 1610.5-2 would be updated to reflect other changes under this proposed rule. No change in meaning is intended by updating this reference.
Proposed § 1610.7 would be based on existing § 1610.6 with minor revisions. We propose replacing the “Federal Land Policy and Management Act” with “FLPMA,” the “Bureau of Land Management” with the “BLM,” and replacing “shall” with “will” in this section for improved readability. In the second sentence of this section, however, we propose to replace “[t]his report shall not be required” to “[t]his report is not required” for improved readability and ease of understanding. We propose to clarify that this report is not required prior to approval of a resource management plan which, if fully or partially implemented, would result in elimination “of use(s).” No change in meaning is intended with these proposed changes.
Proposed § 1610.8 would contain the provisions of existing § 1610.7 without amendment.
Proposed § 1610.8-1 would be based on existing § 1610.7-1. We propose replacing references to the “Field Manager” and the “Bureau of Land Management” with the “BLM” in this section. The Field Manager commitments described in this section are those of the BLM, not any one individual. We also propose replacing the word “shall” with “will” throughout this section, unless otherwise indicated, for improved readability. No change in meaning is intended with these proposed changes.
Proposed § 1610.8-2 would be based on existing § 1610.7-2. The BLM proposes revising the language throughout existing § 1610.7-2 to use plain language, including changing “shall” to “will,” or in some instances “shall” to “must” for improved readability.
Proposed paragraph (a) of this section would contain the undesignated introductory language in existing § 1610.7-2, revised as follows. “Areas of critical environmental concern” would be replaced with the abbreviation “ACEC” for improved readability. The existing language stating that potential ACECs are identified and considered throughout the resource management planning process would be removed and instead we would state that “Areas having potential for ACEC designation and protection management will be identified through inventory of public lands and during the planning assessment.” The proposed change would reflect the fact that FLPMA directs the BLM to identify potential ACECs through the inventory of public lands (see section 201(a) of FLPMA) and consider them for designation through land use planning (see section 202(c)(3) of FLPMA). When the BLM prepares a resource management plan or an EIS-level amendment, potential ACECs would be identified during the planning assessment (see proposed § 1610.4(a)(1)). However the BLM may also conduct inventory at times not associated with the preparation or amendment of a resource management plan, and potential ACECs could be identified at those times as well. The BLM intends no change in practice or policy by the proposed revisions, other than to identify that potential ACECs would be identified during a planning assessment, a new proposed step in the planning process.
Proposed paragraph (a) of this section would also include language from existing 1610.7-2(a), which describes the criteria for identifying a potential ACEC. We would replace “shall” with “will” to read “[t]he inventory data will be analyzed to determine whether there are areas containing resources, values, systems or processes or hazards eligible for further consideration for designation as an ACEC.”
We propose to maintain the existing descriptions of the “relevance” and “importance” criteria in proposed paragraphs (a)(1) and (a)(2) of this section, though “shall” would be replaced with “must” and we would remove the phrase “this generally requires more than local significance” from the description of importance. This phrase is vague and unnecessary in the regulations. There are many existing examples where an area of local significance has been determined to meet the “importance” criteria. The proposed change would be consistent with FLPMA and would improve understanding that the importance criteria is based on the degree of significance (
Proposed paragraph (b) of this section would address the designation of ACECs and would provide that potential ACECs would be considered for designation during the preparation or amendment of a resource management plan. This would replace language in existing § 1610.7-2 stating that ACECs are “considered throughout the resource management planning process.” Proposed paragraph (b) would also contain the provision that “[t]he identification of a potential ACEC shall not, in of itself, change or prevent change of the management or use of public lands,” which would be moved from the existing definition of “Areas of Critical Environmental Concern or ACEC” in 1601.0-5(a) to this section. The term “shall” would be replaced with “does” for improved readability. No change in meaning is intended by this proposed revision. This provision belongs with the ACEC provisions and this placement avoids including substantive regulatory provisions in the definitions.
We propose new additional language at the end of proposed paragraph (b) which would provide that “[p]otential ACECs require special management attention (when such areas are developed or used or no development is required) to protect and prevent irreparable damage to the important historic, cultural, or scenic values, fish and wildlife resources or other natural system or process, or to protect life and safety from natural hazards.” The proposed language is consistent with FLPMA (see section 103(a)) and would provide useful information in regards to designating ACECs. The BLM intends no change in practice or policy from adding this language; rather, the planning regulations would reflect existing statutory direction.
In addition, we propose dividing existing § 1610.7-2(b) into two paragraphs (proposed § 1610.8-2(b)(1) and (2)) to distinguish more clearly between the BLM's notice of potential ACECs and the formal designation of ACECs in the approved plan.
Proposed § 1610.8-2(b)(1) would maintain the existing requirement, with clarifying edits, that upon release of a draft resource management plan or plan amendment involving a potential ACEC, the BLM would notify the public and include a list of each potential ACEC and any special management attention which would follow a formal designation. For clarification purposes, we would replace the term “upon approval” with “upon release” so that this step is not confused with the formal approval of the proposed plan. This would not represent a change to existing practice. We also propose replacing the term “proposed ACEC” with “potential ACEC” in order to avoid confusion with the proposed resource management plan. The BLM provides notice of potential ACECs upon release of a draft resource management plan or plan amendment, rather than upon release of a proposed resource management plan
We propose removing the requirements in existing § 1610.7-2(b) to publish a
Under the proposed rule, the BLM would notify the public of each potential ACEC and any special management attention which would occur if it were formally designated, by posting a notice on the BLM Web site and at the BLM office where the plan is being prepared (see proposed § 1610.2-1(c)), and through written or email correspondence to those individuals or groups who have requested to receive updates throughout the planning process (see proposed § 1610.2-1(d)).
This proposed change would also mean that for the preparation of a resource management plan, the BLM would provide a 60-day comment period; for EIS-level amendments the BLM would provide a 45-day comment period; and for EA-level amendments, the BLM would not be required to provide a public comment period, however, if the BLM did provide a public comment period it would provide a minimum 30-day comment period (see proposed § 1610.2-2(a)). In most situations the BLM chooses to provide a public comment period for EA-level amendments, however, the proposed change acknowledges that there may be situations where there is no public interest in a draft plan amendment and it would therefore not benefit from a public comment period. In such situations, the planning regulations would not require that the BLM offer a public comment period. For example, an EA-level amendment could be initiated to extend ACEC designation to a recently acquired in-holding within an existing ACEC that was acquired expressly for that purpose. In this situation, there might be no need for or public interest in a comment period.
Paragraph (b)(2) of this section would maintain the existing provision with clarifying edits that the approval of a resource management plan or plan amendment that contains an ACEC constitutes formal designation of an ACEC. We propose to remove the phrase “plan revision” as this would be included in the definition of a resource management plan (see proposed § 1601.0-5). This paragraph would also replace the existing requirement for the approved plan to include “general management practices and uses, including mitigation measures” with a new requirement to include “any special management attention” identified to protect the designated ACEC. The proposed change would reflect the definition of an ACEC provided in FLPMA (section 103(a)). Under the proposed rule, the BLM would provide “special management attention,” as required by FLPMA, through the development of plan components. For example, special management attention could include goals, measurable objectives, mitigation standards (as part of a measurable objective), or resource use determinations, among others.
Implementation strategies could also be developed, as needed, to assist in implementing the special management attention provided through the plan components. For example, the BLM may identify specific management measures to achieve vegetation objectives in the ACEC. This represents a change from the existing regulations, which requires inclusion of “general management practices” when providing special management attention. The BLM believes that the new requirement for plan objectives to be measurable (see § 1610.1-2(a)(2)) provides a more effective method to apply special management attention because it allows the BLM to track progress toward the achievement of the objective while incorporating new science and information when implementing specific management measures.
Proposed § 1610.9 would contain the provisions of existing § 1610.8, amended as follows. Existing provisions of § 1610.8 address the transition from management framework plans, the land use plans the BLM prepared beginning in 1969 under authorities that predated FLPMA, to resource management plans, which the BLM has prepared and approved under FLPMA and the planning regulations first adopted in 1979. We propose edits in existing § 1610.8(a) and (b) to refer to “public involvement” instead of “public participation” and to refer to the “responsible official” instead of the “Field Manager,” consistent with changes made throughout this proposed rule. We also use “will” or “must” instead of “shall” for improved readability.
We propose to clarify in paragraph (a)(1) that management framework plans may be the basis for considering proposed action if the management framework plan is in compliance with the principle of multiple use and sustained yield “or other applicable law.” We would add “or other applicable law” because in some situations the BLM must be in compliance with the principles of other legal authorities. For instance, national monuments established under the Antiquities Act of 1906 (16 U.S.C. 431-433) must comply with the principles specific to their establishment. We propose to remove existing § 1610.8(a)(2). This provision is no longer necessary. The BLM would instead rely on proposed § 1610.9(a)(2) when considering proposed actions under a management framework plan.
Proposed new § 1610.9(c) and (d) would address the transition from resource management plans approved under the existing regulations, which first became effective on September 6, 1979 (44 FR 46386) and which were updated with revisions that became effective on July 5, 1983 (48 FR 20364) and April 22, 2005 (55 FR 14561), to resource management plans that will be prepared, revised, or amended under these regulations when they are final.
In considering the transition provisions, it is important to remember that this proposed rule would make changes to the procedures the BLM uses to prepare, revise, or amend resource management plans, and provide more detailed guidance in areas where the current regulations are vague, unclear, or silent. This proposed rule does not change the nature of a resource management plan itself (
Accordingly, proposed § 1610.9(c)(1) would discuss how the BLM would evaluate whether a proposed action, such as an oil and gas lease sale, is in conformance with a resource management plan once final regulations resulting from this proposal become effective. We propose that when considering whether a proposed action is in conformance with a resource management plan, the BLM will use an existing resource management plan (
Proposed § 1610.9(c)(2) would address how to evaluate whether an action is in conformance with a resource management plan after the plan has been amended under the proposed regulations. In such circumstances, the amended portions of the plan would use new terminology and identify plan components, whereas the remainder of the plan would not use new terminology. A proposed action must therefore either be consistent with the plan components (proposed new terminology) or the terms, conditions, and decisions of the plan (existing terminology).
Proposed § 1610.9(d) would address resource management plans that are currently being prepared, revised, or amended. We propose that if the preparation, revision, or amendment of a resource management plan was or is formally initiated by publication of a NOI in the
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this proposed rule is not significant.
Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The Executive Order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this proposed rule in a manner consistent with these requirements.
This proposed rule would not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
These industries may include a large, though unquantifiable, number of small entities. In addition to determining whether a substantial number of small entities are likely to be affected by this rule, the BLM must also determine whether the rule is anticipated to have a significant economic impact on those small entities. The proposed rule is largely administrative in nature and would only affect internal BLM procedures. The direct impacts on the public would be increased opportunities for voluntary public involvement. The magnitude of the impact on any individual or group, including small entities, is expected to be negligible. The actual impacts cannot reasonably be predicted at this stage, as they will depend on the specific context of each planning effort. However, there is no reason to expect that these changes, when implemented across all future planning efforts, would place undue burden on any specific individual or group, including small entities.
Based on the available information, we conclude that the proposed rule would not have a significant economic effect on a substantial number of small entities. Therefore, a final Regulatory Flexibility Analysis is not required, and a Small Entity Compliance Guide is not required. The BLM prepared a preliminary economic and threshold analysis as part of the record, which is available for review.
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule is administrative in nature and affects the BLM's land use planning process and procedures.
This rule does not have an annual effect on the economy of $100 million or more. These procedures and costs are existing requirements and it would be speculative to estimate how many protests the BLM would receive as a result of this proposed rule.
This rule will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. There would be no impact to any prices as a result of this proposed rule.
This rule does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This rule is administrative in nature and only impacts the BLM's land use planning process and procedures. The BLM prepared a preliminary economic and threshold analysis as part of the record, which is available for review.
This rule does not impose an unfunded mandate on State, local, or tribal governments, or the private sector of more than $100 million per year. This rule does not have a significant or unique effect on State, local or tribal governments or the private sector. This rule is administrative in nature and only impacts the BLM's land use planning process and procedures. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
This rule does not affect a taking of private property or otherwise have taking implications under Executive Order 12630. This rule is administrative in nature and only impacts internal BLM procedures. A takings implication assessment is not required.
Under the criteria in section 1 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. A federalism summary impact statement is not required.
A Federalism assessment is not required because the rule 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.
The only provisions that could possibly have an effect on States, is the Governor's consistency review and the increased public involvement opportunities, but these provisions would only have minimal impacts, if any.
In the Governor's consistency review, the proposed rule would not significantly impact Governors or change the existing requirements of this section. This section is revised only to clarify an existing process that has caused some confusion. The only change from existing requirements is 1610.3-2(b)(1)(ii), which would allow the Governor to waive or reduce the 60 day period during which the Governor may identify inconsistencies. This could provide a benefit to the Governor in some situations where the timely approval of a plan or amendment is necessary. The BLM is requesting comments on potentially reducing this time period in certain situations. However, as proposed, this time period would not be adjusted other than as previously discussed in proposed § 1610.3-2(b)(1)(ii). Please see the discussion on the Governor's consistency review at the preamble for proposed § 1610.3-2(b)(1)(ii).
The proposed rule could also add more opportunities for public involvement, including through the planning assessment (see § 1610.4), which could result in more engagement with State and local governments.
Neither of these instances would have a significant adverse effect on State governments.
This rule complies with the requirements of Executive Order 12988. Specifically this rule: (a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and (b) Meets the criteria of section 3(b)2 requiring that all regulations be written in clear language and contain clear legal standards.
This rule complies with the requirements of Executive Order 13175
The Paperwork Reduction Act (PRA) (44 U.S.C. 3501-3521) provides that an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless it displays a currently valid OMB control number. Collections of information include requests and requirements that an individual, partnership, or corporation obtain information, and report it to a Federal agency. See 44 U.S.C. 3502(3); 5 CFR 1320.3(c) and (k).
This proposed rule contains information collection requirements that are subject to review by OMB under the Paperwork Reduction Act (44 U.S.C. 3501-3520). Collections of information include any request or requirement that persons obtain, maintain, retain, or report information to an agency, or disclose information to a third party or to the public (44 U.S.C. 3502(3) and 5 CFR 1320.3(c))
An information collection request for this proposed rule has been submitted to OMB for review in accordance with 44 U.S.C. 3507(d). The information collection request is intended to correct the erroneous omission of such a request when the planning regulations at 43 CFR part 1600 were originally promulgated. The proposed rule does not significantly alter the information collection activities in the existing planning regulations.
A copy of the information collection request may be obtained from the BLM by electronic mail request to Shasta Ferranto at
The BLM requests comments on the following subjects:
1. Whether the collection of information is necessary for the proper functioning of the BLM, including whether the information will have practical utility;
2. The accuracy of the BLM's estimate of the burden of collecting the information, including the validity of the methodology and assumptions used;
3. The quality, utility, and clarity of the information to be collected; and
4. How to minimize the information collection burden on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other forms of information technology.
If you would like to comment on the information collection requirements of this proposed rule, please send your comments directly to OMB, with a copy to the BLM, as directed in the
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Section 202(c)(9) of FLPMA requires that the Secretary of the Interior “assist in resolving, to the extent practical, inconsistencies between Federal and non-Federal Government plans.” This responsibility is delegated to the BLM Director and accomplished, in part, through the “Governor's Consistency Review” process described in proposed § 1610.3-2(b). This information collection activity is necessary for this process and for compliance with section 202(c)(9) of FLPMA.
Proposed § 1610.3-2(b) would provide an opportunity for Governors of affected States to identify possible inconsistencies between officially approved and adopted land use plans of State and local governments and proposed resource management plans (RMPs) or proposed amendments to RMPs and management framework plans (MFPs). Following receipt of a proposed resource management plan or plan amendment from the BLM, Governors would have a period of 60 days to submit to the deciding official a written document that:
• Identifies any inconsistencies with officially approved and adopted land use plans of State and local governments; and
• Recommends remedies for the identified inconsistencies.
The proposed regulations would provide that the BLM deciding official would notify the Governor in writing of his or her decision regarding these recommendations and the reasons for this decision. Within 30 days of this decision, the Governor would be authorized to appeal this decision to the BLM Director. The BLM Director would consider the Governor(s)' comments in rendering a final decision.
Section 202(f) of FLPMA requires that the Secretary of the Interior “allow an opportunity for public involvement and by regulation . . . establish procedures . . . to give Federal, State, and local governments and the public, adequate notice and opportunity to comment upon and participate in the formulation of plans and programs relating to the management of public lands.” The protest process described in proposed § 1610.6-2 would authorize protests of proposed land use plans and plan amendments before such plans or plan amendments are approved. The collection of information would assist the BLM in complying with section 202(f) of FLPMA. Proposed § 1610.6-2 would provide an opportunity for any person who participated in the preparation of the resource management plan or plan amendment to protest the approval of proposed RMPs and proposed amendments to RMPs and MFPs to the Director of the BLM. The following information would be required for submission of a valid protest:
1. The protestor's name, mailing, address, telephone number, and email address (if available). The BLM would need this information in order to contact the protestor.
2. The protestor's interest that may be adversely affected by the planning process. This information would help the BLM understand whether or not the protestor is eligible to submit a protest.
3. How the protestor participated in the preparation of the resource management plan or plan amendment. This information would help the BLM determine whether or not the protestor is eligible to submit a protest.
4. The plan component or components believed to be inconsistent with Federal laws or regulations applicable to public lands, or the purposes, policies and programs of such laws and regulations. This information is necessary because the approval of a resource management plan is the final decision for the Department of the Interior. Plan components represent planning-level management direction with which all future decisions within a planning area must be consistent, thus it is important for the BLM to know if a plan component is believed to be inconsistent with Federal laws or regulations applicable to public lands, or the purposes, policies and programs of such laws and regulations.
5. A concise explanation of why the plan component is believed to be inconsistent with Federal laws or regulations applicable to public lands, or the purposes, policies and programs of such laws and regulations and of the associated issue or issues that were raised during the preparation of the resource management plan or plan amendment. This information would be essential to the BLM's understanding of the protest and decision to grant or dismiss the protest.
6. Copies of all documents addressing the issue or issues that were submitted during the planning process by the protesting party or an indication of the date the issue or issues were discussed for the record. This information would help the BLM to understand the protest and to reach a decision.
The BLM Director would be required to render a decision on the protest before approval of any portion of the resource management plan or plan amendment being protested. The Director's decision would be the final decision of the Department of the Interior.
The estimated hour burdens of the proposed supplemental collection requirements are shown in the following table. Included in the burden estimates are the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing each component of the proposed information collection requirements.
The BLM does not believe this rule would constitute a major Federal action significantly affecting the quality of the human environment, and has prepared preliminary documentation to this effect, explaining that a detailed statement under the National Environmental Policy Act of 1969 (NEPA) would not be required because the rule is categorically excluded from NEPA review. This rule would be excluded from the requirement to prepare a detailed statement because, as proposed, it would be a regulation entirely procedural in nature. (For further information see 43 CFR 46.210(i)). We have also determined, as a preliminary matter, that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.
Documentation of the proposed reliance upon a categorical exclusion has been prepared and is available for public review with the other supporting documents for this proposed rule.
This rule is not a significant energy action under the definition of Executive Order 13211. This rule is administrative in nature and affects the BLM's internal procedures. There would be no impact on the development of energy on public lands. A statement of Energy Effects is not required.
The principal authors of this rule are Kerry Rodgers and Shasta Ferranto of the Division of Decision Support, Planning and NEPA, Washington Office, Bureau of Land Management, Department of the Interior. They were assisted by Charles Yudson of the Division of Regulatory Affairs, Washington Office, Bureau of Land Management, Department of the Interior.
Administrative practice and procedure, Coal, Environmental impact statements, Environmental protection, Intergovernmental relations, Public lands, State and local governments.
For the reasons set out in the preamble, the Bureau of Land Management proposes to amend 43 CFR by revising part 1600 to read as follows:
43 U.S.C. 1711-1712
The purpose of this subpart is to establish in regulations a process for the development, approval, maintenance, and amendment of resource management plans, and the use of existing plans for public lands administered by the Bureau of Land Management (BLM).
The objective of resource management planning by the BLM is to promote the principles of multiple use and sustained yield on public lands unless otherwise provided by law, ensure participation by the public, State and local governments, Indian tribes and Federal agencies in the development of resource management plans, and ensure that the public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; that will provide for outdoor recreation and human occupancy and use, and which recognizes the Nation's need for domestic sources of minerals, food, timber, and fiber from the public lands.
These regulations are issued under the authority of sections 201 and 202 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1711-1712); the Public Rangelands Improvement Act of 1978 (43 U.S.C. 1901); section 3 of the Federal Coal Leasing Amendments Act of 1976 (30 U.S.C. 201(a)); sections 522, 601, and 714 of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1201
(a) The Secretary and the Director provide national level policy and procedure guidance for planning. The Director determines the deciding official and the planning area for the preparation of each resource management plan. The Director also determines the deciding official and the planning area for plan amendments that cross State boundaries.
(b) Deciding officials provide quality control and supervisory review, including approval, for the preparation and amendment of resource management plans and related environmental impact statements or environmental assessments. The deciding official determines the planning area for plan amendments that do not cross State boundaries.
(c) Responsible officials prepare resource management plans and plan amendments and related environmental impact statements or environmental assessments.
As used in this part, the term:
Approval of a resource management plan is considered a major Federal action significantly affecting the quality of the human environment. The environmental analysis of alternatives and the proposed resource management plan will be accomplished as part of the resource management planning process and, wherever possible, the proposed resource management plan will be published in a single document with the related environmental impact statement.
(a) These regulations apply to all public lands.
(b) These regulations also govern the preparation of resource management plans when the only public land interest is the mineral estate.
The development, approval, maintenance, amendment, and revision of resource management plans will provide for public involvement and will be consistent with the principles described in section 202 of FLPMA. Additionally, the BLM will consider the impacts of resource management plans on resource, environmental, ecological, social, and economic conditions at appropriate scales. The BLM also will consider the impacts of resource management plans on, and the uses of, adjacent or nearby Federal and non-Federal lands, and non-public land surface over federally-owned mineral interests.
(a) Guidance for preparation and amendment of resource management plans may be provided by the Director and deciding official, as needed, to help the responsible official prepare a specific resource management plan. Such guidance may include the following:
(1) Policy established through Presidential, Secretarial, Director, or deciding official approved documents, so long as such policy is consistent with the Federal laws and regulations applicable to public lands; and
(2) Analysis requirements, planning procedures, and other written information and instructions required to be considered in the planning process.
(b) The BLM will use a systematic interdisciplinary approach in the preparation and amendment of resource management plans to achieve integrated consideration of physical, biological, ecological, social, economic, and other sciences. The expertise of the preparers will be appropriate to the resource values involved, the issues identified during the issue identification and environmental impact statement scoping stage of the planning process, and the principles of multiple use and sustained yield, or other applicable law. The responsible official may use any necessary combination of BLM staff, consultants, contractors, other governmental personnel, and advisors to achieve an interdisciplinary approach.
(c) The BLM will use high quality information to inform the preparation, amendment, and maintenance of resource management plans.
(a) Plan components guide future management actions within the planning area. Resource management plans will include the following plan components:
(1)
(2)
(i) Identify standards to mitigate undesirable effects to resource conditions; and
(ii) Provide integrated consideration of resource, environmental, ecological, social, and economic factors.
(b) Resource management plans also will include the following plan components in order to achieve the goals and objectives of the resource management plan, or applicable legal requirements or policies, consistent with the principles of multiple use and sustained yield or other applicable law:
(1)
(i) Planning designations are identified through the BLM's land use planning process in order to achieve the goals and objectives of the resource management plan or applicable legal requirements or policies such as the designation of areas of critical environmental concern (ACEC) (see § 1610.8-2).
(ii) Non-discretionary designations are designated by the President, Congress, or the Secretary of the Interior pursuant to other legal authorities.
(2)
(3)
(4) Lands identified as available for disposal from BLM administration under section 203 of FLPMA, as applicable.
(c) A plan component may only be changed through a resource management plan amendment or revision, except to correct typographical or mapping errors or to reflect minor changes in data.
(a) A resource management plan may also include, but is not limited to, the following types of implementation strategies:
(1)
(2)
(b) Implementation strategies are not a plan component. Implementation strategies are intended to assist the BLM to carry out the plan components.
(c) Implementation strategies may be updated at any time if the BLM determines that relevant new information is available. Updates to an implementation strategy do not require a plan amendment or the formal public involvement and interagency coordination process described under §§ 1610.2 and 1610.3. The BLM will make updates to an implementation strategy available for public review at least 30 days prior to their implementation.
(a) The BLM will provide the public with opportunities to become meaningfully involved in and comment on the preparation and amendment of resource management plans. Public involvement in the resource management planning process will conform to the requirements of the National Environmental Policy Act and associated implementing regulations.
(b) Public involvement activities conducted by the BLM will be documented by a record or summary of the principal issues discussed and comments made. The record or summary of the principal issues discussed and comments made will be available to the public and open for 30 days to any participant who wishes to review the record or summary.
(c) Before the close of each fiscal year, the BLM will post the status of each resource management plan in process of preparation or scheduled to be started to the BLM's Web site.
(a) When the BLM prepares a resource management plan or amends a resource management plan and prepares an environmental impact statement to inform the amendment, the BLM will notify the public and provide opportunities for public involvement appropriate to the areas and people involved during the following steps in the planning process:
(1) Preparation of the planning assessment, as appropriate (see § 1610.4);
(2) Identification of planning issues (see § 1610.5-1);
(3) Review of the preliminary resource management alternatives and preliminary rationale for alternatives (see § 1610.5-2(c));
(4) Review of the basis for analysis (see § 1610.5-3(a)(1));
(5) Comment on the draft resource management plan (see § 1610.5-4); and
(6) Protest of the proposed resource management plan (see §§ 1610.5-5 and 1610.6-2).
(b) When the BLM amends a resource management plan and prepares an environmental assessment to inform the amendment, the BLM will notify the public and provide opportunities for public involvement appropriate to the areas and people involved during the following steps in the planning process:
(1) Identification of planning issues (see § 1610.6-6(a));
(2) Comment on the draft resource management plan amendment, as appropriate (see § 1610.6-6(a)); and
(3) Protest of the proposed resource management plan amendment (see §§ 1610.5-5 and 1610.6-2).
(c) The BLM will announce opportunities for public involvement by posting a notice on the BLM's Web site, at all BLM offices within the planning area, and at other public locations, as appropriate.
(d) Individuals or groups may request to be notified of opportunities for public involvement related to the preparation or amendment of a resource management plan. The BLM will notify those individuals or groups through written or electronic means.
(e) The BLM will notify the public at least 15 days before any public involvement activities where the public is invited to attend, such as a public meeting.
(f) When initiating the identification of planning issues (see § 1610.5-1), in addition to the public notification requirements of §§ 1610.2-1(c) and 1610.2-1(d), the BLM will notify the public as follows:
(1) When the BLM initiates the preparation of a plan amendment and
(2) When the BLM initiates the preparation of a resource management plan, or a plan amendment and an environmental impact statement will be prepared to inform the amendment, the BLM will also publish a notice of intent in the
(3) This notice will include the following:
(i) Description of the proposed planning action;
(ii) Identification of the geographic area for which the resource management plan is to be prepared;
(iii) The general types of issues anticipated;
(iv) The expertise to be represented and used to prepare the resource management plan, in order to achieve an interdisciplinary approach (see § 1610.1-1(b));
(v) The kind and extent of public involvement opportunities to be provided, as known at the time;
(vi) The times, dates, and locations scheduled or anticipated for any public meetings, hearings, conferences, or other gatherings, as known at the time;
(vii) The name, title, address, and telephone number of the BLM official who may be contacted for further information; and
(viii) The location and availability of documents relevant to the planning process.
(g) If, after publication of a proposed resource management plan or plan amendment, the BLM intends to select an alternative that is encompassed by the range of alternatives in the final environmental impact statement or environmental assessment, but is substantially different than the proposed resource management plan or plan amendment, the BLM will notify the public and request written comments on the change before the resource management plan or plan amendment is approved (see § 1610.6-1(b)).
(h) The BLM will notify the public when a resource management plan or plan amendment has been approved.
(i) When changes are made to an approved resource management plan through plan maintenance, the BLM will notify the public and make the changes available for public review at least 30 days prior to their implementation.
(j) When changes are made to an implementation strategy, the BLM will notify the public and make the changes available for public review at least 30 days prior to their implementation.
(a) Any time the BLM requests written comments during the preparation or amendment of a resource management plan, the BLM will notify the public and provide for at least 30 calendar days for response, unless a longer period is required by law or regulation.
(b) When requesting written comments on a draft plan amendment and an environmental impact statement is prepared to inform the amendment, the BLM will provide at least 45 calendar days for response. The 45-day period begins when the Environmental Protection Agency publishes a notice of availability of the draft environmental impact statement in the
(c) When requesting written comments on a draft resource management plan and draft environmental impact statement, the BLM will provide at least 60 calendar days for response. The 60-day period begins when the Environmental Protection Agency publishes a notice of availability of the draft environmental impact statement in the
(a) The BLM will make copies of the draft, proposed, and approved resource management plan or plan amendment reasonably available to the public. At a minimum, the BLM will make copies of these documents available electronically and at all BLM offices within the planning area.
(b) Upon request, the BLM will make single printed copies of the draft or proposed resource management plan or plan amendment available to individual members of the public during the public involvement process. After the BLM approves a resource management plan or plan amendment, the BLM may charge a fee for additional printed copies. Fees for reproducing requested documents beyond those used as part of the public involvement activities and other than single printed copies of the resource management plan or plan amendment may be charged according to the Department of the Interior schedule for Freedom of Information Act requests in 43 CFR part 2.
(a)
(1) Keep apprised of non-BLM plans;
(2) Assure that the BLM considers those plans that are germane in the development of resource management plans for public lands;
(3) Assist in resolving, to the extent practical, inconsistencies between Federal and non-Federal government plans;
(4) Provide for meaningful public involvement of other Federal agencies, State and local government officials, both elected and appointed, and Indian tribes, in the development of resource management plans, including early notice of final decisions that may have a significant impact on non-Federal lands; and
(5) Where possible and appropriate, develop resource management plans collaboratively with cooperating agencies.
(b)
(1) When a cooperating agency is a non-Federal agency, a memorandum of understanding will be used and will include a commitment to maintain the confidentiality of documents and deliberations during the period prior to the public release by the BLM of any documents, including drafts (see 43 CFR 46.225(d)).
(2) The responsible official will collaborate with cooperating agencies, as feasible and appropriate given their interests, scope of expertise and the constraints of their resources, during the following steps in the planning process:
(i) Preparation of the planning assessment (see § 1610.4);
(ii) Identification of planning issues (see § 1610.5-1);
(iii) Formulation of resource management alternatives (see § 1610.5-2);
(iv) Estimation of effects of alternatives (see § 1610.5-3);
(v) Preparation of the draft resource management plan (see § 1610.5-4); and
(vi) Preparation of the proposed resource management plan and implementation strategies (see § 1610.5-5).
(c)
(1) To facilitate coordination with State governments, deciding officials should seek the input of the Governor(s) on the timing, scope, and coordination of resource management planning; definition of planning areas; scheduling of public involvement activities; and resource management opportunities and constraints on public lands.
(2) Deciding officials may seek written agreements with Governors or their designated representatives on processes and procedural topics such as exchanging information, providing advice and participation, and timeframes for receiving State government participation and review in a timely fashion. If an agreement is not reached, the deciding official will provide opportunity for Governor and State agency review, advice, and suggestions on issues and topics that the deciding official has reason to believe could affect or influence State government programs.
(3) The responsible official will notify relevant State agencies of opportunities for public involvement in the preparation and amendment of resource management plans consistent with State procedures for coordination of Federal activities for circulation among State agencies, if such procedures exist. The responsible official also will notify Federal agencies, the elected heads of county boards, other local government units, and elected government officials of Indian tribes that have requested to be notified or that the responsible official has reason to believe would be interested in the resource management plan or plan amendment. These notices will be issued simultaneously with the public notices required under § 1610.2-1 of this part.
(4) The BLM will provide Federal agencies, State and local governments, and Indian tribes the time period prescribed under § 1610.2 of this part for review and comment on resource management plans and plan amendments.
(d)
(a) Resource management plans will be consistent with officially approved or adopted land use plans of other Federal agencies, State and local governments, and Indian tribes to the maximum extent the BLM finds practical and consistent with the purposes of FLPMA and other Federal law and regulations applicable to public lands, and the purposes, policies and programs of such laws and regulations.
(1) The BLM will, to the extent practical, keep apprised of officially approved and adopted land use plans of State and local governments and Indian tribes and give consideration to those plans that are germane in the development of resource management plans.
(2) The BLM is not required to address the consistency requirements of this section if the responsible official has not been notified, in writing, by State and local governments or Indian tribes of an apparent inconsistency.
(3) If a Federal agency, State and local government, or Indian tribe notifies the responsible official, in writing, of what they believe to be specific inconsistencies between the BLM resource management plan and their officially approved and adopted land use plans, the resource management plan documentation will show how those inconsistencies were addressed and, if possible, resolved.
(4) Where the officially approved and adopted land use plans of State and local government differ from each other, those of the higher authority will normally be followed.
(b)
(1) The Governor(s) may submit a written document to the deciding official within 60 days after receiving the proposed resource management plan or plan amendment that:
(i) Identifies inconsistencies with officially approved and adopted land use plans of State and local governments and provides recommendations to remedy the identified inconsistencies; or
(ii) Waives or reduces the 60-day period.
(2) If the Governor(s) does not respond within the 60-day period, the resource management plan or plan amendment is presumed to be consistent.
(3) If the document submitted by the Governor(s) recommends substantive changes that were not considered during the public involvement process, the BLM will notify the public and request written comments on these changes.
(4) The deciding official will notify the Governor(s) in writing of his or her decision regarding these recommendations and the reasons for this decision.
(i) The Governor(s) may submit a written appeal to the Director within 30 days after receiving the deciding official's decision.
(ii) The Director will consider the Governor(s)' comments in rendering a final decision. The Director will notify the Governor(s) in writing of his or her decision regarding the Governor's appeal. The BLM will notify the public of this decision and make the written decision available to the public.
Before initiating the preparation of a resource management plan the BLM will, consistent with the nature, scope, scale, and timing of the planning effort, complete a planning assessment.
(a)
(1) Arrange for relevant resource, environmental, ecological, social, economic, and institutional data and information to be gathered, or assembled if already available, including the identification of potential ACECs (see § 1610.8-2). Inventory data and information will be gathered in a manner that aids the planning process and avoids unnecessary data-gathering;
(2) Identify relevant national, regional, or local policies, guidance, strategies or plans for consideration in the planning assessment. These may include, but are not limited to, executive or Secretarial orders, Departmental or BLM policy, Director or deciding official guidance, mitigation strategies, interagency initiatives, and State or multi-state resource plans;
(3) Provide opportunities for other Federal agencies, State and local
(4) Identify relevant public views concerning resource, environmental, ecological, social, or economic conditions of the planning area.
(b)
(c)
(1) Resource management authorized by FLPMA and other relevant authorities;
(2) Land status and ownership, existing resource uses, infrastructure, and access patterns in the planning area;
(3) Current resource, environmental, ecological, social, and economic conditions, and any known trends related to these conditions;
(4) Known resource thresholds, constraints, or limitations;
(5) Areas of potential importance within the planning area, including:
(i) Areas of tribal, traditional, or cultural importance;
(ii) Habitat for special status species, including State and/or federally-listed threatened and endangered species;
(iii) Other areas of key fish and wildlife habitat such as big game wintering and summer areas, bird nesting and feeding areas, habitat connectivity or wildlife migration corridors, and areas of large and intact habitat;
(iv) Areas of ecological importance, such as areas that increase the ability of terrestrial and aquatic ecosystems within the planning area to adapt to, resist, or recover from change;
(v) Lands with wilderness characteristics, candidate wild and scenic rivers, or areas of significant scenic value;
(vi) Areas of significant historical value, including paleontological sites;
(vii) Existing designations located in the planning area, such as wilderness, wilderness study areas, wild and scenic rivers, national scenic or historic trails, or ACECs;
(viii) Areas with potential for renewable or non-renewable energy development or energy transmission;
(ix) Areas of importance for recreation activities or access;
(x) Areas of importance for public health and safety, such as abandoned mine lands or natural hazards;
(6) Dominant ecological processes, disturbance regimes, and stressors, such as drought, wildland fire, invasive species, and climate change; and
(7) The various goods and services, including ecological services, that people obtain from the planning area such as:
(i) The degree of local, regional, national, or international importance of these goods and services;
(ii) Available forecasts and analyses related to the supply and demand for these goods and services; and
(iii) The estimated levels of these goods and services that may be produced on a sustained yield basis.
(d)
(e)
When preparing a resource management plan, or a plan amendment for which an environmental impact statement will be prepared, the BLM will follow the process described in §§ 1610.5-1 through 1610.5-7.
(a) The responsible official will prepare a preliminary statement of purpose and need, which briefly indicates the underlying purpose and need to which the BLM is responding (see 43 CFR 46.420). This statement will be informed by Director and deciding official guidance (see § 1610.1-1(a)), public views (see § 1610.4(a)(4)), the planning assessment (see § 1610.4(c)), the results of any previous monitoring and evaluation within the planning area (see § 1610.6-4), Federal laws and regulations applicable to public lands, and the purposes, policies, and programs of such laws and regulations. The BLM will initiate the identification of planning issues by notifying the public and making the preliminary statement of purpose and need available for public review.
(b) The public, other Federal agencies, State and local governments, and Indian tribes will be given an opportunity to suggest concerns, needs, opportunities, conflicts or constraints related to resource management for consideration in the preparation of the resource management plan. The responsible official will analyze those suggestions and other available data and information, such as the planning assessment (see § 1610.4-1), and determine the planning issues to be addressed during the planning process. Planning issues may be modified during the planning process to incorporate new information. The identification of planning issues should be integrated with the scoping process required by regulations implementing the National Environmental Policy Act (40 CFR 1501.7).
(a)
(1) The alternatives developed will be informed by the Director and deciding official guidance (see § 1610.1(a)), the planning assessment (see § 1610.4), and the planning issues (see § 1610.5-1).
(2) In order to limit the total number of alternatives analyzed in detail to a manageable number for presentation and analysis, reasonable variations may be treated as sub-alternatives.
(3) One alternative will be for no action, which means continuation of present level or systems of resource management.
(4) The resource management plan will note any alternatives identified and eliminated from detailed study and will briefly discuss the reasons for their elimination.
(b)
(1) A description of how each alternative addresses the planning
(2) A description of management direction that is common to all alternatives; and
(3) A description of how management direction varies across alternatives to address the planning issues.
(c)
(d)
(a)
(1) The responsible official will make the preliminary procedures, assumptions, and indicators available for public review prior to the publication of the draft resource management plan and draft environmental impact statement.
(2) The BLM may change the procedures, assumptions, and indicators as planning proceeds if it determines that public suggestions or other new information make such changes necessary.
(b)
(a) The responsible official will prepare a draft resource management plan based on Director and deciding official guidance, the planning assessment, the planning issues, and the estimation of the effects of alternatives. The draft resource management plan and draft environmental impact statement will evaluate the alternatives, identify one or more preferred alternatives, and explain the rationale for the preference. The decision to select a preferred alternative remains the exclusive responsibility of the BLM. The resulting draft resource management plan and draft environmental impact statement will be forwarded to the deciding official for publication and filing with the Environmental Protection Agency.
(b) This draft resource management plan and draft environmental impact statement will be provided for comment to the Governor(s) of the State(s) involved, and to officials of other Federal agencies, State and local governments, and Indian tribes that the deciding official has reason to believe would be interested (see § 1610.3-1(c)). This action constitutes compliance with the requirements of § 3420.1-7 of this title.
(a) After publication of the draft resource management plan and draft environmental impact statement, the responsible official will evaluate the comments received and prepare the proposed resource management plan and final environmental impact statement.
(b) The responsible official will prepare implementation strategies for the proposed resource management plan, as appropriate.
(c) The deciding official will publish these documents and file the final environmental impact statement with the Environmental Protection Agency.
(a) The deciding official may approve the resource management plan or plan amendment for which an environmental impact statement was prepared no earlier than 30 days after the Environmental Protection Agency publishes a notice of availability of the final environmental impact statement in the
(b) Approval will be withheld on any portion of a resource management plan or plan amendment being protested (see § 1610.6-2) until final action has been completed on such protest. If, after publication of a proposed resource management plan or plan amendment, the BLM intends to select an alternative that is encompassed by the range of alternatives in the final environmental impact statement or environmental assessment, but is substantially different than the proposed resource management plan or plan amendment, the BLM will notify the public and request written comments on the change before the resource management plan or plan amendment is approved.
(c) The approval of a resource management plan or a plan amendment for which an environmental impact statement is prepared will be documented in a concise public record of the decision (see 40 CFR 1505.2).
(a) Any person who participated in the preparation of the resource management plan or plan amendment and has an interest which may be adversely affected by the approval of a proposed resource management plan or plan amendment may protest such approval. A protest may raise only those issues which were submitted for the record during the preparation of the resource management plan or plan amendment (see §§ 1610.4 and 1610.5).
(1)
(2)
(3)
(i) Include the name, mailing address, telephone number, email address (if available), and interest of the person filing the protest;
(ii) State how the protestor participated in the preparation of the resource management plan or plan amendment;
(iii) Identify the plan component(s) believed to be inconsistent with Federal laws or regulations applicable to public
(iv) Concisely explain why the plan component(s) is believed to be inconsistent with Federal laws or regulations applicable to public lands, or the purposes, policies, and programs of such laws and regulations and identify the associated issue or issues raised during the preparation of the resource management plan or plan amendment; and
(v) Include a copy of all documents addressing the issue or issues that were submitted during the planning process by the protesting party or an indication of the date the issue or issues were discussed for the record.
(4)
(b) Except as otherwise provided in § 1610.6-1(b), the Director will render a written decision on all protests before approval of the resource management plan or plan amendment. The Director will notify protesting parties of the decision. The decision on the protest and the reasons for the decision will be made available to the public. The decision of the Director is the final decision of the Department of the Interior.
(c) The Director may dismiss any protest that does not meet the requirements of this section.
(a) All future resource management authorizations and actions, and subsequent more detailed or specific planning, will conform to the plan components of the approved resource management plan.
(b) After a resource management plan or plan amendment is approved, and if otherwise authorized by law, regulation, contract, permit, cooperative agreement, or other instrument of occupancy and use, the BLM will take appropriate measures, subject to valid existing rights, to make operations and activities under existing permits, contracts, cooperative agreements, or other instruments for occupancy and use, conform to the plan components of the approved resource management plan or plan amendment within a reasonable period of time. Any person adversely affected by a specific action being proposed to implement some portion of a resource management plan or plan amendment may appeal such action pursuant to 43 CFR 4.400 at the time the specific action is proposed for implementation.
(c) If a proposed action is not in conformance with a plan component, and the deciding official determines that such action warrants further consideration before a resource management plan revision is scheduled, such consideration will be through a resource management plan amendment in accordance with § 1610.6-6 of this part.
(d) More detailed and site specific plans for coal, oil shale and tar sand resources will be prepared in accordance with specific regulations for those resources: part 3400 of this title for coal; part 3900 of this title for oil shale; and part 3140 of this title for tar sand. These activity plans will be in conformance with land use plans prepared and approved under the provisions of this part.
The BLM will monitor and evaluate the resource management plan in accordance with the monitoring and evaluation standards and monitoring procedures to determine whether there is sufficient cause to warrant amendment or revision of the resource management plan. The responsible official will document the evaluation of the resource management plan in a report made available for public review.
Resource management plans may be maintained as necessary to correct typographical or mapping errors or to reflect minor changes in mapping or data. Maintenance will not change a plan component of the approved resource management plan, except to correct typographical or mapping errors or to reflect minor changes in mapping or data. Maintenance is not considered a resource management plan amendment and does not require the formal public involvement and interagency coordination process described under §§ 1610.2 and 1610.3 of this part or the preparation of an environmental assessment or environmental impact statement. When changes are made to an approved resource management plan through plan maintenance, the BLM will notify the public and make the changes available for public review at least 30 days prior to their implementation.
(a) A plan component may be changed through amendment. An amendment may be initiated when the BLM determines monitoring and evaluation findings, new high quality information, new or revised policy, a proposed action, or other relevant changes in circumstances, such as changes in resource, environmental, ecological, social, or economic conditions, warrants a change to one or more of the plan components of the approved resource management plan. An amendment will be made in conjunction with an environmental assessment of the proposed change, or an environmental impact statement, if necessary. When amending a resource management plan, the BLM will provide for public involvement (see § 1610.2), interagency coordination and consistency (see § 1610.3), and protest (see § 1610.6-2). In all cases, the effect of the amendment on other plan components will be evaluated. If the amendment is being considered in response to a specific proposal, the effects analysis required for the proposal and for the amendment may occur simultaneously.
(b) If the environmental assessment does not disclose significant impacts, the responsible official may make a finding of no significant impact and then make a recommendation on the amendment to the deciding official for approval. Upon approval, the BLM will issue a public notice of the action taken on the amendment. If the amendment is approved, it may be implemented 30 days after such notice.
(c) If the BLM amends several resource management plans simultaneously, a single programmatic environmental impact statement or environmental assessment may be prepared to address all amendments.
The BLM may revise a resource management plan, as necessary, when monitoring and evaluation findings (§ 1610.4-9), new data, new or revised policy, or other relevant changes in circumstances affect the entire resource management plan or major portions of the resource management plan. Revisions will comply with all of the requirements of this part for preparing and approving a resource management plan.
These regulations authorize the preparation of a resource management plan for whatever public land interests exist in a given land area, including mixed ownership where the public land estate is under non-Federal surface, or administration of the land is shared by the BLM and another Federal agency. The BLM may rely on the plans or the land use analysis of other agencies when split or shared estate conditions exist in any of the following situations:
(a) Another agency's plan (Federal, tribal, State, or local) may be relied on
(b) After evaluation and review, the BLM may adopt another agency's plan for continued use as a resource management plan so long as the plan is consistent with Federal laws and regulations applicable to public lands, and the purposes, policies, and programs of such laws and regulations, and an agreement is reached between the BLM and the other agency to provide for maintenance and amendment of the plan, as necessary.
(c) A land use analysis may be relied on to consider a coal lease when there is no Federal ownership interest in the surface or when coal resources are insufficient to justify plan preparation costs. The land use analysis process, as authorized by the Federal Coal Leasing Amendments Act, consists of an environmental assessment or impact statement, public participation as required by § 1610.2, the consultation and consistency determinations required by § 1610.3, the protest procedure prescribed by § 1610.6-2, and a decision on the coal lease proposal. A land use analysis meets the planning requirements of section 202 of FLPMA.
FLPMA requires that any BLM management decision or action pursuant to a management decision which totally eliminates one or more principal or major uses for 2 or more years with respect to a tract of 100,000 acres or more, will be reported by the Secretary to Congress before it can be implemented. This report is not required prior to approval of a resource management plan which, if fully or partially implemented, would result in such an elimination of use(s). The required report will be submitted as the first action step in implementing that portion of a resource management plan which would require elimination of such a use.
(a)(1) The planning process is the chief process by which public land is reviewed to assess whether there are areas unsuitable for all or certain types of surface coal mining operations under section 522(b) of the Surface Mining Control and Reclamation Act. The unsuitability criteria to be applied during the planning process are found in § 3461.1 of this title.
(2) When petitions to designate land unsuitable under section 522(c) of the Surface Mining Control and Reclamation Act are referred to the BLM for comment, the resource management plan, or plan amendment if available, will be the basis for review.
(3) After a resource management plan or plan amendment is approved in which lands are assessed as unsuitable, the BLM will take all necessary steps to implement the results of the unsuitability review as it applies to all or certain types of coal mining.
(b)(1) The resource management planning process is the chief process by which public lands are reviewed for designation as unsuitable for entry or leasing for mining operations for minerals and materials other than coal under section 601 of the Surface Mining Control and Reclamation Act.
(2) When petitions to designate lands unsuitable under section 601 of the Surface Mining Control and Reclamation Act are received by the BLM, the resource management plan, if available, will be the basis for determinations for designation.
(3) After a resource management plan or plan amendment in which lands are designated unsuitable is approved, the BLM will take all necessary steps to implement the results of the unsuitability review as it applies to minerals or materials other than coal.
(a) Areas having potential for ACEC designation and protection will be identified through inventory of public lands and during the planning assessment. The inventory data will be analyzed to determine whether there are areas containing resources, values, systems or processes, or hazards eligible for further consideration for designation as an ACEC. In order to be a potential ACEC, both of the following criteria must be met:
(1)
(2)
(b) Potential ACECs will be considered for designation during the preparation or amendment of a resource management plan. The identification of a potential ACEC does not, in of itself, change or prevent change of the management or use of public lands. Potential ACECs require special management attention (when such areas are developed or used or no development is required) to protect and prevent irreparable damage to the important historic, cultural, or scenic values, fish and wildlife resources or other natural system or process, or to protect life and safety from natural hazards.
(1) Upon release of a draft resource management plan or plan amendment involving a potential ACEC, the BLM will notify the public of each potential ACEC and any special management attention which would occur if it were formally designated.
(2) The approval of a resource management plan or plan amendment that contains an ACEC constitutes formal designation of an ACEC. The approved plan will include a list of all designated ACECs, and include any special management attention identified to protect the designated ACECs.
(a) Until superseded by resource management plans, management framework plans may be the basis for considering proposed actions as follows:
(1) The management framework plan must be in compliance with the principle of multiple use and sustained yield, or other applicable law, and must have been developed with public involvement and governmental coordination, but not necessarily precisely as prescribed in §§ 1610.2 and 1610.3 of this part.
(2) For proposed actions a determination will be made by the responsible official whether the proposed action is in conformance with the management framework plan. Such determination will be in writing and will explain the reasons for the determination.
(i) If the proposed action is in conformance with the management framework plan, it may be further considered for decision under procedures applicable to that type of action, including the regulatory provisions of the National Environmental Policy Act.
(ii) If the proposed action is not in conformance with the management framework plan, and if the proposed
(b)(1) If an action is proposed where public lands are not covered by a management framework plan or a resource management plan, an environmental assessment or an environmental impact statement, if necessary, plus any other data and analysis deemed necessary by the BLM to make an informed decision, will be used to assess the impacts of the proposal and to provide a basis for a decision on the proposal.
(2) A land disposal action may be considered before a resource management plan is scheduled for preparation, through a planning analysis, using the process described in § 1610.6-6 of this part for amending a plan.
(c)(1) When considering whether a proposed action is in conformance with a resource management plan, the BLM will use an existing resource management plan approved prior to April 25, 2016 until it is superseded by a resource management plan or plan amendment prepared under the regulations in this part. In such circumstances, the proposed action must either be specifically provided for in the resource management plan or clearly consistent with the terms, conditions, and decisions of the approved plan.
(2) If a resource management plan is amended by a plan amendment prepared under the regulations in this part, a future proposed action must either be consistent with the plan components of the approved resource management plan or the terms, conditions, and decisions of the approved resource management plan.
(d) If the preparation, revision, or amendment of a plan was formally initiated by issuance of a notice of intent in the
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration |