Federal Register Vol. 81, No.42,
Federal Register Volume 81, Issue 42 (March 3, 2016)
Federal Register Volume 81, Issue 42 (March 3, 2016)
| Page Range | 11091-11405 | |
| FR Document |
Document Created: 2015-12-31 23:04:59
Document Modified: 2015-12-31 23:04:59
| Page and Subject | |
|---|---|
| 81 FR 11304 - Temporary Emergency Committee of the Board of Governors; Sunshine Act Meeting | |
| 81 FR 11097 - Women's History Month, 2016 | |
| 81 FR 11095 - National Colorectal Cancer Awareness Month, 2016 | |
| 81 FR 11093 - Irish-American Heritage Month, 2016 | |
| 81 FR 11091 - American Red Cross Month, 2016 | |
| 81 FR 11343 - Culturally Significant Objects Imported for Exhibition Determinations: “Pergamon and the Hellenistic Kingdoms of the Ancient World” Exhibition | |
| 81 FR 11266 - Farm Credit Administration Board; Sunshine Act; Regular Meeting | |
| 81 FR 11309 - Sunshine Act Meeting | |
| 81 FR 11288 - Agency Information Collection Activities: Application for T Nonimmigrant Status; Application for Immediate Family Member of T-1 Recipient; and Declaration of Law Enforcement Officer for Victim of Trafficking in Persons, Form I-914 and Supplements A and B; Extension, Without Change, of a Currently Approved Collection | |
| 81 FR 11294 - NASA Advisory Council; Technology, Innovation and Engineering Committee; Meeting | |
| 81 FR 11347 - Notice of Intent To Rule on Request To Release Airport Property at the Gainesville Municipal Airport in Gainesville, Texas | |
| 81 FR 11346 - Noise Compatibility Program Notice, Lafayette Regional Airport, Lafayette, Louisiana | |
| 81 FR 11340 - Women-Owned Small Business Federal Contract Program; Identification of Eligible Industries | |
| 81 FR 11361 - Proposed Collection; Comment Request for Regulation Project | |
| 81 FR 11113 - Establishment of the Loess Hills District Viticultural Area | |
| 81 FR 11204 - Proposed Agency Information Collection | |
| 81 FR 11121 - Fluensulfone; Pesticide Tolerance for Emergency Exemption | |
| 81 FR 11209 - Notice of Final Decision To Reissue the Ineos Nitriles USA LLC Land-Ban Exemption | |
| 81 FR 11295 - Vogtle Electric Generating Station, Units 3 and 4; Southern Nuclear Operating Company; Addition of Instruments to Design Reliability Assurance Program (D-RAP) | |
| 81 FR 11209 - Clean Air Act Operating Permit Program; Petition for Objection to State Operating Permit for Southwestern Electric Power Company H.W. Pirkey Power Plant in Texas | |
| 81 FR 11296 - In The Matter of Duke Energy Corporation, Crystal River Nuclear Generating Station, Independent Spent Fuel Storage Installation: Order Modifying License (Effective Immediately) | |
| 81 FR 11302 - Operator Licensing Examination Standards for Power Reactors | |
| 81 FR 11287 - Agency Information Collection Activities: Deferral of Duty on Large Yachts Imported for Sale | |
| 81 FR 11344 - Environmental Impact Statement-Multiple Reservoirs Land Management Plans | |
| 81 FR 11268 - Privacy Act of 1974; Systems of Records | |
| 81 FR 11118 - Drawbridge Operation Regulation; Saginaw River, Bay City, MI | |
| 81 FR 11346 - Public Notice for Waiver for Aeronautical Land-Use Assurance at Fort Worth Spinks Airport, Fort Worth, TX | |
| 81 FR 11199 - Intent To Prepare a Draft Beaver Lake Master Plan and Shoreline Management Plan and Environmental Assessment To Investigate Potential Significant Impacts, Either Positive or Negative, to Beaver Lake's Authorized Purposes of Flood Risk Management, Hydropower, Water Supply, Recreation, and Fish and Wildlife | |
| 81 FR 11275 - Privacy Act of 1974; Effective Date-April 2, 2016; Expiration Date-October 2, 2017 | |
| 81 FR 11276 - Privacy Act of 1974; CMS Computer Match No. 2016-07; HHS Computer Match No. 1602; Effective Date-April 2, 2016; Expiration Date-October 2, 2017 | |
| 81 FR 11202 - Jordan Cove Energy Project, L.P.; Amendment of Application for Long-Term, Authorization To Export Liquefied Natural Gas to Non-Free Trade Agreement Nations | |
| 81 FR 11274 - Privacy Act of 1974; CMS Computer Match No. 2016-11; HHS Computer Match No. 1601; Effective Date-April 2, 2016; Expiration Date-October 2, 2017 | |
| 81 FR 11359 - Low Income Taxpayer Clinic Grant Program; Availability of 2016 Supplemental Grant Application Period | |
| 81 FR 11179 - Welded Stainless Pressure Pipe From India: Postponement of Preliminary Determination of Antidumping Duty Investigation | |
| 81 FR 11187 - Certain Uncoated Paper From Indonesia and the People's Republic of China: Amended Final Affirmative Countervailing Duty Determination and Countervailing Duty Order (Indonesia) and Countervailing Duty Order (People's Republic of China) | |
| 81 FR 11173 - Foreign-Trade Zone (FTZ) 76-Bridgeport, Connecticut; Authorization of Production Activity; MannKind Corporation, Subzone 76B (Inhalable Insulin), Danbury, Connecticut | |
| 81 FR 11173 - Foreign-Trade Zone (FTZ) 39-Dallas/Fort Worth, Texas, Authorization of Production Activity, KONE Inc., (Elevator Parts), Allen, Texas | |
| 81 FR 11177 - Diamond Sawblades and Parts Thereof From the People's Republic of China: Initiation and Preliminary Results of Changed Circumstances Review | |
| 81 FR 11110 - Expansion of the Willamette Valley Viticultural Area | |
| 81 FR 11179 - Initiation of Antidumping and Countervailing Duty Administrative Reviews | |
| 81 FR 11174 - Certain Uncoated Paper From Australia, Brazil, Indonesia, the People's Republic of China, and Portugal: Amended Final Affirmative Antidumping Determinations for Brazil and Indonesia and Antidumping Duty Orders | |
| 81 FR 11212 - Twenty-Ninth Update of the Federal Agency Hazardous Waste Compliance Docket | |
| 81 FR 11195 - 36(b)(1) Arms Sales Notification | |
| 81 FR 11193 - 36(b)(1) Arms Sales Notification | |
| 81 FR 11359 - Office of the Secretary | |
| 81 FR 11201 - Agency Information Collection Activities; Comment Request; Financial Report for the Endowment Challenge Grant Program and Institutional Service Endowment Activities | |
| 81 FR 11282 - National Institute on Alcohol Abuse and Alcoholism; Notice of Closed Meeting | |
| 81 FR 11281 - National Institute of General Medical Sciences; Notice of Closed Meeting | |
| 81 FR 11281 - National Cancer Institute; Notice of Closed Meetings | |
| 81 FR 11280 - National Cancer Institute; Notice of Meeting | |
| 81 FR 11347 - Petition for Waiver of Compliance | |
| 81 FR 11192 - Endangered and Threatened Species; Take of Anadromous Fish | |
| 81 FR 11344 - Lone Star Railroad, Inc. and Southern Switching Company-Track Construction and Operation Exemption-in Howard County, Texas | |
| 81 FR 11192 - Mid-Atlantic Fishery Management Council (MAFMC); Meeting | |
| 81 FR 11273 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding Company | |
| 81 FR 11295 - National Council on the Arts 187th Meeting | |
| 81 FR 11161 - Safety Zone; Xterra Swim, Myrtle Beach, SC Intracoastal Waterway; Myrtle Beach, SC | |
| 81 FR 11289 - Agency Information Collection Activities: Consideration of Deferred Action for Childhood Arrivals, Form I-821D; Extension, Without Change, of a Currently Approved Collection | |
| 81 FR 11205 - Combined Notice of Filings | |
| 81 FR 11267 - Notice to All Interested Parties of the Termination of the Receivership of 10504, Eastside Commercial Bank, Conyers, Georgia | |
| 81 FR 11267 - Notice to All Interested Parties of the Termination of the Receivership of 10421, First Guaranty Bank and Trust Company of Jacksonville, Jacksonville, Florida | |
| 81 FR 11267 - Notice to All Interested Parties of the Termination of the Receivership of 10279 Community National Bank At Bartow; Bartow, Florida | |
| 81 FR 11267 - Notice to All Interested Parties of the Termination of the Receivership of 10260 Olde Cypress Community Bank, Clewiston, Florida | |
| 81 FR 11168 - Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Northeast Groundfish Fishery; Recreational Management Measures | |
| 81 FR 11166 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Gag Management Measures | |
| 81 FR 11270 - Agency Information Collection Activities: Announcement of Board Approval Under Delegated Authority and Submission to OMB | |
| 81 FR 11206 - ANR Pipeline Company; Notice of Intent To Prepare an Environmental Assessment for the Proposed Collierville Expansion Project and Request for Comments on Environmental Issues | |
| 81 FR 11208 - Combined Notice of Filings #1 | |
| 81 FR 11290 - Generalized System of Preferences: Possible Modifications, 2015 Review | |
| 81 FR 11348 - Notice of Proposed Equal Employment Opportunity Program Circular | |
| 81 FR 11124 - Freedom of Information Act Regulations | |
| 81 FR 11164 - Semipostal Stamp Program | |
| 81 FR 11290 - Environmental Impact Statement for the San Juan Promenade Extension Project From El Morro Floating Battery Area to San Juan Bautista Plaza | |
| 81 FR 11290 - Minor Boundary Revision at Saratoga National Historical Park | |
| 81 FR 11099 - Application Process for Designation of Rural Area under Federal Consumer Financial Law; Procedural Rule | |
| 81 FR 11197 - 36(b)(1) Arms Sales Notification | |
| 81 FR 11294 - Section 512 Study: Extension of Comment Period | |
| 81 FR 11283 - Notice of Proposed Policy Statement on Historic Preservation and Community Revitalization | |
| 81 FR 11304 - Notice of Applications for Deregistration Under Section 8(f) of the Investment Company Act of 1940 | |
| 81 FR 11309 - Self-Regulatory Organizations; ISE Gemini, LLC; Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change To Amend Rule 804(g) | |
| 81 FR 11305 - Self-Regulatory Organizations; International Securities Exchange, LLC; Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change To Amend Rule 804(g) | |
| 81 FR 11307 - Self-Regulatory Organizations; NASDAQ OMX PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Adopt a Kill Switch | |
| 81 FR 11337 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend FINRA Rule 7620A (FINRA/Nasdaq Trade Reporting Facility Reporting Fees) | |
| 81 FR 11335 - Self-Regulatory Organizations; EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Related to Fees as They Apply to the Equity Options Platform | |
| 81 FR 11311 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Adopting Investigation, Disciplinary, Sanction, and Other Procedural Rules Modeled on the Rules of the New York Stock Exchange LLC and Certain Conforming and Technical Changes | |
| 81 FR 11303 - New Postal Product | |
| 81 FR 11291 - Comment Request for Information Collection for Contractor Information Gathering, Extension Without Changes | |
| 81 FR 11280 - Center for Scientific Review; Notice of Closed Meetings | |
| 81 FR 11282 - Center for Scientific Review; Notice of Closed Meetings | |
| 81 FR 11282 - National Institute of Allergy and Infectious Diseases; Amended Notice of Meeting | |
| 81 FR 11302 - Rate Adjustment | |
| 81 FR 11160 - Utility Allowances Submetering | |
| 81 FR 11358 - Supreme Corporation, Receipt of Petition for Decision of Inconsequential Noncompliance | |
| 81 FR 11354 - Decision That Certain Nonconforming Model Year 2006-2007 European Market Ferrari 599 GTB Passenger Cars Manufactured Prior to September 2007 Are Eligible for Importation | |
| 81 FR 11120 - Approval of Arizona Air Plan Revisions; Phoenix, Arizona; Second 10-Year Carbon Monoxide Maintenance Plan | |
| 81 FR 11189 - Pacific Fishery Management Council; Notice of Intent To Prepare an Environmental Impact Statement | |
| 81 FR 11201 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Annual Performance Report for Gaining Early Awareness and Readiness for Undergraduate Programs | |
| 81 FR 11104 - Utility Allowances Submetering | |
| 81 FR 11351 - Denial of Motor Vehicle Defect Petition | |
| 81 FR 11200 - Agency Information Collection Activities; Comment Request; Formula Grant EASIE Electronic Application System for Indian Education | |
| 81 FR 11278 - Office of the National Coordinator for Health Information Technology; Announcement of Requirements and Registration for “Consumer Health Data Aggregator Challenge” | |
| 81 FR 11151 - Effective Date of Requirement for Premarket Approval for Blood Lancets | |
| 81 FR 11140 - General and Plastic Surgery Devices; Reclassification of Blood Lancets | |
| 81 FR 11116 - Certifications and Exemptions Under the International Regulations for Preventing Collisions at Sea, 1972 | |
| 81 FR 11134 - Airworthiness Directives; BLANIK LIMITED Gliders | |
| 81 FR 11132 - Airworthiness Directives; Viking Air Limited Airplanes | |
| 81 FR 11166 - Petitions for Reconsideration of Action in a Rulemaking Proceeding; Correction | |
| 81 FR 11139 - Proposed Establishment of Class E Airspace; Harlan, KY | |
| 81 FR 11136 - Proposed Establishment of Class D Airspace: Destin, FL; Duke Field, Eglin AFB, FL; Proposed Revocation of Class D Airspace; Eglin AF Aux No 3 Duke Field, FL; and Proposed Amendment of Class D and E Airspace; Eglin Air Force Base, FL; Eglin Hurlburt Field, FL; and Crestview, FL | |
| 81 FR 11102 - Establishment of Class E Airspace, South Naknek, AK | |
| 81 FR 11103 - Amendment of Class D and Class E Airspace; Minot, ND | |
| 81 FR 11277 - Office of the National Coordinator for Health Information Technology; Announcement of Requirements and Registration for “Provider User-Experience Challenge” | |
| 81 FR 11363 - Passenger Screening Using Advanced Imaging Technology | |
| 81 FR 11173 - Deschutes Provincial Advisory Committee |
Issue
Forest Service
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Engineers Corps
Navy Department
Energy Information Administration
Federal Energy Regulatory Commission
Centers for Medicare & Medicaid Services
Food and Drug Administration
National Institutes of Health
Coast Guard
Transportation Security Administration
U.S. Citizenship and Immigration Services
U.S. Customs and Border Protection
National Park Service
Employment and Training Administration
Copyright Office, Library of Congress
National Endowment for the Arts
Federal Aviation Administration
Federal Railroad Administration
Federal Transit Administration
National Highway Traffic Safety Administration
Alcohol and Tobacco Tax and Trade Bureau
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.
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Bureau of Consumer Financial Protection.
Final rule.
The Bureau of Consumer Financial Protection (Bureau) is adopting a procedural rule establishing an application process under which a person may identify an area that has not been designated by the Bureau as a rural area for purposes of a Federal consumer financial law and apply for such area to be so designated. Currently the Bureau designates rural areas for purposes of certain Federal consumer financial laws relating to mortgage lending.
This final rule is effective March 3, 2016. The Bureau will begin accepting applications submitted according to the procedure established herein on March 31, 2016.
Carl Owens, Terry J. Randall, and James Wylie, Counsels, Office of Regulations, Consumer Financial Protection Bureau, 1700 G Street NW., Washington, DC 20552, at 202-435-7700.
Federal consumer financial law provides special provisions and exemptions for certain creditors doing business in rural areas. For example, an exemption from the requirement to establish an escrow account for a higher-priced mortgage loan (escrow exception) partially depends on whether the creditor has extended credit secured by properties in rural areas
The exemption and special provision listed above were adopted as part of the Bureau's mortgage rules implementing title XIV of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act),
Section 89002 of the HELP Rural Communities Act requires the Bureau to establish an application process under which a person may apply to have an area designated by the Bureau as a rural area for purposes of a Federal consumer financial law. Section 89002 of the HELP Rural Communities Act also provides details on many of the features of the process, including evaluation criteria for the Bureau's determinations on these applications, a period for public comment on the applications, and a sunset date for the application process of two years after the date of enactment of the HELP Rural Communities Act. The Bureau is issuing this procedural rule to establish the process required by section 89002 of the HELP Rural Communities Act.
Section 89003 of the HELP Rural Communities Act separately made amendments to TILA's test with respect to the Bureau's discretionary authority to establish the escrow exemption and a special provision that permits certain small creditors to originate balloon-payment qualified mortgages. This procedural rule relates solely to the application process under section 89002 and not to those amendments. The Bureau understands that the HELP Rural Communities Act amendments to TILA may create some uncertainty for creditors regarding how the Bureau will exercise its newly expanded discretionary authority with respect to the exemption and special provision in question, particularly in light of the April 1, 2016, expiration of the temporary period that allows certain small creditors to originate balloon-payment qualified mortgages and balloon-payment high cost mortgages, regardless of their operations in rural or underserved areas.
No notice of proposed rulemaking is required under the Administrative Procedure Act (APA) because this rule relates solely to agency procedure and practice.
Because no notice of proposed rulemaking is required, the Regulatory Flexibility Act does not require an initial or final regulatory flexibility analysis.
The Bureau is issuing this rule pursuant to its authority under section 1022(b)(1) of the Dodd-Frank Act, which authorizes the Bureau to prescribe rules as may be necessary or appropriate to enable the Bureau to administer and carry out the purposes and objectives of Federal consumer financial law.
The final rule is effective March 3, 2016. The Bureau will begin accepting applications submitted according to the procedure established herein on March 31, 2016. The HELP Rural Communities Act provides that section 89002, which requires the Bureau to establish this process, shall cease to have any force or effect on December 4, 2017.
According to the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501
The application shall be addressed to the CFPB Rural Application Coordinator, Bureau of Consumer Financial Protection.
It may be submitted using one of the following methods:
•
•
•
If the application is submitted by email, it and all attachments described below in part VI.C shall be compiled into a single portable document format (PDF) file. If the application is submitted by mail, hand delivery, or courier, the applicant shall provide three copies of the complete application. The application shall not exceed 10 pages.
The application shall contain the following sections:
The application shall specifically identify the area requested to be designated as a rural area and the State in which the area is located. An application may identify more than one area if the areas are contiguous (
The application shall provide information describing the area identified, for example:
a. The county that comprises the area or in which the area is located; or
b. The Census block that comprises the area, unless the area is comprised entirely of whole counties.
The applicant shall provide the following information about the evaluation criteria in section 89002(b) of the HELP Rural Communities Act:
The application shall state whether the area identified is classified as rural or urban by the Director of the Bureau of the Census and, if rural, explain the basis for concluding that the area identified was so classified, including by attaching any supporting documentation as described below in part VI.C.
The application shall state whether the area identified is classified as either a metropolitan area, a micropolitan area, or neither by the Director of the Office of Management and Budget and, if neither, explain the basis for concluding that the area identified was so classified, including by attaching any supporting documentation as described below in part VI.C.
The application shall state whether the Secretary of Agriculture has determined that properties in the area
The application shall state the most recent primary and secondary rural-urban commuting codes from the Department of Agriculture for the area identified or of which the area identified is a part, including by attaching any supporting documentation as described below in part VI.C.
The application shall state whether the State bank supervisor, as defined by 12 U.S.C. 1813(r), of the State where the area identified is located has issued a written opinion concerning whether the area identified should be designated as a rural area. Any such written opinion shall be attached as described below in part VI.C.
The application shall provide the population density of the area identified expressed as the number of persons per square mile using data from the Bureau of the Census and explain the data relied on, including by attaching supporting documentation as described below in part VI.C. The application shall also provide the population density of any nearby area with a greater population density that has been designated by the Bureau as a rural area.
The application shall include the following information about the applicant:
The application shall include the name of the applicant.
The application shall include information about how to contact the applicant if the Bureau needs additional information about the request.
If the applicant is a natural person, the application shall include only a statement affirming that the applicant lives or does business in the State in which the area identified is located. If the applicant is not a natural person, the application shall include a statement affirming that the applicant does business in the State in which the area identified is located and evidence supporting the statement as an attachment as described in part VI.C. Such evidence could include, for example, evidence of incorporation in the State, evidence of licensure to do business in the State, evidence of licensure to conduct a specific type of business in the State, or evidence of an office in the State. The applicant may redact such evidence to withhold sensitive personal information that is not relevant to establishing that the applicant does business in the State where the area identified is located. The applicant may also state on a cover page to the attachment that it wishes the entire attachment to be withheld from the
The application shall include any other documents necessary to provide the required information above as attachments.
Applicants should not include personal information other than information identified above in part VI.B.3. The Bureau is required by the HELP Rural Communities Act to publish the application in the
Upon receipt of a request pursuant to this process, the Bureau shall review the request for preliminary matters, including:
1. Completeness of the information set forth above in part VI;
2. Ensuring that the area identified is not already designated as a rural area under the Federal consumer financial laws;
3. Determining if there is an application already pending for the same area identified as described in section 89002(d)(2) of the HELP Rural Communities Act; and
4. Determining if an application for the area identified has been denied less than 90 days before the receipt of the application as described in section 89002(f) of the HELP Rural Communities Act.
If the Bureau determines that the applicant has not submitted a complete application (
If the Bureau determines that the applicant seeks the designation of a rural area for an area that is already designated as a rural area under the Federal consumer financial laws, for an area for which an application is already pending, for an area for which an application has been denied less than 90 days before the receipt of the application, or if the Bureau determines that the applicant neither lives nor does business in the State in which the area is located, the Bureau shall notify the applicant that the Bureau will not consider whether to designate the area as rural and the reason for not considering the application.
Not later than 60 days after receipt of a complete application, the Bureau shall publish the application in the
The Bureau shall accept public comments on the application for not fewer than 90 days after publication in the
The Bureau shall review the information contained in the application and the public comments and, not later than 90 days after the end of the public comment period described above in part VII.C, the Bureau shall grant or deny the application in whole or in part and shall publish such grant or denial in the
The HELP Rural Communities Act contemplates a process of up to 240 days for each application, including a minimum of 90 days for public comments. The Bureau will consider any application received before April 8, 2017. The Bureau may, in its discretion, consider an application received on or after April 8, 2017, if it determines that it is possible to complete the designation decision process for that application by the sunset date, based on the time remaining, the complexity of the application, and any other relevant factors. The Bureau will notify the applicant if it determines that it cannot complete the application process, in which case the Bureau shall not consider the application nor publish the application in the
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes Class E airspace extending upward from 700 feet above the surface at South Naknek NR 2 Airport, South Naknek, AK, to accommodate new Area Navigation (RNAV) Global Positioning System (GPS) standard instrument approach procedures developed for the airport.
Effective 0901 UTC, May 26, 2016. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Richard Roberts, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4517.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at South Naknek NR 2 Airport, South Naknek, AK.
On November 24, 2015, the FAA published in the
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
This document amends FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E airspace extending upward from 700 feet above the surface within a 6.5-mile radius of the South Naknek NR 2 Airport, South Naknek, AK. This airspace is established to accommodate new Area Navigation (RNAV) Global Positioning System (GPS) standard instrument approach procedures developed for the airport.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Federal Aviation Administration (FAA), DOT.
Final rule, correction.
This action amends a final rule published in the
Effective 0901 UTC, March 31, 2016. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX, 76177; telephone (817) 222-5711.
The
Accordingly, pursuant to the authority delegated to me, in the
That airspace extending upward from the surface to and including 4,200 feet MSL within a 4.2-mile radius of the Minot International Airport. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airman. The effective date and time will thereafter be continuously published in the Airport/facility Directory.
That airspace extending upward from the surface to and including 4,200 feet MSL within a 5.6-mile radius of Minot AFB. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airman. The effective date and time will thereafter be continuously published in the Airport/facility Directory.
(Lat. 48°15′37″ N., long. 101°17′13″ W.)
That airspace extending upward from 700 feet above the surface within a 7.1-mile radius of Minot AFB, and within 1.5 miles each side of the Deering TACAN 312° radial extending from the 7.1-mile radius of the AFB to 9.3 miles northwest of the AFB, and that airspace within a 7-mile radius of Minot International Airport, and within 4.8 miles each side of the Minot VORTAC 138° radial extending from the 7-mile radius of Minot International Airport to 12.1 miles southeast of the VORTAC; and that airspace extending upward from 1,200 feet above the surface within a 47-mile radius of Minot AFB, excluding the area north of latitude 49°00′00″ N.
Internal Revenue Service (IRS), Treasury.
Final and temporary regulations.
This document contains final and temporary regulations that amend the utility allowance regulations concerning the low-income housing credit. The final regulations clarify the circumstances in which utility costs paid by a tenant based on actual consumption in a submetered rent-restricted unit are treated as paid by the tenant directly to the utility company. The temporary regulations extend the principles of these submetering rules to situations in which a building owner sells to tenants energy that is produced from a renewable source and that is not delivered by a local utility company. The final and temporary regulations affect owners of low-income housing projects that claim the credit, the tenants in those low-income housing projects, and State and local housing credit agencies. The text of these temporary regulations also serves as the text of the proposed regulations (REG-123867-14) set forth in the notice of proposed rulemaking on this subject in the Proposed Rules section of this issue of the
James Rider (202) 317-4137 (not a toll-free number).
This document contains amendments to § 1.42-10 of the Income Tax Regulations (26 CFR part 1), which concerns the applicable utility allowance relating to the low-income housing credit under section 42 of the Internal Revenue Code. On May 5, 2009, the Treasury Department and the IRS released Notice 2009-44 (2009-21 IRB 1037) (see § 601.601(d)(2)(ii)(
After consideration of all the comments, the final regulations adopt the 2012 proposed regulations as amended by this Treasury decision, and the temporary regulations extend those rules to the provision of energy that the building owner acquires directly from renewable sources and then provides to low-income tenants. The text of the temporary regulations also serves as the text of the proposed regulations (REG-123867-14) for purposes of the notice of proposed rulemaking on this subject in the Proposed Rules section in this issue of the
Commenters generally stated that the 2012 proposed regulations provided for accurate utility allowance determinations, which would promote energy efficiency and help maintain the financial stability of housing credit properties.
The 2012 proposed regulations defined an actual-consumption submetering arrangement for utility allowance purposes as not including a ratio utility billing system (RUBS). RUBS uses a formula that allocates a property's utility bill among its units based on the units' relative floor space, number of occupants, or some other quantitative measure, but not actual consumption by the tenant(s) in the unit. A commenter expressed concern that the inability to use RUBS for utility allowance purposes could be interpreted to prohibit the use of RUBS for any low-income housing credit project. This concern is unwarranted. Although the 2012 proposed regulations precluded an arrangement such as RUBS from qualifying as an actual consumption submetering arrangement, they did not prohibit the use of RUBS for low-income housing credit projects. However, any amount paid by a tenant for utilities using RUBS must be included in gross rent. Accordingly, the final regulations follow the approach in the 2012 proposed regulations and continue to define an actual-consumption submetering arrangement as not including RUBS.
The 2012 proposed regulations provided that, if the owner charges a unit's tenants an administrative fee for the owner's actual monthly costs of administering an actual-consumption submetering arrangement, then the fee is not considered gross rent for purposes of section 42(g)(2) so long as the aggregate monthly fee or fees for all of the unit's utilities under one or more actual-consumption submetering arrangements does not exceed the lesser of (A) five dollars per month; or (B) the owner's actual monthly costs paid or incurred for administering the arrangement. One commenter recommended that the final regulations simply require owners to include in gross rent any amounts that exceed five dollars and not require the owner to determine actual monthly cost. According to the commenter, requiring the building owner to determine actual cost is overly burdensome and would lead to technical noncompliance as a result of nominal amounts. Two commenters requested that the final regulations also permit building owners to charge tenants an administrative fee in accordance with State law as currently permitted in Notice 2009-44. According to these commenters, this rule is regionally tuned and therefore allows building owners to recoup the full cost of submetering in a fair manner. The commenters suggested that by not allowing building owners to recover State-approved charges for electricity, the 2012 proposed regulations would create a disincentive for developers to invest in high performance, sustainable low income housing or build additional housing units.
In response to these comments, the final regulations do not include a requirement to determine actual monthly cost, and they generally permit owners to charge tenants an administrative fee in accordance with a State or local law that specifically prescribes a dollar amount for the
Thus, if a building owner or its agent charges a unit's tenants a fee for administering an actual-consumption submetering arrangement, then gross rent includes any amount by which the aggregate amount of monthly fees for all of the unit's utilities under one or more actual-consumption submetering arrangements exceeds the greater of—(i) five dollars per month; (ii) an amount (if any) designated by publication in the IRB; or (iii) the lesser of a dollar amount (if any) specifically prescribed under a State or local law or a maximum amount (if any) designated by publication in the IRB.
During consideration of the comments on the 2012 proposed regulations, the Treasury Department and the IRS realized that the proposed definition of an actual-consumption submetering arrangement assumed that the building owner was purchasing the utility in question from a local utility company. For example, proposed § 1.42-10(e)(1)(iv) referred to “the utility company rate incurred by the building owner for the particular utility.” This assumption appeared to preclude applying submetering principles to electricity generated from renewable sources by the building owner or by some other person from whom the building owner purchases it directly.
The legislative purposes of the low-income housing credit, however, are fully consistent with applying submetering principles to energy that is acquired without the intervention of a local utility company. Accordingly, this Treasury decision contains temporary regulations that apply those principles to energy that the building owner provides to tenants after having acquired it directly from renewable sources. Qualification for this submetering treatment, however, depends on the charges to the tenants for this energy being comparable to local utility rates. To the extent that tenants consume this energy, charges by the building owner must not exceed the rates that the local utility company would have charged the tenants if they had instead acquired the energy from that company. Information about how to provide comments on the substance of the temporary regulations is in the notice of proposed rulemaking on this subject (REG-123867-14), which is in the Proposed Rules section in this issue of the
In addition to comments responding to the 2012 proposed regulations, the Treasury Department and the IRS received comments relating to the utility allowance regulations that existed prior to these final regulations. The final regulations incorporate certain changes suggested in those comments, as described in this preamble.
Section 1.42-10(b) provides the rules for determining the applicable utility allowance based upon whether (1) the building receives rental assistance from the Rural Housing Service (RHS) (“RHS-assisted building”), (2) the building has any tenant that receives RHS rental assistance payments (“RHS tenant assistance”), (3) the rents and utility allowances of the building are reviewed by the Department of Housing and Urban Development (HUD) (“HUD-regulated building”), or (4) the building is not described in (1), (2), or (3) (“other buildings”).
For an RHS-assisted building and a building with RHS tenant assistance, the applicable utility allowance is the applicable RHS utility allowance. For a HUD-regulated building, the applicable utility allowance is the applicable HUD utility allowance. In other buildings, for all rent-restricted units occupied by tenants receiving HUD tenant assistance, the applicable utility allowance is the applicable Public Housing Authority (PHA) utility allowance established for the Section 8 Existing Housing Program. For all other tenants in rent-restricted units in other buildings, the applicable utility allowance is the applicable PHA utility allowance, a local utility company estimate, an estimate from the State or local housing credit agency (Agency) that has jurisdiction over the building, the HUD Utility Schedule Model, or an energy consumption model. See § 1.42-10(b)(4)(ii) to determine which utility allowance applies.
Prior to these final regulations, the existing regulations provided that, under the energy consumption model, utility consumption estimates must be calculated by “either a properly licensed engineer or a qualified professional approved by the Agency that has jurisdiction over the building.” The 2012 proposed regulations requested comments on whether approval by the agency with jurisdiction over the building should be required by the regulations for both properly licensed engineers and other qualified professionals or only for qualified professionals that are not properly licensed engineers.
One commenter suggested that the Agency's approval should be required for determinations by both properly licensed engineers and other qualified professionals, because the Agency should have the ability to approve or deny a utility allowance method unless the building is a RHS property or a HUD-regulated building. Other commenters suggested that Agency approval should be required only for professionals who are not properly licensed engineers. According to these commenters, the intent and benefit of a project sponsor using a licensed engineering professional is not only to receive the benefit of the third-party professional's expertise but also to simplify evaluation of the third-party by the Agency. One commenter suggested that when reviewing consumption model estimates, an Agency should need to check for only the seal of an engineer, because State certification of the engineer already imposes standards for expertise, performance, and conduct and exposes the certified individual and firm, if any, to possible sanctions through the professional certification and oversight process.
In response to these comments, the final regulations provide that Agency approval is required only for qualified professionals that are not properly licensed engineers. However, the final regulations also clarify that an Agency continues to have the option to review, and take appropriate action regarding, utility estimates based on the energy consumption model or the other optional methods.
One commenter suggested that the final regulations should clarify that an Agency has the ability to approve or deny any owner's utility allowance, unless the building is an RHS property or a HUD-regulated building. By contrast, another commenter expressed concern that the existing regulations give an Agency too much discretion to approve or disapprove any of the methods of calculating utility allowances. In particular, the commenter suggested that the final regulations require an Agency to accept utility estimates based on an energy consumption model whenever the estimate is calculated by a properly licensed engineer.
The final regulations do not adopt this latter suggestion. The existing regulations appropriately allow an Agency to approve or disapprove a method or to require certain information before permitting use of the method. Additionally, an Agency should have the ability to review the energy consumption model even when the model is used by a properly licensed engineer, who is not subject to Agency approval. Therefore, the final regulations specifically authorize an Agency to approve or disapprove use of the energy consumption model or require information about the model before permitting its use, regardless of the type of professional who calculates the utility estimates.
Under the existing regulations prior to these final regulations, use of the energy consumption model was limited to the building's consumption data for the twelve-month period ending no earlier than 60 days prior to the beginning of the 90-day period under § 1.42-10(c)(1). One commenter was concerned about the perceptions that may arise if engineering models yield allowances that are out of line with past consumption. The commenter requested additional guidance on the development of acceptable assumptions for use in engineering models to avoid this problem.
Another commenter stated that it is unclear whether the required building consumption data refers to the calculated consumptions derived from an energy consumption model or a separate set of consumption data such as historical tenant utility billing information. According to the commenter, several Agencies that regulate the acceptable utility allowance methodologies either have had an unclear understanding of what additional information, if any, is required for an engineering analysis under the energy consumption model or have taken the position that actual historical tenant utility bills for the most recent 12-month period are necessary to process an energy consumption model utility allowance submittal.
The commenter also asserted that historical utility data may be inaccessible and, even if the data were accessible, collection of the data imposes an additional paperwork burden on property owners. The commenter further contended that historical utility billing data does not take into account energy-efficient behavior and does not promote energy conservation. According to the commenter, most utility providers do not maintain utility information beyond the most recent 12-month period. As year-to-year variations occur, the most recent 12 months may not be a representative set of consumption data to provide an ongoing utility allowance. The commenter suggested amending the energy consumption model to allow an engineering approach that analyzes specific factors including, but not limited to, unit size, building orientation, design and materials, mechanical systems, appliances, and characteristics of the building location.
For the reasons stated by the commenters, the final regulations remove the provision requiring that an energy consumption model use the building's consumption data for a particular twelve-month period. Instead, the final regulations revise the specific factors used in determining estimates under the energy consumption model to include available historical data.
The existing regulations provide that, if the building is neither an RHS-assisted building nor a HUD-regulated building and no tenant in the building receives RHS tenant assistance, then the appropriate utility allowance for the units in the building is the applicable PHA utility allowance. One commenter requested clarification as to which method of calculating utility allowances applies if no PHA exists under these circumstances. Under the existing regulations, if a building owner obtains a local utility company estimate or uses one of the other options for determining the applicable utility allowance, then the selected option replaces the applicable PHA allowance as the appropriate utility allowance. The regulations do not include an option for using the allowance of a neighboring PHA.
Allowing the use of a neighboring PHA's utility allowance might not be appropriate because climate and utility consumption can be dissimilar from one PHA jurisdiction to a neighboring jurisdiction. Comments are requested on how the rules might best address situations in which no PHA exists. Comments should be submitted in the manner described in the notice of proposed rulemaking on submetering (REG-123867-14), which is in the Proposed Rules section in this issue of the
One commenter requested that a building owner be required to check for a change in a PHA utility allowance only annually. The existing regulations provide that, if the applicable utility allowance for units changes, the building owner must use the new utility allowance to compute gross rents of the units due 90 days after the change (the 90-day period). For example, if a tenant provides a local utility company estimate that shows a higher utility cost than the otherwise applicable PHA utility allowance, then the building owner must lower the rent. The lower rent must be in effect for rent due at the end of the 90-day period. The commenter stated that a building owner must continuously monitor for changes in the PHA utility allowance because a PHA is not required to update utility allowances on a regular, fixed schedule.
The final regulations do not adopt this recommendation because it might result in tenants paying more than the gross rent amount under section 42(g)(2). If a PHA utility allowance were to change after the one-time date suggested by the commenter, then tenants would pay a higher rent until the next annual date to review the PHA utility allowance and the higher rent might exceed the gross-rent limit under section 42(g)(2). Compliance with the 90-day period does not require continuous monitoring. A building owner that checks the PHA utility allowance every 60 days would have at least 30 days in which to adjust rents.
Prior to these final regulations, the existing regulations defined a HUD-regulated building as one in which neither the building nor any tenant in the building receives RHS assistance and the rents and utility allowances of the building are reviewed by HUD on an annual basis. One commenter recommended amending this definition because HUD does not review the rents and utility allowances on an annual basis for all HUD programs. In response to this comment, the final regulations define a HUD-regulated building to mean one in which the rents and utility allowances of the building are regulated by HUD.
One commenter suggested that the final regulations address how utility estimates are to be made available to all tenants in the building. Because circumstances may vary and different reasonable options may exist, the final regulations do not adopt this suggestion.
Information about how to provide comments is in the notice of proposed
The final regulations update the table of contents to include all of the current provisions under section 42.
Notice 2009-44 (2009-21 IRB 1037) is obsolete for taxable years beginning on or after March 3, 2016.
Notice 2009-44 is published in the Internal Revenue Bulletin and is 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 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 Code, the notice of proposed rulemaking that preceded these final regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business. No comments were received.
The principal author of these regulations is David Selig, Office of the Associate Chief Counsel (Passthroughs and Special Industries), IRS. 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 1.42-10T also issued under 26 U.S.C. 42(n); * * *
The additions and revisions read as follows:
This section lists the paragraphs contained in §§ 1.42-1 through 1.42-18 and § 1.42-1T.
(a) through (g) [Reserved]
(h) Filing of forms.
(i) [Reserved]
(j) Effective dates.
(a) In general.
(1) Determination of amount of low-income housing credit.
(2) Limitation on low-income housing credit allowed.
(b) The State housing credit ceiling.
(c) Apportionment of State housing credit ceiling among State and local housing credit agencies.
(1) In general.
(2) Primary apportionment.
(3) States with 1 or more constitutional home rule cities.
(i) In general.
(ii) Amount of apportionment to a constitutional home rule city.
(iii) Effect of apportionment to constitutional home rule cities on apportionment to other housing credit agencies.
(iv) Treatment of governmental authority within constitutional home rule city.
(4) Apportionment to local housing credit agencies.
(i) In general.
(ii) Change in apportionment during a calendar year.
(iii) Exchanges of apportionments.
(iv) Written records of apportionments.
(5) Set-aside apportionments for projects involving a qualified nonprofit organization.
(i) In general.
(ii) Projects involving a qualified nonprofit organization.
(6) Expiration of unused apportionments.
(d) Housing credit allocation made by State and local housing credit agencies.
(1) In general.
(2) Amount of a housing credit allocation.
(3) Counting housing credit allocations against an agency's aggregate housing credit dollar amount.
(4) Rules for when applications for housing credit allocations exceed an agency's aggregate housing credit dollar amount.
(5) Reduced or additional housing credit allocations.
(i) In general.
(ii) Examples.
(6) No carryover of unused aggregate housing credit dollar amount.
(7) Effect of housing credit allocations in excess of an agency's aggregate housing credit dollar amount.
(8) Time and manner for making housing credit allocations.
(i) Time.
(ii) Manner.
(iii) Certification.
(iv) Fee.
(v) No continuing agency responsibility.
(e) Housing credit allocation taken into account by owner of a qualified low-income building.
(1) Time and manner for taking housing credit allocation into account.
(2) First-year convention limitation on housing credit allocation taken into account.
(3) Use of excess housing credit allocation for increases in qualified basis.
(i) In general.
(ii) Example.
(4) Separate housing credit allocations for new buildings and increases in qualified basis.
(5) Acquisition of building for which a prior housing credit allocation has been made.
(6) Multiple housing credit allocations.
(f) Exception to housing credit allocation requirement.
(1) Tax-exempt bond financing.
(i) In general.
(ii) Determining use of bond proceeds.
(iii) Example.
(g) Termination of authority to make housing credit allocation.
(1) In general.
(2) Carryover of unused 1989 apportionment.
(3) Expiration of exception for tax-exempt bond financed projects.
(h) [Reserved]
(i) Transitional rules.
(a) Treatment under sections 42(i) and 42(b).
(b) Effective date.
(a) Inapplicability to section 42.
(b) Limitation.
(c) Effective date.
(a) Compliance monitoring requirement.
(1) In general.
(2) Requirements for a monitoring procedure.
(i) In general.
(ii) Order and form.
(iii) [Reserved]
(b) Recordkeeping and record retention provisions.
(1) Recordkeeping provision.
(2) Record retention provision.
(3) Inspection record retention provision.
(c) Certification and review provisions.
(1) Certification.
(2) Review.
(ii) [Reserved]
(iii) [Reserved]
(3) [Reserved]
(4) Exception for certain buildings.
(i) In general.
(ii) Agreement and review.
(iii) Example.
(5) Agency reports of compliance monitoring activities.
(d) Inspection provision.
(1) In general.
(2) Inspection standard.
(3) Exception from inspection provision.
(4) Delegation.
(e) Notification-of-noncompliance provisions.
(1) In general.
(2) Notice to owner.
(3) Notice to Internal Revenue Service.
(i) In general.
(ii) Agency retention of records.
(4) Correction period.
(f) Delegation of authority.
(1) Agencies permitted to delegate compliance monitoring functions.
(i) In general.
(ii) Limitations.
(2) Agencies permitted to delegate compliance monitoring functions to another Agency.
(g) Liability.
(h) Effective/applicability dates.
(1) In general.
(2) [Reserved]
(a) Carryover allocations.
(1) In general.
(2) 10 percent basis requirement.
(i) Allocation made before July 1.
(ii) Allocation made after June 30.
(b) Carryover-allocation basis.
(1) In general.
(2) Limitations.
(i) Taxpayer must have basis in land or depreciable property related to the project.
(ii) High cost areas.
(iii) Amounts not treated as paid or incurred.
(iv) Fees.
(3) Reasonably expected basis.
(4) Examples.
(c) Verification of basis by Agency.
(1) Verification requirement.
(2) Manner of verification.
(3) Time of verification.
(i) Allocations made before July 1.
(ii) Allocations made after June 30.
(d) Requirements for making carryover allocations.
(1) In general.
(2) Requirements for allocation.
(3) Special rules for project-based allocations.
(i) In general.
(ii) Requirement of section 42(h)(1)(F)(1)(III).
(4) Recordkeeping requirements.
(i) Taxpayer.
(ii) Agency.
(5) Separate procedure for election of appropriate percentage month.
(e) Special rules.
(1) Treatment of partnerships and other flow-through entities.
(2) Transferees.
(a) Election under section 42(b)(2)(A)(ii)(I) to use the appropriate percentage for the month of a binding agreement.
(1) In general.
(2) Effect on state housing credit ceiling.
(3) Time and manner of making election.
(4) Multiple agreements.
(i) Rescinded agreements.
(ii) Increases in credit.
(5) Amount allocated.
(6) Procedures.
(i) Taxpayer.
(ii) Agency.
(7) Examples.
(b) Election under section 42(b)(2)(A)(ii)(II) to use the appropriate percentage for the month tax-exempt bonds are issued.
(1) Time and manner of making election.
(2) Bonds issued in more than one month.
(3) Limitations on appropriate percentage.
(4) Procedures.
(i) Taxpayer.
(ii) Agency.
(a) General rule.
(b) Limitations.
(c) Treatment of units not for use by the general public.
(a) Inclusion of utility allowances in gross rent.
(b) Applicable utility allowances.
(1) Buildings assisted by the Rural Housing Service.
(2) Buildings with Rural Housing Service assisted tenants.
(3) Buildings regulated by the Department of Housing and Urban Development.
(4) Other buildings.
(i) Tenants receiving HUD rental assistance.
(ii) Other tenants.
(A) General rule.
(B) Utility company estimate.
(C) Agency estimate.
(D) HUD Utility Schedule Model.
(E) Energy consumption model.
(c) Changes in applicable utility allowance.
(1) In general.
(2) Annual review.
(d) Record retention.
(e) Actual consumption submetering arrangements.
(1) Definition.
(2) Administrative fees.
(a) General rule.
(b) Services that are optional.
(1) General rule.
(2) Continual or frequent services.
(3) Required services.
(i) General rule.
(ii) Exceptions.
(A) Supportive services.
(B) Specific project exception.
(a) Effective dates.
(1) In general.
(2) Community Renewal Tax Relief Act of 2000.
(i) In general.
(3) Electronic filing simplification changes.
(4) Utility allowances.
(5) Additional effective dates affecting utility allowances.
(b) Prior periods.
(c) Carryover allocations.
(a) Publication of guidance.
(b) Correcting administrative errors and omissions.
(1) In general.
(2) Administrative errors and omissions described.
(3) Procedures for correcting administrative errors or omissions.
(i) In general.
(ii) Specific procedures.
(iii) Secretary's prior approval required.
(iv) Requesting the Secretary's approval.
(v) Agreement to conditions.
(vi) Secretary's automatic approval.
(vii) How Agency corrects errors or omissions subject to automatic approval.
(viii) Other approval procedures.
(c) Examples.
(d) Effective date.
(a) State housing credit ceiling.
(1) In general.
(2) Cost-of-living adjustment.
(i) General rule.
(ii) Rounding.
(b) The unused carryforward component.
(c) The population component.
(d) The returned credit component.
(1) In general.
(2) Limitations and special rules.
(i) General limitations.
(ii) Credit period limitation.
(iii) Three-month rule for returned credit.
(iv) Returns of credit.
(A) Building not qualified within required time period.
(B) Noncompliance with terms of the allocation.
(C) Mutual consent.
(D) Amount not necessary for financial feasibility.
(3) Manner of returning credit.
(i) Taxpayer notification.
(ii) Internal Revenue Service notification.
(e) The national pool component.
(f) When the State housing credit ceiling is determined.
(g) Stacking order.
(h) Nonprofit set-aside.
(1) Determination of set-aside.
(2) Allocation rules.
(i) National Pool.
(1) In general.
(2) Unused housing credit carryover.
(3) Qualified State.
(i) In general.
(ii) Exceptions.
(A) De minimis amount.
(B) Other circumstances.
(iii) Time and manner for making request.
(4) Formula for determining the National Pool.
(j) Coordination between Agencies.
(k) Example.
(l) Effective dates.
(1) In general.
(2) Community Renewal Tax Relief Act of 2000 changes.
(a) Definitions.
(b) General section 42(g)(2)(D)(i) rule.
(c) Exception.
(d) Effect of current resident moving within building.
(e) Available unit rule applies separately to each building in a project.
(f) Result of noncompliance with available unit rule.
(g) Relationship to tax-exempt bond provisions.
(h) Examples.
(i) Effective date.
(a) In general.
(b) Grants do not include certain rental assistance payments.
(c) Qualifying rental assistance program.
(d) Effective date.
(a) Requirements.
(1) In general [Reserved].
(2) Selection criteria [Reserved].
(3) Agency evaluation.
(4) Timing of Agency evaluation.
(i) In general.
(ii) Time limit for placed-in-service evaluation.
(5) Special rule for final determinations and certifications.
(6) Bond-financed projects.
(b) Effective date.
(a) Extended low-income housing commitment.
(1) In general.
(i) Extended use period.
(ii) Termination of extended use period.
(iii) Other non-acceptance.
(iv) Eviction, gross rent increase concerning existing low-income tenants not permitted.
(2) Exception.
(b) Definitions.
(c) Qualified contract purchase price formula.
(1) In general.
(i) Initial determination.
(ii) Mandatory adjustment by the buyer and owner.
(iii) Optional adjustment by the Agency and owner.
(2) Low-income portion amount.
(3) Outstanding indebtedness.
(4) Adjusted investor equity.
(i) Application of cost-of-living factor.
(ii) Unadjusted investor equity.
(iii) Qualified-contract cost-of-living adjustment.
(iv) General rule.
(v) Provision by the Commissioner of the qualified-contract cost-of-living adjustment.
(vi) Methodology.
(vii) Example.
(5) Other capital contributions.
(6) Cash distributions.
(i) In general.
(ii) Excess proceeds.
(iii) Anti-abuse rule.
(d) Administrative discretion and responsibilities of the Agency.
(1) In general.
(2) Actual offer.
(3) Debarment of certain appraisers.
(e) Effective/applicability date.
This section lists the paragraphs contained in §§ 1.42-5T and 1.42-10T.
(a)(1) through (a)(2)(ii) [Reserved]
(iii) Effect of guidance published in the Internal Revenue Bulletin.
(b) through (c)(2)(i) [Reserved]
(3) Frequency and form of certification.
(c)(4) through (g) [Reserved]
(h) Effective/applicability dates.
(1) [Reserved]
(2) Effective/applicability dates of the REAC inspection protocol.
(a) through (e)(1)(i)(A) [Reserved]
(B) Utility not purchased from or through a local utility company.
(C) Renewable source.
(2) [Reserved]
(f) Date of applicability.
(g) Expiration date.
The additions and revisions read as follows:
(a) * * * For purposes of the preceding sentence, if the cost of a particular utility for a residential unit is paid pursuant to an actual-consumption submetering arrangement within the meaning of paragraph (e)(1) of this section, then that cost is treated as being paid directly by the tenant(s) and not by or through the owner of the building. * * *
(b)* * *
(3)
(4) * * *
(ii) * * *
(A) * * * If none of the rules of paragraphs (b)(1), (2), (3), and (4)(i) of this section apply to determine the appropriate utility allowance for a rent-restricted unit, then the appropriate utility allowance for the unit is the applicable PHA utility allowance. * * *
(E)
(e)
(i) The utility consumed in the unit is described in paragraph (e)(1)(i)(A) of this section or in § 1.42-10T(e)(1)(i)(B);
(A) The utility is purchased from or through a local utility company by the building owner (or its agent or other party acting on behalf of the building owner).
(B) [Reserved]. For further guidance see § 1.42-10T(e)(1)(i)(B) through (e)(1)(i)(C)(
(ii) The tenants in the unit are billed for, and pay the building owner (or its agent or other party acting on behalf of the building owner) for, the unit's consumption of the utility;
(iii) The billed amount reflects the unit's actual consumption of the utility. In the case of sewerage charges, however, if the unit's sewerage charges are combined on the bill with water charges and the sewerage charges are determined based on the actual water consumption of the unit, then the bill is treated as reflecting the actual sewerage consumption of the unit; and
(iv) The rate at which the building owner bills for the utility satisfies the following requirements:
(A) To the extent that the utility consumed is described in paragraph (e)(1)(i)(A) of this section, the utility rate charged to the tenants of the unit does not exceed the rate incurred by the building owner for that utility; and
(B) To the extent that the utility consumed is described in § 1.42-10T(e)(1)(i)(B), the utility rate charged to the tenants of the unit does not exceed the rate described in § 1.42-10T(e)(1)(iv)(B).
(2)
(i) Five dollars per month;
(ii) An amount (if any) designated by publication in the Internal Revenue Bulletin (see § 601.601(d)(2)(ii) of this chapter); or
(iii) The lesser of—
(A) The dollar amount (if any) specifically prescribed under a State or local law; or
(B) A maximum amount (if any) designated by publication in the Internal Revenue Bulletin (see § 601.601(d)(2)(ii) of this chapter).
(a) through (e)(1)(i)(A) [Reserved]. For further guidance see § 1.42-10(a) through (e)(1)(i)(A).
(B)
(C)
(
(
(
(ii) through (iv)(A) [Reserved]. For further guidance see § 1.42-10(e)(1)(ii) through (e)(1)(iv)(A).
(B) The rate described in this paragraph (e)(1)(iv)(B) is the rate at which the local utility company would have charged the tenants in the unit for the utility if that entity had provided it to them.
(2) [Reserved]
(f)
(g)
(a) * * *
(5)
(A) The second sentence in § 1.42-10(a);
(B) Section 1.42-10(b)(3);
(C) The first sentence in § 1.42-10(b)(4)(ii)(A);
(D) Section 1.42-10(b)(4)(ii)(E); and
(E) Section 1.42-10(e).
(ii) A building owner may apply these provisions to the building owner's taxable years beginning before March 3, 2016. Otherwise, the utility allowances provisions that apply to taxable years beginning before March 3, 2016 are contained in § 1.42-10 (see 26 CFR part 1 revised as of April 1, 2015).
Alcohol and Tobacco Tax and Trade Bureau, Treasury.
Final rule; Treasury decision.
The Alcohol and Tobacco Tax and Trade Bureau (TTB) is expanding the approximately 5,360-square mile “Willamette Valley” viticultural area in northwestern Oregon, by approximately 29 square miles. Neither the established viticultural area nor the expansion area is located within any other established viticultural area. TTB designates viticultural areas to allow vintners to better describe the origin of their wines and to allow consumers to better identify wines they may purchase.
This final rule is effective April 4, 2016.
Karen A. Thornton, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW., Box 12, Washington, DC 20005; phone 202-453-1039, ext. 175.
Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer
Part 4 of the TTB regulations (27 CFR part 4) authorizes the establishment of definitive viticultural areas and the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) sets forth the standards for the preparation and submission of petitions for the establishment or modification of American viticultural areas (AVAs) and lists the approved AVAs.
Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region having distinguishing features, as described in part 9 of the regulations, and a name and a delineated boundary, as established in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to the wine's geographic origin. The establishment of AVAs allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of an AVA is neither an approval nor an endorsement by TTB of the wine produced in that area.
Section 4.25(e)(2) of the TTB regulations (27 CFR 4.25(e)(2)) outlines the procedure for proposing an AVA and provides that any interested party may petition TTB to establish a grape-growing region as an AVA. Petitioners may use the same process to request changes involving established AVAs. Section 9.12 of the TTB regulations (27 CFR 9.12) prescribes standards for petitions for modifying established AVAs. Petitions to expand an established AVA must include the following:
• Evidence that the area within the proposed expansion area boundary is nationally or locally known by the name of the established AVA;
• An explanation of the basis for defining the boundary of the proposed expansion area;
• A narrative description of the features of the proposed expansion area that affect viticulture, such as climate, geology, soils, physical features, and elevation, that make the proposed expansion area similar to the established AVA and distinguish it from adjacent areas outside the established AVA boundary;
• The appropriate United States Geological Survey (USGS) map(s) showing the location of the proposed expansion area, with the boundary of the proposed expansion area clearly drawn thereon; and
• A detailed narrative description of the proposed expansion area boundary based on USGS map markings.
TTB received a petition from Steve Thomson, the executive vice president of King Estate Winery in Eugene, Oregon, proposing to expand the established “Willamette Valley” AVA in northwestern Oregon. The Willamette Valley AVA (27 CFR 9.90) was established by T.D. ATF-162, which was published in the
The proposed expansion area is located in Lane County and is adjacent to the southern tip of the established Willamette Valley AVA boundary and covers approximately 29 square miles. The King Estate Winery operates one of the two commercial vineyards that cover a total of 508 acres within the proposed expansion area, and provided information that the second vineyard owner also supports the proposed expansion. The King Estate Winery and the second vineyard each have a winery within the proposed expansion area. A third winery is also included in the proposed expansion area; however, it does not operate a vineyard within the proposed expansion area. The vineyards and wineries did not exist at the time the Willamette Valley AVA was established in 1983 and currently are not within any AVA. The petition included letters from the president of the Willamette Valley Wineries Association and the president of the Oregon Winegrowers Association in support of the proposed expansion.
According to the petition, the topography, soils, and climate of the proposed expansion area are similar to those of the established Willamette Valley AVA. The petition states that both the proposed expansion area and the established AVA are composed of rolling hills and valleys between the Coast Range Mountains to the west and the Cascade Mountains to the east. Elevations within the proposed AVA range from 500 feet to 1,200 feet, which is within the range of elevations found in the established AVA. By contrast, the region outside both the proposed expansion area and the Willamette Valley AVA is marked by mountainous terrain with higher elevations. The proposed expansion area and the established AVA are also within the watersheds of both the Willamette and the Siuslaw Rivers, whereas the region to the south of both the proposed expansion area and the established AVA drains exclusively into the Umpqua River.
The petition describes the soils within both the proposed expansion area and the Willamette Valley AVA as having a “xeric” moisture regime of soil classification, meaning that they typically retain low amounts of moisture and generally have depleted their moisture reserves by the end of the growing season. Common soil series within both the proposed expansion area and the established AVA include Bellpine, Jory, Willakenzie, Dupee, and Peavine. The petition states that although Peavine soils are found outside the proposed expansion area and the established AVA, other soils such as Blanchley, Honeygrove Complex, Bohanon, Preacher, Klickitat, Kirney, and Digger Complex soils are also present and are not found in either the proposed expansion area or the Willamette Valley AVA. Additionally, the soils of the surrounding region are described as having an “udic” moisture regime of soil classification, meaning the soils typically retain even amounts of water throughout the year.
The petition compared the climate of the proposed expansion area to the climates of several established AVAs that are also located within the larger Willamette Valley AVA, as well as to the climate of the Umpqua Valley AVA (27 CFR 9.89), which is adjacent to the southernmost point of the Willamette Valley AVA and south of the proposed
TTB published Notice No. 152 in the
In Notice No. 152, TTB solicited comments on the accuracy of the name, boundary, climatic, and other required information submitted in support of the petition. The comment period closed on August 17, 2015. TTB received two comments in response to Notice No. 152. The first comment (Comment 1) did not directly address the proposed expansion of the Willamette Valley AVA and, instead, issued a general caution against establishing too many AVAs in any given area, as rapid or uncontrolled growth may cause long-term harm to the economy, quality of life, and agricultural diversity of the community. TTB considers this comment to be outside the scope of the proposed rule.
The second comment (Comment 2) identified two typographical errors in the proposed regulatory text of Notice No. 152. The commenter noted that in paragraph (c)(17) of the proposed regulatory text, Oregon State Highway 99 was incorrectly referred to as Interstate Highway 99. TTB agrees that the State highway was incorrectly designated in the proposed regulatory text, and the correction has been made in the final rule text. The commenter also stated that U.S. Highway 26 was incorrectly identified as Interstate Highway 26 in redesignated paragraph (c)(32). Although TTB did not propose to change the text of redesignated paragraph (c)(32) in Notice No. 152, the commenter is correct that the Federal highway is improperly designated in that paragraph as it currently appears in the Code of Federal Regulations. Therefore, TTB is also making that edit in the final rule text of this document.
After careful review of the petition and comments received, TTB finds that the topography, soil, and climate evidence provided by the petitioner sufficiently demonstrates that the proposed expansion area is similar to the established Willamette Valley AVA and should also be recognized as part of that AVA. Accordingly, under the authority of the FAA Act, section 1111(d) of the Homeland Security Act of 2002, and parts 4 and 9 of the TTB regulations, TTB expands the 5,360-square mile “Willamette Valley” AVA to include the approximately 29-square mile expansion area as described in Notice No. 152, effective 30 days from the publication date of this document.
In the regulatory text of this final rule, TTB is also correcting a typographical error that appeared in proposed paragraph (c)(17) and a second typographical error that was identified by a commenter in redesignated paragraph (c)(32). These corrections will properly identify two roads as a State highway and a Federal highway, respectively. No other changes have been made to the regulatory text.
See the narrative description of the boundary of the AVA expansion in the regulatory text published at the end of this final rule.
The petitioner provided the required maps, and they are listed below in the regulatory text.
Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. For a wine to be labeled with an AVA name or with a brand name that includes an AVA name, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name, and the wine must meet the other conditions listed in § 4.25(e)(3) of the TTB regulations (27 CFR 4.25(e)(3)). If the wine is not eligible for labeling with an AVA name and that name appears in the brand name, then the label is not in compliance, and the bottler must change the brand name and obtain approval of a new label. Similarly, if the AVA name appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Different rules apply if a wine has a brand name containing an AVA name that was used as a brand name on a label approved before July 7, 1986. See § 4.39(i)(2) of the TTB regulations (27 CFR 4.39(i)(2)) for details.
The expansion of the Willamette Valley AVA will not affect any other existing AVA, and bottlers using “Willamette Valley” as an appellation of origin or in a brand name for wines made from grapes within the established Willamette Valley AVA will not be affected by this expansion. The expansion will allow vintners to use “Willamette Valley” as an appellation of origin for wines made primarily from grapes grown within the expansion area if the wines meet the eligibility requirements for the appellation.
TTB certifies that this regulation will not have a significant economic impact on a substantial number of small entities. The regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of an AVA name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.
It has been determined that this rule is not a significant regulatory action as defined by Executive Order 12866 of September 30, 1993. Therefore, no regulatory assessment is required.
Karen A. Thornton of the Regulations and Rulings Division drafted this final rule.
Wine.
For the reasons discussed in the preamble, TTB amends title 27, chapter I, part 9, Code of Federal Regulations, as follows:
27 U.S.C. 205.
(b)
(4) “Letz Creek, OR” (revised 1984).
(c) * * *
(11) Northeast, then southeast along the 1,000 foot contour line approximately 12 miles to its intersection with the R5W/R6W range line;
(12) South along the R5W/R6W range line approximately 0.25 mile to the intersection with the 1,000 foot contour line;
(13) Generally southeast along the meandering 1,000 foot contour line, crossing onto the Letz Creek map, to a point on the 1,000 foot contour line located due north of the intersection of Siuslaw River Road and Fire Road;
(14) South in a straight line approximately 0.55 mile, crossing over the Siuslaw River and the intersection of Siuslaw River Road and Fire Road, to the 1,000 foot contour line;
(15) Generally southeast along the meandering 1,000 foot contour line, crossing onto the Roseburg, Oregon map, to the intersection of the 1,000 foot contour line with the Lane/Douglas County line;
(16) East along the Lane/Douglas County line approximately 3.8 miles to the intersection with the 1,000 foot contour line just east of the South Fork of the Siuslaw River;
(17) Generally north, then northeast along the 1,000 foot contour line around Spencer Butte, and then generally south to a point along the Lane/Douglas County line 0.5 mile north of State Highway 99;
(32) North along R5E/R6E 10.5 miles to a point where it intersects the Mount Hood National Forest boundary (approximately three miles north of U.S. Highway 26);
Alcohol and Tobacco Tax and Trade Bureau, Treasury.
Final rule; Treasury decision.
The Alcohol and Tobacco Tax and Trade Bureau (TTB) establishes the approximately 12,897-square mile “Loess Hills District” viticultural area in western Iowa and northwestern Missouri. This new viticultural area is not located within any other viticultural area. TTB designates viticultural areas to allow vintners to better describe the origin of their wines and to allow consumers to better identify wines they may purchase.
This final rule is effective April 4, 2016.
Karen A. Thornton, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW., Box 12, Washington, DC 20005; phone 202-453-1039, ext. 175.
Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the FAA Act pursuant to section 1111(d) of the Homeland Security Act of 2002, codified at 6 U.S.C. 531(d). The Secretary has delegated various authorities through Treasury Department Order 120-01 (dated December 10, 2013, superseding Treasury Order 120-01 (Revised), “Alcohol and Tobacco Tax and Trade Bureau,” dated January 24, 2003), to the TTB Administrator to perform the functions and duties in the administration and enforcement of these laws.
Part 4 of the TTB regulations (27 CFR part 4) authorizes TTB to establish definitive viticultural areas and regulate the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) sets forth standards for the preparation and submission of petitions for the establishment or modification of American viticultural areas (AVAs) and lists the approved AVAs.
Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region having distinguishing features, as described in part 9 of the regulations, and a name and a delineated boundary, as established in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to the wine's geographic origin. The establishment of AVAs allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of an AVA is neither an approval nor an endorsement by TTB of the wine produced in that area.
Section 4.25(e)(2) of the TTB regulations (27 CFR 4.25(e)(2)) outlines the procedure for proposing an AVA and provides that any interested party may petition TTB to establish a grape-growing region as an AVA. Section 9.12 of the TTB regulations (27 CFR 9.12) prescribes standards for petitions for the establishment or modification of AVAs. Petitions to establish an AVA must include the following:
• Evidence that the area within the proposed AVA boundary is nationally or locally known by the AVA name specified in the petition;
• An explanation of the basis for defining the boundary of the proposed AVA;
• A narrative description of the features of the proposed AVA affecting viticulture, such as climate, geology, soils, physical features, and elevation, that make the proposed AVA distinctive and distinguish it from adjacent areas outside the proposed AVA boundary;
• The appropriate United States Geological Survey (USGS) map(s) showing the location of the proposed AVA, with the boundary of the proposed AVA clearly drawn thereon; and
• A detailed narrative description of the proposed AVA boundary based on USGS map markings.
TTB received a petition from Shirley Frederiksen, on behalf of the Western Iowa Grape Growers Association and the Golden Hills Resource Conservation and Development organization proposing the establishment of the “Loess Hills District” AVA in western Iowa and northwestern Missouri. The proposed AVA covers a long, narrow north-south orientated swath of land along the Big Sioux and Missouri Rivers, covering 12,897 square miles from Hawarden, Iowa, to Craig, Missouri. There are approximately 66 commercially-producing vineyards covering a total of 112 acres distributed throughout the proposed AVA, along with 13 wineries. The proposed Loess Hills District AVA is not located within any established AVA.
According to the petition, the distinguishing features of the proposed Loess Hills District AVA are its soil, topography, and climate. The proposed AVA is located in a region characterized by extremely deep layers of wind-deposited soil called “loess.” Loess is a loose, crumbly soil comprised of quartz, feldspar, mica, and other materials which were ground into a fine powder by glaciers during the Ice Ages. When the glaciers melted, the water pushed this glacial flour down the Missouri River Valley. When the waters receded, the exposed silt dried and was picked up by the prevailing westerly winds and redeposited over broad areas.
The heaviest, coarsest loess particles were deposited along the Missouri River, within the proposed Loess Hills District AVA, and formed a landscape of rolling-to-steep hills. According to the petition, the rolling topography allows cold air to drain away from the vineyards, thus reducing the threat of frost. By contrast, the terrain in the regions to the north, south, and east of the proposed AVA is marked by broadly undulating hills with shallower slopes and lower elevations than are found within the proposed AVA. The terrain west of the proposed AVA is dominated by wide, flat flood plains.
The loess deposits within the proposed AVA reach depths of up to 300 feet, which are the thickest deposits of loess within the United States. The petition states that the thickness of the loess within the proposed AVA enables roots to extend deep into the soil without being stopped by a restrictive barrier such as denser soils or bedrock. The lack of a restrictive barrier also allows water to drain away from the roots quickly, which reduces the risk of fungal diseases and rot. In comparison, in every direction outside the proposed AVA, the depth of loess is 20 feet or less, which is significantly shallower than within the proposed AVA.
The petition also states that the proposed Loess Hills District AVA has a long growing season and relatively high annual precipitation amounts. The early last-spring-frost date reduces the risk that tender new buds and shoots will be damaged by spring frosts, and the late first-fall-frost date allows adequate time for late-maturing varieties of grapes, including Norton, Chambourcin, and Noiret, to ripen before frost can damage the fruit. The high precipitation amounts provide adequate hydration for the vines, so irrigation is seldom necessary within the proposed AVA. However, the rainfall amounts also pose a risk of erosion due to both the steepness of the hillsides and the loose, crumbly nature of the soils. When compared to the proposed AVA, the regions to the north, east, and west have shorter growing seasons. To the south of the proposed AVA, the growing season is longer. Annual precipitation amounts in the region south of the proposed AVA are higher, while the precipitation amounts in the region to the west are lower than those found within the proposed AVA.
TTB published Notice No. 153 in the
In Notice No. 153, TTB solicited comments on the accuracy of the name, boundary, and other required information submitted in support of the petition. The comment period closed on August 17, 2015. TTB did not receive any comments in response to Notice No. 153.
After careful review of the petition, TTB finds that the evidence provided by the petitioner supports the establishment of the Loess Hills District AVA. Accordingly, under the authority of the FAA Act, section 1111(d) of the Homeland Security Act of 2002, and parts 4 and 9 of the TTB regulations, TTB establishes the “Loess Hills District” AVA in western Iowa and northwestern Missouri, effective 30 days from the publication date of this document.
See the narrative description of the boundary of the AVA in the regulatory text published at the end of this final rule.
The petitioner provided the required maps, and they are listed below in the regulatory text.
Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. For a wine to be labeled with an AVA name or with a brand name that includes an AVA name, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible for labeling with an AVA name and that name appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the AVA name appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Different rules apply if a wine has a brand name containing an AVA name that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.
With the establishment of this AVA, its name, “Loess Hills District,” will be recognized as a name of viticultural significance under § 4.39(i)(3) of the TTB regulations (27 CFR 4.39(i)(3)). The text of the regulation clarifies this point. Consequently, wine bottlers using the
The establishment of the Loess Hills District AVA will not affect any existing AVA. The establishment of the Loess Hills District AVA will allow vintners to use “Loess Hills District” as an appellation of origin for wines made primarily from grapes grown within the Loess Hills District AVA if the wines meet the eligibility requirements for the appellation.
TTB certifies that this regulation will not have a significant economic impact on a substantial number of small entities. The regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of an AVA name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.
TTB has determined that this final rule is not a significant regulatory action as defined by Executive Order 12866 of September 30, 1993. Therefore, no regulatory assessment is required.
Karen A. Thornton of the Regulations and Rulings Division drafted this final rule.
Wine.
For the reasons discussed in the preamble, TTB amends title 27, chapter I, part 9, Code of Federal Regulations, as follows:
27 U.S.C. 205.
(a)
(b)
(1) Rock Rapids, Iowa-South Dakota, 1985;
(2) Sioux City North, Iowa-South Dakota-Nebraska, 1986; photoinspected 1990;
(3) Storm Lake, Iowa, 1985; photoinspected 1990;
(4) Ida Grove, Iowa, 1985; photoinspected 1990;
(5) Carroll, Iowa, 1993;
(6) Guthrie Center, Iowa, 1993;
(7) Creston, Iowa, 1993;
(8) Omaha, Nebraska-Iowa, 1985; photoinspected, 1990;
(9) Nebraska City, Nebraska-Iowa-Missouri, 1993;
(10) Falls City, Nebraska-Missouri, 1986; photoinspected 1991;
(11) Harlan, Iowa-Nebraska, 1980;
(12) Blair, Nebraska-Iowa, 1986; photoinspected 1988; and
(13) Sioux City South, Iowa-Nebraska-South Dakota, 1986; photoinspected 1990.
(c)
(1) The beginning point is on the Rock Rapids, Iowa-South Dakota map, in Sioux County, Iowa, at the intersection of the Big Sioux River and an unnamed road known locally as County Road B30 (360th Street), east of Hudson, South Dakota. From the beginning point, proceed east on County Road B30 approximately 3 miles to a road known locally as County Road K22 (Coolidge Avenue); then
(2) Proceed south on County Road K22 approximately 3 miles to a road known locally as County Road B40 (390th Street); then
(3) Proceed east on County Road B40 approximately 4 miles to a road known locally as County Road K30 (Eagle Avenue); then
(4) Proceed south on County Road K30 approximately 13.1 miles, crossing onto the Sioux City North, Iowa-South Dakota-Nebraska map and continuing into Plymouth County, Iowa, to a road known locally as County Road C12 (110th Street), at Craig, Iowa; then
(5) Proceed east on County Road C12 approximately 2 miles to a road known locally as County Road K42 (Jade Avenue), at the marked 436-meter elevation point; then
(6) Proceed south on County Road K42 approximately 10 miles to a road known locally as County Road C38; then
(7) Proceed east on County Road C38 approximately 6.4 miles to a road known locally as County Road K49 (7th Avenue SE), approximately 2 miles south of La Mars, Iowa; then
(8) Proceed south on County Road K49 approximately 4 miles to a road known locally as County Road C44 (230th Street); then
(9) Proceed east on County Road C44 approximately 5 miles to a road known locally as County Road K64 (Oyens Avenue); then
(10) Proceed south on County Road K64 approximately 4.1 miles to a road known locally as County Road C60 (290th Street); then
(11) Proceed east on County Road C60 approximately 5 miles, crossing onto the Storm Lake, Iowa map, to State Highway 140; then
(12) Proceed south on State Highway 140 approximately 3.2 miles to a road known locally as County Road L14 (Knox Avenue) in Kingsley, Iowa; then
(13) Proceed south on County Road L14 approximately 2.7 miles, crossing into Woodbury County, Iowa, to a road known locally as County Road D12 (110th Street); then
(14) Proceed east on County Road D12 approximately 5 miles to a road known locally as County Road L25 (Minnesota Avenue) near Pierson, Iowa; then
(15) Proceed south on County Road L25 approximately 4.5 miles, crossing onto the Ida Grove, Iowa map, to U.S. Highway 20; then
(16) Proceed east on U.S. Highway 20 approximately 22.5 miles, crossing into Ida County, Iowa, to a road known locally as County Road M25 (Market Avenue); then
(17) Proceed south on County Road M25 approximately 9.8 miles to State Highway 175 east of Ida Grove, Iowa; then
(18) Proceed east on State Highway 175 approximately 4.1 miles to a road known locally as Country Highway M31 (Quail Avenue) near Arthur, Iowa; then
(19) Proceed south on Country Highway M31 approximately 4.4 miles to a road known locally as County Road D59 (300th Street); then
(20) Proceed east on County Road D59 approximately 13 miles, crossing into Sac County, Iowa, to a road known
(21) Proceed south on County Road M64 approximately 6.2 miles to a road known locally as County Road E16 (120th Street); then
(22) Proceed east into Carroll County, Iowa, on County Road E16 approximately 6 miles, crossing onto the Carroll, Iowa map, to Breda, Iowa, and then continue east on State Highway 217 (East Main Street) approximately 5 miles to U.S. Highway 71; then
(23) Proceed south on U.S. Highway 71 approximately 3 miles to a road known locally as County Road E26 (140th Street); then
(24) Proceed east on County Road E26 approximately 5 miles to a road known locally as County Road N38 (Quail Avenue); then
(25) Proceed south on County Road N38 approximately 5 miles to U.S. Highway 30 (Lincoln Highway); then
(26) Proceed east on U.S. Highway 30 approximately 3 miles to a road known locally as County Road N44 (Colorado Street) in Glidden, Iowa; then
(27) Proceed south on County Road N44 approximately 8 miles, crossing onto the Guthrie Center, Iowa map, to a road known locally as County Road E57 (280th Street); then
(28) Proceed east on County Road E57 approximately 2 miles to a road known locally as County Road N44 (Velvet Avenue); then
(29) Proceed south on County Road N44 approximately 5.4 miles to State Highway 141 (330th Street) at Coon Rapids, Iowa; then
(30) Proceed west on State Highway 141 approximately 12 miles to U.S. Highway 71 at Lynx Avenue southeast of Templeton, Iowa; then
(31) Proceed south on U.S. Highway 71 approximately 35.9 miles, crossing into Audubon County, Iowa, and then Cass County, Iowa, and onto the Creston, Iowa map, to U.S. Highway 6/State Highway 83 east of Atlantic, Iowa; then
(32) Proceed west, then southwest, then west on U.S. Highway 6 approximately 18.9 miles, crossing onto the Omaha, Nebraska-Iowa map and into Pottawattamie County, Iowa, to a road known locally as County Road M47 (500th Street) approximately 1 mile west of Walnut Creek; then
(33) Proceed south on County Road M47 approximately 12 miles, crossing into Montgomery County, Iowa to a road known locally as County Road H12 (110th Street); then
(34) Proceed west on County Road H12 approximately 8.9 miles, crossing into Mills County, Iowa, to U.S. Highway 59; then
(35) Proceed south on U.S. Highway 59 approximately 20.2 miles, crossing onto the Nebraska City, Nebraska-Iowa-Missouri map and into Page County, Iowa, to a road known locally as County Road J14 (130th Street); then
(36) Proceed east on County Road J14 approximately 4 miles to a road known locally as County Road M41 (D Avenue); then
(37) Proceed south on County Road M41 approximately 1.7 miles to State Highway 48 at Essex, Iowa; then
(38) Proceed northeast then east on State Highway 48 approximately 1.2 miles to a road known locally as County Road M41 (E Avenue); then
(39) Proceed south on County Road M41 approximately 7 miles to State Highway 2 (210th Street); then
(40) Proceed east on State Highway 2 approximately 8 miles to a road known locally as M Avenue; then
(41) Proceed south on M Avenue, then east on a road known locally as County Road M60 (Maple Avenue), approximately 6.4 total miles, to a road known locally as County Road J52 (270th Street); then
(42) Proceed south in a straight line approximately 3.5 miles to the intersection of 304th Street and Maple Avenue (approximately 1.2 miles southwest of College Springs, Iowa), and then continue south on Maple Avenue for 0.5 mile to a road known locally as County Road J64 (310th Street); then
(43) Proceed west on County Road J64 approximately 4.5 miles to a road known locally as County Road M48 (Hackberry Avenue); then
(44) Proceed south on County Road M48 approximately 1.2 miles to the Iowa-Missouri State line at Blanchard, Iowa, and, crossing into Atchison County, Missouri, where County Road M48 becomes State Road M, and continue generally south on State Road M approximately 11.2 miles, crossing onto the Falls City, Nebraska-Missouri map, to U.S. Highway 136; then
(45) Proceed west on U.S. Highway 136 approximately 1 mile to State Road N; then
(46) Proceed south on State Road N 15 miles, crossing into Holt County, Missouri, to State Road C; then
(47) Proceed west then south on State Road C approximately 3 miles to U.S. Highway 59; then
(48) Proceed northwest on U.S. Highway 59 approximately 2 miles to the highway's first intersection with Interstate Highway 29 near Craig, Missouri; then
(49) Proceed generally north along Interstate Highway 29, crossing into Atchison County, Missouri, and onto the Nebraska City, Nebraska-Iowa-Missouri map, and continuing into Freemont County and Mills County, Iowa, then crossing onto the Omaha, Nebraska-Iowa map and into Pottawattamie County, Iowa; then crossing onto the Harlan, Iowa-Nebraska map and into Harrison County, Iowa; then continuing onto the Blair, Nebraska-Iowa map and into Monona County, Iowa; then crossing onto the Sioux City South, Iowa-Nebraska-South Dakota Map and into Woodbury County for a total of approximately 185 miles, to the intersection of Interstate Highway 29 with the Big Sioux River at Sioux City, Iowa; then
(50) Proceed generally north (upstream) along the meandering Big Sioux River, crossing onto the Sioux City North, Iowa-South Dakota-Nebraska map and into Plymouth County and Sioux County, Iowa, and continuing onto the Rock Rapids, Iowa-South Dakota map for a total of approximately 50 miles, returning to the beginning point.
Department of the Navy, DoD.
Final rule.
The Department of the Navy (DoN) is amending its certifications and exemptions under the International Regulations for Preventing Collisions at Sea, 1972 (72 COLREGS), to reflect that the Deputy Assistant Judge Advocate General (DAJAG) (Admiralty and Maritime Law) has determined that USS JOHN P MURTHA (LPD 26) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with certain provisions of the 72 COLREGS without interfering with its special function as a naval ship. The intended effect of this rule is to warn mariners in waters where 72 COLREGS apply.
This rule is effective March 3, 2016 and is applicable beginning January 13, 2016.
Commander Theron R. Korsak, (Admiralty and Maritime Law), Office of the Judge Advocate General, Department of the Navy, 1322 Patterson Ave. SE., Suite 3000, Washington Navy Yard, DC 20374-5066, telephone 202-685-5040.
Pursuant to the authority granted in 33 U.S.C. 1605, the DoN amends 32 CFR part 706.
This amendment provides notice that the DAJAG (Admiralty and Maritime Law), under authority delegated by the Secretary of the Navy, has certified that USS JOHN P MURTHA (LPD 26) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with the following specific provisions of 72 COLREGS without interfering with its special function as a naval ship: Annex I paragraph 2 (i)(i), Rule 27 (a)(i) and (b)(i), pertaining to the placement of all-round task lights in a vertical line; Annex I, paragraph 3(a), pertaining to the horizontal distance between the forward and after masthead lights; and Annex I, paragraph 2(k) as described in Rule 30 (a)(i), pertaining to the vertical separation between anchor lights. The DAJAG (Admiralty and Maritime Law) has also certified that the lights involved are located in closest possible compliance with the applicable 72 COLREGS requirements.
Moreover, it has been determined, in accordance with 32 CFR parts 296 and 701, that publication of this amendment for public comment prior to adoption is impracticable, unnecessary, and contrary to public interest since it is based on technical findings that the placement of lights on this vessel in a manner differently from that prescribed herein will adversely affect the vessel's ability to perform its military functions.
Marine safety, Navigation (water), and Vessels.
For the reasons set forth in the preamble, the DoN amends part 706 of title 32 of the Code of Federal Regulations as follows:
33 U.S.C. 1605.
20. * * *
Coast Guard, DHS.
Final rule.
The Coast Guard is amending its regulations regarding drawbridge operations in Saginaw River, Bay City, MI. In a final rule entitled, “Drawbridge Operation Regulation; Saginaw River, Bay City, MI” that appeared in the
This rule is effective March 3, 2016.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Mr. Lee Soule, Bridge Management Specialist, Ninth Coast Guard District; telephone (216) 902-6085, email
The Coast Guard is issuing this final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the publishing of the original final rule [Docket No. USCG-2011-1013] omitted regulatory language that was published in the previous rulemaking NPRM, but was inadvertently left out of the final rule published on April 12, 2012. Therefore, it is unnecessary to issue a rule without prior notice and opportunity to comment because the public was already provided an opportunity to comment on these provisions, had no objections during the previous comment period, and the operation of the bridges is consistent with this rule. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective in less than 30 days after publication in the
The NPRM for the regulations, published on December 8, 2011 (76 FR 76637), proposed to revise § 117.647. At the end of the rule, the following characters were included in the NPRM: “* * * * *.” These characters indicated the Coast Guard's intention to retain paragraphs (c) and (d) which were included in the regulations at the time of the NPRM regarding the CSX Railroad Bridge located at mile 18.0 over the Saginaw River and the Grand Trunk Western Railroad Bridge located at mile 19.2 of the Saginaw River. However, the final rule, which was published on April 24, 2012 (77 FR 21864), did not preserve these paragraphs. The purpose of this amendment is to ensure that the regulation accurately reflects the original intention and inclusion of these inadvertently omitted paragraphs.
The purpose of this rule is to correct 33 CFR 117.647 in the Code of Federal Regulations.
As noted above, this rule restores language that was previously excluded. This rule is correcting the regulation in 33 CFR 117.647 by restoring the listing of drawbridges allowed to remain closed. The CSX Railroad Bridge located at mile 18.0 of the Saginaw River and the Grand Trunk Western Railroad Bridge located on mile 19.2 of the Saginaw River will retain their current operating schedule. This rule will not affect waterway traffic or land transportation needs because the status of the two drawbridges has been in effect since 1994.
We developed this rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive Orders, and we discuss First Amendment rights of protesters.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget. The Coast Guard does not consider this rule to be “significant” under that Order because it is an administrative change that corrects inadvertently omitted language that is consistent with the current operation of the bridges. Therefore, this rule does not affect the way vessels operate on the waterway.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. While some owners or operators of vessels intending to transit the bridge may be small entities, for the reasons stated in section IV.A above, this final rule would not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule simply promulgates the operating regulations or procedures for drawbridges. This action is categorically excluded from further review, under figure 2-1, paragraph (32)(e), of the Instruction.
Under figure 2-1, paragraph (32)(e), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Bridges.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:
33 U.S.C. 499; 33 CFR 1.05-1; and Department of Homeland Security Delegation No. 0170.1.
(c) The draw of the CSX railroad bridge, mile 18.0, need not be opened for the passage of vessels. The owner shall return the draw to an operable condition within a reasonable time when directed by the District Commander to do so.
(d) The draw of the Grand Trunk Western railroad bridge, mile 19.2, need not be opened for the passage of vessels.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve a revision to the Arizona State Implementation Plan (SIP). This revision is the second ten-year maintenance plan for carbon monoxide (CO) for the Phoenix metropolitan area in Maricopa County, Arizona. We are also finding adequate and approving transportation conformity motor vehicle emissions budgets (MVEB) for the year 2025 and beyond. We are taking these actions under the Clean Air Act (CAA or the Act).
This rule is effective on April 4, 2016.
The EPA has established docket number EPA-R09-OAR-2015-0645 for this action. Generally, documents in the docket for this action are available electronically at
John Kelly, EPA Region IX, (415) 947-4151,
Throughout this document, “we,” “us” and “our” refer to the EPA.
On October 19, 2015 (80 FR 63185), the EPA proposed to approve the Maricopa Association of Governments' (MAG) plan titled “MAG 2013 Carbon Monoxide Maintenance Plan for the Maricopa County Area” (hereinafter, “2013 Maintenance Plan”) into the Arizona SIP.
We also proposed to find adequate and to approve into the SIP the CO MVEB for the year 2025 and beyond.
We proposed to approve this plan and the CO MVEB because we determined that they complied with the relevant CAA requirements. Our proposed action contains more information on the plan and MVEB and our evaluation.
The EPA's proposed action provided a 30-day public comment period. During this period, we received no comments.
No comments were submitted. Therefore, as authorized in section 110(k)(3) of the Act, the EPA is fully approving this plan into the Arizona SIP. The EPA is also finding adequate and approving the motor vehicle emissions budgets in the plan (see Table 1) because we find they meet the applicable transportation conformity requirements under 40 CFR 93.118(e). Table 1 shows the approved and previously approved MVEBs for the Phoenix CO Maintenance Area.
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, the EPA's role is to approve state choices, provided that they meet the criteria of the 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 Clean Air Act; and
• does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. 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 May 2, 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, Reporting and recordkeeping requirements.
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(c) * * *
(173) The following plan was submitted on April 2, 2013 by the Governor's designee.
(i)
(ii) Additional materials.
(A) Arizona Department of Environmental Quality.
(
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes a time-limited tolerance for residues of fluensulfone, measured as 3,4,4-trifluoro-but-3-ene-1-sulfonic acid, resulting from use of fluensulfone in or on carrots in accordance with the terms of an emergency exemption issued under section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). This action is in response to the issuance of a crisis emergency exemption under FIFRA section 18 authorizing use of the pesticide on carrots. This regulation establishes a maximum permissible level for residues of fluensulfone in or on carrots. The time-limited tolerance expires on December 31, 2017.
This regulation is effective March 3, 2016. Objections and requests for hearings must be received on or before May 2, 2016, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2015-0475, is available at
Susan T. 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 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under section 408(g) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2015-0475 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 May 2, 2016. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2015-0475 by one of the following methods:
•
•
•
EPA, on its own initiative, in accordance with FFDCA sections 408(e) and 408(l)(6), 21 U.S.C. 346a(e) and 346a(1)(6), is establishing a time-limited tolerance for residues of fluensulfone, to be enforced by measuring only the metabolite 3,4,4-trifluoro-but-3-ene-1-sulfonic acid, in or on carrots at 2.0 parts per million (ppm). There are no Canadian or Codex MRLs for residues of fluensulfone in or on carrot at this time. International harmonization is not an issue for this emergency exemption. This time-limited tolerance expires on December 31, 2017.
Section 408(l)(6) of FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under FIFRA section 18. Such tolerances can be established without providing notice or period for public comment. EPA does not intend for its actions on FIFRA section 18 related time-limited tolerances to set binding precedents for the application of FFDCA section 408 and the safety standard to other tolerances and exemptions. Section 408(e) of FFDCA allows EPA to establish a tolerance or an exemption from the requirement of a tolerance on its own initiative,
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a time-limited tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . .”
Section 18 of FIFRA authorizes EPA to exempt any Federal or State agency from any provision of FIFRA, if EPA determines that “emergency conditions exist which require such exemption.” EPA has established regulations governing such emergency exemptions in 40 CFR part 166.
The Michigan Department of Agriculture and Rural Development asserted that an emergency condition existed in accordance with the criteria for approval of an emergency exemption, and utilized a crisis exemption under FIFRA section 18 to allow the use of fluensulfone on carrots to control plant-parasitic nematodes in carrot fields in Michigan. The Michigan Department of Agriculture and Rural Development invoked the crisis exemption provision on April 14, 2015. After having reviewed the submission, EPA concurred on the emergency action in order to meet the needs of Michigan carrot growers who faced significant economic loss. The crisis exemption program expired on June 15, 2015.
As part of its evaluation of the Michigan crisis exemption, EPA assessed the potential risks presented by residues of fluensulfone in or on carrots. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and EPA decided that the necessary time-limited tolerance under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. Consistent with the need to move quickly on the emergency exemption in order to address an urgent non-routine situation and to ensure that the resulting food is safe and lawful, EPA is issuing this time-limited tolerance without notice and opportunity for public comment as provided in FFDCA section 408(l)(6). Although this time-limited tolerance expires on December 31, 2017, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on carrots after that date will not be unlawful, provided the pesticide was applied in a manner that was lawful under FIFRA, and the residues do not exceed a level that was authorized by this time-limited tolerance at the time of that application. EPA will take action to revoke this time-limited tolerance earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.
Because this time-limited tolerance is being approved under emergency conditions, EPA has not made any decisions about whether fluensulfone meets FIFRA's registration requirements for use on carrots or whether permanent tolerances for this use would be appropriate. Under these circumstances, EPA does not believe that this time-limited tolerance decision serves as a basis for registration of fluensulfone by a State for special local needs under FIFRA section 24(c). Nor does this time-limited tolerance by itself serve as the authority for persons in any State other than Michigan to use this pesticide on the applicable crops under FIFRA
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . .”
Consistent with the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure expected as a result of the crisis exemption and this time-limited tolerance for residues of fluensulfone on carrots at 2.0 parts per million (ppm), measured as 3,4,4-trifluoro-but-3-ene-1-sulfonic acid. EPA's assessment of exposures and risks associated with establishing a time-limited tolerance follows.
The Agency assessed the use of the fluensulfone use on carrots based on a 0.50 ppm residue level of the parent compound, which is the residue of concern for purposes of risk assessment on carrots (
A summary of the toxicological endpoints for fluensulfone used for human risk assessment were previously described in a final rule published in the
An analytic method suitable for enforcement purposes has been approved by the Agency. That same method was used in the field trials for carrot and was shown to be appropriate for that crop. The method has an LOQ, defined as the lower limit of method validation, of 0.01 ppm of 3,4,4-trifluoro-but-3-ene-1-sulfonic acid. For carrot, the method has a calculated LOQ of 0.005 ppm of 3,4,4-trifluoro-but-3-ene-1-sulfonic acid. Adequate enforcement methodology, a reverse-phase high performance liquid chromatography with dual mass spectrometry/mass spectrometry (HPLC-MS/MS), is available to enforce the tolerance expression.
The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
The Codex has not established a MRL for fluensulfone or 3,4,4-trifluoro-but-3-ene-1-sulfonic acid, in or on carrot.
Therefore, a time-limited tolerance is established for residues of fluensulfone, measured as 3,4,4-trifluoro-but-3-ene-1-sulfonic acid, in or on carrots at 2.0 ppm. This tolerance expires on December 31, 2017.
This action establishes tolerances under FFDCA sections 408(e) and 408(l)(6). The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501
Since tolerances and exemptions that are established in accordance with FFDCA sections 408(e) and 408(l)(6), such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(b)
Office of the Secretary, Interior.
Final rule.
This rule revises the regulations that the Department of the Interior (Department) follows in processing records under the Freedom of Information Act. The revisions clarify and update procedures for requesting information from the Department and procedures that the Department follows in responding to requests from the public.
This rule is effective on April 4, 2016.
Cindy Cafaro, Office of the Executive Secretariat and Regulatory Affairs, 202-208-5342.
In late 2012, the Department published a final rule updating and replacing the Department's previous Freedom of Information Act (FOIA) regulations. Since that time, in order to maintain the independence of the Office of Inspector General (OIG), the Department and the OIG have agreed to authorize the OIG to process their own FOIA appeals. Additionally, the Department has recently migrated its Web site to a new framework, leading to updated links. Finally, the Department has received feedback from its FOIA practitioners and requesters and identified areas where it is possible to further update, clarify, and streamline the language of some procedural provisions. Therefore, the Department is making the following changes:
• Section 2.1(e) is amended to identify the regulations applicable to Privacy Act requests.
• Section 2.5(d) is amended to provide more guidance on what happens when a request does not reasonably describe the records sought.
• Portions of § 2.6 are amended to make explicit that a fee waiver request is a valid way of responding to a request for additional fee information and that requesters may inform bureaus why they believe they are eligible for discretionary fee waivers, and to emphasize when fee issues must be resolved before processing will begin.
• A sentence is added to § 2.8(a) to require a bureau that cannot readily reproduce the requested record in the form or format requested to explain why it cannot.
• Section 2.9(b) is amended to remove a superfluous introductory phrase.
• Section 2.10 is amended to highlight the requirements a requester seeking expedited processing must meet and the consequences of not meeting those requirements.
• Section 2.11 is amended to reduce the suggested contact information provided by requesters.
• Section 2.12(c) is amended to emphasize that reasonable efforts must be made to search for requested records and to clarify when searching for requested records in electronic form or format will not occur.
• A sentence is added to § 2.15(e) to require bureaus to provide more information to requesters when placing them in a different processing track than requested.
• Section 2.16(a) is amended to clarify and streamline discussion of when the time period for responding to a request begins and ends.
• The introductory language of § 2.19(a) is amended to clarify when bureaus may extend the basic time limit.
• Portions of § 2.20 are amended to make explicit that expedited processing requests are only appropriate before the
• Section 2.22(c) and (d) is amended to clarify when records may be released to requesters.
• Section 2.23(a)(3) is amended to add a clarifying phrase.
• Section 2.24(b) is amended and expanded to require bureaus to provide more information to requesters in denial notifications.
• Section 2.25(c) is amended to clarify what information must be provided to requesters, and where, when portions of responsive records have been deleted.
• Section 2.26 and § 2.27(a) are amended to provide more information on when submitter notification is required.
• One word in § 2.27(b) is replaced to more closely track the language of Executive Order No. 12600, (52 FR 23781, published June 23, 1987).
• Section 2.28(a) is amended to clarify that a general description of the request would suffice for submitter notices published under § 2.27(b).
• Section 2.31(a)(1) and (2) are amended to clarify the information a submitter must provide when objecting to the release of responsive information under Exemption 4.
• Section 2.37(g) is added and § 2.49(a)(1) is amended so the concept that requesters generally will not be charged if the fee for processing their request is less than $50 is introduced sooner.
• Section 2.37(h) is added to make the consequences of failure to pay bills for FOIA-related fees explicit.
• Section 2.37(i) is added to notify requesters they can seek assistance, when considering reformulating their request to meet their needs at a lower cost, from the bureau's designated FOIA contact or FOIA Public Liaison.
• A sentence is added to § 2.38(b) to require bureaus to provide more information to requesters when placing them in a different fee category than requested.
• Section 2.39 is amended to replace one word for the sake of grammatical consistency.
• Section 2.42(d) is amended to further discuss the impact of requester preferences for paper and/or electronic formats.
• Section 2.44(b) is amended to provide different examples of special services a requester might have to pay for.
• The introductory language of §§ 2.45(a) and 2.48(a) is amended to clarify what a requester must demonstrate to be entitled to a fee waiver.
• Section 2.46(b) is amended to clarify when fee waiver requests may be made.
• Minor grammatical changes are made to § 2.47(a), (c), and (d) to allow a new § 2.47(e) to increase clarity and require bureaus to provide the requester with notice of anticipated fees when denying a request for a fee waiver.
• Section 2.48(a)(2)(v) is amended to note that representatives of the news media will be presumed to have the ability and intent to disseminate the requested information to a reasonably broad audience of persons interested in the subject.
• Section 2.49(c) is amended to allow requesters more flexibility in resolving fee issues.
• Portions of § 2.50 are amended to clarify discussion of advance payments.
• Section 2.51(b)(1), (b)(2), (b)(3), and (c) are amended to ensure consistent phrasing and to include minor, clarifying additions.
• Section 2.57(a)(5) and (a)(6) are amended to include minor, clarifying additions.
• Section 2.60 is amended to reflect that the FOIA Appeals Officer would no longer be the deciding official for FOIA appeals arising from OIG FOIA responses, and small portions of §§ 2.20(c), 2.24(b)(5), 2.47(d), 2.62, and 2.63 would also be amended to reflect this change.
• Section 2.62 is streamlined to follow the requirements of FOIA more closely.
• Section 2.66 is amended to provide more information on the role played by FOIA Public Liaisons.
• Section 2.68 is amended to reflect the new schedule number resulting from the National Archives and Records Administration's recent update to the General Records Schedule pertaining to FOIA records and to add a reference to the Department's Record Schedule pertaining to FOIA records.
• A word is added to the definition of “multitrack processing” in Section 2.70 to ensure it is consistent with Section 2.14.
• Sections 2.1(d), 2.1(g), 2.3(c), 2.21(a), 2.41(c), 2.59(a), 2.65, and 2.70 are amended to reflect updated Web site links.
On September 30, 2015, the Department published a proposed rule in the
Four commenters responded to the invitation for comments, including one commenter from a subcomponent of a Federal agency and three commenters from non-Federal sources. Two of these commenters offered some substantive suggestions on specific existing provisions of the rule that are not being amended; these suggestions are outside the scope of this rulemaking and are not addressed below. While most of the commenters generally supported the proposed changes (and one “applaud[ed]” certain existing provisions), they identified twelve specific issues or recommendations related to the proposed rule, which the Department addressed as follows:
One commenter suggested that § 2.5(d) be amended to require requests for clarification be sent only via email or registered mail so the agency can “satisfy itself that the request for additional material that was sent was actually received.” The Department has not adopted this suggestion as it is satisfied with the current flexibility in this area and does not want to create additional expenses and inflexibility.
One commenter suggested that § 2.5(d) “should clarify whether the requester's 20-workday response deadline runs from the date of the Department's notice or from the date that the requester actually receives the Department's notice.” We agree and have modified our edits to this section accordingly and have made analogous edits and clarifications to §§ 2.49(c), 2.51(b)(1), 2.51(b)(2), 2.51(b)(3), and 2.51(c).
One commenter suggested § 2.6(e) include a statement that “A denial of your waiver request and/or the amount you are willing to pay, will result in an automatic truncation of the process to comply with your FOIA request.” We do not agree with this statement, as it is not always true, and therefore have not adopted this suggestion. Another commenter suggested the Department
One commenter suggested adding language to §§ 2.10 and 2.20 explicitly stating that expedited requests do not incur additional fees. We understand the point of this suggestion, but feel it would not add clarity to the rule, especially as there is nothing in any section of the regulations that indicates making such a request would incur additional fees.
One commenter suggested adding a specific reference to cellphone numbers to § 2.11. The Department has not adopted this suggestion. The existing reference to “daytime telephone numbers” that encompasses, but does not require, cellphone numbers, is sufficient.
One commenter suggested that the last sentence of § 2.12(c) “is not fair to the requester” and suggests it will be used in bad faith. The language in question is drawn from the Freedom of Information Act itself, and we believe it is fair; therefore this language has not been changed.
One commenter suggested adding information on seeking estimated completion dates from FOIA Public Liaisons to § 2.16(a), which explains the basic concept of basic time limits for responding to requests. This suggestion does not seem to fit in this provision and would be confusing. We therefore decline to adopt it. Another commenter suggested that the language in § 2.16(a) was imprecise. We have carefully considered this suggestion, but believe the existing language is clear.
One commenter suggested § 2.38(b) specifically discuss whether the decision that the requester belongs in a specific category can be appealed. Our proposed modifications to § 2.57(a)(5) already do this very thing, so we decline to adopt this change.
Two commenters had suggestions concerning § 2.44(b). One commenter suggested noting that “conducting a search that requires the creation of a new computer search program” does not include extracting and compiling the data from an existing database using a query. As the rule is explicit that it applies only to locating records, we have not adopted this suggestion. Another commenter suggested that this provision explicitly exclude fees covered under § 2.42(d). As this section applies to requests for records in forms or formats that we don't already maintain, we have not adopted this suggestion.
One commenter stated § 2.46(b) was “vague” and wondered: “How can one know when the bureau has not completed processing a request? There should be a specific period (no of days), after which it is reasonable to expect that the agency is complying with the request, and therefore a fee waiver request would be too late. In such a situation, if without a fee waiver the requester would opt for the request to be stopped, then there would not have been any man-hours already expended on fulfilling the request.” This commenter therefore suggested § 2.46(b) should include “a specific period (no of days), after which it is reasonable to expect that the agency is complying with the request and therefore a fee waiver request would be too late.” We believe that § 2.46(b) is not vague and provides requesters with as much flexibility in providing fee waiver requests as possible. We therefore decline to adopt this change, as it would negatively affect future requesters.
One commenter suggested appending “if you deem the adjudged fee to be beyond your means” at the end of § 2.50(c) because someone might reach some conclusion “that once an advance payment requirement is determined, then it follows that the requester is presumed unable to afford it.” We decline to adopt this change; we have deliberately given requesters the opportunity to modify their request even if they could pay the advance payment and we make no presumptions about a requester will be able to afford the advance payment.
One commenter's entire comment was: “There must be no rules created that will deny an individual from obtaining personal information about themselves.” No changes have been made to the rule based on this general statement.
One commenter noted National Archives and Records Administration's recent update to the General Records Schedule pertaining to FOIA records resulted in a new schedule number. We have confirmed this and § 2.68 has been amended accordingly. Additionally, we have slightly amended § 2.25(c) to more closely track the language of the FOIA itself. Additionally, the Department made very minor clarifications in §§ 2.6(d), 2.11, 2.20(g), 2.48(b), and 2.60. In the interests of clarity and consistency, the Department also added phrases to the introductory text of § 2.6(b), a sentence to § 2.6(d), phrases to § 2.10, and phrases to §§ 2.48(a)(2)(v) and 2.48(b). Also in the interests of clarity and consistency, the Department added and deleted phrases from §§ 2.26, 2.27(a), and 2.47(d). Finally, upon further consideration, the Department has decided against amending § 2.50(a) and (b).
Executive Order (E.O) 12866 provides that the Office of Information and Regulatory Affairs will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based
The Department of the Interior certifies that this rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million or more.
b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. This rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
In accordance with Executive Order 12630, this rule does not have significant takings implications. A takings implication assessment is not required.
In accordance with Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. It would not substantially and directly affect the relationship between the Federal and state governments. A federalism summary impact statement is not required.
In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Executive Order.
Under the criteria in Executive Order 13175, we have evaluated this rule and determined that it has no potential effects on federally recognized Indian tribes. This rule does not have tribal implications that impose substantial direct compliance costs on Indian Tribal governments.
This rule does not contain information collection requirements, and a submission to the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq) is not required. We may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number.
This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required. Pursuant to Department Manual 516 DM 2.3A(2), Section 1.10 of 516 DM 2, Appendix 1 excludes from documentation in an environmental assessment or impact statement “policies, directives, regulations and guidelines of an administrative, financial, legal, technical or procedural nature; or the environmental effects of which are too broad, speculative or conjectural to lend themselves to meaningful analysis and will be subject late to the NEPA process, either collectively or case-by-case.”
This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required. This rule will not have a significant effect on the nation's energy supply, distribution, or use.
Freedom of information.
For the reasons stated in the preamble, the Department of the Interior amends part 2 of title 43 of the Code of Federal Regulations as follows:
5 U.S.C. 301, 552, 552a, 553; 31 U.S.C. 3717; 43 U.S.C. 1460, 1461.
The revision reads as follows:
(e) The Department's regulations for requests made under the Privacy Act of 1974, 5 U.S.C. 552a, are located at subpart K of this part.
(d) If the bureau determines that your request does not reasonably describe the records sought, the bureau will inform you what additional information you
(b) If the bureau anticipates that the fees for processing the request will exceed the amount you have agreed to pay, or if you did not agree in writing to pay processing fees or request a fee waiver and the bureau anticipates the processing costs will exceed $50 (see § 2.37(g) of this part) or will exceed your entitlements (see § 2.39 of this part), the bureau will notify you:
(3) That it will not be able to fully comply with your request unless you provide a fee waiver request and/or the requested written assurance or advance payment.
(d) If you are seeking a fee waiver, your request must include a justification that addresses and meets the criteria in §§ 2.45 and 2.48 of this part. Failure to provide sufficient justification will result in a denial of the fee waiver request. If you are seeking a fee waiver, you may also indicate the amount you are willing to pay if the fee waiver is denied. This allows the bureau to process the request for records while it considers your fee waiver request. You may also inform us of why you believe your request meets one or more of the criteria for a discretionary fee waiver under § 2.56 of this part.
(e) The bureau will begin processing your request only after all issues regarding fees are resolved.
(a) * * * If the bureau cannot readily reproduce the record in that form or format, it must explain why it cannot.
(b) The bureau can require you to supply additional information if necessary to verify that a particular person has consented to disclosure or is deceased.
You may ask for the processing of your request to be expedited. If you are seeking expedited processing, your request must include a justification that addresses and meets the criteria in § 2.20 of this part and includes the certification required at § 2.20(b)(2) of this part. Failure to provide sufficient justification or the required certification will result in a denial of the expedited processing request.
A request should include your name and a way (such as a mailing or email address) for the bureau to send responsive records to you and/or to request additional information or clarification of your request. You may also wish to include a daytime telephone number (or the name and telephone number of an appropriate contact).
(c) The bureau will make reasonable efforts to search for the requested records. As part of its reasonable efforts, the bureau will search paper and/or electronic records (for example, emails), as appropriate. The bureau will not search for records in an electronic form or format if these efforts would significantly interfere with the operation of the bureau's automated information system.
(e) * * * If you request placement in a particular processing track but the bureau places you in a different processing track, the bureau will provide you with an explanation of why you were not placed in the processing track you requested.
(a) Ordinarily, the bureau has 20 workdays (including the date of receipt) to determine whether to comply with a request, but unusual circumstances may allow the bureau to take longer than 20 workdays (see § 2.19 of this subpart).
(a) The bureau may extend the basic time limit, if unusual circumstances exist, by notifying you in writing of:
(c) You may ask for expedited processing of your request by writing to the appropriate FOIA contact in the bureau that maintains the records requested any time before the bureau issues its final response to your request. When making a request for expedited processing of an administrative appeal, submit the request to the appropriate deciding official for FOIA appeals.
(f) If expedited processing is denied, the bureau will:
(1) Inform you of the basis for the denial, including an explanation of why the expedited processing request does not meet the Department's expedited processing criteria under this section; and
(2) Notify you of the right to appeal the decision on expedited processing in accordance with the procedures in subpart H of this part.
(g) If you appeal the bureau's expedited processing decision, that portion of your appeal (if it is properly formatted under § 2.59 of this part) will be processed before appeals that do not challenge expedited processing decisions.
The revision reads as follows:
(c) The bureau will release records (or portions of records) to you promptly upon payment of any applicable fees (or before then, at its discretion).
(b) The denial notification must include:
(1) The name and title or position of the person responsible for the denial, along with an office phone number or email address;
(2) A statement of the reasons for the denial;
(3) A reference to any FOIA exemption applied by the bureau to withhold records in full or in part;
(4) An estimate of the volume of any records withheld in full or in part (for example, by providing the number of pages or some other reasonable form of estimation), unless an estimate would harm an interest protected by an exemption used to withhold the records;
(5) The name and title of the Office of the Solicitor or Office of General Counsel attorney consulted (if the bureau is denying a fee waiver request or withholding all or part of a requested record); and
(6) A statement that the denial may be appealed under subpart H of this part and a description of the procedures in subpart H of this part.
(c) If technically feasible, indicating the amount of information deleted and the FOIA exemption under which the deletion was made at the place in the record where the deletion was made.
(a) The Department encourages, but does not require, submitters to designate confidential information in good faith (in other words, to identify specific information as information the submitter considers protected from disclosure under Exemption 4 of the FOIA, found at 5 U.S.C. 552(b)(4)), at the time of submission or reasonably soon thereafter.
(b) The designations discussed in paragraph (a) of this section assist the bureau in identifying what information obtained from the submitter is possibly confidential and triggers the requirement for bureau-provided notifications under § 2.27(a)(1) of this subpart.
The revision reads as follows:
(a) Except as outlined in § 2.29 of this subpart, a bureau must promptly notify a submitter in writing when it receives a FOIA request if:
(1) The requested information has been designated by the submitter as confidential information under § 2.26(a) of this subpart; or
(2) The requested information has not been designated as confidential information by the submitter under § 2.26(a) of this subpart, but the bureau identifies it as possibly confidential information.
(a) Either a copy of the request, the exact language of the request, or (for notices published under § 2.27(b) of this subpart) a general description of the request;
(a) * * *
(1) Whether the submitter provided the information voluntarily and, if so, how disclosure will impair the Government's ability to obtain similar information in the future and/or how the information fits into a category of information that the submitter does not customarily release to the public;
(2) Whether the Government required the information to be submitted, and if so, how disclosure will impair the Government's ability to obtain similar information in the future and/or how substantial competitive or other business harm would likely result from disclosure; and
(g) If the fee for processing your request is less than $50, you will not be charged unless multiple requests are aggregated under § 2.54 of this subpart to an amount that is $50 or more.
(h) If you fail to pay any FOIA-related fee within 30 calendar days of the date of billing, the processing of any new or ongoing requests and/or appeals from you shall ordinarily be suspended.
(i) If you would like to reformulate your request so it will meet your needs at a lower cost, you may wish to seek assistance from the bureau's designated FOIA contact or its FOIA Public Liaison (see § 2.66 of this part).
(b) * * * If you request placement in a particular fee category but the bureau places you in a different fee category,
(d) If the bureau must scan paper records to accommodate your preference to receive records in an electronic format or print electronic records to accommodate your preference to receive records in a paper format, you will pay both the per page amount noted in Appendix A to this part and the time spent by personnel scanning or printing the requested records. For each quarter hour spent by personnel scanning or printing the requested records, the fees will be the same as those charged for a search under § 2.41(b) of this subpart.
(b) Examples of these services include providing multiple copies of the same record, converting records that are not already maintained in a requested format to the requested format, obtaining research data under § 2.69 of this part, sending records by means other than first class mail, and conducting a search that requires the creation of a new computer search program to locate the requested records.
(b) You may submit a fee waiver request at a later time if the bureau has not yet completed processing your request.
(e) Your anticipated fees, in accordance with § 2.49 of this subpart.
(a) In deciding whether your fee waiver request meets the requirements of § 2.45(a)(1) of this subpart, the bureau will consider the criteria listed in paragraphs (a)(1) through (a)(4) of this section. You must address and meet each of these criteria in order to demonstrate that you are entitled to a fee waiver.
(2) * * *
(v) * * * If we have categorized you as a representative of the news media under § 2.38, we will presume you have this ability and intent.
(a) * * *
(1) The anticipated fee is less than $50 (see § 2.37(g) of this subpart).
(c) If the bureau does not receive your written response containing the additional information that resolves any fee issues, in accordance with paragraphs (b)(2) and/or (b)(4) of this section, within 20 workdays after the bureau has requested it, the bureau will presume that you are no longer interested in the records and will close the file on the request.
(c) When the bureau notifies you that an advance payment is due under paragraph (a) of this section, it will give you an opportunity to reduce the fee by modifying the request.
(d) Your payment of the funds you owe the bureau for work it has already completed before records are sent to you is not an advance payment under paragraph (a) of this section.
(a) The FOIA Appeals Officer is the deciding official for FOIA appeals that do not appeal a decision of the Office of Inspector General.
(b) The General Counsel is the deciding official for FOIA appeals that appeal a decision of the Office of Inspector General.
(c) When necessary, the appropriate deciding official for FOIA appeals will consult other appropriate offices, including the Office of the Solicitor or Office of General Counsel for denials of records and fee waivers.
(d) The deciding official for FOIA appeals normally will not make a decision on an appeal if the request becomes a matter of FOIA litigation.
(a) The basic time limit for responding to an appeal is 20 workdays after receipt of an appeal meeting the requirements of § 2.59 of this subpart.
(b) If the Department is unable to reach a decision on your appeal within the given time limit for response, the appropriate deciding official for FOIA appeals will notify you of your statutory right to seek review in a United States District Court.
(a) Each bureau has a FOIA Public Liaison who can assist requesters who have concerns about the service they received when seeking records or who are seeking assistance under § 2.3(d) or § 2.37(i) of this part.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all Viking Air Limited Models DHC-2 Mk. I, DHC-2 Mk. II, and DHC-2 Mk. III airplanes. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as corrosion of the elevator control rod and of the elevator actuating lever on the control column. We are issuing this proposed AD to require actions to address the unsafe condition on these products.
We must receive comments on this proposed AD by April 18, 2016.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Viking Air Limited Technical Support, 1959 De Havilland Way, Sidney, British Columbia, Canada, V8L 5V5; Fax: 250-656-0673; telephone: (North America) (800) 663-8444; email:
You may examine the AD docket on the Internet at
Aziz Ahmed, Aerospace Safety Engineer, FAA, New York Aircraft Certification Office (ACO), 1600 Steward Avenue, Suite 410, Westbury, New York 11590; telephone: (516) 228-7329; fax: (516) 794-5531; 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
Transport Canada, which is the aviation authority for Canada, has issued AD No. CF-2015-21, dated July 30, 2015 (referred to after this as “the MCAI”), to correct an unsafe condition for all Viking Air Limited Models DHC-2 Mk. I, DHC-2 Mk. II, and DHC-2 Mk. III airplanes. The MCAI states:
There have been a number of reports of corrosion and/or cracking at the elevator actuating lever on the control column, in the elevator control rod assemblies, and at the rod end plug.
Undetected corrosion and/or cracking of the elevator control rod assemblies or elevator actuating lever may lead to the failure of the components with consequent loss of aeroplane control.
The MCAI requires visually inspecting the elevator control rod assemblies, the elevator actuating lever on the control column, and the control column torque tube for corrosion, cracking, and/or other damages, and repairing or replacing damaged parts. The MCAI also requires incorporating revisions into the maintenance program and adds a life limit to certain elevator control rod assemblies. You may examine the MCAI on the Internet at
Viking Air Limited has issued DHC-2 Beaver Service Bulletin Number: V2/0005, Revision `C', dated July 17, 2015. The service information describes procedures for doing detailed visual inspections of the elevator control rod assemblies, the elevator actuating lever on the control column, and the control column torque tube for corrosion, cracking, and/or other damages. The service bulletin also describes procedures for repairing or replacing damaged parts. 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 this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.
We estimate that this proposed AD will affect 135 products of U.S. registry. We also estimate that it would take about 11.5 work-hours per product to comply with the basic inspection requirements of this proposed AD. The average labor rate is $85 per work-hour.
Based on these figures, we estimate the cost of the basic inspection requirements of this proposed AD on U.S. operators to be $131,962.50, or $977.50 per product.
In addition, we estimate that any necessary follow-on actions would take about 8 work-hours and require parts costing $1,859, for a cost of $2,539 per product. Contact Viking Air Limited at the address identified in the
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 18, 2016.
None.
This AD applies to Viking Air Limited DHC-2 Mk. I, DHC-2 Mk. II, and DHC-2 Mk. III airplanes, all serial numbers, certificated in any category.
Air Transport Association of America (ATA) Code 27: Flight Controls.
This AD was prompted by mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as corrosion of the elevator control rod and of the elevator actuating lever on the control column. We are issuing this AD to detect and correct corrosion and/or cracking of the elevator control rod assemblies and the elevator actuating lever, which if not detected and corrected, could cause these components to fail. This failure could result in loss of control.
Comply with this AD within the compliance times specified in paragraphs (g) through (l) of this AD, including all subparagraphs, unless already done.
Within the next 120 days after the effective date of this AD or within the next 100 hours time-in-service (TIS) after the effective date of this AD, whichever occurs first, do the following inspections in accordance with section I. PLANNING INFORMATION, paragraph D. of Viking DHC-2 Beaver Service Bulletin Number: V2/0005, Revision “C”, dated July 17, 2015:
(1) For airplanes with an installed elevator control rod assembly, part number (P/N) C2CF619A, do a detailed visual inspection of P/N C2CF619A for corrosion, cracking, and/or other damages.
(2) For airplanes with an installed elevator control rod assembly, P/N CT2CF1021-1, do a detailed visual inspection of P/N CT2CF1021-1 for corrosion, cracking, and/or other damages.
(3) For all airplanes, do a detailed visual inspection of the elevator actuating lever on the control column and the control column torque tube for corrosion, cracking and/or other damages.
(1) Before further flight after the inspection required in paragraph (g)(1) of this AD, if corrosion, cracking, or other damages are found, replace P/N C2CF619A with P/N C2CF619A-11 following section I. PLANNING INFORMATION, paragraph D. of Viking DHC-2 Beaver Service Bulletin Number: V2/0005, Revision “C”, dated July 17, 2015, or contact Viking Air Limited at the address specified in paragraph (o) of this AD for an FAA-approved repair and incorporate the repair.
(2) Within the next 120 days after the effective date of this AD or within the next 100 hours TIS after the effective date of this AD, whichever occurs first, you may replace P/N C2CF619A with P/N C2CF619A-11 instead of doing the inspection required in paragraph (g)(1) of this AD. Do the replacement following section I. PLANNING INFORMATION, paragraph D. of Viking DHC-2 Beaver Service Bulletin Number: V2/0005, Revision “C”, dated July 17, 2015.
(3) After replacing P/N C2CF619A with P/N C2CF619A-11, you must still do the repetitive inspections of the elevator control rod assemblies following the Airworthiness Limitations section of the FAA-approved maintenance program (
(1) Before further flight after the inspection required in paragraph (g)(2) of this AD, if corrosion, cracking, or other damages are found, replace the elevator control rod assembly with P/N CT2CF1021-1 that has been inspected and is free of corrosion, cracking, or other damages following section I. PLANNING INFORMATION, paragraph D. of Viking DHC-2 Beaver Service Bulletin Number: V2/0005, Revision “C”, dated July 17, 2015, or contact Viking Air Limited at the address specified in paragraph (o) of this AD for an FAA-approved repair and incorporate the repair.
(2) After replacing or repairing P/N CT2CF1021-1, you must still do the repetitive inspections of the elevator control rod assemblies following the Airworthiness Limitations section of the FAA-approved maintenance program (
Before further flight after the inspection required in paragraph (g)(3) of this AD, if corrosion, cracking, or other damages are found, contact Viking Air Limited at the address specified in paragraph (o) of this AD for an FAA-approved repair and incorporate the repair.
(1) For all airplanes, within the next 30 days after the effective date of this AD, insert the following into the Airworthiness Limitations section of the FAA-approved maintenance program (
(2) For all airplanes, as of the effective date of this AD, do not install P/N C2CF619A or C2CF619A-9 as a replacement part.
As of the effective date of this AD, elevator control rod assemblies, P/N C2CF619A, are life-limited to 15 years and must be replaced with P/N C2CF619A-11 at the following compliance time:
(1) If, as of the effective date of this AD, the age of the installed P/N C2CF619A is known, it must be replaced before exceeding the life limit or within the next 12 months after the effective date of this AD, whichever occurs later.
(2) If, as of the effective date of this AD, the age of the installed P/N C2CF619A is not known, it must be replaced within the next 12 months after the effective date of this AD.
Credit will be given for the inspections required in paragraphs (g)(1), (g)(2), and (g)(3) of this AD if they were done before the effective date of this AD following Viking Air Limited DHC-2 Beaver Service Bulletin Number: V2/0005, Revision ‘NC’, dated March 26, 2012; Viking Air Limited DHC-2 Beaver Service Bulletin Number: V2/0005, Revision ‘A’, dated November 7, 2014; or Viking Air Limited DHC-2 Beaver Service Bulletin Number: V2/0005, Revision ‘B’, dated March 4, 2015.
The following provisions also apply to this AD:
(1)
(2)
(3)
Refer to MCAI Transport Canada AD No. CF-2015-21, dated July 30, 2015; and Viking Air Limited DHC-2 Beaver Service Bulletin Number: V2/0005, Revision ‘NC’, dated March 26, 2012; Viking Air Limited DHC-2 Beaver Service Bulletin Number: V2/0005, Revision ‘A’, dated November 7, 2014; or Viking Air Limited DHC-2 Beaver Service Bulletin Number: V2/0005, Revision ‘B’, dated March 4, 2015, for related information. You may examine the MCAI on the Internet at
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for BLANIK LIMITED Models L-13 Blanik and L-13 AC Blanik gliders (type certificate previously held by LET Aeronautical Works) that would supersede AD 2000-20-11. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as insufficient material strength of the tail-fuselage attachment fitting. We are issuing this proposed AD to require actions to address the unsafe condition on these products.
We must receive comments on this proposed AD by April 18, 2016.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact BLANIK LIMITED, 2nd Floor Beaux Lane House, Mercer Street Lower, Dublin 2, Republic of Ireland; phone: +420 733 662 194; email:
You may examine the AD docket on the Internet at
Jim Rutherford, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4165; fax: (816) 329-4090; 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 September 28, 2000, we issued AD 2000-20-11, Amendment 39-11922 (65 FR 60845; October 13, 2000) (“AD 2000-20-11”). That AD required actions intended to address an unsafe condition on BLANIK LIMITED Model L-13 Blanik gliders and was based on mandatory continuing airworthiness information (MCAI) originated by the Civil Aviation Authority, which is the aviation authority for the Czech Republic. That MCAI (AD CAA-AD-T-112/1999R1, dated November 23, 1999), was issued to correct an unsafe condition for EVECTOR, spol. s.r.o. Models L 13 SEH VIVAT and L 13 SDM VIVAT gliders and BLANIK LIMITED Models L-13 Blanik and L-13 AC Blanik gliders. The MCAI states:
To prevent destruction of tail-fuselage attachment fitting which can lead to loss of control of the sailplane. This destruction could be caused due to lower strength of the material used during production.
You may examine the MCAI on the Internet at
A review of records since issuance of AD 2000-20-11 revealed that the FAA inadvertently did not address this MCAI for the EVECTOR, spol. s.r.o. Model L 13 SDM VIVAT gliders and the BLANIK LIMITED Model L-13 AC Blanik gliders. This proposed AD would supersede AD 2000-20-11 to add the BLANIK LIMITED Model L-13 AC Blanik gliders to the applicability of the AD.
The FAA will address the EVECTOR, spol. s.r.o. Model L 13 SDM VIVAT gliders in another AD action.
LET Aeronautical Works has issued LET Mandatory Bulletin No.: L13/085a, dated November 17, 1999. The service information describes procedures for testing the material strength of attachment fitting part number A 102 021 N and instructions for contacting the manufacturer for replacement information if necessary. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
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 this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.
We estimate that this proposed AD will affect 124 products of U.S. registry. We also estimate that it would take about 4 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 the proposed AD on U.S. operators to be $42,160, or $340 per product.
In addition, we estimate that any necessary follow-on actions would take about 16 work-hours and require parts costing $500, for a cost of $1,860 per product. We have no way of determining the number of products that may need these actions.
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
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 18, 2016.
This AD replaces AD 2000-20-11, Amendment 39-11922 (65 FR 60845; October 13, 2000) (“AD 2000-20-11”).
This AD applies to BLANIK LIMITED Models L-13 Blanik and L-13 AC Blanik gliders (type certificate previously held by LET Aeronautical Works), all serial numbers, certificated in any category.
Air Transport Association of America (ATA) Code 53: Fuselage.
This AD was prompted by mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as insufficient material strength of the tail-fuselage attachment fitting. We are issuing this AD to detect and correct tail-fuselage fittings with insufficient material strength, which if left uncorrected could result in detachment of the tail from the fuselage with consequent loss of control.
Unless already done, do the following actions in paragraphs (f)(1) and (f)(2) of this AD, including all subparagraphs:
(1)
(i) Within the next 60 days after November 27, 2000 (the effective date retained from AD 2000-20-11), inspect the tail-fuselage attachment fitting, part number (P/N) A 102 021 N, for damage and material hardness following the procedures in LET Mandatory Bulletin No.: L13/085a, dated November 17, 1999.
(ii) If you find the tail-fuselage attachment fitting is damaged or the material does not meet the hardness requirements specified in the service bulletin during the inspection required in paragraph (f)(1)(i) of this AD, before further flight, you must contact the manufacturer to obtain an FAA-approved replacement part for P/N A 102 021 N and FAA-approved installation instructions and install the replacement part. Use the contact information found in paragraph (h) to contact the manufacturer.
(iii) As of November 27, 2000 (the effective date retained from AD 2000-20-11), do not install, on any glider, a P/N A 102 021 N attachment fitting that has not passed the inspection required in paragraph (f)(1)(i) of this AD.
(2)
(i) Within the next 60 days after the effective date of this AD, inspect the tail-fuselage attachment fitting, part number (P/N) A 102 021 N, for damage and material hardness following the procedures in LET Mandatory Bulletin No.: L13/085a, dated November 17, 1999.
(ii) If you find the tail-fuselage attachment fitting is damaged or the material does not meet the hardness requirements specified in the service bulletin during the inspection required in paragraph (f)(2)(i) of this AD, before further flight, you must contact the manufacturer to obtain an FAA-approved replacement part for P/N A 102 021 N and FAA-approved installation instructions and install the replacement part. Use the contact information found in paragraph (h) to contact the manufacturer.
(iii) As of the effective date of this AD, do not install, on any glider, a P/N A 102 021N attachment fitting that has not passed the inspection required in paragraph (f)(2)(i) of this AD.
The following provisions also apply to this AD:
(1)
(2)
Refer to MCAI Civil Aviation Authority AD CAA-AD-T-112/1999R1, dated November 23, 1999, for related information. You may examine the MCAI on the Internet at
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish Class D airspace at Destin, FL, providing the controlled airspace required for the Air Traffic Control Tower at Destin Executive Airport, (formerly Destin-Fort Walton Beach Airport). Additionally, this action would remove Eglin AF Aux No 3 Duke Field from the Class D designation, and establish Duke Field, Eglin AFB, FL in its place. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations at the airport. This action also would amend existing Class D and Class E airspace by recognizing the airport's name change. This action also would change the existing Class D airspace designation at Duke Field, Eglin Air Force Base (AFB), FL, and would adjust the geographic coordinates of Eglin AFB, Destin Executive Airport, Duke Field, and Hurlburt Field, to stay in concert with the FAA's database.
Comments must be received on or before April 18, 2016.
Send comments on this rule to: U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Bldg. Ground Floor, Rm. W12-140, Washington, DC 20590-0001; Telephone: 1-800-647-5527; Fax: 202-493-2251. You must identify the Docket Number FAA-2015-7203; Airspace Docket No. 15-ASO-14, at the beginning of your comments. You may also submit and review received comments through the Internet at
FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would establish Class D airspace at Destin Executive Airport, Destin, FL, and Duke Field Eglin AFB, FL; and remove Class D airspace at Eglin AF Aux No 3 Duke Field; and amend Class D and Class E airspace at Eglin Air Force Base, FL.
Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA-2015-7203; Airspace Docket No. 15-ASO-14) and be submitted in triplicate to the Docket Management System (see
Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2015-7203; Airspace Docket No. 15-ASO-14.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded from and comments submitted through
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking distribution System, which describes the application procedure.
This document proposes to amend FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the
The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to establish Class D airspace up to and including 1,600 feet within a 4.4 mile radius of at Destin Executive Airport, Destin, FL, providing the controlled airspace required to support the Air Traffic
Class D and Class E airspace designations are published in Paragraphs 5000, 6002, and 6005, respectively of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class D and Class E airspace designation listed in this document will be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal would be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from the surface to and including 1,600 feet MSL within a 4.4-mile radius of Destin Executive Airport, excluding that portion north of the triangle beginning at lat. 30°23′39″ N., long. 86°23′13″ W., to lat. 30°27′00″ N., long. 86°30′19″ W., to lat. 30°20′54″ N., long. 86°31′56″ W. This Class D airspace is effective during the operating hours of the Destin Executive Airport tower published in the Airport/Facility Directory. The airspace is incorporated into the Eglin Air Force Base, FL Class D airspace when the tower is closed.
That airspace extending upward from the surface to and including 2,600 feet MSL within a 5.5-mile radius of Eglin AFB, and within a 4.4-mile radius of Destin Executive Airport, excluding the portion north of a line connecting the 2 points of intersection within a 5.2-mile radius centered on Duke Field; excluding the portion southwest of a line connecting the 2 points of intersection within a 5.3-mile radius of Hurlburt Field; excluding a portion east of a line beginning at lat. 30°30′43″ N., long. 86°26′21″ W. extending east to the 5.5-mile radius of Eglin AFB. When the tower at Destin Executive Airport is operational, it excludes Destin's Class D airspace defined as that airspace south of the triangle beginning at lat. 30°23′39″ N., long. 86°23′13″ W. to lat. 30°27′00″ N., long. 86°30′19″ W. to lat. 30°20′54″ N., long. 86°31′56″ W. from the surface to and including 1,600 feet MSL.
That airspace extending upward from the surface to and including 2,700 feet MSL within a 5.2-mile radius of Duke Field; excluding the portion north of a line connecting the 2 points of intersection with a 4.2-mile radius circle centered on Bob Sikes Airport; excluding the portion south of a line connecting the 2 points of intersection with a 5.5-mile radius circle centered on Eglin AFB. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
That airspace extending upward from the surface, to and including 2,500 feet MSL within a 5.3-mile radius of Hurlburt Field; excluding the portion northeast of a line connecting the 2 points of intersection with a 5.5-mile radius circle centered on Eglin AFB. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the airport/Facility Directory.
Within a 4.2-mile radius of Bob Sikes Airport; excluding the portion south of a line connecting the 2 points of intersection with a 5.2-mile radius circle centered on Duke Field This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
That airspace extending upward from 700 feet above the surface within a 7-mile radius of Eglin Air Force Base, and within a 7.8-mile radius of Destin Executive Airport, and within a 7-mile radius of Duke Field, and within a 7-mile radius of Hurlburt Field, excluding a 1.5-mile radius of Fort Walton Beach Airport.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish Class E airspace at Harlan, KY, to accommodate new Area Navigation (RNAV) Global Positioning System (GPS) Standard Instrument Approach Procedures (SIAPs) serving Tucker-Guthrie Memorial Airport. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations at the airport.
Comments must be received on or before April 18, 2016.
Send comments on this rule to: U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Bldg Ground Floor, Rm W12-140, Washington, DC 20590-0001; Telephone: 1-800-647-5527; Fax: 202-493-2251. You must identify the Docket Number FAA-2016-3108; Airspace Docket No. 15-ASO-16, at the beginning of your comments. You may also submit and review received comments through the Internet at
FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on line at
FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would establish Class E airspace at Tucker-Guthrie Memorial Airport, Harlan, KY.
Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA-2016-3108; Airspace Docket No. 15-ASO-16) and be submitted in triplicate to the Docket Management System (see
Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2016-3108; Airspace Docket No. 15-ASO-16.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded from and comments submitted through
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking distribution System, which describes the application procedure.
This document proposes to amend FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the
The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to establish Class E airspace extending upward from 700 feet above the surface within a 13-mile radius of Tucker-Guthrie Memorial Airport, Harlan, KY, providing the controlled airspace required to support the new RNAV (GPS) standard instrument approach procedures for Tucker-Guthrie Memorial Airport. Controlled airspace is necessary for IFR operations.
Class E airspace designations are published in Paragraph 6005, of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore; (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal would be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 13-mile radius of Tucker-Guthrie Memorial Airport.
Food and Drug Administration, HHS.
Proposed order.
The Food and Drug Administration (FDA or the Agency) is proposing to reclassify the following three types of blood lancets used to puncture skin to obtain a drop of blood for diagnostic purposes from class I (general controls) exempt from premarket notification into class II (special controls) and subject to premarket review: Single use only blood lancets with an integral sharps injury prevention feature, single use only blood lancets without an integral sharps injury prevention feature, and multiple use blood lancets for single patient use only. FDA is identifying proposed special controls for these types of blood lancets that we believe are necessary to provide a reasonable assurance of safety and effectiveness. FDA is also proposing to reclassify multiple use blood lancets for multiple patient use from class I (general controls) exempt from premarket notification into class III (premarket approval). FDA is proposing the reclassification of these four types of blood lancets on its own initiative based on new information.
Submit either electronic or written comments on the proposed order by June 1, 2016. Submit comments on information collection issues under the Paperwork Reduction Act of 1995 (PRA) by April 4, 2016, (see the “Paperwork Reduction Act of 1995” section of this document). See section X of the
You may submit comments as follows:
Submit electronic comments in the following way:
• Federal eRulemaking Portal:
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Submit comments on information collection issues to the Office of Management and Budget (OMB) in the following ways:
• Fax to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, FAX: 202-395-7285, or email to
Joshua Nipper, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. G422, Silver Spring, MD 20993-0002, 301-796-6524; or Stephen Ripley, Center for Biologics Evaluation and Research (HFM-17), Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993-0002, 240-402-7911.
The Federal Food, Drug, and Cosmetic Act (the FD&C Act), as amended, established a comprehensive system for the regulation of medical devices intended for human use. Section 513 of the FD&C Act (21 U.S.C. 360c) established three categories (classes) of devices, reflecting the regulatory controls needed to provide reasonable assurance of their safety and effectiveness. The three categories of devices are class I (general controls), class II (special controls), and class III (premarket approval).
Section 513(a)(1) of the FD&C Act defines the three classes of devices. Class I devices are those devices for which the general controls of the FD&C Act (controls authorized by or under section 501, 502, 510, 516, 518, 519, or 520 (21 U.S.C. 351, 352, 360, 360f, 360h, 360i, or 360j) or any combination of such sections) are sufficient to provide reasonable assurance of safety and effectiveness; or those devices for which insufficient information exists to determine that general controls are sufficient to provide reasonable assurance of safety and effectiveness or to establish special controls to provide such assurance, but because the devices are not purported or represented to be for a use in supporting or sustaining human life or for a use which is of substantial importance in preventing impairment of human health, and do not present a potential unreasonable risk of illness or injury, are to be regulated by general controls (section 513(a)(1)(A) of the FD&C Act). Class II devices are those devices for which general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but for which there is sufficient information to establish special controls to provide such assurance, including the promulgation of performance standards, postmarket surveillance, patient registries, development and dissemination of guidelines, recommendations, and other appropriate actions the Agency deems necessary to provide such assurance (section 513(a)(1)(B) of the FD&C Act). Class III devices are those devices for which insufficient information exists to determine that general controls and special controls would provide a reasonable assurance of safety and effectiveness, and are purported or represented for a use in supporting or sustaining human life or for a use which is of substantial importance in preventing impairment of human health, or present a potential unreasonable risk of illness or injury (section 513(a)(1)(C) of the FD&C Act). Under section 513(d)(1) of the FD&C Act, devices that were in commercial distribution before the enactment of the 1976 amendments, May 28, 1976 (generally referred to as “preamendments devices”), are classified after FDA: (1) Receives a recommendation from a device classification panel (an FDA advisory committee); (2) publishes the panel's recommendation for comment, along with a proposed regulation classifying the device; and (3) publishes a final regulation classifying the device. FDA has classified most preamendments devices under these procedures.
Devices that were not in commercial distribution before May 28, 1976 (generally referred to as “postamendments devices”) are classified automatically by section 513(f) of the FD&C Act into class III without any FDA rulemaking process. Those devices remain in class III and require premarket approval, unless and until: FDA reclassifies the device into class I or II; or FDA issues an order finding the device to be substantially equivalent, in accordance with section 513(i) of the FD&C Act, to a predicate
On July 9, 2012, Congress enacted the Food and Drug Administration Safety and Innovation Act (FDASIA). Section 608(a) of FDASIA amended section 513(e) of the FD&C Act, changing the reclassification process from rulemaking to administrative order. Section 513(e)(1) of the FD&C Act sets forth the process for issuing a final order. Specifically, prior to the issuance of a final order reclassifying a device, the following must occur: Publication of a proposed order in the
Section 513(e)(1) provides that FDA may, by administrative order, reclassify a device based on “new information.” FDA can initiate a reclassification under section 513(e) or an interested person may petition FDA. The term “new information,” as used in section 513(e) of the FD&C Act, includes information developed as a result of a reevaluation of the data before the Agency when the device was originally classified, as well as information not presented, not available, or not developed at that time. (See,
Reevaluation of the data previously before the Agency is an appropriate basis for subsequent regulatory action where the reevaluation is made in light of newly available regulatory authority (see
Blood lancets were classified in part 878 (21 CFR part 878) in a final rule published in the
On December 7, 1994, FDA further amended the classification when it published a final rule in the
On August 26, 2010, FDA and the Centers for Disease Control and Prevention (CDC) issued a joint initial communication warning that the use of fingerstick devices (blood lancets) to obtain blood from more than one patient posed a risk of transmitting bloodborne pathogens. The communication was updated on November 29, 2010 (Ref. 1). FDA's communication update, “Use of Fingerstick Devices on More Than One Person Poses Risk for Transmitting Bloodborne Pathogens: Initial Communication: Update 11/29/2010” stated that “[o]ver the past 10-15 years, the CDC and FDA have noted a progressive increase in reports of bloodborne infection transmission (primarily hepatitis B virus [HBV]) resulting from the shared use of fingerstick and POC [or ‘Point of Care’] blood testing devices.” FDA and CDC recommended, among other things, that health care professionals and patients never use a blood lancet for more than one person.
On November 29, 2010, FDA published a guidance entitled “Guidance for Industry and Food and Drug Administration Staff; Blood Lancet Labeling” (75 FR 73107) (Ref. 2). This guidance includes labeling recommendations to address concerns that both health care providers and patients may be unaware of the serious adverse health risks associated with using the same blood lancet for assisted withdrawal of blood from more than one patient, even when the blood lancet blade is changed for each blood draw. FDA recommends in the guidance that all blood lancets be labeled for use only on a single patient. FDA recommends in the guidance that a statement limiting use to a single patient should also appear on the label attached to the device, if possible. The guidance was for immediate implementation. When final, this order will supersede this labeling guidance.
On June 26, 2013, FDA held a meeting of the General and Plastic Surgery Devices Panel of the Medical Devices Advisory Committee (the Panel) to discuss the potential reclassification of blood lancets (Ref. 3). The Panel discussed new scientific information (see section VII of this document), the risks to health from blood lancets, whether blood lancets should be reclassified or remain in class I, and possible special controls for these devices if reclassified into class II. The Panel agreed that general controls were not sufficient to provide a reasonable assurance of safety and effectiveness of any of the four types of blood lancets (the four types are explained in section III). The Panel believed that because multiple use blood lancets for multiple patient use presented a potential unreasonable risk of illness or injury, and insufficient information existed to establish special controls for these devices, they should be reclassified into class III. The Panel recommended that all other blood lancet devices be reclassified into class II (special controls). FDA is not aware of new information since this Panel meeting that would provide a basis for a different recommendation or findings.
A blood lancet is used to puncture the skin to obtain small blood specimens for testing blood glucose, hemoglobin, and
FDA has identified four subsets of blood lancets:
1. A single use only blood lancet with an integral sharps injury prevention feature is a disposable blood lancet intended for a single use that is comprised of a single use blade attached to a solid, non-reusable base (including an integral sharps injury prevention feature) that is used to puncture the skin to obtain a drop of blood for diagnostic purposes. The integral sharps injury prevention feature allows the device to be used once and then renders it inoperable and incapable of further use;
2. A single use only blood lancet without an integral sharps injury prevention feature is a disposable blood lancet intended for a single use that is comprised of a single use blade attached to a solid, non-reusable base that is used to puncture the skin to obtain a drop of blood for diagnostic purposes;
3. A multiple use blood lancet for single patient use only is a multiple use capable blood lancet intended for use on a single patient that is comprised of a single use blade attached to a solid, reusable base that is used to puncture the skin to obtain a drop of blood for diagnostic purposes; and
4. A multiple use blood lancet for multiple patient use is a multiple use capable blood lancet intended for use on multiple patients that is comprised of a single use blade attached to a solid, reusable base that is used to puncture the skin to obtain a drop of blood for diagnostic purposes.
FDA is proposing to reclassify the following three subsets of blood lancets from class I (general controls) exempt from premarket review to class II (special controls) and subject to premarket review: (1) Single use only blood lancets with an integral sharps injury prevention feature, (2) single use only blood lancets without an integral sharps injury prevention feature, and (3) multiple use blood lancets for single patient use only. FDA believes that general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness for these devices, and that there is sufficient information to establish special controls to provide such assurance.
The Food and Drug Administration Modernization Act (FDAMA) (Pub. L. 105-115) added section 510(m) to the FD&C Act. Section 510(m) of the FD&C Act provides that a class II device may be exempted from the premarket notification requirements under section 510(k) of the FD&C Act, if the Agency determines that premarket notification is not necessary to assure the safety and effectiveness of the device. The Agency does not intend to exempt these devices from premarket notification (510(k)) submission as allowed under section 510(m) of the FD&C Act. FDA believes premarket notification is necessary for these devices to provide a reasonable assurance of safety and effectiveness.
FDA is proposing that a fourth subset of blood lancets, multiple use blood lancets for multiple patient use, be reclassified from class I (general controls) without premarket review to class III (premarket approval). FDA believes that insufficient information exists to determine that general controls and special controls would provide a reasonable assurance of safety and effectiveness for these devices, which present a potential unreasonable risk of illness or injury (see section 513(a)(1)(C) of the FD&C Act).
Elsewhere in this issue of the
FDA continues to believe that multiple use blood lancets for use in multiple patients present significant risks to public health. Specifically, multiple patient use blood lancets pose a risk of transmission of bloodborne pathogen infections, including HBV and hepatitis C. Bloodborne pathogens may be transmitted between patients by blood or blood products taken from a patient with a transmissible infection. FDA believes that certain design characteristics would be required to help mitigate these risks. For example, multiple use blood lancets for use in multiple patients would need to be designed to allow for rigorous, thorough cleaning plus a disinfection or sterilization process capable of reduction of bloodborne pathogens to a clinically acceptable level between each use in a different patient in order to be safe for this intended use. The cleaning and disinfection/sterilization process to be used to render a multiple use blood lancet safe for use in multiple patients would need to be effective in spite of potential health care provider noncompliance with manufacturer's Instructions for Use. More importantly, the multiple use blood lancet for use in multiple patients would need to be designed such that repeat operation of the device is not possible until the device has been thoroughly cleaned and disinfected, using validated processes, by the health care user. Such a mechanism is necessary to prevent health care providers, especially those working in facilities that provide relatively little staff education or supervision, such as assisted living facilities (ALF), from failing to comply with manufacturer recommendations regarding rendering multiple patient use blood lancets safe for use in more than one patient. Therefore, the safety of the multiple use blood lancets for multiple patients, especially the effectiveness of their design and reprocessing instructions to render the device safe for use on more than one patient and the ability of health care providers to follow these instructions completely, must be rigorously demonstrated, independently of any other blood lancet. Because blood lancets for use on multiple patients present a potential unreasonable risk of illness or injury and insufficient information exists for FDA to determine that special controls would provide reasonable assurance of safety and effectiveness of the device, the Agency believes that these devices should be reclassified into class III.
As required by section 513(e)(1)(A)(I) of the FD&C Act, FDA is providing a substantive summary of the valid scientific evidence regarding the public health benefit of blood lancets, and the nature and, if known, the incidence of the risk of the devices. Since the 1990s, because of outbreaks of HBV infections associated with blood lancets and meters used in blood glucose monitoring, CDC and FDA have recommended that blood lancets should be limited to one individual's use (Refs. 1 and 4 to 6). Nevertheless, there have been continuing reports of bloodborne pathogen transmission from the shared use of blood lancets. Improper use of blood lancets can endanger public health, and FDA is concerned about the persistent risk of transmission of
These findings were discussed by the June 26, 2013, General and Plastic Surgery Devices Panel. The Panel agreed that the risks to health identified in this section are applicable to blood lancet devices, particularly the risk of cross-contamination between patients when the same lancet is used on multiple patients (Ref. 3).
After considering the information discussed by the Panel and in published literature, as well as medical device reports relating to blood lancets, and reported outbreaks of various bloodborne pathogen infections, FDA believes that the risks to health associated with the use of blood lancets are (1) bloodborne pathogen transmission, (2) sharp object injuries, (3) local tissue infections, and (4) adverse tissue reaction (not infection). The June 26, 2013, Panel also believed that these were the risks for the device (Ref. 3).
Bloodborne pathogens such as HBV, hepatitis C virus, and potentially any other pathogen present in the bloodstream of a patient can be transmitted from one patient to another by the following mechanisms:
• Reuse of the same lancet blade to draw blood from more than one patient or
• Failure/inability to adequately clean the base of a multiple use blood lancet resulting in the blood contamination of the next “new” lancet blade when blood is drawn from more than one patient.
The blade of a blood lancet device is designed to pierce the skin and draw blood. Except when the used lancet blade is immediately and automatically covered by a sharps safety feature, which renders the blade inaccessible, the exposed sharp blade of a blood lancet presents a puncture hazard to anyone coming in contact with it. Blade exposure can result due to either the lack of a sharps safety feature or device breakage.
Human skin always carries a population of bacteria and often fungi (normal skin flora), which causes no problem for the host when skin is intact. However, puncture injuries to the skin by sharp objects such as blood lancet blades can carry these microbes into the normally sterile tissue below the skin. Such injuries have the potential to cause local skin/soft tissue infections.
Tissue contact with some materials, metals, and material colorants can cause skin inflammation, irritation, or exanthems (rashes). These reactions may be due to either hypersensitivity to a specific compound/metal or to a non-specific reaction.
FDA believes that blood lancets for use on a single patient only should be reclassified into class II because special controls, in addition to general controls, can be established to provide reasonable assurance of safety and effectiveness of the device. FDA further believes that blood lancets for use on multiple patients should be reclassified into class III because multiple patient use blood lancets present a potential unreasonable risk of illness or injury and insufficient information exists for FDA to determine that special controls would provide reasonable assurance of safety and effectiveness of the device.
The June 26, 2013 reclassification Panel recommended that single patient blood lancets be reclassified into class II and multiple patient blood lancets into class III. The Panel did not believe that general controls alone were sufficient to ensure the safety and effectiveness of blood lancets. The Panel believed that special controls could be established to provide reasonable assurance of the safety and effectiveness of single use blood lancets, with and without integral sharps injury prevention features, and multiple use lancets for single patients, but that special controls could not be established to provide reasonable assurance of safety and effectiveness for multiple use lancets for multiple patients. Hence, the Panel agreed that blood lancets for use on a single patient only should be reclassified into class II (special controls), and multiple use lancets for multiple patients should be reclassified into class III (premarket approval).
FDA uses the bloodborne pathogens definition in 29 CFR 1910.1030(b). Bloodborne pathogens, such as HBV, may be transmitted between patients by blood and certain body fluids (Ref. 32). Since HBV-infected patients, who often lack clinical symptoms of hepatitis, have high concentrations of HBV in their blood and HBV is stable at ambient temperatures, transmission of HBV may result from exposure to equipment that has not been adequately disinfected or by the misuse of “single use only” medical devices (
The history of recognized bloodborne pathogen transmission by blood lancets may have started in 1923 when an outbreak of jaundice occurred in the Goteborg Hospital diabetic clinic in Sweden, which was described by Schmid, et al. (Ref. 10). All patients had blood drawn for glucose testing from their ear lobes by a spring-activated “Schnepper” device, which was cleaned “perfunctorily” between uses. As a result, 26 clinic patients developed jaundice. Outbreaks of hepatitis in English diabetic patients were described by Graham in 1938 (Ref. 11) and by Droller in 1945 (Ref. 12). In both of these outbreaks, venous blood for glucose measurement was drawn using syringes that were only chemically disinfected between uses while the needles were boiled; cleaning procedures were not mentioned in the reports. Syringes and needles are now single-use-only devices because the procedures used to reprocess these devices many years ago have long been recognized to be inadequate, resulting in outbreaks of hepatitis transmission (Ref. 10). There were also two case reports, in 1985 and 1997, of the transmission of HBV infection due to sharing personal use blood lancets for home glucose monitoring with one other person who already had HBV. One report was from the United States and one was from Hungary (Refs. 13 and 14). In addition, Mendez et al. reported a 75-year-old patient with diabetes who died of acute hepatitis, whose only risk factor for HBV infection appeared to be her diabetic care at a local outpatient facility where she had repeated fingersticks for blood glucose monitoring (Ref. 15).
During the 1990s, several bloodborne pathogen transmission issues led to CDC and FDA involvement. In 1990, CDC learned of a nosocomial outbreak of HBV transmission due to the use of a spring-loaded lancet device whose disposable platform was not removed
CDC's outbreak investigation revealed that a patient who had diabetes and also a chronic HBV infection caused by a relatively rare viral subtype was admitted to the outbreak ward in 1989. Twelve of the 23 patients who acquired HBV after admission to the same ward as the chronic HBV source patient were serotyped, and all were found to have the same viral subtype causing their HBV infections. The first nosocomially infected patient had a very long-term stay on the ward and so served as a source of transmission to other patients over a period of 12 months. Twenty of the 23 outbreak patients had diabetes; they and the three other case-patients all experienced numerous POC fingerstick blood draws with the same type of blood lancet while hospitalized on the outbreak ward. The implicated blood lancet device included a disposable platform to stabilize the patient's finger; the single use lancet blade penetrated a hole in that platform to reach the patient's skin. Half the ward nursing staff who performed fingersticks with this lancet acknowledged not changing the device platform with each use of the lancet. A similar outbreak of hepatitis transmission was reported in 1990 in France in which a similar blood lancet device was implicated. Douvin et al. (Ref. 8) reported that examination of the device implicated in the French outbreak showed visible blood contamination of the lancet platform in 24 percent of studied uses of that device. Shier et al. (Ref. 9) reported in 1993 that the use of another spring-loaded lancet device in a volunteer study of blood glucose levels resulted in visible blood contamination on 29 percent of the device end caps. This device was intended for “personal” use only.
As a result of the 1990 outbreak of HBV transmission due to blood lancet use in the United States, FDA and CDC recommended that spring-loaded blood lancet devices should have only single use only “platforms” as well as single use only blades; the devices were to be cleaned and disinfected per the manufacturer's instructions (Refs. 4 and 5). The 1990 FDA Safety Alert also advised “Devices [blood lancets] without a removable platform should only be used with one patient in the hospital or outpatient setting. After the patient is discharged, the device may be reused only if it is disinfected according to the manufacturer's instructions. If there are no instructions for disinfection, the device should be discarded.”
Since 1990, the incidence of diabetes mellitus has increased significantly in the United States, especially in adults aged 65-79 (Refs. 34 and 35). At the same time, clinical practice in the care of these patients increasingly emphasized the need for improved blood glucose level control, resulting in the increased use of POC blood glucose monitoring both in health care facilities and at home (Refs. 36 to 38). Unfortunately, along with the increased incidence of diabetes has come a progressive increase in the reports of bloodborne infection transmission (primarily HBV), resulting from the shared use of fingerstick and POC blood testing devices (Ref. 1). In 2011, the CDC reported that 25 of 29 outbreaks of HBV infection occurring in long-term care facilities since 1996 involved adults with diabetes receiving assisted blood glucose monitoring (Ref. 39).
In 1997, CDC reported two outbreaks of HBV transmission, one in a nursing home in Ohio and one in a hospital in New York City (NYC) (Ref. 16). Two different blood lancet devices were used at the two sites. However, both lancet devices included the use of an “end cap” that came in contact with patient skin. This was a separate, individual use component of the lancet device used in Ohio; the nursing home was reusing both the lancet and the cap for multiple patients. The end cap was a part of the disposable, single use only lancet blade assembly in the device used in NYC. The exact mechanism of blood transmission was not entirely clear in the NYC setting; staff claimed they had discarded the end cap after each use. CDC postulated that either blood-contaminated nurses gloves worn for the care of multiple patients or the pen-like lancet-holding device itself might have been the source of the blood cross-contamination of the lancet. A similar outbreak was reported by Quale et al. in 1998 from a hospital in New York (Ref. 17). The recognition of 3 cases of nosocomially acquired HBV infection resulted in an investigation that uncovered another 11 cases. Reuse by hospital staff of a disposable lancet end cap with the lancet in multiple patients was identified as the probable cause of hepatitis cross-transmission to patients; contamination of the lancet wound from blood on unchanged gloves worn by nurses during collection of blood samples from multiple patients may also have contributed to the nosocomial transmission of HBV in this outbreak.
CDC reviewed the incidence of reported outbreaks of HBV and hepatitis C infection in nonhospital health care settings between 1998 and 2008 and noted a significant increase in such nosocomial transmission of bloodborne pathogens (Refs. 18 to 21). N.D. Thompson et al. identified 33 outbreaks of nosocomial hepatitis transmission in nonhospital health care settings (Ref. 18). Of these 33 outbreaks, 15 were found to be due to blood glucose monitoring in long-term care facilities. Only half of these outbreak investigations were published in the scientific literature; the others were recognized by health department investigations and reports to CDC. In 9 of the 15 outbreaks of nosocomial hepatitis in patients with diabetes, blood lancet devices were shared among multiple patients. In two additional outbreaks, lancets were not noted to be shared, but blood-soiled glucose meters were stored together with lancets without cleaning/disinfection of the devices and gloves were not regularly changed between each patient. These failures of proper infection control practice could have led to blood contamination of individual blood lancets in these two facilities.
N.D. Thompson et al. also investigated blood glucose monitoring practices in long-term care facilities in Pinellas County, FL, in 2007 and found that 22 percent of the participating facilities that used reusable fingerstick devices used them in multiple patients (Ref. 22). Patel et al. reported in 2009 on the efforts of the Virginia Department of Health to improve blood glucose monitoring practices in ALFs in Virginia (Ref. 23). This effort followed two separate outbreaks of HBV infections in two ALFs. In those outbreaks, one of the three acutely symptomatic initial patients died of HBV infection. Of 68 patients undergoing blood glucose monitoring in these 2 facilities, a total of 11 patients acquired HBV infection. Both facilities used reusable blood lancets to obtain blood from multiple patients and did not clean or disinfect them between uses. The Virginia Department of Health then mailed an educational packet on safe blood glucose monitoring practices to all ALFs (640) in the State. A random sample of
Y.G. McIntosh et al. investigated outbreaks of nosocomial HBV transmission in four ALFs between 2009 and 2011 and found that in all four facilities, pen-style lancets were used to obtain blood for glucose monitoring from multiple patients even though two facilities provided each patient with dedicated “single patient use only pen-style lancets” according to their policies (Ref. 24). Z. Moore et al. reported another outbreak of nosocomial HBV transmission in an ALF in North Carolina in 2010 in which blood lancet devices were shared among multiple patients. Six of the eight elderly patients who acquired acute HBV in this outbreak died from complications of hepatitis (Ref. 25). M.K. Schaefer et al. surveyed a stratified, random sample of ambulatory surgery centers (ASCs) in three volunteer states in 2009 (Ref. 26). Of the 53 ASCs that performed blood glucose monitoring, 11 (21 percent) reused pen-style blood lancets on multiple patients and 17 (32 percent) also failed to clean and disinfect blood glucose meters after each use.
Thompson and Schaefer reported the analysis of four outbreaks of nosocomial HBV in ALFs in 2009-2010 (Ref. 27). One was also reported separately by Z. Moore et al. (Ref. 24). Two of the three other outbreaks occurred in Virginia and one in Florida; these 3 outbreaks resulted in 21 new patients acquiring acute HBV. In two of the three facilities, use of reusable blood lancets to draw blood from multiple patients was observed or reported. The third facility denied that it permitted the sharing of reusable lancets. However, used lancets and glucose meters were stored together, along with clean supplies; visible blood contamination was observed on several glucose meters and one reusable lancet by the investigator. Thompson and Schaefer also reported in their paper on two patient notification campaigns resulting from the misuse of reusable blood lancets with preloaded lancet cartridges, intended and cleared only for single patient use, which were used to obtain blood from multiple patients. One episode involved a community health center and was reported when personnel noted that the lancet blades were not retracting properly, which might have resulted in blade use for more than one patient. The second episode occurred at a community health fair in which physician assistant students were offering diabetes screening. During the fair, the students realized that the lancet blades had not been advanced properly so that each patient received a new blade. The first episode exposed 283 patients to a contaminated lancet blade; the second incident exposed approximately 60 patients. The results of the patient notification studies were not reported.
As a result of this significant increase in such nosocomial transmission of bloodborne pathogens, on August 26, 2010, FDA and the CDC issued a Safety Communication (Ref. 1) and a Clinical Reminder (Ref. 6), respectively, warning that the use of blood lancets to obtain blood from more than one patient risks the transmission of bloodborne pathogen infections from one patient to other patients. Both FDA and CDC recommended that blood lancets should never be used to obtain blood from more than one patient. In addition, the Centers for Medicare and Medicaid Services issued a Survey and Certification Memorandum for Point of Care Devices and Infection Control in Nursing Homes identifying the use of blood lancet devices for more than one patient as an infection control standards deficiency (Ref. 40). On November 29, 2010, FDA issued “Guidance for Industry and Food and Drug Administration Staff: Blood Lancet Labeling,” which provided guidance for lancet manufacturers on the labeling of all blood lancets, including those capable of reuse, as “single patient use only” devices (Ref. 2).
In 2012, another outbreak of acute HBV was reported in an ALF in Virginia (Ref. 28). The source patient had been recently transferred from another ALF where she had acquired nosocomial HBV infection from the shared use of blood lancets for multiple patients (Ref. 24). This ALF also reused blood lancets to obtain blood from multiple patients for glucose monitoring. This dangerous practice resulted in two new nosocomial HBV infections in this ALF.
Outbreaks of hepatitis transmission due to use of blood lancets to draw blood from more than one patient for blood glucose monitoring have not been limited to the United States. In 2001, Desenclos et al. described an outbreak of nosocomial hepatitis C transmission in an inpatient ward for children with cystic fibrosis and diabetes in a French hospital in 1994-1995 (Ref. 29). Blood glucose monitoring was done by the nursing staff for the patients with cystic fibrosis as well as for the patients with diabetes using a spring-loaded lancet with a disposable platform to stabilize the finger. These devices were shared among patients between 1986 and 1992 during repeated admissions to the inpatient unit. After 1992, patients were supposed to use only their own lancet devices for blood glucose monitoring. The retrospective prevalence of prior hepatitis C infection was found to be 58 percent in patients with cystic fibrosis and 17 percent in patients with diabetes in 1994. At the time (1994), the prevalence of antibody to hepatitis C in the general public in France was 1.1 percent. The patients with cystic fibrosis had more frequent and longer admissions to the inpatient ward and more of the exposed cystic fibrosis patients (66.7 percent) were screened for hepatitis C infection than were the patients with diabetes admitted to the inpatient ward during the exposure period (39.5 percent). These factors may have influenced the apparent difference in hepatitis C transmission in these two groups of exposed patients.
In 2005, De Schrijver et al. described an outbreak of acute HBV infection in a nursing home in Antwerp (Ref. 30). The initial report of a fulminant case of acute HBV infection in an 83-year-old resident of the home resulted in an investigation that identified acute HBV infection in another four patients there. Four of the five acutely infected patients had diabetes and received assisted blood glucose sampling by the nursing home staff. The two blood lancet models used in the facility (one each in two sections) were used to obtain blood from multiple patients. The device platforms were not disposable. The lancets were washed only when blood was visible on the device and they were not disinfected. Nurses did not routinely wash their hands or wear gloves when obtaining blood. Two of the five patients with acute nosocomial HBV died of their infections.
In 2008, Gotz et al. reported the investigation of two cases of acute HBV infection among patients at a nursing home in the Netherlands (Ref. 31). The nursing home stay of these two patients overlapped with that of a patient with known chronic HBV infection. Early in this time period, the nursing home changed the lancet device used for glucose monitoring from a spring-loaded device with a disposable platform (used for multiple patients) to a device with a rotating drum dispensing new lancet blades, which was also used to draw blood from multiple patients, although it was labeled for single patient use only. This device was used for about a month until the staff realized that active rotation of the drum was occasionally forgotten, resulting in the reuse of a lancet blade on more than one patient.
In 2011, Duffell et al. reported on the investigations of five reports of HBV transmission in community health care settings in the United Kingdom (Ref. 32). All of the nine initially reported patients with HBV had diabetes and were receiving blood glucose monitoring. Further investigation identified another 12 patients with acute HBV infection. The care settings in which hepatitis transmission occurred were described as a “private residential home” (one patient), “nursing and residential home” (one patient), “private nursing and residential home” (one patient) and “local care home” (two patients). Eleven of the 21 acutely infected patients had symptomatic HBV; 7 of these patients died, 5 due to the HBV infection. All of the care sites in which acute HBV transmission occurred were using blood lancets intended for single patient use only; these devices were either routinely or occasionally used for multiple patients. One facility also used a single glucometer for multiple patients and did not clean or disinfect it between patients. The authors also noted that information reported on patients found to have acute HBV infection between 1990 and 2003 identified only four patients with blood glucose monitoring as a possible risk factor; one of these patients was infected as a result of in-hospital transmission from another patient on the same ward, although details were not provided. Between 2004 and 2006, the 9 patients described previously in this document were reported and investigation led to the discovery of an additional 12 cases of health care-related HBV transmission due to the improper use of blood lancets during patient blood glucose monitoring.
FDA believes that the special controls identified in the paragraphs that follow—in addition to general controls—are necessary to provide reasonable assurance of safety and effectiveness for this device when it is for single patient use only. Special controls were discussed at the June 26, 2013, reclassification Panel (Ref. 3). The Panel agreed that the special controls as presented would provide a reasonable assurance of safety and effectiveness for these devices, emphasizing in discussions the need for adequate labeling for these devices. FDA believes that the special controls proposed for single use only blood lancets with an integral sharps injury prevention feature in § 878.4850(a)(2), in addition to the general controls, mitigate the risks to health discussed in section V and are necessary to provide reasonable assurance of safety and effectiveness.
Table 1 depicts how each risk to health would be mitigated by the proposed special controls.
FDA believes that the special controls proposed for single use only blood lancets without an integral sharps injury prevention feature in proposed in § 878.4850(b)(2), in addition to the general controls, mitigate these risks to health discussed in section V and are necessary to provide reasonable assurance of safety and effectiveness.
Table 2 depicts how each risk to health would be mitigated by the proposed special controls.
FDA believes that the special controls proposed for multiple use blood lancets for single patient use only in proposed § 878.4850(c)(2), in addition to the general controls, mitigate these risks to health discussed in section V and are necessary to provide reasonable assurance of safety and effectiveness.
Table 3 depicts how each risk to health would be mitigated by the proposed special controls.
FDA is issuing this proposed order to reclassify the following three types of blood lancets used to puncture skin to obtain a drop of blood for diagnostic purposes from class I (general controls) exempt from premarket notification into class II (special controls) and subject to premarket review: (1) Single use only blood lancets with an integral sharps injury prevention feature, (2) single use only blood lancets without an integral sharps injury prevention feature, and (3) multiple use blood lancets for single patient use only. FDA is identifying proposed special controls for these types of blood lancets, as identified in section VIII of this document, that are necessary to provide a reasonable assurance of safety and effectiveness. FDA is also proposing to reclassify multiple use blood lancets for multiple patient use from class I (general controls) exempt from premarket notification into class III (premarket approval).
FDA proposes that any final order based on this draft order become effective on its date of publication in the
• Blood lancets for single patient use only that have not been offered for sale prior to the effective date of the final order, or have been offered for sale but are required to submit a new 510(k) under 21 CFR 807.81(a)(3): Manufacturers would have to obtain 510(k) clearance before marketing their devices after the effective date of the order. If a manufacturer markets such a device without receiving 510(k) clearance, then FDA would consider taking action against such a manufacturer under its usual enforcement policies.
• Blood lancets for single patient use only that have been offered for sale prior to the effective date of the final order, and do not already have 510(k) clearance: FDA does not intend to enforce compliance with the 510(k) requirement or special controls until 180 days after the effective date of the final order. After that date, if a manufacturer continues to market such a device but does not have 510(k) clearance or FDA determines that the device is not substantially equivalent or not compliant with special controls, then FDA would consider taking action against such manufacturer under its usual enforcement policies.
For blood lancets for single patient use that have prior 510(k) clearance, FDA would accept a new 510(k) and would issue a new clearance letter, as appropriate, indicating substantial equivalence and special controls compliance. These devices could serve as predicates for new devices. These clearance letters would be made publicly available in FDA's 510(k) database, and compliance with special controls at the time of clearance would be stated in the publically available 510(k) Summary posted in this database. Since many blood lancets for single patient use are non-prescription (“over the counter”) devices, FDA believes that our public database is a transparent tool allowing consumers to confirm that their devices have been submitted under a new 510(k) and demonstrated conformance to applicable special controls. Elsewhere in this issue of the
We have determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This proposed order refers to previously approved information collections found in FDA regulations. The collections of information in 21 CFR part 807, subpart E, have been approved under OMB control number 0910-0120. The collections of information in 21 CFR part 801 have been approved under OMB control number 0910-0485. The collections of information in 21 CFR part 820 have been approved under OMB control number 0910-0073. The collections of information in 21 CFR part 814, subparts B and E, have been approved under OMB control number 0910-0231.
The labeling provisions in proposed § 878.4850(a)(2)(vi), (b)(2)(vi), and (c)(2)(vii) are not subject to review by OMB because they do not constitute a “collection of information” under the PRA. Rather, the following labeling: (1) “For use only on a single patient. Discard the entire device after use.”; (2) “For use only on a single patient. Disinfect reusable components according to manufacturer's instructions between each use.”; (3) “Used lancet blades must be discarded safely after a single use.”; (4) “Warning: Not intended for more than one use. Do not use on more than one patient. Improper use of blood lancets can increase the risk of inadvertent transmission of bloodborne pathogens, particularly in settings where multiple patients are tested.”;
Prior to the amendments by FDASIA, section 513(e) of the FD&C Act provided for FDA to issue regulations to reclassify devices. Although section 513(e) as amended requires FDA to issue final orders rather than regulations, FDASIA also provides for FDA to revoke previously issued regulations by order. FDA will continue to codify classifications and reclassifications in the Code of Federal Regulations (CFR). Changes resulting from final orders will appear in the CFR as changes to codified classification determinations or as newly codified orders. Therefore, under section 513(e)(1)(A)(i), as amended by FDASIA, in the proposed order, we are proposing to revoke the requirements in § 878.4800 related to the classification of blood lancets as class I devices and to codify the reclassification of subsets of blood lancets into class II or class III in § 878.4850.
The following references are on display in the Division of Dockets Management (see
Medical devices.
Therefore, under the Federal Food, Drug, and Cosmetic Act, and under authority delegated to the Commissioner of Food and Drugs, it is proposed that 21 CFR part 878 be amended as follows:
21 U.S.C. 351, 360, 360c, 360e, 360j, 360l, 371.
(a)
(a)
(2)
(i) The design characteristics of the device must ensure that the structure and material composition are consistent with the intended use and must include a sharps injury prevention feature;
(ii) Mechanical performance testing must demonstrate that the device will withstand forces encountered during use and that the integral sharps injury prevention feature will irreversibly disable the device after one use;
(iii) The device must be demonstrated to be biocompatible;
(iv) Sterility testing must demonstrate the sterility of the device;
(v) Labeling must include:
(A) Detailed descriptions, with illustrations, of the proper use of the device and its sharps injury prevention feature.
(B) Handwashing instructions for the user before and after use of the device.
(C) Instructions on cleaning and disinfection of the skin to be pierced.
(D) Instructions for the safe disposal of the device.
(E) Labeling must be appropriate for the intended use environment.
(
(
(vi) Labeling must also include the following statements, prominently placed:
(A) “For use only on a single patient. Discard the entire device after use.”
(B) “Warning: Not intended for more than one use. Do not use on more than one patient. Improper use of blood lancets can increase the risk of inadvertent transmission of bloodborne pathogens, particularly in settings where multiple patients are tested.”
(b)
(2)
(i) The design characteristics of the device must ensure that the structure and material composition are consistent with the intended use and address the risk of sharp object injuries and bloodborne pathogen transmissions;
(ii) Mechanical performance testing must demonstrate that the device will withstand forces encountered during use;
(iii) The device must be demonstrated to be biocompatible;
(iv) Sterility testing must demonstrate the sterility of the device;
(v) Labeling must include:
(A) Detailed descriptions, with illustrations, of the proper use of the device.
(B) Handwashing instructions for the user before and after use of the device.
(C) Instructions on cleaning and disinfection of the skin to be pierced.
(D) Instructions for the safe disposal of the device.
(E) Labeling must be appropriate for the intended use environment.
(
(
(vi) Labeling must also include the following statements, prominently placed:
(A) “For use only on a single patient. Discard the entire device after use.”
(B) “Warning: Not intended for more than one use. Do not use on more than one patient. Improper use of blood lancets can increase the risk of inadvertent transmission of bloodborne pathogens, particularly in settings where multiple patients are tested.”
(c)
(2)
(i) The design characteristics of the device must ensure that:
(A) The lancet blade can be changed with every use, either manually or by triggering a blade storage unit to discard the used blade and reload an unused blade into the reusable base; and
(B) The structure and material composition are consistent with the intended use and address the risk of sharp object injuries and bloodborne pathogen transmissions; and allow for validated cleaning and disinfection;
(ii) Mechanical performance testing must demonstrate that the device will withstand forces encountered during use;
(iii) The device must be demonstrated to be biocompatible;
(iv) Sterility testing must demonstrate the sterility of the device;
(v) Validation testing must demonstrate that the cleaning and disinfection instructions are adequate to ensure that the reusable lancet base can be cleaned and low level disinfected.
(vi) Labeling must include:
(A) Detailed descriptions, with illustrations, of the proper use of the device.
(B) The Environmental Protection Agency (EPA) registered disinfectant's contact time for disinfectant use.
(C) Handwashing instructions for the user before and after use of the device.
(D) Instructions on cleaning and disinfection of the skin to be pierced.
(E) Instructions on the cleaning and disinfection of the device.
(F) Instructions for the safe disposal of the device.
(G) Instructions for use must address the safe storage of the reusable blood lancet base between uses to minimize contamination or damage and the safe storage and disposal of the refill lancet blades.
(H) Labeling must be appropriate for the intended use environment.
(
(
(vii) Labeling must also include the following statements, prominently placed:
(A) “For use only on a single patient. Disinfect reusable components according to manufacturer's instructions between each use.”
(B) “Used lancet blades must be safely discarded after a single use.”
(C) “Warning: Do not use on more than one patient. Improper use of blood lancets can increase the risk of inadvertent transmission of bloodborne pathogens, particularly in settings where multiple patients are tested. The cleaning and disinfection instructions for this device are intended only to reduce the risk of local use site infection; they cannot render this device safe for use for more than one patient.”
(d)
(2)
Food and Drug Administration, HHS.
Proposed order.
The Food and Drug Administration (FDA) is issuing a proposed administrative order to require the filing of a premarket approval application (PMA) following the reclassification of multiple use blood lancets for multiple patient use from class I to class III. FDA is summarizing its proposed findings regarding the degree of risk of illness or injury designed to be eliminated or reduced by requiring this device to meet the PMA requirements of the Federal Food, Drug,
Submit either electronic or written comments on this proposed order by June 1, 2016. See section X of the
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
•
Joshua Nipper, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. G422, Silver Spring, MD 20993-0002, 301-796-6524,
The FD&C Act, as amended, establishes a comprehensive system for the regulation of medical devices intended for human use. Section 513 of the FD&C Act (21 U.S.C. 360c) established three categories (classes) of devices, reflecting the regulatory controls needed to provide reasonable assurance of their safety and effectiveness. The three categories of devices are class I (general controls), class II (special controls), and class III (premarket approval).
Under section 513(d)(1) of the FD&C Act, devices that were in commercial distribution before the enactment of the 1976 amendments, May 28, 1976 (generally referred to as “preamendments devices”), are classified after FDA: (1) Receives a recommendation from a device classification panel (an FDA advisory committee); (2) publishes the panel's recommendation for comment, along with a proposed regulation classifying the device; and (3) publishes a final regulation classifying the device. FDA has classified most preamendments devices under these procedures.
Devices that were not in commercial distribution prior to May 28, 1976 (generally referred to as “postamendments devices”), are classified automatically by section 513(f) of the FD&C Act into class III without any FDA rulemaking process. Those devices remain in class III and require premarket approval unless, and until, FDA reclassifies the device into class I or II, or FDA issues an order finding the device to be substantially equivalent, in accordance with section 513(i) of the FD&C Act, to a predicate device that does not require premarket approval. The Agency determines whether new devices are substantially equivalent to predicate devices by means of premarket notification procedures in section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 of the regulations (21 CFR part 807).
A person may market a preamendments device that has been classified into class III through premarket notification procedures, and devices found substantially equivalent by means of premarket notification (510(k)) procedures to such a preamendments device or to a device within that type (both the preamendments and substantially equivalent devices are referred to as preamendments class III devices) may be marketed without submission of a PMA until FDA issues a final order under section 515(b) of the FD&C Act (21 U.S.C. 360e(b)) requiring premarket approval. Section 515(b)(1) of the FD&C Act directs FDA to issue an order requiring premarket approval for a preamendments class III device.
Section 515(f) of the FD&C Act provides an alternative pathway for meeting the premarket approval
On July 9, 2012, Congress enacted the Food and Drug Administration Safety and Innovation Act (FDASIA). Section 608(b) of FDASIA (126 Stat. 1056) amended section 515(b) of the FD&C Act, changing the process for requiring premarket approval for a preamendments class III device from rulemaking to an administrative order.
Section 515(b)(1) of the FD&C Act sets forth the process for issuing a final order. Specifically, prior to the issuance of a final order requiring premarket approval for a preamendments class III device, the following must occur: Publication of a proposed order in the
In June 2013, FDA held a meeting of a device classification panel described in section 513(b) of the FD&C Act to discuss the classification of multiple use blood lancets for multiple patient use. Although, to FDA's knowledge, no device is currently being marketed for this use, one device has been cleared for this use. As explained further in section V.A of this document, this device classification panel meeting discussed whether multiple use blood lancets for multiple patient use should be reclassified into class III or remain in class I, and the discussion included whether PMAs should be required for these devices. The panel recommended that, because multiple use blood lancets for multiple patient use present a potential unreasonable risk of illness or injury and insufficient information exists to establish special controls for multiple use blood lancets for multiple patient use, the device should be reclassified into class III. FDA is not aware of new information that would provide a basis for a different recommendation or findings.
Section 515(b)(2) of the FD&C Act provides that a proposed order to require premarket approval shall contain: (1) The proposed order, (2) proposed findings with respect to the degree of risk of illness or injury designed to be eliminated or reduced by requiring the device to have an approved PMA and the benefit to the public from the use of the device, (3) an opportunity for the submission of comments on the proposed order and the proposed findings, and (4) an opportunity to request a change in the classification of the device based on new information relevant to the classification of the device.
Section 515(b)(3) of the FD&C Act provides that FDA shall, after the close of the comment period on the proposed order, consideration of any comments received, and a meeting of a device classification panel described in section 513(b) of the FD&C Act, issue a final order to require premarket approval or publish a document terminating the proceeding together with the reasons for such termination. If FDA terminates the proceeding, FDA is required to initiate reclassification of the device under section 513(e) of the FD&C Act, unless the reason for termination is that the device is a banned device under section 516 of the FD&C Act (21 U.S.C. 360f).
A preamendments class III device may be commercially distributed without a PMA until 90 days after FDA issues a final order requiring premarket approval for the device, or 30 months after final classification of the device under section 513 of the FD&C Act becomes effective, whichever is later (section 501(f) of the FD&C Act (21 U.S.C. 351(f)). Elsewhere in this issue of the
In accordance with section 515(b) of the FD&C Act, interested persons are being offered the opportunity to request reclassification of multiple use blood lancets for multiple patient use.
Elsewhere in this issue of the
Blood lancets were classified in part 878 (21 CFR part 878) by a final rule published in the
On December 7, 1994, FDA further amended the classification when it published a final rule in the
On August 26, 2010, FDA and the Centers for Disease Control and Prevention (CDC) issued joint initial communications warning that the use of fingerstick devices (blood lancets) to obtain blood from more than one patient posed a risk of transmitting bloodborne pathogens. The communication was updated on November 29, 2010 (Ref. 1). FDA's communication update, “Use of Fingerstick Devices on More Than One Person Poses Risk for Transmitting Bloodborne Pathogens: Initial Communication: Update 11/29/2010”, stated that “[o]ver the past 10-15 years, the CDC and the FDA have noted a progressive increase in reports of bloodborne infection transmission (primarily hepatitis B virus) resulting from the shared use of fingerstick and POC [or ‘Point of Care’] blood testing devices.” FDA and CDC recommended, among other things, that health care
On November 29, 2010, FDA published a guidance entitled “Guidance for Industry and Food and Drug Administration Staff; Blood Lancet Labeling” (75 FR 73107) (Ref. 2). This guidance includes labeling recommendations to address concerns that both health care providers and patients may be unaware of the serious adverse health risks associated with using the same blood lancet for assisted withdrawal of blood from more than one patient, even when the blood lancet blade is changed for each blood draw. FDA recommends in the guidance that all blood lancets be labeled for use only on a single patient. FDA recommends in the guidance that a statement limiting use to a single patient should also appear on the label attached to the device, if possible. The guidance was for immediate implementation. When final, this order will supersede this labeling guidance.
On June 26, 2013, FDA held a meeting of the General and Plastic Surgery Devices Panel of the Medical Devices Advisory Committee (the Panel) to discuss the potential reclassification of blood lancets (Ref. 3). The Panel discussed new scientific information, the risks to health from blood lancets, whether blood lancets should be reclassified or remain in class I, and possible special controls for these devices if reclassified into class II. The Panel agreed that general controls were not sufficient to provide a reasonable assurance of safety and effectiveness of blood lancets. The Panel believed that because multiple use blood lancets for multiple patient use presented a potential unreasonable risk of illness or injury, and insufficient information existed to establish special controls for these devices, they should be reclassified into class III. The Panel recommended that all other blood lancet devices be reclassified into class II (special controls). FDA is not aware of new information since this Panel meeting that would provide a basis for a different recommendation or finding.
Assuming FDA finalizes the order proposing reclassification of multiple use blood lancets for multiple patient use found elsewhere in this issue of the
Under the FD&C Act, if any multiple use blood lancets for multiple patient use are currently in distribution and no PMA is submitted for these devices by the last day of the 30th calendar month beginning after the month in which the classification of the device in class III became effective or within 90 days of a final order calling for PMAs, or a denial is rendered on a filed PMA, these devices would be considered adulterated under section 501(f)(1) of the FD&C Act. In addition, no new devices will be permitted in interstate commerce without approval of a PMA. The device may be distributed for investigational use only if the requirements of the IDE regulations are met. The requirements for significant risk devices include submitting an IDE application to FDA for review and approval. An approved IDE is required to be in effect before an investigation of the device may be initiated or continued under § 812.30 (21 CFR 812.30). FDA, therefore, recommends that IDE applications be submitted to FDA at least 30 days before the end of the 30-month period after the issuance of the final order to avoid interrupting any ongoing investigations.
FDA intends that under § 812.2(d), the publication in the
Elsewhere in this issue of the
As required by section 515(b) of the FD&C Act, FDA is publishing its proposed findings regarding: (1) The degree of risk of illness or injury designed to be eliminated or reduced by requiring that this device have an approved PMA, and (2) the benefits to the public from the use of the device.
These findings are based on the reports and recommendations of the General and Plastic Surgery Devices Panel of the Medical Devices Advisory Committee (the Panel) from the meeting on June 26, 2013 (Ref. 3) and any additional information that FDA has obtained. Additional information regarding the risks as well as classification associated with this device type can be found in section V.C as well as in the proposed order published elsewhere in this issue of the
FDA uses the bloodborne pathogens definition in 29 CFR 1910.1030(b). Bloodborne pathogens, such as HBV, may be transmitted between patients by blood and certain body fluids (Ref. 4).
The history of recognized bloodborne pathogen transmission by blood lancets may have started in 1923 when an outbreak of jaundice occurred in the Goteborg Hospital diabetic clinic in Sweden, which was described by Schmid et al. (Ref. 6). All patients had blood drawn for glucose testing from their ear lobes by a spring-activated “Schnepper” device, which was cleaned “perfunctorily” between uses. As a result, 26 clinic patients developed jaundice. Outbreaks of hepatitis in English diabetic patients were described by Graham in 1938 (Ref. 7) and by Droller in 1945 (Ref. 8). In both of these outbreaks, venous blood for glucose measurement was drawn using syringes that were only chemically disinfected between uses while the needles were boiled; cleaning procedures were not mentioned in the reports. Syringes and needles are now single-use-only devices because the procedures used to reprocess these devices many years ago have long been recognized to be inadequate, resulting in outbreaks of hepatitis transmission (Ref. 6). There were also two case reports, in 1985 and 1997, of the transmission of HBV infection due to sharing personal use blood lancets for home glucose monitoring with one other person who already had HBV. One report was from the United States and one was from Hungary (Refs. 9 and 10). In addition, Mendez et al. reported a 75-year-old patient with diabetes who died of acute hepatitis, whose only risk factor for HBV infection appeared to be her diabetic care at a local outpatient facility where she had repeated fingersticks for blood glucose monitoring (Ref. 11).
During the 1990s, several bloodborne transmission issues led to CDC and FDA involvement. In 1990, CDC learned of a nosocomial outbreak of HBV transmission due to the use of a spring-loaded lancet device whose disposable platform was not removed and discarded after each use of the device while it was used for the care of multiple patients (Ref. 12).
CDC's outbreak investigation revealed that a patient who had diabetes and also a chronic HBV infection caused by a relatively rare viral subtype was admitted to the outbreak ward in 1989. Twelve of the 23 patients who acquired hepatitis B after admission to the same ward as the chronic HBV source patient were serotyped, and all were found to have the same viral subtype causing their hepatitis B infections. The first nosocomially infected patient had a very long-term stay on the ward and so served as a source of transmission to other patients over a period of 12 months. Twenty of the 23 outbreak patients had diabetes; they and the three other case-patients all experienced numerous POC fingerstick blood draws with the same type of blood lancet while hospitalized on the outbreak ward. The implicated blood lancet device included a disposable platform to stabilize the patient's finger; the single use lancet blade penetrated a hole in that platform to reach the patient's skin. Half the ward nursing staff who performed fingersticks with this lancet acknowledged not changing the device platform with each use of the lancet. A similar outbreak of hepatitis transmission was reported in 1990 in France in which a similar blood lancet device was implicated. Douvin et al. (Ref. 15) reported that examination of the device implicated in the French outbreak showed visible blood contamination of the lancet platform in 24 percent of studied uses of that device. Shier et al. (Ref. 16) reported in 1993 that the use of another spring-loaded lancet device in a volunteer study of blood glucose levels resulted in visible blood contamination on 29 percent of the device end caps. This device was intended for “personal” use only.
As a result of the 1990 outbreak of HBV transmission due to blood lancet use in the United States, FDA and CDC recommended that spring-loaded blood lancet devices should have only single use only “platforms” as well as single use only blades; the devices were to be cleaned and disinfected per the manufacturer's instructions (Refs. 12 and 13). The 1990 FDA Safety Alert also advised “Devices (blood lancets) without a removable platform should only be used with one patient in the hospital or outpatient setting. After the patient is discharged, the device may be reused only if it is disinfected according to the manufacturer's instructions. If there are no instructions for disinfection, the device should be discarded.”
Since 1990, the incidence of diabetes mellitus has increased significantly in the United States, especially in adults aged 65-79 (Refs. 17 and 18). At the same time, clinical practice in the care of these patients increasingly emphasized the need for improved blood glucose level control, resulting in the increased use of POC blood glucose monitoring both in health care facilities and at home (Refs. 19-21). Unfortunately, along with the increased incidence of diabetes has come a progressive increase in the reports of bloodborne infection transmission (primarily HBV), resulting from the shared use of fingerstick and POC blood testing devices (Ref. 1). In 2011, the CDC reported that 25 of 29 outbreaks of HBV infection occurring in long-term care facilities since 1996 involved adults with diabetes receiving blood glucose monitoring (Ref. 22).
In 1997, CDC reported two outbreaks of HBV transmission, one in a nursing home in Ohio and one in a hospital in New York City (NYC) (Ref. 23). Two different blood lancet devices were used at the two sites. However, both lancet devices included the use of an “end cap” that came in contact with patient skin. This was a separate, individual use component of the lancet device used in Ohio; the nursing home was reusing both the lancet and the cap for multiple patients. The end cap was a part of the disposable, single use only lancet blade assembly in the device used in NYC. The exact mechanism of blood transmission was not entirely clear in the NYC setting; staff claimed they had discarded the end cap after each use. CDC postulated that either blood-contaminated nurses gloves worn for the care of multiple patients or the pen-like lancet-holding device itself might have been the source of the blood cross-contamination of the lancet. A similar outbreak was reported by Quale et al. in 1998 from a hospital in New York (Ref. 24). The recognition of 3 cases of nosocomially acquired HBV infection resulted in an investigation that uncovered another 11 cases. Reuse by hospital staff of a disposable lancet end cap with the lancet in multiple patients was identified as the probable cause of hepatitis cross-transmission to patients; contamination of the lancet wound from
CDC reviewed the incidence of reported outbreaks of HBV and hepatitis C infection in nonhospital health care settings between 1998 and 2008 and noted a significant increase in such nosocomial transmission of bloodborne pathogens (Refs. 25-28). N.D. Thompson et al. identified 33 outbreaks of nosocomial hepatitis transmission in nonhospital health care settings (Ref. 25). Of these 33 outbreaks, 15 were found to be due to blood glucose monitoring in long-term care and assisted living facilities. Only half of these outbreak investigations were published in the scientific literature; the others were recognized by health department investigations and reports to CDC. In 9 of the 15 outbreaks of nosocomial hepatitis in patients with diabetes, blood lancet devices were shared among multiple patients. In two additional outbreaks, lancets were not noted to be shared, but blood-soiled glucose meters were stored together with lancets without cleaning/disinfection of the devices and gloves were not regularly changed between each patient. These failures of proper infection control practice could have led to blood contamination of individual blood lancets in these two facilities.
N.D. Thompson et al. also investigated blood glucose monitoring practices in long-term care facilities in Pinellas County, Florida, in 2007 and found that 22 percent of the participating facilities that used reusable fingerstick devices used them in multiple patients (Ref. 29). Patel et al. reported in 2009 on the efforts of the Virginia Department of Health to improve blood glucose monitoring practices in assisted living facilities (ALFs) in Virginia (Ref. 30). This effort followed two separate outbreaks of HBV infections in two assisted living facilities. In those outbreaks, one of the three acutely symptomatic initial patients died of HBV infection. Of 68 patients undergoing blood glucose monitoring in these two facilities, a total of 11 patients acquired HBV infection. Both facilities used reusable blood lancets to obtain blood from multiple patients and did not clean or disinfect the lancets between uses. The Virginia Department of Health then mailed an educational packet on safe blood glucose monitoring practices to all ALFs (640) in the State. A random sample of ALFs was contacted after the educational intervention and invited to participate in a survey to evaluate the response to the educational packet. The results found that 16 percent of the facilities that used lancets to monitor blood glucose levels were still using these devices to obtain blood from multiple patients.
Y.G. McIntosh et al. investigated outbreaks of nosocomial HBV transmission in four ALFs between 2009 and 2011 and found that in all four facilities, pen-style lancets were used to obtain blood for glucose monitoring from multiple patients even though two facilities provided each patient with dedicated “single patient use only pen-style lancets” according to their policies (Ref. 31). Z. Moore et al. reported another outbreak of nosocomial HBV transmission in an ALF in NC in 2010 in which blood lancet devices were shared among multiple patients. Six of the eight elderly patients who acquired acute HBV in this outbreak died from complications of hepatitis (Ref. 32). M.K. Schaefer et al. surveyed a stratified, random sample of ambulatory surgery centers (ACS) in three volunteer states in 2009 (Ref. 33). Of the 53 ACS that performed blood glucose monitoring, 11 (21 percent) reused pen-style blood lancets on multiple patients and 17 (32 percent) also failed to clean and disinfect blood glucose meters after each use.
Thompson and Schaefer reported the analysis of four outbreaks of nosocomial HBV in ALFs in 2009-2010 (Ref. 34). One was also reported separately by Z. Moore et al. (Ref. 32). Two of the three other outbreaks occurred in Virginia and one in Florida; these 3 outbreaks resulted in 21 new patients acquiring acute hepatitis B. In two of the three facilities, use of reusable blood lancets to draw blood from multiple patients was observed or reported. The third facility denied that it permitted the sharing of reusable lancets. However, used lancets and glucose meters were stored together, along with clean supplies; visible blood contamination was observed on several glucose meters and one reusable lancet by the investigator. Thompson and Schaefer also reported in their paper on two patient notification campaigns resulting from the misuse of reusable blood lancets with preloaded lancet cartridges, intended and cleared only for single patient use, which were used to obtain blood from multiple patients. One episode involved a community health center and was reported when personnel noted that the lancet blades were not retracting properly, which might have resulted in blade use for more than one patient. The second episode occurred at a community health fair in which physician assistant students were offering diabetes screening. During the fair, the students realized that the lancet blades had not been advanced properly so that each patient received a new blade. The first episode exposed 283 patients to a contaminated lancet blade; the second incident exposed approximately 60 patients. The results of the patient notification studies were not reported.
As a result of this significant increase in such nosocomial transmission of bloodborne pathogens, on August 26, 2010, FDA and the CDC issued a Safety Communication (Ref. 1) and a Clinical Reminder (Ref. 35), respectively, warning that the use of blood lancets to obtain blood from more than one patient risks the transmission of bloodborne pathogen infections from one patient to other patients. Both FDA and CDC recommended that blood lancets should never be used to obtain blood from more than one patient. In addition, the Centers for Medicare and Medicaid Services issued a Survey and Certification Memorandum for Point of Care Devices and Infection Control in Nursing Homes identifying the use of blood lancet devices for more than one patient as an infection control standards deficiency (Ref. 36). On November 29, 2010, FDA issued “Guidance for Industry and Food and Drug Administration Staff: Blood Lancet Labeling”, which provided guidance for lancet manufacturers on the labeling of all blood lancets, including those capable of reuse, as “single patient use only” devices (Ref. 2).
In 2012, another outbreak of acute HBV was reported in an ALF in Virginia (Ref. 37). The source patient had been recently transferred from another ALF where she had acquired nosocomial HBV infection from the shared use of blood lancets for multiple patients (Ref. 31). This ALF also reused blood lancets to obtain blood from multiple patients for glucose monitoring. This dangerous practice resulted in two new nosocomial HBV infections in this ALF.
Outbreaks of hepatitis transmission due to use of blood lancets to draw blood from more than one patient for blood glucose monitoring have not been limited to the United States. In 2001, Desenclos et al. described an outbreak of nosocomial hepatitis C transmission in an inpatient ward for children with cystic fibrosis and diabetes in a French hospital in 1994-1995 (Ref. 38). Blood glucose monitoring was done by the nursing staff for the patients with cystic fibrosis as well as for the patients with diabetes using a spring-loaded lancet with a disposable platform to stabilize the finger. These devices were shared among patients between 1986 and 1992
In 2005, De Schrijver et al. described an outbreak of acute HBV infection in a nursing home in Antwerp (Ref. 39). The initial report of a fulminant case of acute HBV infection in an 83-year-old resident of the home resulted in an investigation that identified acute hepatitis B infection in another four patients there. Four of the five acutely infected patients had diabetes and received assisted blood glucose sampling by the nursing home staff. The two blood lancet models used in the facility (one each in two sections) were used to obtain blood from multiple patients. The device platforms were not disposable. The lancets were washed only when blood was visible on the device and were not disinfected. Nurses did not routinely wash their hands or wear gloves when obtaining blood. Two of the five patients with acute nosocomial hepatitis B died of their infections.
In 2008, Gotz et al. reported the investigation of two cases of acute HBV infection among patients at a nursing home in the Netherlands (Ref. 40). The nursing home stay of these two patients overlapped with that of a patient with known chronic HBV infection. Early in this time period, the nursing home changed the lancet device used for glucose monitoring from a spring-loaded device with a disposable platform (used for multiple patients) to a device with a rotating drum dispensing new lancet blades, which was also used to draw blood from multiple patients, although it was labeled for single patient use only. This device was used for about a month until the staff realized that active rotation of the drum was occasionally forgotten, resulting in the reuse of a lancet blade on more than 1 patient. The new device was then removed from the facility and the spring-loaded lancet was returned to use. The two patients with acute HBV received blood glucose monitoring as did the source patient with chronic HBV, sometimes on the same day. Two other patients who also received blood glucose monitoring escaped infection. The investigators stated that they believed the rotating lancet drum device was likely the means of transmission of HBV infection between patients.
In 2011, Duffell et al. reported on the investigations of five reports of HBV transmission in community health care settings in the United Kingdom (Ref. 4). All of the nine initially reported patients with HBV had diabetes and were receiving blood glucose monitoring. Further investigation identified another 12 patients with acute HBV infection. The care settings in which hepatitis transmission occurred were described as a “private residential home” (1 patient), nursing and residential home (1 patient), “private nursing and residential” (1 patient) and “local care home” (2 patients). Eleven of the 21 acutely infected patients had symptomatic HBV; seven of these patients died, five due to the HBV infection. All of the care sites in which acute HBV transmission occurred were using blood lancets designed intended for single patient use only; these devices were either routinely or occasionally used for multiple patients. One facility also used a single glucometer for multiple patients and did not clean or disinfect it between patients. The authors also noted that information reported on patients found to have acute HBV infection between 1990 and 2003 identified only four patients with blood glucose monitoring as a possible risk factor; one of these patients was infected as a result of in-hospital transmission from another patient on the same ward, although details were not provided. Between 2004 and 2006, the 9 patients described previously in this document were reported and investigation led to the discovery of an additional 12 cases of health care-related HBV transmission due to the improper use of blood lancets during patient blood glucose monitoring.
A blood lancet is used to puncture the skin to obtain small blood specimens for testing blood glucose, hemoglobin, and other blood components. Some blood lancets are used with POC blood testing devices, such as blood glucose meters and Prothrombin Time and International Normalized Ratio (PT/INR) anticoagulation meters. Today, probably the most common use for a blood lancet is in diabetes monitoring. These devices are used in both home and professional health care settings. Only a small blood sample is needed for testing of blood glucose level. The blood sample is dropped onto a test strip and inserted into a blood glucose meter for results.
Some blood lancets are also used with PT/INR anticoagulation meters. These devices are used in both home and professional health care settings. The PT and INR are used to monitor the effectiveness of the anticoagulant warfarin. Warfarin helps inhibit the formation of blood clots. The formation of blood clots may be associated with atrial fibrillation, the presence of artificial heart valves, deep venous thrombosis, and some cases of pulmonary embolism. Because the use of warfarin may cause excessive bleeding, patients are monitored, typically by PT/INR.
Because newborns have relatively small amounts of blood compared to adults, it is usually preferred to use as small amount of blood as possible for any screening or other laboratory tests for newborns. Blood lancets may be used to perform heel sticks in newborns. Heel stick is a minimally invasive way of obtaining capillary blood samples. In newborns, heel sticks are the preferred collection method for small volumes of blood.
The possible benefit of multiple use blood lancets for multiple patient use is that acute care hospitals may consider reusing a single device or using one device with multiple blades to have benefits, in that doing so may expedite procedures.
FDA has evaluated the risks to health associated with use of multiple use blood lancets for multiple patient use. In doing so, FDA considered information from the reports and recommendations of the General and Plastic Surgery Devices Panel of the Medical Devices Advisory Committee from the meeting of June 26, 2013, the adverse event reports for these devices in FDA's Manufacturer and User Facility Device Experience (MAUDE) database, and the published scientific literature, which is discussed in FDA's executive summary for the June 26, 2013, panel. Based on this information, FDA has determined the following risks:
Bloodborne pathogens such as HBV, hepatitis C virus, and potentially any other pathogen present in the bloodstream of a patient can be
• Reuse of the same lancet blade to draw blood from more than one patient or
• Failure/inability to adequately clean the base of a multiple use blood lancet resulting in the blood contamination of the next “new” lancet blade when blood is drawn from more than one patient.
The blade of a lancet device is designed to pierce the skin and draw blood. Except when the used lancet blade is immediately and automatically covered by a sharps safety feature, which renders the blade inaccessible, the exposed sharp blade of a blood lancet presents a puncture hazard to anyone coming in contact with it. Blade exposure can result due to either the lack of a sharps safety feature or device breakage.
Human skin always carries a population of bacteria and often fungi (normal skin flora), which causes no problem for the host when skin is intact. However, puncture injuries to the skin by sharp objects such as lancet blades can carry these microbes into the normally sterile tissue below the skin. Such injuries have the potential to cause local skin/soft tissue infections.
Skin contact with some materials, metals and material colorants can cause skin inflammation, irritation or exanthems (rashes). These reactions may be due to either hypersensitivity to a specific compound/metal or to a non-specific reaction.
FDA believes multiple use blood lancets for multiple patient use should be reclassified from class I to class III. The Panel held on June 26, 2013, discussed and made recommendations regarding the regulatory classification of blood lancets to reclassify multiple use blood lancets for multiple patient use to class III under 513(e) of the FD&C Act. The Panel strongly agreed with FDA that based on the available scientific evidence, multiple use blood lancets for multiple patient use should be reclassified to class III because multiple use blood lancets for multiple patient use present a potential unreasonable risk of illness or injury. They also agreed that insufficient information exists to establish special controls for multiple use blood lancets for multiple patient use, because there is no evidence that these devices can be adequately cleaned and disinfected and that there is no proven method of doing so. Therefore, it is appropriate to regulate them in class III.
FDA agrees with the Panel's recommendation that these devices present a potential unreasonable risk of illness or injury due to the inherent and significantly increased risk of bloodborne pathogen transmission risk as compared to single use only or single patient only blood lancets. FDA does not believe existing valid scientific evidence, as defined in § 860.7 (21 CFR 860.7), supports a reasonable assurance that the device can be adequately reprocessed between uses on different patients. FDA also believes sufficient information does not exist to establish special controls for blood lancets intended for multiple patient use. Given the availability of safer single patient use blood lancet devices, FDA further believes that the probable benefits to health from use of the device do not outweigh the probable risks. Currently FDA is unaware of technology or other controls that would adequately mitigate against the inherent and significantly increased risk of blood borne pathogen transmission in multiple use blood lancets for use in multiple patients. Therefore, the safety and effectiveness of the multiple use blood lancets for multiple patients, particularly the effectiveness of their reprocessing instructions/methods to render the device safe for use on more than one patient and the ability of health care providers to follow these instructions completely should be independently demonstrated for each device of this type via a PMA application. FDA is proposing to require an individual demonstration that a reasonable assurance of safety and effectiveness exists for each device within this type. The manufacturer of each individual device will have the opportunity to demonstrate the safety and effectiveness of the device for its intended use by submitting a PMA.
A PMA for this device must include the information required by section 515(c)(1) of the FD&C Act. Such a PMA should also include a detailed discussion of the risks identified previously in this document, as well as a discussion of the effectiveness of the device for which premarket approval is sought. In addition, a PMA must include all data and information on: (1) Any risks known, or that should be reasonably known, to the applicant that have not been identified in this document; (2) the effectiveness of the device that is the subject of the application; and (3) full reports of all preclinical and clinical information from investigations on the safety and effectiveness of the device for which premarket approval is sought.
A PMA must include valid scientific evidence to demonstrate reasonable assurance of the safety and effectiveness of the device for its intended use (§ 860.7(c)(2)). FDA defines valid scientific evidence in § 860.7(c)(2)).
To present reasonable assurance of safety and effectiveness of multiple use blood lancets for multiple patient use, FDA believes manufacturers should submit performance testing, including clinical trials of their device, in order to support PMA approval. Existing published clinical literature may also be leveraged as part of the PMA submission.
Before requiring the filing of a PMA, FDA is required by section 515(b)(2)(D) of the FD&C Act to provide an opportunity for interested persons to request a change in the classification of the device based on new information relevant to the classification. Any proceeding to reclassify the device will be under the authority of section 513(e) of the FD&C Act.
A request for a change in the classification of this device is to be in the form of a reclassification petition containing the information required by 21 CFR 860.123, including new information relevant to the classification of the device.
We have determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This proposed order refers to collections of information that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR part 814, subparts B and E, have been approved under OMB control number 0910-0231. The collections of information in part 807, subpart E, have been approved under OMB control number 0910-0120. The collections of information under 21
FDA is proposing that any final order based on this proposal become effective on the date of its publication in the
Prior to the amendments by FDASIA, section 515(b) of the FD&C Act provided for FDA to issue regulations to require approval of an application for premarket approval for preamendments devices or devices found substantially equivalent to preamendments devices. Section 515(b) of the FD&C Act, as amended by FDASIA, provides for FDA to require approval of an application for premarket approval for such devices by issuing a final order, following the issuance of a proposed order in the
The following references are on display in the Division of Dockets Management (see
Medical devices.
Therefore, under the Federal Food, Drug, and Cosmetic Act, and under authority delegated to the Commissioner of Food and Drugs, it is proposed that 21 CFR part 878, as proposed to be amended elsewhere in this issue of the
21 U.S.C. 351, 360, 360c, 360e, 360j, 360l, 371.
(d) * * *
(3)
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking by cross-reference to temporary regulations.
This document contains proposed regulations that amend the utility allowance regulations concerning the low-income housing credit. The proposed regulations relate to the circumstances in which utility costs paid by a tenant based on actual consumption in a submetered rent-restricted unit are treated as paid by the tenant directly to the utility company. The proposed regulations extend those rules to situations in which a building owner sells to tenants energy that is produced from a renewable source and that is not delivered by a local utility company. The proposed regulations affect owners of low-income housing projects that claim the credit, the tenants in those low-income housing projects, and the State and local housing credit agencies that administer the
Comments and requests for a public hearing must be received by May 2, 2016.
Send submissions to: CC:PA:LPD:PR (REG-123867-14), 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-123867-14), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC, or sent electronically, via the Federal eRulemaking Portal at
Concerning the proposed regulations, James Rider at (202) 317-4137; concerning submissions of comments and requests for a public hearing, Oluwafunmilayo Taylor at (202) 317-6901 (not toll-free numbers).
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 this regulation, and because the regulation does not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, this notice of proposed rulemaking has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS as prescribed in this preamble under the “
The principal author of these regulations is David Selig, Office of the Associate Chief Counsel (Passthroughs and Special Industries), IRS. 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 * * *
(e) * * * (1) * * *
(i) * * *
(B) [The text of the proposed amendments to § 1.42-10(e)(1)(i)(B) is the same as the text of § 1.42-10T(e)(1)(i)(B) published elsewhere in this issue of the
(C) [The text of the proposed amendments to § 1.42-10(e)(1)(i)(C) is the same as the text of § 1.42-10T(e)(1)(i)(C) published elsewhere in this issue of the
(iv) * * *
(B) [The text of the proposed amendments to § 1.42-10(e)(1)(iv)(B) is the same as the text of § 1.42-10T(e)(1)(iv)(B) published elsewhere in this issue of the
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to issue a temporary safety zone on the waters of the Intracoastal Waterway in Myrtle Beach, South Carolina. The Xterra Swim is scheduled to take place on Sunday, April 24, 2016. The temporary safety zone is necessary for the safety of the swimmers, participant vessels, spectators, and the general public during the event. The temporary safety zone will restrict vessel traffic in a portion of the Intracoastal Waterway, preventing non-participant vessels from entering, transiting through, anchoring in, or remaining within the regulated area unless authorized by the Captain of the Port Charleston or a designated representative.
Comments and related material must be received by the Coast Guard on or before April 4, 2016.
You may submit comments identified by docket number USCG-2016-0115 using the Federal eRulemaking Portal at
If you have questions about this proposed rulemaking, call or email Lieutenant John Downing, Sector Charleston Office of Waterways Management, Coast Guard; telephone (843) 740-3184, email
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
On February 8, 2016, Set Up Events notified the Coast Guard that it will be sponsoring the Xterra Myrtle Beach Swim from 7:15 a.m. to 9:15 a.m. on April 24, 2016. The legal basis for the proposed rule is the Coast Guard's Authority to establish a safety zone: 33 CFR part 165. The purpose of the proposed rule is to ensure safety of life on the navigable water of the United States during the swim portion of the Xterra Myrtle Beach Triathlon.
The Coast Guard proposes to establish a temporary safety zone on the Atlantic Intracoastal Waterway in Myrtle Beach, South Carolina during the Xterra Myrtle Beach Triathlon, on April 24, 2016. Approximately 75 swimmers are anticipated to participate in the race. Persons and vessels desiring to enter, transit through, anchor in, or remain within the regulated area may contact the Captain of the Port Charleston by telephone at (843) 740-7050, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within the regulated area is granted, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Charleston or a designated representative. The Coast Guard will provide notice of the safety zone by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
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 executive orders.
E.O.s 12866 (“Regulatory Planing and Review”) and 13563 (“Improving Regulation and Regulatory Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O.13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
This proposed rule is not a significant regulatory action under section 3(f) of E.O. 12866, as supplemented by E.O. 13563, and does not require an assessment of potential costs and benefits under section 6(a)(3) of E.O. 12866. The Office of Management and Budget (OMB) has not reviewed it under E.O. 12866.
The economic impact of this proposed rule is not significant for the following reasons: (1) The temporary safety zone would be enforced for only two hours; (2) although persons and vessels would not be able to enter, transit through, anchor in, or remain within the regulated area without authorization from the Captain of the Port Charleston or a designated representative, they would be able to operate in the surrounding area during the enforcement periods; (3) persons and vessels would still be able to enter, transit through, anchor in, or remain within the regulated area if authorized by the Captain of the Port Charleston or a designated representative; and (4) the Coast Guard would provide advance notification of the regulated area to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.
Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. 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.
This rule may affect the following entities, some of which may be small entities: The owner or operators of vessels intending to enter, transit through, anchor in, or remain within the regulated area during the enforcement period. However, for the reasons discussed in Regulatory Planning and Review section above, this rule will not have a significant economic impact on a substantial number of small entities.
Therefore, 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. 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, Public Law 104-121, we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).
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.
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.
This proposed rule would not cause a taking of private property or otherwise have taking implications under E.O. 12630 (“Governmental Actions and Interference with Constitutionally Protected Property Rights”).
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, (“Civil Justice Reform”), to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under E.O. 13045 (“Protection of Children from Environmental Health Risks and Safety Risks”). This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
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.
We have analyzed this proposed rule under E.O. 13211 (“Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use”). We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under E.O. 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
The National Technology Transfer and Advancement Act, codified as a note to 15 U.S.C. 272, directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
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 a temporary safety zone issued in conjunction with a regatta or marine parade. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Marine Safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
33 U.S.C. 1226, 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g), 6.04-1, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) Persons and vessels desiring to enter, transit through, anchor in, or remain within the regulated area may contact the Captain of the Port Charleston by telephone at (843) 740-7050, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within the regulated area is granted, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Charleston or a designated representative.
(3) The Coast Guard will provide notice of the regulated area by Marine Safety Information Bulletins, Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
(d)
Postal Service
Proposed rule.
This proposed rule would revise the provisions governing the Postal Service's discretionary Semipostal Stamp Program to simplify and expedite the process for selecting causes for semipostal stamps, and facilitate the issuance of five such stamps over a 10-year period. It would also remove certain restrictions on the commencement date for the Postal Service's discretionary Semipostal Stamp Program, and clarify how many semipostal stamps issued under that program may be on sale at any one time.
Comments must be received on or before April 4, 2016.
Mail or deliver written comments to the Manager, Stamp Products & Exhibitions, U.S. Postal Service®, 475 L'Enfant Plaza SW., Room 3306, Washington DC 20260. You may inspect and photocopy all written comments at the Stamp Products & Exhibitions office by appointment only between the hours of 9 a.m. and 4 p.m., Monday through Friday, by calling 202-268-6711 in advance. Email and faxed comments are not accepted.
Lori Mazzone, Manager, Stamp Products & Exhibitions, 202-268-6711,
The Semipostal Authorization Act, Pub. L. 106-253, grants the Postal Service discretionary authority to issue and sell semipostal stamps to advance such causes as it considers to be “in the national public interest and appropriate.”
Most recently, on January 22, 2016, the Postal Service published a proposed amendment to 39 CFR 551.5 to remove certain restrictions on the commencement date for the discretionary Semipostal Stamp Program, and clarify how many semipostal stamps issued under that program may be on sale at any one time (81 FR 3762).
Upon further consideration, however, it was determined that a further revision of the rules concerning the discretionary Semipostal Stamp Program was necessary to facilitate its smooth and efficient operation. Accordingly, the Postal Service now proposes and invites comments upon a more detailed revision of 39 CFR part 551. This proposal supersedes (but incorporates) the amendments previously published on January 22, 2016. The proposed changes are summarized below.
The proposed revision of § 551.3 streamlines and simplifies the selection process for the causes to receive funds raised through the sale of semipostal stamps, and states the Postal Service's intention to issue five such stamps over the statutory ten-year period. It also notifies the public that no further consideration will be given to previously submitted proposals but that such proposals may be resubmitted under the revised regulations. The paragraph relating to proposals regarding the same subject and proposals for the sharing of funds between two agencies is edited for clarity and moved to § 551.4, concerning submission requirements and criteria, where it more appropriately belongs.
The proposed revision of § 551.4 sharpens the submission requirements and, among other things, makes Postal Service employees ineligible to submit proposals for semipostal stamps.
The proposed revision of § 551.5(a) would remove certain restrictions on the commencement date of the discretionary Semipostal Stamp Program. Under current regulations, the 10-year period for the discretionary semipostal stamp program commences on a date determined by the Office of Stamp Services, but that date must be after the sales period of the
The proposed revision of § 551.5(b) would clarify that although only one semipostal stamp under the discretionary Semipostal Stamp Program under 39 U.S.C. 416 (a “discretionary program semipostal stamp”) will be offered for sale at any one time, other semipostal stamps required to be issued by Congress (such as the BCRS) may be on sale when a discretionary program semipostal stamp is on sale. Current regulations state that the Postal Service will offer only one semipostal stamp for sale at any given time during the 10-year period (not specifying whether it is a discretionary program semipostal stamp or a semipostal stamp required by Congress). Under the proposed revision, the one-at-a-time limitation on the sale of
To minimize confusion regarding applicable postage rates, the proposed revision of § 551.6 specifies that for purposes of calculating the price of a semipostal, the First-Class Mail® single-piece
Administrative practice and procedure.
In accordance with 39 U.S.C. 416(e)(2), the Postal Service invites public comment on the following proposed amendments to the
39 U.S.C. 101, 201, 203, 401, 403, 404, 410, 414, 416.
The Postal Service has discretionary authority to select causes and recipient executive agencies to receive funds raised through the sale of semipostal stamps. These regulations apply only to such discretionary semipostal stamps and do not apply to semipostal stamps that are mandated by Act of Congress, such as the
(a) The Office of Stamp Services will accept proposals from interested persons for future semipostal stamps beginning on May 16, 2016, or the effective date of this regulation, whichever is later. The Office of Stamp Services will begin considering proposals on July 1, 2016, or 45 days after the effective date of this regulation, whichever is later. The Postal Service intends to issue five semipostal stamps under these regulations during the 10-year period established by Congress in 39 U.S.C. 416(g). Each semipostal stamp will be sold for no more than two years. Proposals may be submitted and will be considered on a rolling basis until May 15, 2023, or seven years after the effective date of this regulation, whichever is later. The Office of Stamp Services may publicize this request for proposals in the
(b) Proposals will be received by the Office of Stamp Services, which will review each proposal under § 551.4.
(c) The Office of Stamp Services will forward those proposals that satisfy the requirements of § 551.4 to the Citizens' Stamp Advisory Committee for its consideration.
(d) Based on the proposals received from the Office of Stamp Services, the Citizens' Stamp Advisory Committee may make recommendations on causes and eligible recipient executive agencies to the postmaster general. The Citizens' Stamp Advisory Committee may recommend more than one cause and eligible recipient executive agency at the same time.
(e) Meetings of the Citizens' Stamp Advisory Committee are closed, and deliberations of the Citizens' Stamp Advisory Committee are pre-decisional in nature.
(f) In making decisions concerning semipostal stamps, the postmaster general may take into consideration such factors, including the recommendations of the Citizens' Stamp Advisory Committee, as the postmaster general determines are appropriate. The decision of the postmaster general shall be the final agency decision.
(g) The Office of Stamp Services will notify each executive agency in writing of a decision designating that agency as a recipient of funds from a semipostal stamp.
(h) As either a separate matter, or in combination with recommendations on a cause and recipient executive agencies, the Citizens' Stamp Advisory Committee may recommend to the postmaster general a design (
(i) The decision of the postmaster general to exercise the Postal Service's discretionary authority to issue a semipostal stamp is final and not subject to challenge or review.
(a) Proposals on recipient executive agencies and causes must satisfy the following requirements:
(1) Interested persons must timely submit the proposal by U.S. Mail to the Office of Stamp Services, Attn: Semipostal Discretionary Program, 475 L'Enfant Plaza SW., Room 3300, Washington, DC 20260-3501, or in a single Adobe Acrobat (.pdf) file sent by email to
(2) The proposal must be signed by the individual or a duly authorized representative and must provide the mailing address, phone number, fax number (if available), and email address of a designated point of contact.
(3) The proposal must describe the cause and the purposes for which the funds would be used.
(4) The proposal must demonstrate that the cause to be funded has broad national appeal, and that the cause is in the national public interest and furthers human welfare. Respondents are encouraged to submit supporting documentation demonstrating that funding the cause would benefit the national public interest.
(5) The proposal must include a letter from an executive agency or agencies on agency letterhead representing that:
(i) It is an executive agency as defined in 5 U.S.C. 105,
(ii) It is willing and able to implement the proposal, and
(iii) It is willing and able to meet the requirements of the Semipostal Authorization Act, if it is selected. The letter must be signed by a duly authorized representative of the agency.
(6) (i) A proposal may designate one or two recipient executive agencies to receive funds, but if more than one executive agency is proposed, the proposal must specify the percentage shares of differential revenue, net of the Postal Service's reasonable costs, to be given to each agency. If percentage shares are not specified, it is presumed that the proposal intends that the funds be split evenly between the agencies. If more than two recipient executive agencies are proposed to receive funds and the proposal is selected, the postmaster general will provide the recipient executive agencies with an opportunity to jointly decide which two agencies will receive funds. If the agencies are unable to reach a joint decision within 20 days, the postmaster general shall either decide which two agencies will receive funds or select another proposal.
(ii) If more than one proposal is submitted for the same cause, and the
(b) Proposals become the property of the Postal Service and are not returned to interested persons who submit them. Interested persons who submit proposals are not entitled to any remuneration, compensation, or any other form of payment, whether their proposals are selected or not, for any reason.
(c) The following persons may not submit proposals:
(1) Employees of the United States Postal Service;
(2) Any contractor of the Postal Service that may stand to benefit financially from the Semipostal Stamp Program; or
(3) Members of the Citizens' Stamp Advisory Committee and their immediate families, and contractors of the Postal Service, and their immediate families, who are involved in any decision-making related to causes, recipient agencies, or artwork for the Semipostal Stamp Program.
(d) Consideration for evaluation will not be given to proposals that request support for any of the following: Anniversaries; public works; people; specific organizations or associations; commercial enterprises or products; cities, towns, municipalities, counties, or secondary schools; hospitals, libraries, or similar institutions; religious institutions; causes that do not further human welfare; or causes determined by the Postal Service or the Citizens' Stamp Advisory Committee to be inconsistent with the spirit, intent, or history of the Semipostal Authorization Act.
(e) Artwork and stamp designs may not be submitted with proposals.
(a) The Postal Service is authorized to issue semipostal stamps for a 10-year period beginning on the date on which semipostal stamps are first sold to the public under 39 U.S.C. 416. The Office of Stamp Services will determine the date of commencement of the 10-year period.
(b) The Postal Service will offer only one discretionary semipostal stamp for sale at any given time during the 10-year period, although a discretionary semipostal stamp may be offered for sale at the same time as one or more congressionally mandated semipostal stamps.
(c) The sales period for any given discretionary semipostal stamp is limited to no more than two years, as determined by the Office of Stamp Services.
(d) Prior to or after the issuance of a given discretionary semipostal stamp, the Postal Service may withdraw the semipostal stamp from sale, or to reduce the sales period, if,
(1) Its sales or revenue statistics are lower than expected,
(2) The sales or revenue projections are lower than expected, or
(3) The cause or recipient executive agency does not further, or does not comply with, the statutory purposes or requirements of the Semipostal Authorization Act.
(a) The Semipostal Authorization Act, as amended by Public Law 107-67, section 652, 115 Stat. 514 (2001), prescribes that the price of a semipostal stamp is the rate of postage that would otherwise regularly apply, plus a differential of not less than 15 percent. The price of a semipostal stamp shall be an amount that is evenly divisible by five. For purposes of this provision, the First-Class Mail® single-piece stamped first-ounce rate of postage will be considered the rate of postage that would otherwise regularly apply.
(b) The prices of semipostal stamps are determined by the Governors of the United States Postal Service in accordance with the requirements of 39 U.S.C. 416.
Federal Communications Commission.
Petition for reconsideration; correction.
On February 12, 2016, the Commission published a summary of Commission's document, Report No. 3037, 81 FR 7491, announcing that oppositions to Petitions for Reconsideration must been filed by February 29, 2016, and replies to an opposition must be filed on or before March 25, 2016. This document corrects the due date for replies to an opposition.
Replies to an opposition to the petition for reconsideration published February 12, 2016 (81 FR 7491) must be filed on or before March 10, 2016.
Hugh Van Tuyl, Policy and Rules Division, Office of Engineering and Technology, (202) 418-7506, email:
In the
Oppositions to Petitions for Reconsideration must been filed by February 29, 2016. Replies to an opposition must be filed on or before March 10, 2016.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes to implement management measures described in a framework action to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP), as prepared by the Gulf of Mexico Fishery Management Council (Council). If implemented, this action would revise the recreational closed season for gag and the recreational minimum size limits for gag and black grouper in the
Written comments must be received on or before April 4, 2016.
You may submit comments on the proposed rule, identified by “NOAA-NMFS-2016-0010” by either of the following methods:
•
•
Electronic copies of the framework action, which includes an environmental assessment, a regulatory impact review, and a Regulatory Flexibility Act (RFA) analysis may be obtained from the Southeast Regional Office Web site at
Richard Malinowski, Southeast Regional Office, NMFS, telephone: 727-824-5305, email:
The Gulf reef fish fishery, which includes gag and black grouper, is managed under the FMP. The FMP was prepared by the Council and is implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
The Magnuson-Stevens Act requires NMFS and regional fishery management councils to achieve on a continuing basis the optimum yield from federally managed fish stocks. This mandate is intended to ensure that fishery resources are managed for the greatest overall benefit to the nation, particularly with respect to providing food production and recreational opportunities, while also protecting marine ecosystems.
The 2014 Southeast Data, Assessment and Review (SEDAR 33) benchmark stock assessment indicates that the Gulf gag stock is not overfished or undergoing overfishing as of 2012, the last year of data used in SEDAR 33. However, as described in the framework action, the Council's Reef Fish Advisory Panel, the Council's Science and Statistical Committee (SSC), and public testimony, all suggested that the Council use caution when setting the gag annual catch limits (ACL) and annual catch targets (ACT). Therefore, the Council decided not to modify the Gulf gag ACL or ACT in this framework action.
Additionally, the 2010 SEDAR 19 benchmark assessment for black grouper found that the Gulf black grouper stock was neither overfished nor undergoing overfishing.
This rule would revise the recreational closed season for gag and the recreational minimum size limits for gag and black grouper in the Gulf.
The current closed season for the gag recreational sector is January 1 through June 30 and December 3 through December 31, annually. This closed season was established in Amendment 32 to the FMP to help prevent the gag recreational ACL from being exceeded (77 FR 6988, February 10, 2012).
This rule would revise the gag recreational closed season to be from January 1 to May 31, annually. The intent of this revised closed season would be to reduce the amount of dead discards of gag that occur during the Gulf's recreational season for red snapper that begins on June 1, annually, and to extend the gag recreational fishing season beyond the current December closure date to provide the opportunity for the recreational sector to harvest the recreational ACL. The gag recreational ACT was only exceeded once, and the recreational ACL has never been exceeded since ACLs and ACTs were established for gag in 2011.
The current gag and black grouper recreational minimum size limits in Gulf Federal waters are both set at 22 inches (55.9 cm), total length (TL). The current gag and black grouper minimum size limit in South Atlantic Federal waters is 24 inches (61.0 cm), TL for both species and for both the commercial and recreational sectors. For the state of Florida, in state waters off Monroe County in the Gulf, the recreational minimum size limit for gag and black grouper is 24 inches (61.0 cm), TL. This proposed rule would increase the recreational minimum size limit for both species to 24 inches (61.0 cm), TL, to be consistent with the Federal waters of the South Atlantic and state waters off Monroe County, Florida. The Council decided that the benefits of having a size limit for these species that is consistent with both the South Atlantic and the state size limits for the waters off Monroe County, Florida, will outweigh any impacts of increased discard rates for these species. Furthermore, gag are sometimes misidentified as black grouper and having the same recreational minimum size limit for gag and black grouper may assist the public in complying with the applicable regulations for gag and black grouper. Additionally, increasing the recreational minimum size limit for these species is expected to provide the opportunity for more gag and black grouper to become sexually mature and spawn.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the framework action, the FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, 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 (SBA) that this 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:
A description of this proposed rule, why it is being considered, and the objectives of this proposed rule are contained in the preamble and in the
This proposed rule, if implemented, would not be expected to directly affect any small entities. This proposed rule would modify the gag and black grouper recreational minimum size limits and the gag recreational season in the Gulf. Only recreational anglers, who may fish from shore, man-made structures, private, rental, or charter vessels, and headboats, are allowed a bag or possession limit of grouper species in the Gulf. Captains or crew members on charter vessels or headboats, as well as commercial vessels, cannot harvest or possess gag or black grouper under the recreational bag limits. As a result of only recreational anglers being allowed a bag or possession limit, only recreational anglers would be directly affected by the proposed changes to the gag and black grouper recreational minimum size limits and the gag recreational season dates. Recreational anglers, however, are not considered to be small entities under the RFA and the economic effects of this proposed rule on these anglers are outside the scope of the RFA.
Charter vessels and headboats (for-hire vessels) sell fishing services to recreational anglers. Because the proposed change in the gag and black grouper minimum size limits and the change to the gag recreational season would not directly alter the services sold by these vessels, this proposed rule would not directly apply to or regulate their operations. Any change in demand for these fishing services, and associated economic effects, as a result of changing the minimum size limits and recreational season would be a consequence of behavioral change by anglers, secondary to any direct effect on anglers and, therefore, an indirect effect of the proposed rule. Because the effects on for-hire vessels would be indirect, they fall outside the scope of the RFA.
The information provided above supports a determination that this rule would not have a significant economic impact on a substantial number of small entities. Because this rule, if implemented, is not expected to have a significant economic impact on any small entities, an initial regulatory flexibility analysis is not required and none has been prepared.
No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting, record-keeping, or other compliance requirements are introduced by this proposed rule. Accordingly, this rule does not implicate the Paperwork Reduction Act.
Black grouper, Fisheries, Fishing, Gag, Gulf, Recreational, Reef fish, Size limits.
For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows:
16 U.S.C. 1801
(e)
(b) * * *
(1)
(ii) For a person subject to the bag limit specified in § 622.38(b)(2)—24 inches (61.0 cm), TL.
(5) * * *
(ii) For a person subject to the bag limit specified in § 622.38(b)(2)—24 inches (61.0 cm), TL.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes to modify recreational fishery management measures for Gulf of Maine cod and haddock, including daily bag limits, size limits, and seasonal possession restrictions. This action is necessary to increase recreational fishing opportunities and catch of cod and haddock in a manner consistent with anticipated catch limit increases. The intended effect of this action is to ensure the recreational fishery can achieve but not exceed its catch limits.
Comments must be received by March 18, 2016.
You may submit comments on this document, identified by NOAA-NMFS-2016-0011, by either of the following methods:
1. Go to
2. Click the “Comment Now!” icon, complete the required fields, and
3. Enter or attach your comments.
In support of the proposed action, NMFS prepared a supplemental environmental assessment (EA) to Framework Adjustment 55 to the Northeast Multispecies Fishery Management Plan. The Framework 55 EA was prepared by the New England Fishery Management Council. Copies of the Framework 55 EA and supplemental EA are available from: John K. Bullard, Regional Administrator, National Marine Fisheries Service, 55 Great Republic Drive, Gloucester, MA 01930. The Framework 55 EA and supplement are also accessible via the Internet at:
William Whitmore, Fishery Policy Analyst, phone: 978-281-9182; email:
We are proposing to increase recreational fishing opportunities for Gulf of Maine (GOM) cod and haddock starting May 1, 2016. The proposed changes would allow anglers to retain one cod per day during the months of August and September and keep up to 15 haddock per day for most of the fishing year. Table 1, below, summarizes the proposed measures compared to the fishing year 2015 measures.
The Northeast Fishery Science Center (Center) conducted operational stock assessments for all 20 groundfish stocks in September 2015. The assessment concluded that the GOM haddock stock biomass continues to increase, and as a result, a substantial catch-limit increase (150 percent) is anticipated for the 2016 fishing year. The assessment also concluded that, although GOM cod remains overfished and subject to overfishing, biomass has increased slightly. A 30-percent increase to the catch limit for GOM cod is expected for 2016.
These catch limit increases will be proposed in a separate rulemaking for Framework Adjustment 55 to the Northeast Multispecies Fishery Management Plan (FMP) which is expected to be published in the
A peer-reviewed bioeconomic model, developed by the Center, was used to estimate 2016 recreational GOM cod and haddock mortality under various combinations of minimum sizes, possession limits, and closed seasons. Catch data and model projections suggest that the recreational fleet is not expected to exceed its fishing year 2015 catch limits for GOM cod or haddock. Based on the Framework 55 catch limits recommended by the Council for the 2016 fishing year, analyses indicate that recreational catch for both GOM cod and haddock could be increased (Table 2).
Each year, pursuant to the regulations within the FMP, we may consult with the New England Fishery Management Council and modify recreational management measures to help the fishery achieve optimum yield while ensuring that catch limits are not exceeded. The Center's bioeconomic model results were presented to the Council, its Recreational Advisory Panel (RAP), and its Groundfish Oversight Committee in November and December 2015. These groups concurred that fishing effort on GOM haddock should be increased and suggested that bag limits increase from 3 to 15 fish per angler per day. The Council, RAP, and Committee also recomended that the fishing season for GOM haddock should be substantially extended.
The Council, RAP, and Committee agreed that the GOM cod recreational retention prohibition should be removed. However, they debated when anglers should be permitted to retain GOM cod (Table 3). The Marine Recreational Information Program (MRIP) gathers fishing effort and catch data in two month “waves” (for example, wave 1 is January-February; wave 2 is March-April). Since MRIP data is provided in waves, the bioeconomic model used to develop recreational management measures estimates effort and catch by 2 month waves as well. As a result, seasonal closures and openings are typically implemented in line with the MRIP waves.
Additional information and analyses on these alternatives is included in a supplemental Environmental Assessment (see
There was general agreement among the Council, RAP, and Committee that the GOM cod daily bag limit could not exceed more than 1 fish per person per day. The RAP debated whether anglers should be able to retain that one cod during the months of July and August (wave 4) or September and October (wave 5). According to the model, opening wave 4 would result in slightly more trips being taken compared to opening wave 5; however, both options are expected to keep catch within the proposed limits. Most RAP members initially supported opening wave 5 because it would result in less cod being caught, which may provide additional conservation benefits. The RAP also discussed that opening wave 5 would extend the primary summer fishing season further into the fall, potentially creating additional fishing opportunities that would help charter and party boat businesses. However, opening wave 5 would not benefit private anglers as much because fewer private anglers fish in the fall compared to the summer. Because allowing cod retention during July and August, when most anglers are fishing, would provide the greatest overall benefits, the RAP endorsed opening wave 4.
The Groundfish Committee considered the RAP's recommendation and evaluated the trade-offs between opening waves 4 or 5. The Committee recommended opening wave 5, citing a preference to extend the recreational fishing season further into the fall.
The Council proposed a compromise, recommending that anglers should be able to retain one cod during the months of August and September (the second month of wave 4 and the first month of wave 5). We propose to adopt the Council's recommendations in this action.
We intend to modify our bioeconomic model so we can project effort and catch at a monthly level, but there is some concern that a revised model may not work if there is insufficient data at the monthly level. Since MRIP effort and catch data is reported by 2-month waves, reducing the length of time from two months to one would reduce the amount of samples that would be incorporated into the model, potentially increasing variability and uncertainty in the model, which could cause the model to fail. We believe this to be unlikely, but still a possibility.
The increased flexibility from the proposed measure appears to outweigh the potential data trade-off. There is a substantial “buffer” between the catch forecasted by the model and the proposed catch limits, and we will be modifying the model in the future to reduce management uncertainty where possible. We believe that the Council's suggestion is appropriate and are therefore proposing it for this action.
We are providing a 15-day comment period for this rule. A 15-day comment period, coupled with extensive public comment periods at three different Council-related meetings during the development of this action, provides sufficient opportunity for public input on the proposed measures. The Council did not recommend management measures to NMFS until December 2015; as a result were unable to develop a proposed rule any sooner than this. Recreational fishing businesses and fishermen are currently scheduling fishing trips and these proposed measures will provide them with additional information to assist their planning efforts. Since these measures increase fishing opportunities, announcing these measures quickly will provide additional support to recreational-fishing businesses.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has made a determination that this proposed rule is consistent with the Northeast Multispecies FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities.
As explained above, the purpose of this action is to modify recreational fishing management measures to increase recreational fishing opportunities, effort, and catch consistent with the catch limit increases anticipated in Framework 55. This action is needed to help the recreational fishery achieve its optimum yield without overfishing.
The regulated entities most likely to be affected by this action are private anglers, and charter/party vessel fishing corporations. Other than private anglers, which are not businesses, all charter/party fishing businesses are considered small businesses per the SBA guidelines because they all have less than $7.5 million in annual receipts. As a result, the impacts of these measures are not considered to be disproportional.
All of the measures proposed in this action are expected to have a positive economic impact on participants as new regulations would allow for additional fishing opportunities. Additional fishing opportunities would generate additional effort (trips) and result in more revenue for recreational fishing businesses. This rule would not impose significant negative economic impacts.
Since no small entities would be placed at a competitive disadvantage to large entities, and the regulations would not reduce the profit for any small entities, an initial regulatory flexibility analysis is not required and none has been prepared.
This action has been determined to be not significant for purposes of Executive Order (E.O.) 12866.
Fisheries, Fishing, Recordkeeping and reporting requirements.
For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows:
16 U.S.C. 1801
(b)
(c) * * *
(1) * * *
(ii) Each person on a private recreational fishing vessel, fishing from August 1 through September 30, may possess no more than one cod per day in, or harvested from, the EEZ when fishing in the GOM Regulated Mesh Area specified in § 648.80(a)(1); with the exception that each person on a private recreational vessel in possession of cod caught outside the GOM Regulated Mesh Area specified in § 648.80(a)(1) may transit this area with more than one such cod per person up to the possession limit specified at § 648.89(c)(1)(i), provided all bait and hooks are removed from fishing rods and any cod on board has been gutted and stored.
(2) Charter/party vessels (i) Each person on a charter/party fishing vessel permitted under this part and not fishing under a NE multispecies DAS program or on a sector trip may possess unlimited cod when fishing outside of the GOM Regulated Mesh Area specified in § 648.80(a)(1).
(ii) Each person on a charter/party fishing vessel permitted under this part, fishing from August 1 through September 30, and not fishing under the NE multispecies DAS program or on a sector trip, may possess no more than one cod per day in the GOM Regulated Mesh Area specified in § 648.80(a)(1); with the exception that each person on a charter/party vessel in possession of cod caught outside the GOM Regulated Mesh Area specified in § 648.80(a)(1)
(iii) For purposes of counting fish, fillets will be converted to whole fish at the place of landing by dividing the number of fillets by two. If fish are filleted into a single (butterfly) fillet, such fillet shall be deemed to be from one whole fish.
(iv) Cod harvested by charter/party vessels with more than one person aboard may be pooled in one or more containers. Compliance with the possession limits will be determined by dividing the number of fish on board by the number of persons on board. If there is a violation of the possession limits on board a vessel carrying more than one person, the violation shall be deemed to have been committed by the owner or operator of the vessel.
(v) Cod must be stored so as to be readily available for inspection.
(8)
(ii) Each person on a private recreational fishing vessel, fishing from May 1 through April 14, may possess no more than 15 haddock per day in, or harvested from, the EEZ when fishing in the GOM Regulated Mesh Area specified in § 648.80(a)(1); with the exception that each person on a private recreational vessel in possession of haddock caught outside the GOM Regulated Mesh Area specified in § 648.80(a)(1) may transit this area with more than 15 such haddock per person up to the possession limit specified at § 648.89(c)(8)(i), provided all bait and hooks are removed from fishing rods and any haddock on board has been gutted and stored.
(iii) Each person on a charter/party fishing vessel permitted under this part and not fishing under a NE multispecies DAS program or on a sector trip may possess unlimited haddock when fishing outside of the GOM Regulated Mesh Area specified in § 648.80(a)(1).
(iv) Each person on a charter/party fishing vessel permitted under this part, fishing from May 1 through April 14, and not fishing under the NE multispecies DAS program or on a sector trip, may possess no more than 15 haddock per day in the GOM Regulated Mesh Area specified in § 648.80(a)(1); with the exception that each person on a charter/party vessel in possession of haddock caught outside the GOM Regulated Mesh Area specified in § 648.80(a)(1) may transit this area with more than fifteen such haddock up to any possession limit under § 648.89(c)(8)(iii), provided all bait and hooks are removed from fishing rods and any cod on board has been gutted and stored.
(v) For purposes of counting fish, fillets will be converted to whole fish at the place of landing by dividing the number of fillets by two. If fish are filleted into a single (butterfly) fillet, such fillet shall be deemed to be from one whole fish.
(vi) Haddock harvested in or from the EEZ by private recreational fishing boats or charter or party boats with more than one person aboard may be pooled in one or more containers. Compliance with the possession limit will be determined by dividing the number of fish on board by the number of persons on board. If there is a violation of the possession limit on board a vessel carrying more than one person, the violation shall be deemed to have been committed by the owner or operator of the vessel.
(vii) Haddock must be stored so as to be readily available for inspection.
Forest Service, USDA.
Notice of meeting.
The Deschutes Provincial Advisory Committee (PAC) will meet in Bend, Oregon. The committee is authorized pursuant to the implementation of E-19 of the Record of Decision and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to provide advice and make recommendations to promote a better integration of forest management activities between Federal and non-Federal entities to ensure that such activities are complementary. PAC information can be found at the following Web site:
The meeting will be held on March 9, 2016, from 9:00 a.m. to 3:00 p.m.
All PAC 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 Deschutes Historical Museum, 129 NW Idaho Avenue, Bend, Oregon.
Written comments may be submitted as described under
Beth Peer, PAC Coordinator, by phone at 541-383-4769 or via email at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
The purpose of the meeting is:
1. Forest Plan Revision: How can the PAC engage in the Process and the Outcomes;
2. Sustainable Recreation: The future of wildland trails and the role of the PAC;
3. Wilderness Management and the role of the PAC; and
4. Timber and Fuels Management: Where we have been, where we are now, and where we might go in the future.
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 8, 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 Beth Peer, Deschutes PAC Coordinator, 63095 Deschutes Market Road, Bend, Oregon 97701; by email to
On October 29, 2015, KONE Inc. submitted a notification of proposed production activity to the Foreign-Trade Zones (FTZ) Board for its facility within FTZ 39—Site 21, in Allen, Texas.
The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the
On October 29, 2015, MannKind Corporation submitted a notification of proposed production activity to the Foreign-Trade Zones (FTZ) Board for its facilities within Subzone 76B, in Danbury, Connecticut.
The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Based on affirmative final determinations by the Department of Commerce (the Department) and the International Trade Commission (the ITC), the Department is issuing antidumping duty orders on certain uncoated paper from Australia, Brazil, Indonesia, the People's Republic of China (PRC), and Portugal. Also, as explained in this notice, the Department is amending its final affirmative determinations with respect to Brazil and Indonesia.
Eve Wang at (202) 482-6231 (Australia), Julia Hancock at (202) 482-1394 (Brazil), Blaine Wiltse at (202) 482-6345 (Indonesia), Stephanie Moore at (202) 482-3692 (PRC), or Kabir Archuletta at (202) 482-2593 (Portugal), AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230.
In accordance with sections 735(d) and 777(i)(1) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.210(c), on January 20, 2016, the Department published its affirmative final determinations in the less-than-fair-value (LTFV) investigations of certain uncoated paper from Australia, Brazil, Indonesia, the PRC, and Portugal.
The scope of these orders includes uncoated paper in sheet form; weighing at least 40 grams per square meter but not more than 150 grams per square meter; that either is a white paper with a GE brightness level
Certain Uncoated Paper includes (a) uncoated free sheet paper that meets this scope definition; (b) uncoated ground wood paper produced from bleached chemi-thermo-mechanical pulp (BCTMP) that meets this scope definition; and (c) any other uncoated paper that meets this scope definition regardless of the type of pulp used to produce the paper.
Specifically excluded from the scope are (1) paper printed with final content of printed text or graphics and (2) lined paper products, typically school supplies, composed of paper that incorporates straight horizontal and/or vertical lines that would make the paper unsuitable for copying or printing purposes. For purposes of this scope definition, paper shall be considered “printed with final content” where at least one side of the sheet has printed text and/or graphics that cover at least five percent of the surface area of the entire sheet.
Imports of the subject merchandise are provided for under Harmonized Tariff Schedule of the United States (HTSUS) categories 4802.56.1000, 4802.56.2000, 4802.56.3000, 4802.56.4000, 4802.56.6000, 4802.56.7020, 4802.56.7040, 4802.57.1000, 4802.57.2000, 4802.57.3000, and 4802.57.4000. Some imports of subject merchandise may also be classified under 4802.62.1000, 4802.62.2000, 4802.62.3000, 4802.62.5000, 4802.62.6020, 4802.62.6040, 4802.69.1000, 4802.69.2000, 4802.69.3000, 4811.90.8050 and 4811.90.9080. While HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the orders is dispositive.
A ministerial error is defined as an error in addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate copying, duplication, or the like, and any other similar type of unintentional error which the Secretary considers ministerial.
Pursuant to section 735(e) of the Act and 19 CFR 351.224(e) and (f), the Department is amending the
On January 19, 2016, Petitioners submitted a ministerial error allegation claiming that the Department made a ministerial error with regard to one of the respondent's bank charges, and the SAS programming which implemented the bank charge at issue. The Department reviewed the record and agrees that we made ministerial errors within the meaning of Section 735(e) and 19 CFR 351.224(f). Specifically, the Department made an unintentional error with regard to one of the respondent's bank charges and SAS programming which implemented the bank charge at issue.
Pursuant to section 735(e) of the Act and 19 CFR 351.224(e) and (f), the Department is amending the
On January 19, 2016, PT Anugerah Kertas Utama/PT Riau Andalan Kertas/APRIL Fine Paper Macao Commercial Offshore Limited (collectively, APRIL) submitted timely filed allegations that the Department made ministerial errors in our final determination. On January 21, 2016, Petitioners submitted rebuttal comments on APRIL's allegations. APRIL alleged the Department made two ministerial errors in its final determination: The exclusion of APRIL's home market billing adjustments and an inconsistency in the Department's calculation of APRIL's difference in merchandise adjustment (DIFMER). The Department reviewed the record and agrees that we made ministerial errors within the meaning of section 735(e) of the Act and 19 CFR 351.224(f). Specifically, the Department made unintentional errors with regard to the exclusion of APRIL's home market billing adjustments and with regard to the calculation of APRIL's DIFMER.
As stated above, on February 22, 2016, in accordance with section 735(d) of the Act, the ITC notified the Department of its final determinations in these investigations, in which it found material injury with respect to certain uncoated paper from Australia, Brazil, Indonesia, the PRC, and Portugal and its determination that critical circumstances do not exist with respect to imports of subject merchandise from Australia that are subject to the Department's affirmative critical circumstances finding.
Therefore, in accordance with section 736(a)(1) of the Act, the Department will direct U.S. Customs and Border Protection (CBP) to assess, upon further instruction by the Department, antidumping duties equal to the amount by which the normal value of the merchandise exceeds the export price (or constructed export price) of the merchandise, for all relevant entries of certain uncoated paper from Australia, Brazil, Indonesia, the PRC, and Portugal. Antidumping duties will be assessed on unliquidated entries of certain uncoated paper from Australia, Indonesia, the PRC, and Portugal entered, or withdrawn from warehouse, for consumption on or after August 26, 2015, and in the case of Brazil, on August 27, 2015, the date of publication of the preliminary determinations,
In accordance with section 735(c)(1)(B) of the Act, we will instruct CBP to continue to suspend liquidation on all relevant entries of certain uncoated paper from Australia, Brazil, Indonesia, the PRC, and Portugal. These instructions suspending liquidation will remain in effect until further notice.
We will also instruct CBP to require cash deposits equal to the amounts as indicated below. Accordingly, effective on the date of publication of the ITC's final affirmative injury determinations, CBP will require, at the same time as importers would normally deposit estimated duties on this subject merchandise, a cash deposit equal to the estimated weighted-average dumping margins listed below.
Section 733(d) of the Act states that instructions issued pursuant to an affirmative preliminary determination may not remain in effect for more than four months, except where exporters representing a significant proportion of exports of the subject merchandise request the Department to extend that four-month period to no more than six months. At the request of exporters that account for a significant proportion of
Therefore, in accordance with section 733(d) of the Act and our practice, we will instruct CBP to terminate the suspension of liquidation and to liquidate, without regard to antidumping duties, unliquidated entries of certain uncoated paper from Australia, Indonesia, the PRC, and Portugal entered, or withdrawn from warehouse, for consumption after February 21, 2016, and in the case of Brazil, on February 22, 2016, the dates on which the provisional measures expired, until and through the day preceding the date of publication of the ITC's final injury determinations in the
With regard to the ITC's negative critical circumstances determination on imports of subject merchandise from Australia, we will instruct CBP to lift suspension and to refund any cash deposits made to secure the payment of estimated antidumping duties with respect to entries of subject merchandise entered, or withdrawn from warehouse, for consumption on or after May 28, 2015 (
The weighted-average antidumping duty margin
This notice constitutes the
These orders are published in accordance with section 736(a) of the Act and 19 CFR 351.211(b).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Pursuant to section 751(b) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.216 and 19 CFR 351.221(c)(3), the Department of Commerce (the Department) is initiating a changed circumstances review of the antidumping duty order on diamond sawblades and parts thereof (diamond sawblades) from the People's Republic of China (the PRC) with respect to Wuhan Wanbang Laser Diamond Tools Co., Ltd. Based on the information on the record, we preliminarily determine that Wuhan Wanbang Laser Diamond Tools Co., Ltd., is the successor-in-interest to Wuhan Wanbang Laser Diamond Tools Co. for purposes of determining antidumping duty liability. We invite interested parties to comment on these preliminary results.
Effective March 3, 2016.
Yang Jin Chun 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.
The Department published the antidumping duty order on diamond sawblades and parts thereof from the People's Republic of China on November 4, 2009.
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 initiation of this review is now February 25, 2016.
The products covered by the order are all finished circular sawblades, whether slotted or not, with a working part that is comprised of a diamond segment or segments, and parts thereof, regardless of specification or size, except as specifically excluded below. Within the scope of the order are semifinished diamond sawblades, including diamond sawblade cores and diamond sawblade segments. Diamond sawblade cores are circular steel plates, whether or not attached to non-steel plates, with slots. Diamond sawblade cores are manufactured principally, but not exclusively, from alloy steel. A diamond sawblade segment consists of a mixture of diamonds (whether natural or synthetic, and regardless of the quantity of diamonds) and metal powders (including, but not limited to, iron, cobalt, nickel, tungsten carbide) that are formed together into a solid shape (from generally, but not limited to, a heating and pressing process).
Sawblades with diamonds directly attached to the core with a resin or electroplated bond, which thereby do not contain a diamond segment, are not included within the scope of the order. Diamond sawblades and/or sawblade cores with a thickness of less than 0.025 inches, or with a thickness greater than 1.1 inches, are excluded from the scope of the order. Circular steel plates that have a cutting edge of non-diamond material, such as external teeth that
Pursuant to section 751(b)(1) of the Act and 19 CFR 351.216(d), the Department will conduct a changed circumstances review upon receipt of a request from an interested party or receipt of information concerning an antidumping duty order which shows changed circumstances sufficient to warrant a review of the order. Based on the request from Wuhan Wanbang Laser Diamond Tools Co., Ltd. (Wuhan Wanbang Co., Ltd.) and in accordance with section 751(b)(1) of Act and 19 CFR 351.216(b), we are initiating a changed circumstances review to determine whether Wuhan Wanbang Co., Ltd., is the successor-in-interest to Wuhan Wanbang Laser Diamond Tools Co. (Wuhan Wanbang Co.). If we conclude that an expedited action is warranted, we may combine the notices of initiation and preliminary results of a changed circumstances review under 19 CFR 351.221(c)(3)(ii). In this instance, because we have on the record the information necessary to make a preliminary finding, we find that expedited action is warranted and have combined the notices of initiation and preliminary results.
In making a successor-in-interest determination, the Department examines several factors including, but not limited to, changes in management, production facilities, supplier relationships, and customer base.
In its review request and in its responses to our two supplemental questionnaires,
Based on record evidence, we preliminarily determine that Wuhan Wanbang Co., Ltd., is the successor-in-interest to Wuhan Wanbang Co. for purposes of antidumping duty liability because the changes to the legal status and name of the company resulted in no significant changes to management, production facilities, supplier relationships, and customers. As a result, we preliminarily determine that Wuhan Wanbang Co., Ltd., operates as the same business entity as Wuhan Wanbang Co. Thus, we preliminarily determine that Wuhan Wanbang Co., Ltd., should receive the same antidumping duty cash deposit rate with respect to the subject merchandise as Wuhan Wanbang Co., its predecessor company.
Because cash deposits are only estimates of the amount of antidumping duties that will be due, changes in cash deposit rates are not made retroactive and, therefore, no change will be made to Wuhan Wanbang Co., Ltd.'s cash deposit rate as a result of these preliminary results. If Wuhan Wanbang Co., Ltd., believes that the deposits paid exceed the actual amount of dumping, it is entitled to request an administrative review during the anniversary month of the publication of the order of those entries,
Interested parties may submit case briefs no later than 14 days after the publication of this notice.
Consistent with 19 CFR 351.216(e), we intend to issue the final results of this changed circumstances review no later than 270 days after the date on which this review was initiated, or within 45 days after the publication of the preliminary results if all parties in this review agree to our preliminary results. The final results will include the Department's analysis of issues raised in any written comments.
This notice of initiation and preliminary results is in accordance with section 751(b)(1) of the Act, 19 CFR 351.216(b) and (d), and 19 CFR 351.221(b)(1).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
James Terpstra, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-3965.
On October 20, 2015, the Department of Commerce (“Department”) initiated an antidumping duty investigation on welded stainless pressure pipe from India.
Section 733(b)(1) of the Tariff Act of 1930, as amended (“the Act”), requires the Department to issue the preliminary determination in an antidumping duty investigation within 140 days after the date on which the Department initiated the investigation. However, if the petitioner makes a timely request for a postponement, section 733(c)(1)(A) of the Act allows the Department to postpone making the preliminary determination until no later than 190 days after the date on which the Department initiated the investigation. On February 9, 2016, Petitioners
The Department finds that because there are no compelling reasons to deny Petitioners' request, the Department is postponing the deadline for the preliminary determination to no later than 190 days after the day on which the investigation was initiated, in accordance with section 733(c)(1)(A) of the Act, plus an additional four business days in accordance with the Tolling Memorandum. Accordingly, the Department will issue the preliminary determination no later than May 3, 2016. In accordance with section 735(a)(1) of the Act and 19 CFR 351.210(b)(1), the deadline for the final determination of this investigation will continue to be 75 days after the date of the preliminary determination, unless postponed at a later date.
This notice is issued and published pursuant to section 733(c)(2) of the Act and 19 CFR 351.205(f)(1).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (“the Department”) has received requests to conduct administrative reviews of various antidumping and countervailing duty orders and findings with January anniversary dates. In accordance with the Department's regulations, we are initiating those administrative reviews.
Brenda E. Waters, Office of AD/CVD Operations, Customs Liaison Unit, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th
The Department has received timely requests, in accordance with 19 CFR 351.213(b), for administrative reviews of various antidumping and countervailing duty orders and findings with January anniversary dates.
All deadlines for the submission of various types of information, certifications, or comments or actions by the Department discussed below refer to the number of calendar days from the applicable starting time.
If a producer or exporter named in this notice of initiation had no exports, sales, or entries during the period of review (“POR”), it must notify the Department within 30 days of publication of this notice in the
In the event the Department limits the number of respondents for individual examination for administrative reviews initiated pursuant to requests made for the orders identified below, the Department intends to select respondents based on U.S. Customs and Border Protection (“CBP”) data for U.S. imports during the period of review. We intend to place the CBP data on the record within five days of publication of the initiation notice and to make our decision regarding respondent selection within 30 days of publication of the initiation
In the event the Department decides it is necessary to limit individual examination of respondents and conduct respondent selection under section 777A(c)(2) of the Act:
In general, the Department has found that determinations concerning whether particular companies should be “collapsed” (
In the event that the Department limits the number of respondents for individual examination in the antidumping duty administrative review of wooden bedroom furniture from the PRC, for the purposes of this segment of the proceeding,
Pursuant to 19 CFR 351.213(d)(1), a party that has requested a review may withdraw that request within 90 days of the date of publication of the notice of initiation of the requested review. The regulation provides that the Department may extend this time if it is reasonable to do so. In order to provide parties additional certainty with respect to when the Department will exercise its discretion to extend this 90-day deadline, interested parties are advised that the Department does not intend to extend the 90-day deadline unless the requestor demonstrates that an extraordinary circumstance has prevented it from submitting a timely withdrawal request. Determinations by the Department to extend the 90-day deadline will be made on a case-by-case basis.
In proceedings involving non-market economy (“NME”) countries, the Department begins with a rebuttable presumption that all companies within the country are subject to government control and, thus, should be assigned a single antidumping duty deposit rate. It is the Department's policy to assign all exporters of merchandise subject to an administrative review in an NME country this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be entitled to a separate rate.
To establish whether a firm is sufficiently independent from government control of its export activities to be entitled to a separate rate, the Department analyzes each entity exporting the subject merchandise under a test arising from
All firms listed below that wish to qualify for separate rate status in the administrative reviews involving NME countries must complete, as appropriate, either a separate rate application or certification, as described below. In addition, all firms that wish to qualify for separate-rate status in the antidumping duty administrative review of wooden bedroom furniture from the PRC must complete, as appropriate, either a separate-rate certification or application, as described below, and respond to the additional questions and the Q&V questionnaire on the Department's Web site at
Entities that currently do not have a separate rate from a completed segment of the proceeding
For exporters and producers who submit a separate-rate status application or certification and subsequently are selected as mandatory respondents, these exporters and producers will no longer be eligible for separate rate status unless they respond to all parts of the questionnaire as mandatory respondents.
Furthermore, this notice constitutes public notification to all firms for which an antidumping duty administrative review of wooden bedroom furniture has been requested, and that are seeking separate rate status in the review, that they must submit a timely separate rate application or certification (as appropriate) as described above, and a timely response to the Q&V questionnaire and the additional questions in the document package on the Department's Web site in order to receive consideration for separate-rate status. In other words, the Department will not give consideration to any timely separate rate certification or application made by parties who failed to respond in a timely manner to the Q&V questionnaire and the additional questions. All information submitted by respondents in the antidumping duty administrative review of wooden bedroom furniture from the PRC is subject to verification. As noted above, the separate rate certification, the separate rate application, the Q&V questionnaire, and the additional questions will be available on the Department's Web site on the date of publication of this notice in the
In accordance with 19 CFR 351.221(c)(1)(i), we are initiating administrative reviews of the following antidumping and countervailing duty orders and findings. We intend to issue the final results of these reviews not later than January 31, 2017.
During any administrative review covering all or part of a period falling between the first and second or third and fourth anniversary of the publication of an antidumping duty order under 19 CFR 351.211 or a determination under 19 CFR 351.218(f)(4) to continue an order or suspended investigation (after sunset review), the Secretary, if requested by a domestic interested party within 30 days of the date of publication of the notice of initiation of the review, will determine, consistent with
For the first administrative review of any order, there will be no assessment of antidumping or countervailing duties on entries of subject merchandise entered, or withdrawn from warehouse, for consumption during the relevant provisional-measures “gap” period, of the order, if such a gap period is applicable to the POR.
Interested parties must submit applications for disclosure under administrative protective orders in accordance with 19 CFR 351.305. On January 22, 2008, the Department published
On April 10, 2013, the Department published
Any party submitting factual information in an antidumping duty or countervailing duty proceeding must certify to the accuracy and completeness of that information.
On September 20, 2013, the Department modified its regulation concerning the extension of time limits for submissions in antidumping and countervailing duty proceedings:
These initiations and this notice are in accordance with section 751(a) of the Act (19 U.S.C. 1675(a)) and 19 CFR 351.221(c)(1)(i).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Based on affirmative final determinations by the Department of Commerce (the Department) and the International Trade Commission (ITC), the Department is issuing countervailing duty (CVD) orders on certain uncoated paper from Indonesia and the People's Republic of China (PRC). Also, as explained in this notice, the Department is amending its final affirmative determination with respect to Indonesia to correct the rates assigned to APRIL Fine Paper Macao Commercial Offshore Limited/PT Anugrah Kertas Utama/PT Riau Andalan Kertas/PT Intiguna Primatama/PT Riau Andalan Pulp & Paper/PT Esensindo Cipta Cemerlang (the APRIL companies); Great Champ Trading Limited (Great Champ); Indah Kiat Pulp & Paper TBK/Pabrik Kertas Tjiwi Kimia/PT Pindo Deli Pulp and Paper Mills (IK/TK/PD); and All-Others.
Indonesia: David Goldberger, Office II, telephone: (202) 482-4136; PRC: Joy Zhang, Office III, telephone: (202) 482-1168; AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.
On January 8, 2016, the Department issued its final determinations in the CVD investigations of certain uncoated paper from Indonesia and the PRC.
On January 19, 2016, the Department received a timely allegation from Asia Symbol (Guangdong) Paper Co., Ltd. (AS Guangdong) and its cross-owned affiliates, Asia Symbol (Guangdong) Omya Minerals Co., Ltd. (AS Omya), Asia Symbol (Shandong) Pulp & Paper Co. (AS Shandong), and Greenpoint Global Trading (Macao Commercial Offshore) Limited (Greenpoint) (collectively, Asia Symbol) that the Department made ministerial errors in the final determination in the CVD investigation of certain uncoated paper from the PRC.
On January 19, 2016, the APRIL companies submitted a timely ministerial error allegation, as amended on January 28, 2016, and requested that the Department correct the alleged ministerial error in the subsidy rate calculations.
On February 22, 2016, the ITC notified the Department of its final determinations pursuant to section 705(b)(1)(A)(i) and section 705(d) of the Act, that an industry in the United States is materially injured by reason of subsidized imports of subject
The merchandise subject to these orders includes uncoated paper in sheet form; weighing at least 40 grams per square meter but not more than 150 grams per square meter; that either is a white paper with a GE brightness level
Certain Uncoated Paper includes (a) uncoated free sheet paper that meets this scope definition; (b) uncoated ground wood paper produced from bleached chemi-thermo-mechanical pulp (BCTMP) that meets this scope definition; and (c) any other uncoated paper that meets this scope definition regardless of the type of pulp used to produce the paper.
Specifically excluded from the scope of these orders are (1) paper printed with final content of printed text or graphics and (2) lined paper products, typically school supplies, composed of paper that incorporates straight horizontal and/or vertical lines that would make the paper unsuitable for copying or printing purposes. For purposes of this scope definition, paper shall be considered “printed with final content” where at least one side of the sheet has printed text and/or graphics that cover at least five percent of the surface area of the entire sheet.
Imports of the subject merchandise are provided for under Harmonized Tariff Schedule of the United States (HTSUS) categories 4802.56.1000, 4802.56.2000, 4802.56.3000, 4802.56.4000, 4802.56.6000, 4802.56.7020, 4802.56.7040, 4802.57.1000, 4802.57.2000, 4802.57.3000, and 4802.57.4000. Some imports of subject merchandise may also be classified under 4802.62.1000, 4802.62.2000, 4802.62.3000, 4802.62.5000, 4802.62.6020, 4802.62.6040, 4802.69.1000, 4802.69.2000, 4802.69.3000, 4811.90.8050 and 4811.90.9080. While HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope is dispositive.
As discussed above, after analyzing the comments received, we determined, in accordance with section 705(e) of the Act and 19 CFR 351.224(e), that we made ministerial errors in certain calculations for the
In accordance with sections 705(b)(1)(A)(i) and 705(d) of the Act, the ITC notified the Department of its final determinations that the industry in the United States producing certain uncoated paper is materially injured by reason of subsidized imports of certain uncoated paper from Indonesia and the PRC. Therefore, in accordance with section 705(c)(2) of the Act, we are publishing these CVD orders.
As a result of the ITC's final determinations, in accordance with section 706(a) of the Act, the Department will direct U.S. Customs and Border Protection (CBP) to assess, upon further instruction by the Department, CVDs on unliquidated entries of certain uncoated paper entered, or withdrawn from warehouse, for consumption on or after June 29, 2015, the date on which the Department published its preliminary CVD determinations in the
In accordance with section 706 of the Act, the Department will direct CBP to reinstitute the suspension of liquidation of certain uncoated paper from Indonesia and the PRC, effective the date of publication of the ITC's notice of final determinations in the
This notice constitutes the CVD orders with respect to certain uncoated paper from Indonesia and the PRC, pursuant to section 706(a) of the Act. Interested parties may contact the Department's Central Records Unit, Room B8024 of the main Commerce Building, for a copy of an updated list of CVD orders currently in effect.
These orders are issued and published in accordance with section 706(a) of the Act and 19 CFR 351.211(b).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of intent to prepare an environmental impact statement (EIS); request for comments.
NMFS and the Pacific Fishery Management Council (Council) announce their intent to prepare an EIS in accordance with the National Environmental Policy Act (NEPA) of 1969 to analyze the impacts on the human (biological, physical, social, and economic) environment of gear changes in the Pacific Coast Groundfish Fishery's Trawl Catch Share Program, also called the Trawl Rationalization Program. This notice also requests written comment.
Public scoping will be conducted through this notice. Comments must be received by 5 p.m. Pacific Standard Time on April 4, 2016 (see
You may submit comments on issues and alternatives by any of the following methods:
•
•
Jamie Goen, NMFS West Coast Region at 206-526-4656 or
There are more than 90 species managed under the Pacific Coast Groundfish Fishery Management Plan (Groundfish FMP). These groundfish stocks support an array of commercial, recreational, and tribal fishing interests in state and Federal waters off the coasts of Washington, Oregon, and California. In addition, groundfish are harvested incidentally in non-groundfish fisheries; most notably, the trawl fisheries for pink shrimp and California halibut.
The Trawl Catch Share Program was implemented in 2011, changing how the groundfish limited entry trawl fishery is managed. The Trawl Catch Share Program replaced the need for some, but not all, of the trip-limit structure in Federal regulations, and modified regulations for the at-sea fleets. Some of the remaining pre-Trawl Catch Share Program regulations may unnecessarily constrain harvest efficiency and effectiveness under a catch share framework. Pre-Trawl Catch Share Program regulations that managed the fleet as a whole may need to be updated or may no longer be appropriate for managing individuals operating under the incentives provided by catch shares.
The proposed action is to revise groundfish gear regulations for the Trawl Catch Share Program, including trawl gear configuration and gear use. The proposed action may include the following gear regulation changes:
• Loosening or eliminating the minimum mesh size requirement for bottom trawl;
• Updating the procedure for measuring mesh sizes;
• Loosening or eliminating cod-end regulations;
• Loosening or eliminating selective flatfish trawl gear requirements and restrictions (Large and small footrope distinctions would remain.);
• Loosening or eliminating chafing gear regulations;
• Allowing vessels to carry and/or use multiple gear types on a single trip;
• Allowing a gear to be fished in multiple management areas on the same trip; and
• Allowing a vessel's next gear deployment to start before all fish from the previous deployment have been stowed.
The proposed action may affect fishing in the Trawl Catch Share Program by any or all of the gear types that participate in the fishery, including bottom trawl (small and large footrope),
NEPA requires that agencies evaluate reasonable alternatives to the proposed action, which address the purpose and need for agency action. The Council adopted a preliminary range of alternatives for analysis and public review at its September 2015 meeting, and further refined the range at its November 2015 meeting.
The range of alternatives for this action are organized within eight gear-related issues (Issue A through Issue H) and parallel the bulleted list in the “Proposed Action” section. The range of alternatives for each issue is described below. The Council is currently scheduled to select a final preferred alternative at its March 8-14, 2016, meeting. However, there is a possibility that final Council decision-making could occur at its April or June meetings.
Mesh size requirements are intended to reduce the catch of juvenile and small unmarketable fish. This action would change the minimum mesh size for bottom trawl and midwater trawl. Alternative A1 (No-action) would continue to be 4.5 inches for bottom trawl and 3 inches for midwater trawl. Alternative A2 would shift the minimum mesh size to 4 inches for bottom trawl only. Alternative A3 would not specify a minimum mesh size for bottom trawl or midwater trawl.
The alternatives under Issue B apply to how mesh size is measured and could apply to any of the minimum mesh size alternatives under Issue A. Alternative B1 (No-action) would continue to measure trawl mesh size between the inside of the one knot to the inside of the opposing knot, regardless of twine size. Alternative B2 would measure the opening between opposing knots or, in knotless webbing, between opposing corners, regardless of twine size.
The codend is the terminal, closed end of a trawl net. Alternative C1 (No-action) would require only single-walled codends in any trawl. Double-walled codends would still be prohibited. Alternative C2 would remove codend restrictions from Federal regulations.
Selective flatfish trawl (SFFT) is a type of small footrope trawl. Alternative D1 (No-action) would require a two-seamed net with no more than two riblines, excluding the codend. The breastline would remain no longer than 3 feet. No floats along the center third of the headrope or attached to the top panel would be allowed, except on riblines. The footrope would be less than 105 feet long. The headrope would not be less than 30 percent longer than the footrope under this alternative. The areas fished with SFFT are as follows (§ 660.130(c)(2)(i)):
• North of 40°10′ N. latitude, selective flatfish gear is required shoreward of the Rockfish Conservation Area (RCA).
• South of 40°10′ N. latitude, selective flatfish gear is permitted, but not required, shoreward of the RCA.
• The use of selective flatfish trawl gear is permitted seaward of the RCA coastwide.
Alternative D2 would modify the SFFT definition to allow a two-seam or a four-seam net. Areas fished would remain as stated in the No-action Alternative.
Alternative D3 would modify the SFFT definition to allow a two-seam or a four-seam net. The SSFT requirement shoreward of the RCA north of 40°10′ N. latitude would be eliminated. It would be replaced with a small footrope requirement (like the requirement south of 40°10′ N. latitude). Requirements shoreward of the RCA south of 40°10′ N. latitude and seaward of the RCA coastwide would remain as stated in the No-action Alternative.
Chafing gear is webbing or other material attached to the codend to protect it from wear. The decision on codends under Issue C (Alternatives C1 and C2) may affect the issue of chafing gear should Alternative C2 be chosen. Alternative C2 would allow double-walled codends, and chafing gear could be used to create a double-walled codend.
Alternative E1 (No-action) would continue to have chafing gear for bottom trawl encircle no more than 50 percent of the net's circumference and could be in one or more sections. It could be used on only the last 50 meshes, measured from the terminal edge (closed end) of the codend. Only the front edge (that closest to the open end of the codend) and sides of each section of chafing gear could be attached to the codend. Except at the corners, the terminal edge (that edge closest to the closed end of the codend) of each section of chafing gear could not be attached to the net. The chafing gear would have to be attached outside of any riblines and restraining straps.
Alternative E2 would align bottom trawl chafing gear restrictions with recent changes to midwater trawl chafing gear restrictions specified in regulation at 50 CFR 660.130(b)(4)(i) and (ii). These changes would allow the chafing gear to cover more of the codend than the No-action Alternative. Generally, the bottom trawl chafing gear restriction would be revised to read as follows:
Chafing gear may cover the bottom and sides of the codend in either one or more sections. Only the front edge (edge closest to the open end of the codend) and sides of each section of chafing gear may be attached to the codend; except at the corners, the terminal edge (edge closest to the closed end of the codend) of each section of chafing gear must not be attached to the net. Chafing gear is not permitted on the top codend panel except that a band of mesh (a “skirt”) may encircle the net under or over transfer cables, lifting or splitting straps (chokers), riblines, and restraining straps, but must be the same mesh size and coincide knot-to-knot with the net to which it is attached and be no wider than 16 meshes.
Alternative E3 would eliminate chafing gear restrictions for bottom trawl and midwater trawl gear. Chafing gear could be used, but regulations would not restrict how much of the codend or net it covers nor where it is connected to the net.
A vessel may carry a number of different gears while participating in the groundfish trawl sector. This issue considers allowing multiple types of fishing gear on the vessel during a single trip. The term “fixed gear” as used in Issue F is shorthand for all legal groundfish non-trawl gear. Under the gear switching provision in the Shorebased Individual Fishing Quota (IFQ) Program, several fixed gears are permissible. As stated in the regulations at § 660.130(k) on gear switching, participants can also fish for IFQ species “using any legal groundfish non-trawl gear.” Referring to the definitions section at § 660.11 in Federal regulations, legal groundfish non-trawl gear includes non-trawl gear used by both the limited entry fixed gear and open access fisheries as follows:
• Longline,
• trap or pot,
• set net (anchored gillnet or trammel net, which are permissible south of 38° N. lat. only),
• hook-and-line (fixed or mobile, including commercial vertical hook-and-line), and
• spear.
Alternative F1 (No-action) would restrict vessels to one type of trawl gear (bottom or midwater) onboard per trip. For bottom trawl gear, both small footrope and large footrope could be on the vessel and fished during a single fishing trip. Multiple fixed gear types would be allowed onboard each trip. Trawl gear and fixed gear would not be permitted onboard during the same trip. Only one type of gear can be fished per trip.
Alternative F2 would allow multiple trawl gear types (bottom and midwater) onboard on the same trip. The same as under the No-action Alternative, multiple fixed gear types would be allowed onboard during each trip. Trawl vessels would not be allowed to have trawl and fixed gear onboard on the same trip. Vessel operators could use only one gear type per trip (bottom trawl, midwater trawl, or fixed gear). For bottom trawl gear, both small footrope and large footrope could be fished during a single fishing trip.
Alternative F3 would allow multiple gear types onboard on the same trip. In addition, they could be used on the same trip as follows:
• Gear Type Sub-option A: Any trawl gear could be used (bottom and midwater).
• Gear Type Sub-option B: Any legal IFQ groundfish gear could be used.
• Sorting Sub-option A: Vessel operators must separate catch by gear type. Landings must be recorded on a separate electronic fish ticket by gear type.
• Sorting Sub-option B: Catch by gear type could be comingled.
Under Alternative F3, gear type sub-options would be independent of sorting options.
The Shorebased IFQ Program includes IFQ management areas, specified in regulation at § 660.140(c)(2), that are based on the stock information for select species, harvest allocations, and the corresponding quota share for species. The IFQ management areas are as follows:
• Between the U.S./Canada border and 40°10′ N. latitude,
• Between 40°10′ N. latitude and 36° N. latitude,
• Between 36° N. latitude and 34°27′ N. latitude, and
• Between 34°27′ N. latitude and the U.S./Mexico border.
Alternative G1 (No-action) would maintain the restriction that vessels participating in the Shorebased IFQ Program may not fish in more than one IFQ management area on the same trip.
Alternative G2 would allow fishing in multiple IFQ management areas on the same trip. This would create opportunities to shift from one management area to another during a fishing trip. If retaining catch from multiple IFQ management areas on a single trip, then the catch would have to be sorted by IFQ management area and recorded on separate electronic fish tickets.
To track catch accurately to the haul level, regulations require previous catch to be stowed before a new haul is brought onboard the vessel. Alternative H1 (No-action) would continue to prohibit vessels in the Shorebased IFQ Program from bringing a haul on board before all catch from the previous haul has been stowed. Alternative H2, in the Shorebased IFQ Program, would allow a new haul to be brought onboard and dumped on deck before all catch from the previous haul has been stowed. Catch from different hauls would have to be kept separate until the observers could complete their collection of catch for sampling.
A principal objective of the scoping and public input process is to identify potentially significant impacts to the human environment that should be analyzed in depth in the EIS. If, during the preparation of this EIS, NMFS determines that a finding of no significant impact can be supported, it may prepare an Environmental Assessment (EA) and issue a retraction of this notice. Alternatively, NMFS may still continue with the preparation of an EIS. Information and analysis prepared for this action also may be used when scoping future groundfish actions to help decide whether to prepare an EA or EIS.
Some alternatives may have significant impacts on the human environment. The proposed action to change mesh size, change codend restrictions, and eliminate selective flatfish trawl gear may negatively impact some species listed under the Endangered Species Act (ESA), including salmon and eulachon. In addition, there may be an impact on stock productivity for many species if changing the trawl mesh size or removing codend restrictions causes smaller fish to be harvested. There may be increased uncertainty in total mortality estimates for all species from allowing multiple gears to be fished during a trip. The EIS will also consider the cumulative effects of the proposed action with any past, present or reasonably foreseeable future actions. In particular, the gear changes in the Trawl Catch share Program will need to be considered in light of upcoming changes to monitoring with electronic monitoring and changes to habitat and overfished species protections with Essential Fish Habitat and RCA actions. Through the public scoping process and as the EIS is drafted, additional potentially significant impacts may be identified.
NMFS provides this notice to: (1) Advise the public and other agencies of its plans to analyze effects related to the action, and (2) obtain suggestions and information that may be useful to the scope of issues and the full range of alternatives to include in the EIS.
NMFS invites comment from all interested parties to ensure that the full range of issues related to gear changes in the Pacific Coast Groundfish Fishery's Trawl Catch Share Program are identified. NMFS is specifically inviting comments on the proposed alternatives described above. In addition, NMFS invites comments on the potential impacts of these alternatives and further details of how fishermen are likely to operate under these alternatives. For example, NMFS invites comments on the potential impacts of the alternatives given changes being considered by the Council on electronic monitoring, essential fish habitat, and rockfish conservation areas. Comments should be as specific as possible.
Written comments concerning the proposed action and the environmental review should be directed to NMFS as described above (see
Public scoping will be conducted through this notice. In addition, further participation by the public will occur throughout the Council's decision-making process. All decisions during the Council process benefit from written and oral public comments delivered prior to or during the Council meeting. These public comments are considered
The Council meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kris Kleinschmidt at
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Mid-Atlantic Fishery Management Council's (MAFMC) Collaborative Research Committee will hold a closed meeting to review and make recommendations on collaborative research project proposals.
The meeting will be held on Wednesday, March 23, 2016, from 9:30 a.m. to 4:30 p.m. For agenda details, see
The meeting will be held at the Double Tree by Hilton Baltimore—BWI Airport, 890 Elkridge Landing Road, Linthicum, Maryland 21090; telephone: (410) 859-8400.
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.
The MAFMC's Collaborative Research Committee will hold a closed meeting to review and make recommendations on collaborative research project proposals. In December 2015, the Council published a Request for Proposals (RFP) for collaborative research projects that address seven research priorities. During the meeting, the Collaborative Research Committee will review and make funding recommendations on the proposals that were submitted in response to the RFP.
These meetings are 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; availability of joint state/tribal hatchery plans and request for comment.
Notice is hereby given that the Washington Department of Fish and Wildlife, the Port Gamble S'Klallam Tribe, the Skokomish Tribe, and the United States Fish and Wildlife Service have submitted 10 Hatchery and Genetic Management Plans, to be considered jointly, to NMFS pursuant to the limitation on take prohibitions for actions conducted under Limit 6 of the 4(d) Rule for salmon and steelhead promulgated under the Endangered Species Act (ESA). The plans specify the propagation of five species of salmon in the Hood Canal region of Washington State. This document serves to notify the public of the availability for comment of the proposed evaluation of the Secretary of Commerce (Secretary) as to whether implementation of the joint plans will appreciably reduce the likelihood of survival and recovery of ESA-listed Puget Sound Chinook salmon and Puget Sound steelhead.
This notice further advises the public of the availability for review of a draft Environmental Assessment of the effects of the NMFS determination on the subject joint plans.
Comments must be received at the appropriate address or fax number (see
Written comments on the proposed evaluation and pending determination should be addressed to the NMFS Sustainable Fisheries Division, 1201 NE Lloyd Blvd., Portland, OR 97232. Comments may be submitted by email. The mailbox address for providing email comments is:
Charlene Hurst at (503) 230-5409 or by email at
Chinook salmon (
Steelhead (
Chum salmon (
Bull trout (
The Washington Department of Fish and Wildlife, the Port Gamble S'Klallam Tribe, the Skokomish Tribe, and the United States Fish and Wildlife Service have submitted to NMFS plans for 10 jointly operated hatchery programs in
As required by the ESA 4(d) Rule (65 FR 42422, July 10, 2000, as updated in 70 FR 37160, June 28, 2005), the Secretary is seeking public comment on her pending determination as to whether the joint plans for hatchery programs in Hood Canal would appreciably reduce the likelihood of survival and recovery of the ESA-listed Puget Sound salmon and steelhead.
Under section 4(d) of the ESA, the Secretary is required to adopt such regulations as she deems necessary and advisable for the conservation of species listed as threatened. NMFS has issued a final ESA 4(d) Rule for salmon and steelhead, adopting in Limit 6 regulations necessary and advisable to harmonize statutory conservation requirements with tribal rights and the Federal trust responsibility to tribes (50 CFR 223.209).
This 4(d) Rule applies the prohibitions enumerated in section 9(a)(1) of the ESA. NMFS did not find it necessary and advisable to apply the take prohibitions described in section 9(a)(1)(B) and 9(a)(1)(C) to artificial propagation activities if those activities are managed in accordance with a joint plan whose implementation has been determined by the Secretary to not appreciably reduce the likelihood of survival and recovery of the listed salmonids. As specified in limit 6 of the 4(d) Rule, before the Secretary makes a decision on the joint plan, the public must have an opportunity to review and comment on the pending determination.
Under section 4 of the ESA, the Secretary of Commerce is required to adopt such regulations as she deems necessary and advisable for the conservation of species listed as threatened. The ESA salmon and steelhead 4(d) Rule (65 FR 42422, July 10, 2000, as updated in 70 FR 37160, June 28, 2005) specifies categories of activities that contribute to the conservation of listed salmonids and sets out the criteria for such activities. Limit 6 of the updated 4(d) Rule (50 CFR 223.203(b)(6)) further provides that the prohibitions of paragraph (a) of the updated 4(d) Rule (50 CFR 223.203(a)) do not apply to activities associated with a joint state/tribal artificial propagation plan provided that the joint plan has been determined by NMFS to be in accordance with the salmon and steelhead 4(d) Rule (65 FR 42422, July 10, 2000, as updated in 70 FR 37160, June 28, 2005).
Defense Security Cooperation Agency, Department of Defense.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996.
Sarah A. Ragan or Heather N. Harwell, DSCA/LMO, (703) 604-1546/(703) 607-5339.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 15-61 with attached Policy Justification and Sensitivity of Technology.
(i)
(ii)
(iii)
Sixteen (16) Evolved Seasparrow Missiles (ESSM) (Fourteen (14) tactical missiles and two (2) telemetry missiles)
Three (3) MK25 Quad Pack canisters
Ten (10) MK783 shipping containers
Also included with this request is additional equipment; training; and technical services.
(iv)
(v)
(vi)
(vii)
(viii)
*As defined in Section 47(6) of the Arms Export Control Act
The Government of Thailand requested a possible sale of Major Defense Equipment for its Evolved Seasparrow Missile (ESSM) program. The total estimated value of MDE is $18,570,385. The total overall estimated value is $26,943,445.
Sixteen (16) Evolved Seasparrow Missiles (ESSM) (Fourteen (14) tactical missiles and two (2) telemetry missiles)
Three (3) MK25 Quad Pack canisters
Ten (10) MK783 shipping containers
Also included with this request is additional equipment; training; and technical services.
This proposed sale will contribute to the foreign policy and national security of the United States by increasing the ability of Thailand to contribute to regional security and improving interoperability with the U.S. Navy.
Thailand will use the ESSM to provide ship battlespace self-defense and firepower, which will improve its capability to meet current and future naval threats.
The proposed sale of these equipment and support will not alter the basic military balance in the region.
The principal contractors are:
Raytheon Missile Systems (RMS), Tucson, Arizona
BAE Systems, Aberdeen, South Dakota
SAAB, 9LV MK4 Combat Management System, Sweden
Lockheed Martin, Baltimore, MD
There are no known offset agreements proposed in connection with this potential sale.
Implementation of this proposed sale will not require the assignment of any additional U.S. Government or contractor representatives to Thailand.
There is no adverse impact on U.S. defense readiness as a result of this proposed sale.
(vii)
1. This sale will involve the release of sensitive technology to Thailand. The Evolved Seasparrow missile weapons system is classified up to CONFIDENTIAL. The missile includes the guidance section, warhead section, transition section, propulsion section, control section and Thrust Vector Control (TVC), of which the guidance section and transition section are classified CONFIDENTIAL. Documentation to be provided to Thailand includes:
a. Parametric documents (CONFIDENTIAL)
b. Missile Handling/Maintenance Procedures (UNCLASSIFIED only)
c. General Performance Data (CONFIDENTIAL)
d. Firing Guidance (CONFIDENTIAL)
e. Dynamics Information (CONFIDENTIAL)
2. The sale of the Evolved Seasparrow Missiles under this FMS case will result in the transfer of sensitive technological information and or/restricted information contained in the missile guidance section. Certain operating frequencies and performance characteristics are classified SECRET because they could be used to develop tactics and/or countermeasures that might reduce weapon system effectiveness.
3. If a technologically advanced adversary were to obtain knowledge of the specific hardware and software elements, primarily performance characteristics, engagement algorithms and transmitter specific frequencies, the information could be used to develop countermeasures which might reduce weapon system effectiveness.
4. A determination has been made that Thailand can provide substantially the same degree of protection for the sensitive technology being released as the U.S. Government. This sale is necessary in furtherance of the U.S. foreign policy and national security objectives outlined in the Policy Justification.
5. All of the defense articles and services listed in this transmittal have been authorized for release and export to the Government of Thailand.
Department of Defense, Defense Security Cooperation Agency.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996.
Sarah A. Ragan or Heather N. Harwell, DSCA/LMO, (703) 604-1546/(703) 607-5339.
The following is a copy of a letter to the Speaker of the House of Representatives, and corrected Transmittal 15-62 with attached Policy Justification and Sensitivity of Technology.
(i)
(ii)
(iii)
Three (3) RQ-4 Block 30 (I) Global Hawk Remotely Piloted Aircraft with Enhanced Integrated Sensor Suite (EISS)
Eight (8) Kearfott Inertial Navigation System/Global Positioning System (INS/GPS) units (2 per aircraft with 2 spares)
Eight (8) LN-251 INS/GPS units (2 per aircraft with 2 spares)
Also included with this request are operational-level sensor and aircraft test equipment, ground support equipment, operational flight test support, communications equipment, spare and repair parts, personnel training, publications and technical data, U.S. Government and contractor technical and logistics support services, and other related elements of logistics support.
(iv)
(v)
(vi)
(vii)
(viii)
* As defined in Section 47(6) of the Arms Export Control Act
The Government of Japan has requested a possible sale of:
Three (3) RQ-4 Block 30 (I) Global Hawk Remotely Piloted Aircraft with Enhanced Integrated Sensor Suite (EISS)
Eight (8) Kearfott Inertial Navigation System/Global Positioning System (INS/GPS) units (2 per aircraft with 2 spares)
Eight (8) LN-251 INS/GPS units (2 per aircraft with 2 spares)
Also included with this request are operational-level sensor and aircraft test equipment, ground support equipment, operational flight test support, communications equipment, spare and repair parts, personnel training, publications and technical data, U.S. Government and contractor technical and logistics support services, and other related elements of logistics support. The estimated value of MDE is $.689 billion. The total estimated value is $1.2 billion.
This proposed sale will contribute to the foreign policy and national security of the United States. Japan is one of the major political and economic powers in East Asia and the Western Pacific and a key partner of the United States in ensuring regional peace and stability. This transaction is consistent with U.S. foreign policy and national security objectives and the 1960 Treaty of Mutual Cooperation and Security.
The proposed sale of the RQ-4 will significantly enhance Japan's intelligence, surveillance, and reconnaissance (ISR) capabilities and help ensure that Japan is able to continue to monitor and deter regional threats. The Japan Air Self Defense Force (JASDF) will have no difficulty absorbing these systems into its armed forces.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
The principal contractor will be Northrop Grumman Corporation in Rancho Bernardo, California. There are no known offset agreements in connection with this potential sale.
Implementation of this proposed sale will require the assignment of contractor representatives to Japan to perform contractor logistics support and to support establishment of required security infrastructure.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
(vii)
1. The RQ-4 Block 30 Global Hawk hardware and software are UNCLASSIFIED. The highest level of classified information required for operation may be SECRET depending on the classification of the imagery or Signals Intelligence (SIGINT) utilized on a specific operation. The RQ-4 is optimized for long range and prolonged flight endurance. It is used for military intelligence, surveillance, and reconnaissance. Aircraft system, sensor, and navigational status are provided continuously to the ground operators through a health and status downlink for mission monitoring. Navigation is via inertial navigation with integrated global positioning system (GPS) updates. The vehicle is capable of operating from a standard paved runway. Real time missions are flown under the control of a pilot in a Ground Control Element (GCE). It is designed to carry a non-weapons internal payload of 3,000 lbs consisting primarily of sensors and avionics. The following payloads are integrated into the RQ-4: Enhanced Imagery Sensor Suite that includes multi-use infrared, electro-optical, ground moving target indicator, and synthetic aperture radar and a space to accommodate other sensors such as SIGINT. The RQ-4 will include the GCE, which consists of the following components:
a. The Mission Control Element (MCE) is the RQ-4 Global Hawk ground control station for mission planning, communication management, aircraft and mission control, and image processing and dissemination. It can be either fixed or mobile. In addition to the shelter housing the operator workstations, the MCE includes an optional 6.25 meter Ku-Band antenna assembly, a Tactical Modular Interoperable Surface Terminal, a 12-ton Environmental Control Unit (heating and air conditioning), and two 100 kilowatt electrical generators. The MCE, technical data, and documentation are UNCLASSIFIED. The MCE may operate at the classified level depending on the classification of the data feeds.
b. The Launch and Recovery Element (LRE) is a subset of the MCE and can be either fixed or mobile. It provides identical functionality for mission planning and air vehicle command and control (C2). The launch element contains a mission planning workstation and a C2 workstation. The primary difference between the LRE and MCE is the lack of any wide-band data links or image processing capability within the LRE and navigation equipment at the LRE to provide the precision required for ground operations, take-off, and landing. The LRE, technical data, and documentation are UNCLASSIFIED. The EISS includes infrared/electro-optical, synthetic aperture radar imagery, ground moving target indicator and space to accommodate optional SIGINT, Maritime, datalink, and automatic identification system capabilities. The ground control element includes a mission control function and a launch and recovery capability.
c. The RQ-4 employs a quad-redundant Inertial Navigation System/Global Positioning System (INS/GPS) configuration. The system utilizes two different INS/GPS systems for greater redundancy. The system consists of two LN-251 units and two Kearfott KN-4074E INS/GPS Units. The LN-251 is a fully integrated, non-dithered navigation system with an embedded Selective Availability/Anti-Spoofing Module (SAASM), P(Y) code or Standard Positioning Service (SPS) GPS. It utilizes a Fiber-Optic Gyro (FOG) and includes three independent navigation solutions: blended INS/GPS, INS-only, and GPS-only. The Kearfott KN-4074E features a Monolithic Ring Laser Gyro (MRLG) and accelerometer. The inertial sensors are tightly coupled with an embedded SAASM P(Y) code GPS. Both systems employ cryptographic technology that can be classified up to SECRET.
2. If a technology advanced adversary were to obtain knowledge of the specific hardware and software elements, the information could be used to develop countermeasures that might reduce weapon system effectiveness or be used in the development of a system with similar or advanced capabilities.
3. All defense articles and services listed in this transmittal have been authorized for release and export to the Government of Japan.
Department of Defense, Defense Security Cooperation Agency.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996.
Sarah A. Ragan or Heather N. Harwell, DSCA/LMO, (703) 604-1546/(703) 607-5339. The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 16-12 with attached Policy Justification.
(i)
(ii)
(iii)
The Iraq Air Force is requesting a five-year sustainment package for its KA-350 fleet that includes contract logistics, training, and contract engineering services. Also included in this possible sale are operational and intermediate depot level maintenance, spare parts, component repair, publication updates, maintenance training, and logistics.
(v)
(vi)
(vii)
(viii)
* as defined in Section 47(6) of the Arms Export Control Act.
The Government of Iraq is requesting a five-year sustainment package for its KA-350 fleet that includes; operational and intermediate depot level maintenance, spare parts, component repair, publication updates, maintenance training, and logistics. There is no Major Defense Equipment associated with this case. The overall total estimated value is $350 million.
The Iraq Air Force (IqAF) operates five (5) King Air 350 ISR (intelligence, surveillance, and reconnaissance) and one (1) King Air 350 aircraft. The KA-350 aircraft are Iraq's only ISR-dedicated airborne platforms and are used to support Iraqi military operations against Al-Qaeda affiliates and Islamic State of Iraq and the Levant (ISIL) forces. The purchase of a sustainment package will allow the IqAF to continue to operate its fleet of six (6) KA-350 aircraft beyond September 2016 (end of the existing Contract Logistics Support (CLS) effort). Iraq will have no difficulty absorbing this support.
The proposed sale will contribute to the foreign policy and national security goals of the United States by helping to improve a critical capability of the Iraq Security Forces in defeating ISIL.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
The prime contractor will be Beechcraft Defense Company, Wichita, KS. There are no known offset agreements proposed in connection with this potential sale.
Implementation of this proposed sale will not require the assignment of any additional U.S. Government or contractor representatives to Iraq.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
All defense articles and services listed in this transmittal have been authorized for release and export to the Government of Iraq.
Department of the Army, U.S. Army Corps of Engineers, DOD.
Notice of intent.
The Draft Environmental Assessment (EA) is being prepared pursuant to the National Environmental Policy Act (NEPA), Council on Environmental Quality (CEQ) regulations (40 CFR, 1500-1517), and the U.S. Army Corps of Engineers (USACE) implementing regulation, Policy and Procedures for Implementing NEPA, Engineer Regulation (ER) 200-2-2 (1988). The study is being conducted in accordance with the requirements of 36 CFR 327.30, dated July 27, 1990 and ER 1130-2-406, dated October 31, 1990. The EA will evaluate potential impacts (beneficial and adverse) to socioeconomic conditions, cultural and ecological resources, recreation, aesthetics, infrastructure, lake water quality, terrestrial and aquatic fish and wildlife habitats, federally-listed threatened and endangered species, and cumulative impacts associated with past, current, and reasonably foreseeable future actions at Beaver Lake.
Following the public scoping period and after consideration of all comments received during scoping, USACE will prepare a Draft EA. The Draft EA will be made available for public review and comment. Based on the EA analysis, USACE will either issue a Finding of No Significant Impact or announce its intent to prepare an environmental impact statement (EIS). If USACE determines that an EIS is needed, either during preparation of the EA or after completing the EA, USACE will issue in the
Submit written comments to Mr. Craig Hilburn, Chief of Environmental Branch, U.S. Army Corps of Engineers, Planning and Environmental Division, Environmental Branch, Little Rock District, P.O. Box 867, Little Rock, AR 72203-0867. Comments will be accepted through April 5, 2016.
For questions or comments regarding the Draft Beaver Lake Master Plan and Shoreline Management Plan EA, please contact Mr. Craig Hilburn, (501) 324-5735 or email:
1.
The Public Scoping process provides information about the study to the public, serves as a mechanism to solicit agency and public input on alternatives and issues of concern, and ensures full and open participation in Scoping and review of the Draft EA. Comments received as a result of this notice, public meetings, and news releases will be used to assist the preparers in identifying potential impacts to the quality of the human or natural environment. The Corps invites other Federal agencies, Native American Tribes, State and local agencies and officials, private organizations, and interested individuals to participate in the Scoping process by forwarding written comments to (see
Office of Elementary and Secondary Education (OESE), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before May 2, 2016.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Kimberly Smith, 202-453-6469.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Office of Postsecondary Education (OPE), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before April 4, 2016.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Nofertary Fofana, 202-453-7952.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Office of Postsecondary Education (OPE), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before May 2, 2016.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Christopher McCormick, 202-502-7580.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department
Office of Fossil Energy, DOE.
Notice of amendment.
The Office of Fossil Energy (FE) of the Department of Energy (DOE) gives notice of receipt of an amendment (Amendment), filed on October 5, 2015, by Jordan Cove Energy Project, L.P. (Jordan Cove) of its pending Application in this proceeding. The Application, filed on March 23, 2012, seeks authority to export domestically produced liquefied natural gas (LNG) in a volume equivalent to 292 Bcf/yr (0.8 Bcf/day) from a proposed terminal to be located on Coos Bay in the State of Oregon to nations with which the United States does not have a Free Trade Agreement (FTA) requiring national treatment for trade in natural gas (non-FTA nations). DOE published a “Notice of Application” in the
The Amendment seeks to increase the volume of LNG for which Jordan Cove requests export authorization from the equivalent of 292 Bcf/yr to the equivalent of 350 Bcf/yr of natural gas (0.96 Bcf/day). On March 24, 2014, the Department of Energy issued DOE/FE Order No. 3413, conditionally granting Jordan Cove's Application.
In its Amendment, Jordan Cove states that it is increasing its requested volume by 58 Bcf/yr in order to reflect the maximum production capacity of the Facility of 6.8 million metric tons per annum (mtpa) of LNG.
Additional details can be found in Jordan Cove's Amendment, posted on the DOE/FE Web site at:
Because the Amendment represents a substantive and material change in the Application, DOE has determined to publish this notice in the
Protests, motions to intervene, notices of intervention, and written comments addressing the Amendment are invited.
Protests, motions to intervene or notices of intervention, as applicable, requests for additional procedures, and written comments are to be filed using procedures detailed in the Public Comment Procedures section no later than 4:30 p.m., Eastern time, March 23, 2016.
The Amendment will be reviewed in conjunction with our review of the underlying Application pursuant to section 3(a) of the NGA, 15 U.S.C. 717b(a), and DOE will consider any issues required by law or policy. To the extent determined to be relevant, these issues will include the domestic need for the natural gas proposed to be exported, the adequacy of domestic natural gas supply, U.S. energy security, and the cumulative impact of the requested authorization and any other LNG export application(s) previously approved on domestic natural gas supply and demand fundamentals. DOE may also consider other factors bearing on the public interest, including the impact of the proposed exports on the U.S. economy (including GDP, consumers, and industry), job creation, the U.S. balance of trade, and international considerations; and whether the Amendment is consistent with DOE's policy of promoting competition in the marketplace by allowing commercial parties to freely negotiate their own trade arrangements. As part of this analysis, DOE will consider the following two studies examining the cumulative impacts of LNG:
•
•
Additionally, DOE will consider the following environmental documents:
•
•
Parties that may oppose the Amendment to the Application should address the basis for their opposition to the Amendment, as well as other issues deemed relevant to the Amendment, in their comments and/or protests.
The National Environmental Policy Act (NEPA), 42 U.S.C. 4321
In response to this Notice, any person may file a protest, comments, or a motion to intervene or notice of intervention, as applicable. Interested persons will be provided 20 days from the date of publication of this Notice in which to submit comments, protests, motions to intervene, or notices of intervention. Comments and protests should address the implications of the Amendment. Because the public previously was given an opportunity to intervene in, protest, and comment on the Application, DOE/FE may disregard comments or protests on the Application that do not bear directly on the Amendment.
Any person wishing to become a party to the proceeding must file a motion to intervene or notice of intervention. The filing of comments or a protest with respect to the Application will not serve to make the commenter or protestant a party to the proceeding, although protests and comments received from persons who are not parties will be considered in determining the appropriate action to be taken on the Application. All protests, comments, motions to intervene, or notices of intervention must meet the requirements specified by the regulations in 10 CFR part 590.
Filings may be submitted using one of the following methods: (1) Emailing the filing to
A decisional record on the Amendment will be developed through responses to this notice by parties, including the parties' written comments and replies thereto. Additional procedures will be used as necessary to achieve a complete understanding of the facts and issues. If an additional procedure is scheduled, notice will be provided to all parties. If no party requests additional procedures, a final Opinion and Order may be issued based on the official record, including the Amendment and responses filed by parties pursuant to this notice, in accordance with 10 CFR 590.316.
The Amendment is available for inspection and copying in the Division of Natural Gas Regulation docket room, Room 3E-042, 1000 Independence Avenue SW., Washington, DC 20585. The docket room is open between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. The Amendment and any filed protests, motions to intervene or notice of interventions, and comments will also be available electronically by going to the following DOE/FE Web address:
U.S. Energy Information Administration (EIA), Department of Energy.
Notice and request for OMB review and comment.
EIA has submitted an information collection request to the Office of Management and Budget (OMB) for extension of the following Oil and Gas Reserves System Survey Forms pursuant to the Paperwork Reduction Act of 1995: Form EIA-23L, “
The proposed collection will be used to prepare electronic annual reports of U.S. proved reserves data that fulfill EIA's congressional mandate to provide accurate annual estimates of U.S. proved crude oil and natural gas reserves. The U.S. Government also uses the resulting information in EIA's reports to develop national and regional estimates of proved reserves of domestic crude oil and natural gas to facilitate national energy policy decisions.
Comments regarding this collection must be received on or before April 4, 2016. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, please advise the DOE Desk Officer at OMB of your intention to make a submission as soon as possible. The Desk Officer may be telephoned at 202-395-4718 or contacted by email at
Written comments should be sent to the
Requests for additional information should be directed to Mr. Grape, as listed above. The information collection instrument and instructions are available on the EIA Web site at:
This information collection request contains:
(1)
(2)
(3)
(4)
The Government also uses the resulting information to develop national and regional estimates of proved reserves of domestic crude oil and natural gas to facilitate national energy policy decisions. These estimates are essential to the development, implementation, and evaluation of energy policy and legislation. Data are used directly in EIA Web reports concerning U.S. crude oil and natural gas reserves, and are incorporated into a number of other Web reports and analyses.
EIA proposes to make the following changes to Form EIA-23L, “
• Change the title of Form EIA-23L to “
• Collect additional parent company and subsidiary company (if applicable) information on the cover page;
• Change the title of Schedule A to “Operated Proved Reserves, Production, and Related Data by County”;
• Operators will be instructed to file their proved reserves by county rather than by field. Line Item 2.0 will be named “County Data (operated basis);”
• Line Item 2.1.4 “Field Code”, will be changed to “County Name;”
• Line Item 2.1.5 “MMS Code” will be changed to “Type Code;”
• Line Item 2.1.6. “Field Name” will be changed to “Field, Play, or Prospect Name (Optional)”;
• Line Items 2.1.9 “water depth” and 2.1.10 “field discovery year” will be replaced with 2.1.9 “# of producing wells on December 31, [survey year]”, 2.1.10 “# of wells completed or purchased [in survey year]”;
• Line Item 2.1.11, “Prospect Name (optional) will be replaced with “# of wells abandoned or sold [in survey year]”; and
• Line Item 2.1.12-15, Column (F) “Extensions”, Column (G) “New Field Discoveries”, and Column (H) “New Reservoir Discoveries in Old Fields” will be replaced with Column (F) “Extensions and Discoveries”.
Comments and Feedback are requested on these proposed changes to Form EIA-23L. Secondary reports that use the data include EIA's
(5)
(6)
(7)
(8)
Section 13(b) of the Federal Energy Administration Act of 1974, Pub. L. 93-275, codified at 15 U.S.C. 772(b).
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and § 385.214) on or before 5:00 p.m. Eastern time on the specified date(s). Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any of the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the Collierville Expansion Project involving construction and operation of facilities by ANR Pipeline Company (ANR) in Shelby County, Tennessee. The Commission will use this EA in its decision-making process to determine whether the project is in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies on the project. You can make a difference by providing us with your specific comments or concerns about the project. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. Your input will help the Commission staff determine what issues they need to evaluate in the EA. To ensure that your comments are timely and properly recorded, please send your comments so that the Commission receives them in Washington, DC on or before March 28, 2016.
If you sent comments on this project to the Commission before the opening of this docket on January 20, 2016, you will need to file those comments in Docket No. CP16-64-000 to ensure they are considered as part of this proceeding.
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this proposed project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, a pipeline company representative may contact you about the acquisition of an easement to construct, operate, and maintain the proposed facilities. The company would seek to negotiate a mutually acceptable agreement. However, if the Commission approves the project, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, the pipeline company could initiate condemnation proceedings where compensation would be determined in accordance with state law.
ANR provided landowners with a fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility on My Land? What Do I Need To Know?” This fact sheet addresses a number of typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. It is also available for viewing on the FERC Web site (
For your convenience, there are three methods you can use to submit your comments to the Commission. The Commission encourages electronic filing of comments and has expert staff available to assist you at (202) 502-8258 or
(1) You can file your comments electronically using the
(2) You can file your comments electronically by using the
(3) You can file a paper copy of your comments by mailing them to the following address. Be sure to reference the project Docket No. (CP16-64-000) with your submission: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Room 1A, Washington, DC 20426.
ANR proposes to construct and modify aboveground facilities in Shelby County, Tennessee; specifically:
• A new 4,700 horsepower compressor station; and
• modifications at the existing Collierville Meter Station, including a new 12-inch ultrasonic meter run and other piping and appurtenant modifications.
The Collierville Expansion Project would expand the delivery capability of the existing Collierville Meter Station by an additional 200,000 dekatherms per day of natural gas. According to ANR, its project would serve the Tennessee Valley Authority's 1,070 megawatt Allen Combined Cycle Power Plan Project in Memphis, Tennessee.
The general location of the project facilities is shown in appendix 1.
Construction of the proposed facilities would disturb about 19.7 acres of land for the compressor station piping and aboveground facilities, 1.4 acres of which are associated with existing permanent ANR easements and rights-of-way. Following construction, ANR would maintain about 7.5 acres for permanent operation of the project's facilities, 1.4 acres of which are associated with existing permanent ANR easements and rights-of-way. The remaining acreage would be restored and revert to former uses. The location of the proposed compressor station was chosen in coordination with the property owner and based on its relative proximity to ANR's existing 501 mainline. Modifications to the Collierville Meter Station would be within existing facility boundaries or existing permanent easement.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us
In the EA we will discuss impacts that could occur as a result of the construction and operation of the proposed project under these general headings:
• Geology and soils;
• land use;
• water resources, fisheries, and wetlands;
• cultural resources;
• vegetation and wildlife;
• air quality and noise;
• endangered and threatened species;
• public safety; and
• cumulative impacts.
We will also evaluate reasonable alternatives to the proposed project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
The EA will present our independent analysis of the issues. The EA will be available in the public record through eLibrary. Depending on the comments received during the scoping process, we may also publish and distribute the EA to the public for an allotted comment period. We will consider all comments on the EA before making our recommendations to the Commission. To ensure we have the opportunity to consider and address your comments, please carefully follow the instructions in the Public Participation section, beginning on page 2.
With this notice, we are asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues of this project to formally cooperate with us in the preparation of the EA.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, we are using this notice to initiate consultation with the Tennessee State Historic Preservation Office (SHPO), and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the project's potential effects on historic properties.
The environmental mailing list includes federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project. We will update the environmental mailing list as the analysis proceeds to ensure that we send the information related to this environmental review to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed project.
Copies of the EA will be sent to the environmental mailing list for public review and comment. If you would prefer to receive a paper copy of the document instead of the CD version or would like to remove your name from the mailing list, please return the attached Information Request (appendix 2).
In addition to involvement in the EA scoping process, you may want to become an “intervenor” which is an official party to the Commission's proceeding. Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene. Instructions for becoming an intervenor are in the User's Guide under the “e-filing” link on the Commission's Web site.
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC Web site at
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Finally, public meetings or site visits will be posted on the Commission's calendar located at
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Environmental Protection Agency (EPA).
Notice of final action.
Pursuant to Clean Air Act (CAA) Section 505(b)(2) and 40 CFR 70.8(d), the Environmental Protection Agency (EPA) Administrator signed an Order, dated February 3, 2016, granting in part and denying in part the petition asking EPA to object to an operating permit issued by the Texas Commission on Environmental Quality for the Southwestern Electric Power Company (SWEPCO) H.W. Pirkey Power Plant (Title V operating permit number O31). The EPA's February 3, 2016 Order responds to the petition, dated October 30, 2014, submitted by the Environmental Integrity Project (EIP) and Sierra Club. Sections 307(b) and 505(b)(2) of the CAA provide that a petitioner may ask for judicial review by the United States Court of Appeals for the appropriate circuit of those portions of the Order that deny issues raised in the petition. Any petition for review shall be filed within 60 days from the date this notice appears in the
You may review copies of the final Order, the petition, and other supporting information at EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733. Contact the individual listed below to view documents. You may view the hard copies Monday through Friday, from 9:00 a.m. to 3:00 p.m., excluding Federal holidays. If you wish to examine these documents, you should make an appointment at least 24 hours before the visiting day. Additionally, the final February 3, 2016 Order is available electronically at:
Aimee Wilson at (214) 665-7596, email address:
The CAA affords EPA a 45-day period to review, and object, as appropriate, to a title V operating permit proposed by a state permitting authority. Section 505(b)(2) of the CAA authorizes any person to petition the EPA Administrator, within 60 days after the expiration of this review period, to object to a title V operating permit if EPA has not done so. Petitions must be based only on objections to the permit that were raised with reasonable specificity during the public comment period provided by the state, unless the petitioner demonstrates that it was impracticable to raise such objections during the comment period or unless the grounds for the objection arose after this period.
The Petitioners maintain that the SWEPCO title V operating permit is inconsistent with the Act based on the following contentions: (1) The proposed permit for the Pirkey Power Plant impermissibly provides for exemptions from title V applicable requirements during planned maintenance, startup, and shutdown (MSS) activities; and (2) the proposed permit must clarify that credible evidence may be used by citizens to enforce the terms and conditions of the permit. The claims are described in detail in Section IV of the Order.
Pursuant to sections 505(b) and 505(e) of the Clean Air Act (42 U.S.C. 7661d(b) and (e)) and 40 CFR 70.7(g) and 70.8(d), the Texas Commission on Environmental Quality (TCEQ) has 90 days from the receipt of the Administrator's order to resolve the objections identified in Claim 1 of the Order and submit a proposed determination or termination, modification, or revocation and reissuance of the SWEPCO title V permit in accordance with EPA's objection. The Order issued on February 3, 2016 responds to the Petition and explains the basis for EPA's decision.
Environmental Protection Agency (EPA).
Notice of final decision on a Request by Ineos Nitriles USA LLC of Lima, Ohio to Reissue its Exemption from the Land Disposal Restrictions under the Resource Conservation and Recovery Act.
Notice is hereby given by the U.S. Environmental Protection Agency (U.S. EPA or Agency) that an exemption to the land disposal restrictions under the 1984 Hazardous and Solid Waste Amendments to the Resource Conservation and Recovery Act (RCRA) has been granted to Ineos Nitriles USA LLC (formerly known as Ineos USA LLC) (Ineos) of Lima, Ohio for four Class I injection wells located in Lima, Ohio.
This action is effective as of March 3, 2016.
Stephen Roy, Lead Petition Reviewer, U.S. EPA, Region 5, Underground Injection Control Branch, WU-16J, 77 W. Jackson Blvd., Chicago, Illinois 60604-3590; telephone number: (312) 886-6556; fax number (312) 692-2951; email address:
Ineos submitted a request for reissuance of its existing exemption from the land disposal restrictions for hazardous waste in August, 2005. U.S. EPA reviewed all data pertaining to the petition including, but not limited to, well construction, well operations, regional and local geology, seismic activity, penetrations of the confining zone, and computational models of the injection zone. U.S. EPA has determined that the hydrogeological and geochemical conditions at the site and the nature of the waste streams are such that injected fluids will not migrate out of the injection zone within 10,000 years, as set forth at 40 CFR part 148. The injection zone includes the injection interval into which fluid is directly emplaced and the overlying arrestment interval into which fluid may diffuse. The injection interval for the Ineos facility is composed of the Lower Eau Claire Formation, the Mt. Simon Sandstone and the Middle Run Formation between 2,631 and 3,241 feet below ground level. The arrestment interval is composed of the Lower Black River Group, the Wells Creek Formation, the Knox Dolomite and the Upper Eau Claire Formation between 1,631 and 2,631 feet below ground level. The confining zone is composed of the Upper Black River Group between 1,427 and 1,631 feet below ground level. The confining zone is separated from the lowermost underground source of drinking water (at a depth of approximately 400 feet below ground level) by a sequence of permeable and less permeable sedimentary rocks. This sequence provides additional protection from fluid migration into drinking water sources.
U.S. EPA issued a draft decision, which described the reasons for granting this exemption in more detail, a fact sheet, which summarized these reasons, and a public notice on September 10, 2015, pursuant to 40 CFR 124.10. The public comment period ended on October 13, 2015. U.S. EPA received comments from one citizen during the comment period. U.S. EPA has prepared a response to these comments, which can be viewed at the following URL:
This exemption is subject to the following conditions. Non-compliance with any of these conditions is grounds for termination of the exemption.
(1) The exemption applies to the four existing hazardous waste injection wells, #1, #2, #3, and #4, located at the Ineos facility at 1900 Fort Amanda Road, Lima, Ohio;
(2) Injection of hazardous waste is limited to the parts of the Lower Eau Claire Formation, the Mt. Simon Sandstone and the Middle Run Formation at depths between 2,631 and 3,241 feet below ground level;
(3) The only RCRA-restricted wastes that may be injected are those designated by the RCRA waste codes found in Table 1;
(4) Maximum concentrations of chemicals that are allowed to be injected are listed in Table 2;
(5) The average specific gravity of the injected waste stream must be between 1.00 and 1.05 over a three month period;
(6) Ineos may inject up to 175 gallons per minute through each of its four wells, based on a monthly average;
(7) This exemption is approved for the 20-year modeled injection period, which ends on January 31, 2025. Ineos may petition U.S. EPA for reissuance of the exemption beyond that date, provided that a new and complete petition and no-migration demonstration is received at U.S. EPA, Region 5, by June 30, 2024;
(8) Ineos must submit a quarterly report containing the fluid analyses of the injected waste and indicate the chemical and physical properties, including the concentrations, of all the injected chemical constituents listed in Table 2 to U.S. EPA;
(9) Ineos must submit an annual report containing the results of a bottom hole pressure survey (fall-off test) performed on one well each year to U.S. EPA. The survey must be performed after shutting down the well for sufficient time to conduct a valid observation of the pressure fall-off curve under 40 CFR 146.68(e)(1). The annual report must include a comparison of reservoir parameters determined from the fall-off test with parameters used in the approved no-migration petition;
(10) Ineos must submit the results of radioactive tracer surveys and annulus pressure tests for its four wells to U.S. EPA annually;
(11) Ineos must notify U.S. EPA in writing if any well loses mechanical integrity and prior to any workover or plugging;
(12) Ineos must fully comply with all requirements set forth in Underground Injection Control Permits #UIC 03-02-003-PTO-1, UIC 03-02-004-PTO-1, UIC 03-02-005-PTO-01 and 03-02-006-PTO-1 issued by the Ohio Environmental Protection Agency;
(13) Upon the expiration, cancellation, reissuance, or modification of the permits referenced above, this exemption is subject to review by U.S. EPA; and
(14) Whenever U.S. EPA determines that the basis for approval of a petition under 40 CFR 148.23 and 148.24 may no longer be valid, U.S. EPA may terminate this exemption and will require a new demonstration in accordance with 40 CFR 148.20.
These waste codes are identified in 40 CFR part 261, subpart C and subpart D.
Note 1—Worst-case constituent. Health Based Limit (HBL) contour for no-migration boundary set at 1.0 × 10
Note 2—Constituents not associated with an EPA RCRA waste code or listed in HBL guidelines are assigned the minimum C/C
Environmental Protection Agency (EPA).
Notice.
Since 1988, the Environmental Protection Agency (EPA) has maintained a Federal Agency Hazardous Waste Compliance Docket (“Docket”) under Section 120(c) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Section 120(c) requires EPA to establish a Docket that contains certain information reported to EPA by Federal facilities that manage hazardous waste or from which a reportable quantity of hazardous substances has been released. As explained further below, the Docket is used to identify Federal facilities that should be evaluated to determine if they pose a threat to public health or welfare and the environment and to provide a mechanism to make this information available to the public.
This notice includes the complete list of Federal facilities on the Docket and also identifies Federal facilities reported to EPA since the last update of the Docket on August 17, 2015. In addition to the list of additions to the Docket, this notice includes a section with revisions of the previous Docket list. Thus, the revisions in this update include 7 additions, 22 corrections, and 42 deletions to the Docket since the previous update. At the time of publication of this notice, the new total number of Federal facilities listed on the Docket is 2,326. Since the last update, EPA has identified a discrepancy in the total number of facilities published in the
This list is current as of February 12, 2016.
Electronic versions of the Docket and more information on its implementation can be obtained at
Section 120(c) of CERCLA, 42 United States Code (U.S.C.) § 9620(c), as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), requires EPA to establish the Federal Agency Hazardous Waste Compliance Docket. The Docket contains information on Federal facilities that manage hazardous waste and such information is submitted by Federal agencies to EPA under Sections 3005, 3010, and 3016 of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6925, 6930, and 6937. Additionally, the Docket contains information on Federal facilities with a reportable quantity of hazardous substances that has been released and such information is submitted by Federal agencies to EPA under Section 103 of CERCLA, 42 U.S.C. 9603. Specifically, RCRA Section 3005 establishes a permitting system for certain hazardous waste treatment, storage, and disposal (TSD) facilities; RCRA Section 3010 requires waste generators, transporters and TSD facilities to notify EPA of their hazardous waste activities; and RCRA Section 3016 requires Federal agencies to submit biennially to EPA an inventory of their Federal hazardous waste facilities. CERCLA Section 103(a) requires the owner or operator of a vessel or onshore or offshore facility to notify the National Response Center (NRC) of any spill or other release of a hazardous substance that equals or exceeds a reportable quantity (RQ), as defined by CERCLA Section 101. Additionally, CERCLA Section 103(c) requires facilities that have “stored, treated, or disposed of” hazardous wastes and where there is “known, suspected, or likely releases” of hazardous substances to report their activities to EPA.
CERCLA Section 120(d) requires EPA to take steps to assure that a Preliminary Assessment (PA) be completed for those sites identified in the Docket and that the evaluation and listing of sites with a PA be completed within a reasonable time frame. The PA is designed to provide information for EPA to consider when evaluating the site for potential response action or inclusion on the National Priorities List (NPL).
The Docket serves three major purposes: (1) To identify all Federal facilities that must be evaluated to determine whether they pose a threat to human health and the environment sufficient to warrant inclusion on the National Priorities List (NPL); (2) to compile and maintain the information submitted to EPA on such facilities under the provisions listed in Section 120(c) of CERCLA; and (3) to provide a mechanism to make the information available to the public.
The initial list of Federal facilities to be included on the Docket was published in the
This notice provides some background information on the Docket. Additional information on the Docket requirements and implementation are found in the Docket Reference Manual, Federal Agency Hazardous Waste Compliance Docket found at
In prior updates, information was also provided regarding No Further Remedial Action Planned (NFRAP) status changes. However, information on NFRAP and NPL status is no longer being provided separately in the Docket update as it is now available at:
Contact the following Docket Coordinators for information on Regional Docket repositories:
Martha Bosworth (HBS), US EPA Region 1, 5 Post Office Square, Suite 100, Mail Code: OSRR07-2, Boston MA 02109-3912, (617) 918-1407.
Helen Shannon (ERRD), US EPA Region 2, 290 Broadway, New York, NY 10007-1866, (212) 637- 4260.
Joseph Vitello (3HS12), US EPA Region 3, 1650 Arch Street, Philadelphia, PA 19107, (215) 814-3354.
Dawn Taylor (4SF-SRSEB), US EPA Region 4, 61 Forsyth St. SW., Atlanta, GA 30303, (404) 562-8575.
Michael Chrystof (SR-6J), US EPA Region 5, 77 W. Jackson Blvd., Chicago, IL 60604, (312) 353-3705.
Philip Ofosu (6SF-RA), US EPA Region 6, 1445 Ross Avenue, Dallas, TX 75202-2733, (214) 665-3178.
Paul Roemerman (SUPRERSP), US EPA Region 7, 11201 Renner Blvd., Lenexa, KS 66219, (913) 551-7694.
Ryan Dunham (EPR-F), US EPA Region 8, 1595 Wynkoop Street, Denver, CO 80202, (303) 312-6627.
Leslie Ramirez (SFD-6-1), US EPA Region 9, 75 Hawthorne Street, San Francisco, CA 94105, (415) 972-3978.
Monica Lindeman (ECL, ABU), US EPA Region 10, 1200 Sixth Avenue, Suite 900, ECL-112, Seattle, WA 98101, (206) 553-5113.
This section includes a discussion of the additions and deletions to the list of Docket facilities since the previous Docket update.
In this notice, 7 Federal facilities are being added to the Docket, primarily because of new information obtained by EPA (for example, recent reporting of a facility pursuant to RCRA Sections 3005, 3010, or 3016 or CERCLA Section 103). CERCLA Section 120, as amended by the Defense Authorization Act of 1997, specifies that EPA take steps to assure that a Preliminary Assessment (PA) be completed within a reasonable time frame for those Federal facilities that are included on the Docket. Among other things, the PA is designed to provide information for EPA to consider when evaluating the site for potential response action or listing on the NPL.
In this notice, 42 Federal facilities are being deleted from the Docket. There are no statutory or regulatory provisions that address deletion of a facility from the Docket. However, if a facility is incorrectly included on the Docket, it may be deleted from the Docket. The criteria EPA uses in deleting sites from the Docket include: A facility for which there was an incorrect report submitted for hazardous waste activity under RCRA (
Changes necessary to correct the previous Docket are identified by both EPA and Federal agencies. The corrections section may include changes in addresses or spelling, and corrections of the recorded name and ownership of a Federal facility. In addition, changes in the names of Federal facilities may be made to establish consistency in the Docket or between the Superfund Enterprise Management System (SEMS) and the Docket. For the Federal facility for which a correction is entered, the original entry is as it appeared in previous Docket updates. The corrected update is shown directly below, for easy comparison. This notice includes 22 corrections.
In compiling the newly reported Federal facilities for the update being published in this notice, EPA extracted the names, addresses, and identification numbers of facilities from four EPA databases—the WebEOC, the Biennial Inventory of Federal Agency Hazardous Waste Activities, the Resource Conservation and Recovery Act Information System (RCRAInfo), and SEMS—that contain information about Federal facilities submitted under the four provisions listed in CERCLA Section 120(c).
EPA assures the quality of the information on the Docket by conducting extensive evaluation of the current Docket list and contacts the other Federal Agency (OFA) with the information obtained from the databases identified above to determine which Federal facilities were, in fact, newly reported and qualified for inclusion on the update. EPA is also striving to correct errors for Federal facilities that were previously reported. For example, state-owned or privately-owned facilities that are not operated by the Federal government may have been included. Such problems are sometimes caused by procedures historically used to report and track Federal facilities data. Representatives of Federal agencies are asked to contact the EPA HQ Docket Coordinator at the address provided in the
Certain categories of facilities may not be included on the Docket, such as: (1) Federal facilities formerly owned by a Federal agency that at the time of consideration was not Federally-owned or operated; (2) Federal facilities that are small quantity generators (SQGs) that have never generated more than 1,000 kg of hazardous waste in any month; (3) Federal facilities that are solely hazardous waste transportation facilities, as reported under RCRA Section 3010; and (4) Federal facilities that have mixed mine or mill site ownership.
An EPA policy issued in June 2003 provided guidance for a site-by-site evaluation as to whether “mixed ownership” mine or mill sites, typically created as a result of activities conducted pursuant to the General Mining Law of 1872 and never reported under Section 103(a), should be included on the Docket. For purposes of that policy, mixed ownership mine or mill sites are those located partially on private land and partially on public land. This policy is found at
EPA typically tracks the NPL status of Federal facilities listed on the Docket. An updated list of the NPL status of all Docket facilities, as well as their NFRAP status, is available at
The information is provided in four tables. The first table is a list of new Federal facilities that are being added to the Docket. The second table is a list of Federal facilities that are being deleted from the Docket. The third table is for corrections. The fourth table is the complete Docket list, this list is current and includes the changes from Update #29.
The Federal facilities listed in each table are organized by the date reported. Under each heading is listed the name and address of the facility, the Federal agency responsible for the facility, the statutory provision(s) under which the
The statutory provisions under which a Federal facility is reported are listed in a column titled “Reporting Mechanism.” Applicable mechanisms are listed for each Federal facility: For example, Sections 3005, 3010, 3016, 103(c), or Other. “Other” has been added as a reporting mechanism to indicate those Federal facilities that otherwise have been identified to have releases or threat of releases of hazardous substances. The National Contingency Plan 40 CFR 300.405 addresses discovery or notification, outlines what constitutes discovery of a hazardous substance release, and states that a release may be discovered in several ways, including: (1) A report submitted in accordance with Section 103(a) of CERCLA,
The complete list of Federal facilities that now make up the Docket and the NPL and NFRAP status are available to interested parties and can be obtained at
(1) Small-Quantity Generator. Show citation box.
(2) Never Federally Owned and/or Operated.
(3) Formerly Federally Owned and/or Operated but not at time of listing.
(4) No Hazardous Waste Generated.
(5) (This code is no longer used.)
(6) Redundant Listing/Site on Facility.
(7) Combining Sites Into One Facility/Entries Combined.
(8) Does Not Fit Facility Definition.
(15) Small-Quantity Generator with either a RCRA 3016 or CERCLA 103 Reporting Mechanism.
(16) One Entry Being Split Into Two (or more)/Federal Agency Responsibility Being Split.
(17) New Information Obtained Showing That Facility Should Be Included.
(18) Facility Was a Site on a Facility That Was Disbanded; Now a Separate Facility.
(19) Sites Were Combined Into One Facility.
(19A) New Currently Federally Owned and/or Operated Facility Site.
(20) Reporting Provisions Change.
(20A) Typo Correction/Name Change/Address Change.
(21) Changing Responsible Federal Agency. (If applicable, new responsible Federal agency submits proof of previously performed PA, which is subject to approval by EPA.)
(22) Changing Responsible Federal Agency and Facility Name. (If applicable, new responsible Federal Agency submits proof of previously performed PA, which is subject to approval by EPA.)
(24) Reporting Mechanism Determined To Be Not Applicable After Review of Regional Files.
Farm Credit Administration.
Notice is hereby given, pursuant to the Government in the Sunshine Act, of the regular meeting of the Farm Credit Administration Board (Board).
The regular meeting of the Board will be held at the offices of the Farm Credit Administration in McLean, Virginia, on March 10, 2016, from 9:00 a.m. until such time as the Board concludes its business.
Dale L. Aultman, Secretary to the Farm Credit Administration Board, (703) 883-4009, TTY (703) 883-4056.
Farm Credit Administration, 1501 Farm Credit Drive, McLean, Virginia 22102-5090. Submit attendance requests via email to
This meeting of the Board will be open to the public (limited space available). Please send an email to
Based upon the foregoing, the Receiver has determined that the continued existence of the receivership will serve no useful purpose. Consequently, notice is given that the receivership shall be terminated, to be effective no sooner than thirty days after the date of this Notice. If any person wishes to comment concerning the termination of the receivership, such comment must be made in writing and sent within thirty days of the date of this Notice to: Federal Deposit Insurance Corporation, Division of Resolutions and Receiverships, Attention: Receivership Oversight Department 34.1, 1601 Bryan Street, Dallas, TX 75201.
No comments concerning the termination of this receivership will be considered which are not sent within this time frame.
Based upon the foregoing, the Receiver has determined that the continued existence of the receivership will serve no useful purpose. Consequently, notice is given that the receivership shall be terminated, to be effective no sooner than thirty days after the date of this Notice. If any person wishes to comment concerning the termination of the receivership, such comment must be made in writing and sent within thirty days of the date of this Notice to: Federal Deposit Insurance Corporation, Division of Resolutions and Receiverships, Attention: Receivership Oversight Department 32.1, 1601 Bryan Street, Dallas, TX 75201.
No comments concerning the termination of this receivership will be considered which are not sent within this time frame.
Based upon the foregoing, the Receiver has determined that the continued existence of the receivership will serve no useful purpose. Consequently, notice is given that the receivership shall be terminated, to be effective no sooner than thirty days after the date of this Notice. If any person wishes to comment concerning the termination of the receivership, such comment must be made in writing and sent within thirty days of the date of this Notice to: Federal Deposit Insurance Corporation, Division of Resolutions and Receiverships, Attention: Receivership Oversight Department 32.1, 1601 Bryan Street, Dallas, TX 75201.
No comments concerning the termination of this receivership will be considered which are not sent within this time frame.
Based upon the foregoing, the Receiver has determined that the continued existence of the receivership will serve no useful purpose. Consequently, notice is given that the receivership shall be terminated, to be effective no sooner than thirty days after the date of this Notice. If any person wishes to comment concerning the termination of the receivership, such comment must be made in writing and sent within thirty days of the date of this Notice to: Federal Deposit Insurance Corporation; Division of Resolutions and Receiverships; Attention: Receivership Oversight Department 32.1; 1601 Bryan Street; Dallas, TX 75201.
No comments concerning the termination of this receivership will be considered which are not sent within this time frame.
Federal Housing Finance Agency.
Notice of complete revision to an existing system of records.
In accordance with the requirements of the Privacy Act of 1974, as amended, 5 U.S.C. 552a (Privacy Act), the Federal Housing Finance Agency (FHFA) gives notice of a complete revision to an existing Privacy Act system of records.
The existing system is Correspondence Tracking System (FHFA-3) and is being revised in its entirety. The system is being revised to clarify and update the categories of individuals covered by the system, the categories of records in the system, and the purposes of the system; to reduce the number of routine uses of the information; and to update where to send notifications, and requests or appeals. The revised System will contain information that FHFA will use for tracking and responding to general Correspondence, Consumer Complaints, Congressional correspondence, and inquiries to FHFA's Ombudsman.
To be assured of consideration, comments should be received on or before April 4, 2016. This revised system of records will become effective on April 12, 2016 without further notice unless comments necessitate otherwise. FHFA will publish a new notice if the effective date is delayed to review comments or if changes are made based on comments received.
Submit comments to FHFA
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Megan Moore, Special Advisor, Office of the Director at (202) 649-3018; or David A. Lee, Senior Agency Official for Privacy,
This notice informs the public of FHFA's proposal to revise in its entirety an existing system of records. This notice satisfies the Privacy Act requirement that an agency publish a system of records notice in the
As required by the Privacy Act, 5 U.S.C. 552a(r), and 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 (61 FR 6428, 6435
The revised system of records described above is set forth in its entirety below.
Correspondence Tracking System.
Sensitive but unclassified.
Federal Housing Finance Agency, 400 7th Street SW., Washington, DC 20219, and any alternate work site utilized by employees of the Federal Housing Finance Agency (FHFA) or by individuals assisting such employees.
An individual or entity who submits a request or inquiry to FHFA. This does not include inquiries or requests made under the Freedom of Information Act (5 U.S.C. 552) or the Privacy Act of 1974, as amended (5 U.S.C. 552a) which are covered by FHFA's System of Records Notice
Contact information such as name, address (home, property, mailing, and/or business), telephone numbers including cellular telephone numbers (personal and business), email (personal and business), and any other personally identifiable information an individual or entity voluntarily provides to FHFA.
Federal Housing Enterprises Financial Safety and Soundness Act of 1992, as amended (12 U.S.C. 4501
The purpose of the system is to capture and track correspondence that FHFA receives from external sources (the general public, Congress, FHFA regulated entities, other federal entities, and state and local governments). The system will capture information about the sender of the correspondence and the nature of the correspondence. The system will help ensure FHFA responds to the inquiry in a timely and accurate manner.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside FHFA as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
(1) When (a) it is suspected or confirmed that the security or confidentiality of information in the system of records has been compromised; (b) FHFA 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 FHFA or another agency or entity) that rely upon the compromised information; and (c) the disclosure is made to such agencies, entities, and persons who are reasonably necessary to assist in connection with FHFA's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
(2) Records in this system may, in the discretion of FHFA, be disclosed to any individual during the course of any inquiry or investigation conducted by FHFA, or in connection with civil or administrative litigation, if FHFA has reason to believe that the individual to whom the record is disclosed may have further information about the matters related therein, and those matters appeared to be relevant at the time to the subject matter of the inquiry.
(3) A record or information in this system may be disclosed to any individual with whom FHFA contracts to reproduce, by typing, photocopy or other means, any record within this system for use by FHFA and its employees in connection with their official duties or to any individual who is utilized by FHFA to perform clerical or stenographic functions relating to the official business of FHFA.
(4) To appropriate federal, state, and local authorities responsible for investigating or prosecuting a violation of, or for enforcing or implementing a statute, rule, regulation, or order issued, when the information indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto.
(5) To a court, magistrate, or other administrative body in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings, when FHFA is a party to the proceeding or has a significant interest in the proceeding, to the extent that the information is determined to be relevant and necessary.
(6) Disclosure may be made to a Congressional office from the record of an individual in response to an inquiry from the Congressional office made at the request of that individual.
(7) To contractor personnel, interns, and others performing or working on a contract or project for FHFA.
(8) To a regulated entity for the purposes of responding to an inquiry or request.
(9) To another Federal agency if the records are relevant and necessary to carry out FHFA's authorized functions, or if the other Federal agency is the proper agency to respond to the individual submitting an inquiry or request to FHFA.
(10) To the National Archives and Records Administration, Office of Government Information Services (OGIS), to the extent necessary to fulfill its responsibilities in 5 U.S.C. 552(b), to review administrative agency policies, procedures and compliance with the Freedom of Information Act (FOIA), and to facilitate OGIS' offering of mediation services to resolve disputes between persons making FOIA requests and administrative agencies.
None.
Records are maintained in electronic format, paper form, and magnetic disk or tape. Electronic records are stored in computerized databases. Paper and magnetic disk, or tape records are stored in locked file rooms, locked file cabinets and/or safes.
Records may be retrieved by any of the following: Name, telephone number, street address, email address, or assigned file number.
Records are safeguarded in a secured environment. Buildings where records are stored have security cameras and 24-
Records are retained and disposed of in accordance with the appropriate National Archives and Records Administration General Records Schedules and FHFA Retention Schedules.
Office of Congressional Affairs and Communications, Federal Housing Finance Agency, 400 7th Street SW., Washington, DC 20219.
Direct inquiries as to whether this system contains a record pertaining to an individual to the Privacy Act Officer. Inquiries may be mailed to the Privacy Act Officer, Federal Housing Finance Agency, 400 7th Street SW., Washington, DC 20219, or electronically at
Direct requests for access to a record to the Privacy Act Officer. Requests may be mailed to the Privacy Act Officer, Federal Housing Finance Agency, 400 7th Street SW., Washington, DC 20219, or can be submitted electronically at
Direct requests to contest or appeal an adverse decision for a record to the Privacy Act Appeals Officer. Requests may be mailed to the Privacy Act Appeals Officer, Federal Housing Finance Agency, 400 7th Street SW., Washington, DC 20219, or can be submitted electronically at
Information is provided by individuals and entities.
None.
Board of Governors of the Federal Reserve System.
Notice is hereby given of the final approval of a proposed information collection by the Board of Governors of the Federal Reserve System (Board) under OMB delegated authority. Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. Copies of the Paperwork Reduction Act Submission, supporting statements and approved collection of information instrument(s) are placed into OMB's public docket files. The Federal Reserve may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after October 1, 1995, unless it displays a currently valid OMB control number.
Federal Reserve Board Acting Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System, Washington, DC 20551 (202) 452-3829. Telecommunications Device for the Deaf (TDD) users may contact (202) 263-4869, Board of Governors of the Federal Reserve System, Washington, DC 20551.
OMB Desk Officer—Shagufta Ahmed—Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW., Washington, DC 20503.
In addition, the Board is responsible for implementing and drafting regulations, interpretations, and other guidance for various payments, consumer protection, and other laws (including provisions of the Federal Reserve Act other than those cited above). The information obtained from the Federal Reserve Payments Study may be used in support of the Board's development and implementation of regulations, interpretations, and supervisory guidance for these laws. Therefore, the survey questions in the FR 3066 are authorized pursuant to the Board's authority under one or more of the following statutes:
Additionally, depending upon the survey respondent, the information collection may be authorized under a more specific statute. Specifically, the Board is authorized to collect information from state member banks under section 9 of the Federal Reserve Act (12 U.S.C. 324); from bank holding companies (and their subsidiaries) under section 5(c) of the Bank Holding Company Act (12 U.S.C. 1844(c)); from savings and loan holding companies under 12 U.S.C. 1467a(b) and 5412, from Edge and agreement corporations under sections 25 and 25A of the Federal Reserve Act (12 U.S.C. 602 and 625); and from U.S. branches and agencies of foreign banks under section 7(c)(2) of the International Banking Act of 1978 (12 U.S.C. 3105(c)(2)), and under section 7(a) of the Federal Deposit Insurance Act (12 U.S.C. 1817(a)).
Participation in the survey is voluntary. Although the Board has the authority to require participation by state member banks, bank holding companies (and their subsidiaries), savings and loan holding companies, Edge and agreement corporations, and U.S. branches and agencies of foreign banks supervised by the Federal Reserve, it has not done so.
Respondents to the various surveys are requested to report confidential business information, such as information requested in the FR 3066a (for depository and financial institutions) about the number and value of deposits in various customer accounts, broken out by type; image check deposits vs. paper check deposits, ACH entries, wire transfers, debit and prepaid card transactions, credit card transactions, mobile payments, and third-party fraud. The other surveys request similar types of confidential “number and value” information appropriate to the surveyed entities:
Under exemption 4 of the Freedom of Information Act (“FOIA”), 5 U.S.C. 552(b)(4), “trade secrets and commercial or financial information obtained from a person and privileged or confidential” may be excluded from disclosure. The confidential business information collected voluntarily from individual respondents may be withheld, as release of such information would impair the Board's ability to collect such information in the future. Moreover, disclosure of such confidential business information could cause substantial competitive harm to the survey respondents.
The FR 3066a currently collects information on the national volume (number and value) of major categories and subcategories of established and emerging methods of payment from a nationally representative stratified random sample of depository institutions.
The Federal Reserve received written comments from one payment industry association, one merchant trade association, one payment card network, and one private citizen. All commenters supported the data collection effort, and noted that the information is widely used by payment system participants as a benchmark and to gain insights into payment system trends. Commenters believed that providing the data requested in the surveys would generally not be burdensome to respondents.
At the Federal Reserve's request, contractors assisting with the survey design conducted industry outreach calls to obtain comments on the clarity of the survey forms and the feasibility of providing the requested data items. Institutions represented in the calls included financial institutions, networks, and processors of several types and sizes. Specific questions were not included in the initial request for public comment.
A variety of revisions to the surveys resulted from outreach discussions with participants as well, and generally involved clarifications or restatements of questions in order to address issues brought up in these discussions. The detailed discussion below addresses the specific substantive issues that arose from the written comments and outreach efforts, and the Federal Reserve's modifications to the surveys in response to the comments. In addition to these modifications, minor clarifications would be made to the surveys in response to the comments.
The Federal Reserve proposed to collect annual 2015 data instead of one month as in the 2013 version, as the resulting data can be more easily compared with data collected in the FR 3066b, and avoid concerns about seasonal effects. While some institutions noted an inability to report a full calendar year of information for some items, others reported no difficulty or even a reduction in burden. The survey will provide instructions on how to respond when annual data is difficult to report, and will accommodate the reporting of best available information from institutions experiencing difficulty reporting the full year. For example, the survey will accommodate the reporting of an alternative time period, indicated via a notes field provided at the end of each section.
Substantial clarifications have been added throughout the surveys, based on discussions with outreach participants. These discussions led to a comprehensive set of revisions specifically made to clarify the surveys, and thereby reduce the burden of response. A glossary of terms, frequently asked questions document, user-friendly Web tools, and an 800-number help line will be provided to ease response. Materials will continue to be developed and clarified as necessary to help facilitate response.
Written comments directed at the 3066a primarily discussed the ACH and the Unauthorized Third-Party Payment Fraud sections. In particular, one comment argued that the institution originating the payment is “in the best position to monitor and report on transaction volume, value, and returns.” This argument suggested that questions about ACH debit payments should be collected from the perspective of the originating depository financial institution (ODFI), or the payee's depository institution. In order to be responsive to this concern, questions were added to collect ACH debits from this perspective. In addition, to address concerns with the reporting of unauthorized third-party fraud payments, questions on the number of returned ACH debits, along with a breakdown of various categories of returns were also added from the ODFI perspective.
Consistent with the design of the sampling and estimation methods, past surveys collected ACH debit payments and related information from the perspective of the receiving depository financial institution (RDFI). In order to preserve comparability with past surveys and compatibility with the sampling and estimation methods, these questions were retained. One comment suggested that surveying RDFIs would not generate reliable data. Collecting information from both parties to the transaction should shed light on these concerns and help to improve understanding of the ACH data overall.
One comment requested that a “near real-time” line item be added to the ACH section. Meanwhile, as discussed above, concerns about the ability of depository institutions to respond to ACH questions resulted in additional questions in the ACH section. Also, the related “same-day” settlement question was removed given the
Additional comments expressed concerns with some ACH definitions in the survey that may appear confusing. These definitions have been used in past surveys, however, and participants have generally found them clear. In part, confusion about these questions may have stemmed from the omission of some descriptive information from the posted surveys. A glossary and fuller descriptive information on these terms are published in the detailed report and surveys from 2013. As in past surveys, the glossary and fuller descriptions of the questions, revised appropriately, will be provided in the complete survey distributed to participants.
One comment suggested adding questions about mobile debit card routing options provided on debit cards. These questions were not added in the present survey, in part because the materiality of the question has not been established. Questions about the provisioning of mobile wallets are new to the survey, and additional questions may be added in the future if a baseline can be established.
Substantial clarifications have been added to the surveys, based on discussions with outreach participants. In addition, some questions were deleted and some added based on feedback received.
In a sweeping change affecting most surveys, a new question allowing the option to select the preferred basis to use for allocations of detailed payments data and, separately, fraud data was added. In the previous version of the survey, participants were asked to allocate details on the basis of Net, Authorized and Settled transactions (NAST). NAST will remain the default selection, but participants may choose Total authorized transactions, or Net Purchase Transactions as the basis instead. This change is expected to substantially reduce the burden of providing details for some respondents.
Allocations between contact and contactless payments were dropped, based on comments suggesting such allocations would be difficult or impossible to provide.
Revisions to the general-purpose prepaid card surveys were made to make the data and terminology more consistent with the FR 3063a Government-Administered, General Use Prepaid Card Survey.
Some comments addressed specific concerns with the ability to distinguish or report certain requested items in the survey. Our survey process is designed to accommodate such concerns, and we will work with participants to collect those data participants can report.
The deferred payment processor survey was discontinued.
One comment requested that a question be designed to capture net chargebacks from the general-purpose card networks. The Federal Reserve believes that the current question “chargebacks (issuer-initiated)” is equivalent to the requested item, and could be contrasted with the question “adjustments and returns (acquirer-initiated).” A more detailed examination of chargebacks is beyond the scope of the current surveys.
Another comment suggested the omission of the question to identify the volumes of “3-D secure” authentication, which is typically provided by the card networks. As an alternative, the comment suggested including a variety of other types of authentication that might not be tracked by or reported to the networks. Discussions with card networks suggested that the ability to report the use of alternative authentication methods was not possible. The Federal Reserve will retain this question, but notes that the “Online Payment Authentication Methods Processor” survey (formerly the “Secure Online Payment Processor
Another comment addressed concerns about the collection of information on the “tokenization” of payments from card networks. Such solutions can be implemented in various ways by parties to the transaction. It would be difficult to comprehensively measure the variety of tokenization schemes being used. The Federal Reserve believes it is important to collect information from survey respondents that is feasible, even when the universe of competing methods cannot be measured in the survey. Given that the surveys sometimes collect partial information, it is important to recognize any limitations on new and emerging trends, especially at the analysis and reporting stages.
A comment suggested collecting “counterfeit” fraud for remote payments. The survey collects counterfeit card fraud, which, according to card network definitions, means that a fake version of the card is created and used at a merchant's point-of-sale card terminal, an in-person situation. Remote payment fraud is classified by the card networks as an “unauthorized use of account number.” The Federal Reserve believes this definition will capture the type of fraud requested in the comment.
A comment requested some detail on mobile wallet provisioning. As mobile wallet questions are new for this survey, the Federal Reserve will not expand mobile wallet questions until a baseline can be established.
One comment requested the addition of questions on the number of cards in force with multi-factor authentication mechanisms. The revised survey includes a question on the use of chips for private-label cards for the first time. Additional questions may be considered once a baseline is established.
A comment suggested collecting additional detail on authentication methods used for EBT payments. The Federal Reserve believes that EBT payments are almost exclusively PIN authenticated. Past survey efforts have not been successful in obtaining much detail underlying EBT payments, and the survey detail already requested may be difficult to obtain. No additional questions concerning authentication methods will be added at this time. If the situation improves, the Federal Reserve will seek to collect additional relevant detail in the future.
A comment requested clarity with respect to the definition of a remote mobile transaction. Across all surveys, a remote payment is one in which the payment transaction is performed remotely, regardless of where or how the good or service is obtained. In an example with a remote card preauthorization, but with a payment made in person, the survey definition is that the payment is an in-person payment.
A comment suggested breaking out fraudulent mobile wallet transactions into person-present and remote categories. This requested breakout was added to the final proposed survey.
A comment suggested tracking the number of fraudulently provisioned cards to mobile wallets. The Federal Reserve does not know how such a question should fit into the present survey framework at this time, but believes that information on the number of fraudulent mobile wallet transactions may serve as a useful alternative measure.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than March 17, 2016.
A. Federal Reserve Bank of Dallas (Robert L. Triplett III, Senior Vice President) 2200 North Pearl Street, Dallas, Texas 75201-2272:
1.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than March 18, 2016.
A. Federal Reserve Bank of Kansas City (Dennis Denney, Assistant Vice President) 1 Memorial Drive, Kansas City, Missouri 64198-0001:
1.
Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS).
Notice of computer matching program.
In accordance with the requirements of the Privacy Act of 1974, as amended, this notice announces the establishment of a computer matching program that CMS plans to conduct with the State-based Administering Entities.
Comments are invited on all portions of this notice. Submit public comments on or before April 1, 2016. The computer matching program will become effective no sooner than 40 days after the report of the computer matching program is sent to the Office of Management and Budget (OMB) and copies of the agreement are sent to Congress, or 30 days after publication in the
The public should send comments to: CMS Privacy Officer, Division of Security, Privacy Policy and Governance, Information Security and Privacy Group, Office of Enterprise Information, CMS, Room N1-24-08, 7500 Security Boulevard, Baltimore, Maryland 21244-1850. Comments received will be available for review at this location, by appointment, during regular business hours, Monday through Friday from 9:00 a.m.-3:00 p.m., Eastern Time zone.
Elizabeth Kane, Acting Director, Verifications Policy & Operations Division, Eligibility and Enrollment Policy and Operations Group, Center for Consumer Information and Insurance Oversight, CMS, 7501 Wisconsin Avenue, Bethesda, MD 20814, Office Phone: (301) 492-4418, Facsimile: (443) 380-5531, Email:
The Computer Matching and Privacy Protection Act of 1988 (Pub. L. 100-503), amended the Privacy Act (5 U.S.C. 552a) by describing the manner in which computer matching involving Federal agencies could be performed and adding certain protections for individuals applying for and receiving Federal benefits. Section 7201 of the Omnibus Budget Reconciliation Act of 1990 (Pub. L. 101-508) further amended the Privacy Act regarding protections for such individuals. The Privacy Act, as amended, regulates the use of computer matching by Federal agencies when records in a system of records are matched with other Federal, state, or local government records. It requires Federal agencies involved in computer matching programs to:
1. Negotiate written agreements with the other agencies participating in the matching programs;
2. Obtain the Data Integrity Board approval of the match agreements;
3. Furnish detailed reports about matching programs to Congress and OMB;
4. Notify applicants and beneficiaries that their records are subject to matching; and,
5. Verify match findings before reducing, suspending, terminating, or denying an individual's benefits or payments.
This matching program meets the requirements of the Privacy Act of 1974, as amended.
Name: “Computer Matching Agreement between the Department of Health and Human Services, Centers for Medicare & Medicaid Services and the State-Based Administering Entities for Determining Eligibility for Enrollment in Applicable State Health Subsidy Programs under the Patient Protection and Affordable Care Act.”
Unclassified.
Department of Health and Human Services (HHS), Centers for Medicare & Medicaid Services (CMS), and the State-Based Administering Entities.
Sections 1411 and 1413 of the Patient Protection and Affordable Care Act of 2010 (Pub. L. 111-148), as amended by the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111-152) (collectively, the ACA) require the Secretary of HHS to establish a program for applying for and determining eligibility for enrollment in applicable State health subsidy programs and authorizes the use of secure, electronic interfaces and an on-line system for the verification of eligibility.
The Computer Matching and Privacy Protection Act of 1988 (CMPPA) (Pub. L. 100-503), amended the Privacy Act (5 U.S.C. 552a) requires the parties participating in a matching program to execute a written agreement specifying the terms and conditions under which the matching will be conducted. CMS has determined that status verification checks to be conducted by the Federally-facilitated Exchange (FFE), and State-based Administering Entities using the data transmitted through the CMS Federal Data Services Hub constitute a “computer matching program” as defined in the CMPPA.
The purpose of the Computer Matching Agreement is to establish the terms, conditions, safeguards, and procedures under which CMS will disclose certain information to State-based Administering Entities in accordance with the Patient Protection and Affordable Care Act of 2010 (Pub. L. 111-148), as amended by the Health Care and Education Reconciliation Act (Pub. L. 111-152), which are referred to collectively as the Affordable Care Act (ACA), amendments to the Social Security Act made by the ACA, and the implementing regulations. The Administering Entities will use the data, accessed through the Hub, to make eligibility determinations for enrollment in an applicable State health subsidy program. This Computer Matching Agreement also establishes the terms, conditions, safeguards, and procedures under which State Medicaid/CHIP agencies shall provide data to CMS (as the Federally-facilitated Marketplace (FFM)), State-based Marketplaces (SBMs) and BHPs to verify whether an applicant or enrollee who has submitted an application to the FFM or a SBM has current eligibility or enrollment in a Medicaid/CHIP program.
This computer matching program will be conducted with data maintained by CMS in the Health Insurance Exchanges Program, CMS System No. 09-70-0560, as amended. The system is described in the System of Records Notice published at 78 FR 63211 (Oct. 23, 2013).
The matching program will become effective no sooner than 40 days after the report of the matching program is sent to the Office of Management and Budget and copies of the agreement are sent to Congress, or 30 days after
Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS)
Notice of Computer Matching Program.
In accordance with the requirements of the Privacy Act of 1974, as amended, this notice announces the establishment of a computer matching program that CMS plans to conduct with the Department of Veterans Affairs, Veterans Health Administration (VHA).
The public should send comments to: CMS Privacy Officer, Division of Security, Privacy Policy and Governance, Information Security and Privacy Group, Office of Enterprise Information, CMS, Room N1-24-08, 7500 Security Boulevard, Baltimore, Maryland 21244-1850. Comments received will be available for review at this location, by appointment, during regular business hours, Monday through Friday from 9:00 a.m.-3:00 p.m., Eastern Time zone.
Elizabeth Kane, Acting Director, Verifications Policy & Operations Division, Eligibility and Enrollment Policy and Operations Group, Center for Consumer Information and Insurance Oversight, CMS, 7501 Wisconsin Avenue, Bethesda, MD 20814, Office Phone: (301) 492-4418, Facsimile: (443) 380-5531, E-Mail:
The Computer Matching and Privacy Protection Act of 1988 (Pub. L. 100-503), amended the Privacy Act (5 U.S.C. 552a) by describing the manner in which computer matching involving Federal agencies could be performed and adding certain protections for individuals applying for and receiving Federal benefits. Section 7201 of the Omnibus Budget Reconciliation Act of 1990 (Pub. L. 101-508) further amended the Privacy Act regarding protections for such individuals. The Privacy Act, as amended, regulates the use of computer matching by Federal agencies when records in a system of records are matched with other Federal, state, or local government records. It requires Federal agencies involved in computer matching programs to:
1. Negotiate written agreements with the other agencies participating in the matching programs;
2. Obtain the Data Integrity Board approval of the match agreements;
3. Furnish detailed reports about matching programs to Congress and OMB;
4. Notify applicants and beneficiaries that their records are subject to matching; and,
5. Verify match findings before reducing, suspending, terminating, or denying an individual's benefits or payments.
This matching program meets the requirements of the Privacy Act of 1974, as amended.
Unclassified.
Department of Health and Human Services (HHS), Centers for Medicare & Medicaid Services (CMS), and the Department of Veterans Affairs, Veterans Health Administration.
Sections 1411 and 1413 of the Patient Protection and Affordable Care Act of 2010 (Pub. L. 111-148), as amended by the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111-152) (collectively, the ACA) require the Secretary of HHS to establish a program for applying for and determining eligibility for applicable State health subsidy programs and authorize the use of secure, electronic interfaces and an on-line system for the verification of eligibility.
The Computer Matching and Privacy Protection Act of 1988 (CMPPA) (Pub. L. 100-503), amended the Privacy Act (5 U.S.C. 552a) and requires the parties participating in a matching program to execute a written agreement specifying the terms and conditions under which the matching will be conducted. CMS has determined that status verification checks to be conducted by the CMS Federal Data Services Hub and Federally-facilitated Exchange using the data source provided to CMS by VHA constitute a “computer matching program” as defined in the CMPPA.
The purpose of the Computer Matching Agreement is to establish the terms, conditions, safeguards, and procedures under which the VHA will provide records, information, or data to CMS for verifying eligibility for minimum essential coverage through a Veterans Health Care Program. A Veterans Health Care Program constitutes minimum essential coverage as defined in Section 5000A(f) of the Internal Revenue Code of 1986, 26 U.S.C. 5000A, as amended by § 1501 of the ACA. The VHA data will be used by (1) CMS in its capacity as a Federally-facilitated Exchange and the Federal eligibility and enrollment platform, and (2) agencies administering applicable State health subsidy programs. These entities will receive the results of verifications using information received by CMS through the CMS Federal Data Services Hub from Applicants and Enrollees that will be matched with the VHA data.
The computer matching program will be conducted with data maintained by CMS in the Health Insurance Exchanges Program, CMS System No. 09-70-0560, as amended. The system is described in System of Records Notice published at 78 FR 63211 (Oct. 23, 2013).
The computer matching program also will be conducted with data maintained in a VHA system of records. The VHA system of records for this matching program is titled “Enrollment and Eligibility Records (VA) (147VA16); published at 74 FR 44901 (August 31, 2009) under Routine Use #14; and the Health Administration Center Civilian Health Medical Record—VA (CHAMPVA) (54VA16) using routine use No. 25, and Spina Bifida Healthcare Program published at 74 FR 34398 (July 15, 2009) using routine use No. 13.
This computer matching program will become effective no sooner than 40 days after the report of the computer matching program is sent to the Office of Management and Budget and copies of the agreement are sent to Congress, or 30 days after publication in the
Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS).
Notice of Computer Matching Program.
In accordance with the requirements of the Privacy Act of 1974, as amended, this notice announces the establishment of a computer matching program that CMS plans to conduct with the Defense Enrollment Eligibility Reporting System (DEERS), Defense Manpower Data Center (DMDC), Department of Defense (DoD).
Comments are invited on all portions of this notice. Submit public comments on or before April 1, 2016. This computer matching program will become effective no sooner than 40 days after the report of the computer matching program is sent to the Office of Management and Budget (OMB) and copies of the agreement are sent to Congress, or 30 days after publication in the
The public should send comments to: CMS Privacy Officer, Division of Security, Privacy Policy and Governance, Information Security and Privacy Group, Office of Enterprise Information, CMS, Room N1-24-08, 7500 Security Boulevard, Baltimore, Maryland 21244-1850. Comments received will be available for review at this location, by appointment, during regular business hours, Monday through Friday from 9:00 a.m.-3:00 p.m., Eastern Time zone.
Elizabeth Kane, Acting Director, Verifications Policy & Operations Division, Eligibility and Enrollment Policy and Operations Group, Center for Consumer Information and Insurance Oversight, CMS, 7501 Wisconsin Avenue, Bethesda, MD 20814, Office Phone: (301) 492-4418, Facsimile: (443) 380-5531, E-Mail:
The Computer Matching and Privacy Protection Act of 1988 (Pub. L. 100-503), amended the Privacy Act (5 U.S.C. 552a) by describing the manner in which computer matching involving Federal agencies could be performed and adding certain protections for individuals applying for and receiving Federal benefits. Section 7201 of the Omnibus Budget Reconciliation Act of 1990 (Pub. L. 101-508) further amended the Privacy Act regarding protections for such individuals. The Privacy Act, as amended, regulates the use of computer matching by Federal agencies when records in a system of records are matched with other Federal, state, or local government records. It requires Federal agencies involved in computer matching programs to:
1. Negotiate written agreements with the other agencies participating in the matching programs;
2. Obtain the Data Integrity Board approval of the match agreements;
3. Furnish detailed reports about matching programs to Congress and OMB;
4. Notify applicants and beneficiaries that their records are subject to matching; and,
5. Verify match findings before reducing, suspending, terminating, or denying an individual's benefits or payments.
This computer matching program meets the requirements of the Privacy Act of 1974, as amended.
Name: “Computer Matching Agreement between the Department of Health and Human Services, Centers for Medicare & Medicaid Services and the Department of Defense, Defense Manpower Data Center, for Verification of Eligibility For Minimum Essential Coverage Under The Patient Protection And Affordable Care Act Through a Department of Defense Health Benefits Plan.”
Unclassified.
Department of Health and Human Services (HHS), Centers for Medicare & Medicaid Services (CMS), and the Department of Defense (DoD), Defense Manpower Data Center (DMDC).
Sections 1411 and 1413 of the Patient Protection and Affordable Care Act of 2010 (Pub. L. 111-148), as amended by the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111-152) (collectively, the ACA) require the Secretary of HHS to establish a program for applying for and determining eligibility for applicable State health subsidy programs and authorize the use of secure, electronic interfaces and an on-line system for the verification of eligibility.
The Computer Matching and Privacy Protection Act of 1988 (CMPPA) (Pub. L. 100-503), amended the Privacy Act (5 U.S.C. 552a) and requires the parties participating in a matching program to execute a written agreement specifying the terms and conditions under which the matching will be conducted. CMS has determined that status verification checks to be conducted by the CMS Federal Data Services Hub and Federally-facilitated Exchange using the data source provided to CMS by DoD constitute a “computer matching program” as defined in the CMPPA.
The purpose of the Computer Matching Agreement is to establish the terms, conditions, safeguards, and procedures under which the DoD will provide records, information, or data to
This computer matching program will be conducted with data maintained by CMS in the Health Insurance Exchanges Program, CMS System No. 09-70-0560, as amended. The system is described in System of Records Notice published at 78 FR 63211 (Oct. 23, 2013).
This computer matching program will also be conducted with data maintained in the Defense Enrollment Eligibility Reporting Systems (DEERS), System No. DMDC 02 DoD, published November 04, 2015, 80 FR 68304, located at the DISA DECC Columbus in Columbus, OH. Routine Use 6f supports DoD's disclosure to CMS.
This computer matching program will become effective no sooner than 40 days after the report of the computer matching program is sent to the Office of Management and Budget and copies of the agreement are sent to Congress, or 30 days after publication in the
Office of the National Coordinator for Health Information Technology, HHS.
Notice.
Like the Consumer Health Data Aggregator Challenge, the Provider User-Experience Challenge incents the development of applications for health care providers that use open, standardized APIs to enable innovative ways for providers to interact with patient health data. This challenge will focus on demonstrating how data made accessible to apps through Application Programming Interfaces (APIs) can positively impact providers' experience with EHRs by making clinical workflows more intuitive, specific to clinical specialty, and actionable. The statutory authority for this challenge competition is Section 105 of the America COMPETES Reauthorization Act of 2010 (Pub. L. 111-358).
Adam Wong,
Karen DeSalvo, National Coordinator for Health Information Technology.
The Provider User-Experience Challenge is intended to spur development of third-party applications for use by clinicians and use FHIR to pull various patient health data into a dashboard. The challenge has two phases—the first requiring submission of technical and business plans for the application (app), the second a working app that is available for providers. Phase 2 of the competition will not be limited to only those who won Phase 1—all Phase 1 competitors, and those who did not participate in Phase 1, can submit a final app at the end of Phase 2.
The final application must meet the following requirements:
Participants interested in competing for Phase 1 awards will need to submit an app development plan that must include:
To augment technical development and enhance the likelihood of a successful app that will continue to exist beyond the end of the challenge, a progress update/matchmaking event will be held that will seek to connect participants with provider partners. Up to five app proposals will be recognized as winners and awarded up to $15,000 each.
The second phase will entail the actual development of the apps, verification of technical capabilities, user testing/piloting, and public release of the apps. This will include remote testing with providers and health IT developers to test the technical abilities of the apps to connect to in-production systems. Participants will submit:
The grand prize winner will receive $50,000 and a second place winner will receive $25,000. There will be an additional $25,000 prize for the app that connects to the greatest number of unique health IT developer systems implemented in production settings, which can be won by the grand or 2nd place winner.
1. Shall have registered to participate in the competition under the rules promulgated by the Office of the National Coordinator for Health Information Technology.
2. Shall have complied with all the requirements under this section.
3. In the case of a private entity, shall be incorporated in and maintain a primary place of business in the United States, and in the case of an individual, whether participating singly or in a group, shall be a citizen or permanent resident of the United States.
4. May not be a Federal entity or Federal employee acting within the scope of their employment.
5. Shall not be an HHS employee working on their applications or submissions during assigned duty hours.
6. Shall not be an employee of the Office of the National Coordinator for Health IT.
7. Federal grantees may not use Federal funds to develop COMPETES Act challenge applications unless consistent with the purpose of their grant award.
8. Federal contractors may not use Federal funds from a contract to develop COMPETES Act challenge applications or to fund efforts in support of a COMPETES Act challenge submission.
An individual or entity shall not be deemed ineligible because the individual or entity used Federal facilities or consulted with Federal employees during a competition if the facilities and employees are made available to all individuals and entities participating in the competition on an equitable basis.
Entrants must agree to assume any and all risks and waive claims against the Federal Government and its related entities, except in the case of willful misconduct, for any injury, death, damage, or loss of property, revenue, or profits, whether direct, indirect, or consequential, arising from my participation in this prize contest, whether the injury, death, damage, or loss arises through negligence or otherwise.
Entrants must also agree to indemnify the Federal Government against third party claims for damages arising from or related to competition activities.
In order for a submission to be eligible to win this Challenge, it must meet the following requirements:
1. No HHS or ONC logo—The product must not use HHS' or ONC's logos or official seals and must not claim endorsement.
2. Functionality/Accuracy—A product may be disqualified if it fails to function as expressed in the description provided by the user, or if it provides inaccurate or incomplete information.
3. Security—Submissions must be free of malware. Contestant agrees that ONC may conduct testing on the product to determine whether malware or other security threats may be present. ONC may disqualify the product if, in ONC's judgment, the app may damage government or others' equipment or operating environment.
15 U.S.C. 3719.
Office of the National Coordinator for Health Information Technology, HHS.
Notice.
The Consumer Health Data Aggregator Challenge is intended to spur the development of third-party, consumer-facing applications that use open, standardized Application Programming Interfaces (APIs) to help consumers aggregate their data in one place and under their control. This challenge will focus on solving the problem that many consumers have today—the ability to easily and electronically access their health data from different health care providers using a variety of different health IT systems.
The statutory authority for this challenge competition is Section 105 of the America COMPETES Reauthorization Act of 2010 (Pub. L. 111-358).
Adam Wong,
Karen DeSalvo, National Coordinator for Health Information Technology.
The Consumer Health Data Aggregator Challenge is intended to spur development of third-party applications for consumers that use FHIR to pull their health data into one place. The challenge has two phases. Phase 1 requires the submission of technical and business plans for the application (app) while Phase 2 requires that a working app be available for consumers. Phase 2 of the competition will not be limited to only those who won Phase 1—all Phase 1 competitors, and those who did not participate in Phase 1, can submit a final app at the end of Phase 2.
The final application must meet the following requirements:
• Uses FHIR Draft Standard for Technical Use 2 (DSTU2).
• Aggregate all data as specified in the 2015 Edition Common Clinical Data Set (Data column in
• Verified compatibility with different health IT developer systems implemented in production settings, 1 of which must be from the top 10 systems measured by Meaningful Use attestation per HealthIT.gov. Apps must be integrated with a minimum of 3 unique health IT developer systems in 2 unique provider settings.
• Has been tested with patients and used in production settings.
• Available to consumers through at least one of the following modes: mobile Web, iOS Store, or Android Store.
Participants interested in competing for Phase 1 awards will need to submit an app development plan that must include:
To augment technical development and enhance the likelihood of a successful app that will continue to exist beyond the end of the challenge, a progress update/matchmaking event will be held that will seek to connect participants with provider partners. Up to five app proposals will be recognized as winners and awarded up to $15,000 each.
The second phase will entail the actual development of the apps, verification of technical capabilities, user testing/piloting, and public release of the apps. This will include remote testing with providers and health IT developers to test the technical abilities of the apps to connect to in-production systems. Participants will submit:
The grand prize winner will receive $50,000 and a second place winner will receive $25,000. There will be an additional $25,000 prize for the app that connects to the greatest number of unique health IT developer systems implemented in production settings, which can be won by the grand or 2nd place winner.
To be eligible to win a prize under this challenge, an individual or entity:
1. Shall have registered to participate in the competition under the rules promulgated by the Office of the National Coordinator for Health Information Technology.
2. Shall have complied with all the requirements under this section.
3. In the case of a private entity, shall be incorporated in and maintain a primary place of business in the United States, and in the case of an individual, whether participating singly or in a group, shall be a citizen or permanent resident of the United States.
4. May not be a Federal entity or Federal employee acting within the scope of their employment.
5. Shall not be an HHS employee working on their applications or submissions during assigned duty hours.
6. Shall not be an employee of the Office of the National Coordinator for Health IT.
7. Federal grantees may not use Federal funds to develop COMPETES Act challenge applications unless consistent with the purpose of their grant award.
8. Federal contractors may not use Federal funds from a contract to develop COMPETES Act challenge applications or to fund efforts in support of a COMPETES Act challenge submission.
An individual or entity shall not be deemed ineligible because the individual or entity used Federal facilities or consulted with Federal employees during a competition if the facilities and employees are made available to all individuals and entities participating in the competition on an equitable basis.
Entrants must agree to assume any and all risks and waive claims against the Federal Government and its related entities, except in the case of willful misconduct, for any injury, death, damage, or loss of property, revenue, or profits, whether direct, indirect, or consequential, arising from my participation in this prize contest, whether the injury, death, damage, or loss arises through negligence or otherwise.
Entrants must also agree to indemnify the Federal Government against third party claims for damages arising from or related to competition activities.
In order for a submission to be eligible to win this Challenge, it must meet the following requirements:
1. No HHS or ONC logo—The product must not use HHS' or ONC's logos or official seals and must not claim endorsement.
2. Functionality/Accuracy—A product may be disqualified if it fails to function as expressed in the description provided by the user, or if it provides inaccurate or incomplete information.
3. Security—Submissions must be free of malware. Contestant agrees that ONC may conduct testing on the product to determine whether malware or other security threats may be present. ONC may disqualify the product if, in ONC's judgment, the app may damage government or others' equipment or operating environment.
To register for this Challenge, participants can access
Prize will be paid by contractor.
The review panel will make selections based upon the following criteria:
15 U.S.C. 3719.
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the National Cancer Advisory Board
The teleconference meeting will be open to the public.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Richard D. Crosland, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 4190, MSC 7850, Bethesda, MD 20892, 301-435-1220,
Notice is hereby given of a change in the meeting of the National Institute of Allergy and Infectious Diseases Special Emphasis Panel, March 02, 2016, 10:00 a.m. to March 02, 2016, 01:00 p.m., National Institutes of Health, 5601 Fishers Lane, Rockville, MD, 20892 which was published in the
This notice is being amended to change the date of the meeting from March 02, 2016 to March 16, 2016; and to change the start time from 10:00 a.m. to 1:00 p.m. and the end time from 4:00 p.m. to 6:00 p.m. The meeting is closed to the public.
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 review of loan repayment applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the review of loan repayment applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Advisory Council on Historic Preservation.
The Advisory Council on Historic Preservation seeks public comments on its draft Policy Statement on Historic Preservation and Community Revitalization.
The Advisory Council on Historic Preservation (ACHP) is planning on issuing a “Policy Statement on Historic Preservation and Community Revitalization.” A Working Group, comprised of ACHP members and other preservation organizations, has drafted a policy and invites your views and comments. The Working Group will use your comments to finalize the draft policy before it is presented to the full ACHP membership for consideration and adoption.
Submit comments on or before April 4, 2016.
Address all comments concerning this proposed policy to Charlene Dwin Vaughn, Assistant Director, Office of Federal Agency Programs, Advisory Council on Historic Preservation, 401 F Street NW., Room 301, Washington, DC 20001. You may also submit comments by facsimile at 202-517-6384 or by electronic mail to
Charlene Dwin Vaughn, 202-517-0207
The Advisory Council on Historic Preservation (ACHP) is an independent federal agency, created by the National Historic Preservation Act that promotes the preservation, enhancement, and sustainable use of our nation's diverse historic resources, and advises the President and Congress on national historic preservation policy.
Section 106 of the National Historic Preservation Act (Section 106), 54 U.S.C. 306108, requires federal agencies to consider the effects of their undertakings on historic properties and provide the ACHP a reasonable opportunity to comment with regard to such undertakings. The ACHP has issued the regulations that set forth the process through which federal agencies comply with these duties. These regulations are codified under 36 CFR part 800.
In March 2013, the ACHP issued a report entitled
The primary findings of the report included the following observations:
As the ACHP explored options to implement the recommendations in the report, it was concluded that the development of a policy statement would be appropriate to advance historic preservation.
In 2006, the ACHP adopted a “Policy Statement on Affordable Housing and Historic Preservation” to assist stakeholders in utilizing historic properties for affordable housing projects with minimal delays. It can be accessed at
The purpose of developing the Policy Statement on Historic Preservation and Community Revitalization in 2016 is to ensure that preservation is considered as a tool that will assist federal, state and local governments plan and implement revitalization projects and programs in a manner that reuses and rehabilitates historic properties.
The Working Group convened by the ACHP to assist in developing the policy statement began meeting in December 2014. Representatives of the Working Group included, Brad White, Expert Member of the ACHP, as the Chairman, the US Department of Housing and Urban Development, US Department of Agriculture, Department of Health and Human Services, the National Park Service, the National Trust for Historic Preservation, the American Assembly, Cleveland Restoration Society, Preservation Research Office, Historic Districts Council, Rightsizing Network, Michigan State Historic Preservation Office, and Indiana Historic Preservation Office. After consulting for approximately one year to discuss the major problem areas that needed to be addressed in rightsizing and legacy cities, a working draft of the Policy Statement was drafted, and distributed to ACHP members for review.
The comments received from ACHP members resulted in revisions to the draft policy statement to achieve the following:
The ACHP invites comments from the public on the draft Policy Statement (see text at the end of this notice), particularly as it relates to the following questions:
1. How can the principles in the draft Policy Statement help communities balance the goal of historic preservation
2. How will the principles in the draft Policy Statement establish a framework for decision making when communities receive federal funding to assist distressed neighborhoods?
3. How will State Historic Preservation Officers and Certified Local Governments apply the principles in their review of local revitalization programs?
4. Will the draft Policy Statement assist federal, state and local officials, developers, residents, and other stakeholders to explore alternatives for preserving historic properties in planning revitalization projects?
5. How can the adoption of creative mitigation measures help a community to preserve its historic properties?
6. What form of guidance will be needed to implement the principles in this draft Policy Statement?
7. Are there any other major obstacles to using historic preservation tools in community revitalization projects that have not been addressed in this draft Policy Statement?
The ACHP appreciates receiving public input on the draft Policy Statement. Your comments will ensure that we have taken a holistic approach in advancing historic preservation as a viable tool that can help diverse communities who are recipients of federal, state, and local assistance.
One class of communities, many of which were located in industrial centers, was hit particularly hard, struggling with economic challenges that transcend market cycles such as the recent recession. These communities, marked by population loss exceeding 20 percent, require a holistic approach to bring about their revitalization. Many are older communities with historic architecture, social cohesiveness, and walkable neighborhoods—features which have increasingly grown more attractive in real estate markets that are in the process of recovering.
In 1966 when Congress passed the National Historic Preservation Act (NHPA), it determined that “
The congressional findings in the NHPA remain applicable today, particularly since the economic crisis of 2008. The Advisory Council on Historic Preservation (ACHP), established by the NHPA to advise the President and Congress on matters relating to historic preservation, considers local community revitalization critical to stabilizing these economically depressed communities. In overseeing federal project reviews required by Section 106 of NHPA, patterns and trends have revealed that historic preservation reviews are often not completed before federal funds are allocated for redevelopment. Preservation options are not considered and opportunities to reuse existing assets are missed. Communities, therefore, need guidance that illustrates how historic preservation can help them to determine the disposition of vacant and abandoned properties, promote rehabilitation, create affordable housing, direct growth to target areas that have infrastructure, use new infill construction to stabilize neighborhoods, and develop mixed use projects.
The ACHP issued a report entitled, Managing Change: Preservation and Rightsizing in America, in March 2013, which focused on communities addressing “rightsizing.” Rightsizing applies when communities have shrinking populations, vacancy and abandonment, and systemic blight issues. The report defined it as “
Consistent with previous work completed by the ACHP, the purpose of this policy is to ensure that historic preservation is considered as a tool to stabilize and enhance communities that have suffered from massive structural changes to their economy. It also recognizes that other communities, under less severe economic distress, will benefit from implementing the strategies described in the principles below.
The policy addresses the value of local communities developing historic property surveys, including those located in older neighborhoods with historic districts, to use as a tool in community revitalization. Only when local officials are aware of the historic significance of properties in a community can they make informed decisions about treatment and reuse. The National Register is also used to determine whether federal activities must comply with Section 106. Likewise, a property must first be listed on the National Register before it can qualify as a “certified historic structure” for receiving the 20 percent Federal Historic Preservation
The ACHP is pleased to issue this Policy Statement on Historic Preservation and Community Revitalization as we celebrate the 50th Anniversary of the NHPA. The principles outlined above include sound guidance to assist communities in their efforts to incorporate historic preservation into project planning. As communities develop revitalization plans to improve local neighborhoods and target areas, they should work with federal and state agencies, SHPOs, THPOs, developers, residents, and other stakeholders to implement the following principles. While many are related to the Section 106 consultation, some can be applied independently of this review.
I. Historic preservation values should be considered in the revitalization of both rural and urban communities.
II. Historic preservation should be incorporated in local planning for sustainability, smart growth, and community resilience.
III. Historic property surveys, including those in historic districts, are tools that should be used by communities to provide for federal, state, and local planning and revitalization projects.
IV. Effective citizen engagement allows community residents to identify resources they care about and share their views on local history and cultural significance.
V. Indian tribes may have an interest in urban and rural community revitalization projects that may affect sites of historic, religious, and cultural significance to them.
VI. Private resources can contribute to local revitalization efforts and leverage public funds.
VII. Tax credits can be used to promote historic preservation projects that preserve local assets.
VIII. Early consideration of alternatives to avoid or minimize adverse effects to historic properties is essential to ensure proper integration of historic properties in revitalization plans.
IX. Development of flexible and programmatic solutions can help expedite historic preservation reviews as well as more effectively and proactively address situations involving recurring loss of historic properties.
X. Creative mitigation can facilitate future preservation in communities.
These principles are interpreted below to provide context for stakeholders who may consider applying them to their communities.
I. Historic preservation values should be considered in the revitalization of both rural and urban communities.
The NHPA was established in 1966 to ensure that local revitalization and economic development projects were responsive to historic preservation values. Unfortunately, the provisions of the NHPA requiring consideration of historic properties in project planning have not been applied consistently by federal, state, and local governments. This is particularly the case when federal funds are allocated to local communities to address substantial amounts of vacancies, abandonments, and the related blight afflicting communities. Historic properties should be viewed as community assets and their treatment should be informed by an analysis of alternatives, including stabilization, rehabilitation, new infill construction, and demolition. Suburban, rural, and tribal communities have experienced many of the same or similar issues as urban areas over the past decades. Historic preservation tools can assist many of these communities, particularly when integrated in project planning as prescribed by Section 106 of the NHPA. The adaptation and reuse of historic properties is a viable alternative that should be given due consideration by federal, state, and local officials when renewing communities. Although historic preservation is often ignored by stakeholders who assume that redevelopment will allow them to spend project funds exclusively on new construction, decades of historic preservation projects affirm that historic assets can also revive a community. Therefore, historic preservation should be an option that is regularly considered by officials, in planning the revitalization of neighborhoods, target areas, and communities in urban, rural, and tribal areas where there is considerable economic decline and blight.
II. Historic preservation should be incorporated in local planning for sustainability, smart growth, and community resilience.
The core principles in sustainability, smart growth, and community resilience programs administered by federal government have been embraced by urban and rural communities nationwide during the past decade. Smart growth is a cohesive group of planning tools that are focused on creating a development pattern that can be replicated throughout a region or locality, while sustainable communities are focused on conserving and improving existing resources, including making historic assets such as buildings, neighborhoods and communities greener, stronger and more livable. Both smart growth and sustainability embrace historic preservation, emphasizing the value in reusing historic properties. Successful historic preservation techniques often bring together both historic properties and sensitive new construction to create a dynamic and attractive environment. Preserving historic properties and neighborhoods in a community not only retains streetscapes and original settings, but also can create a focal point for a community to embrace its history, culture, and sense of place, all of which benefit revitalization efforts and promote community stability.
In the aftermath of natural disasters, climate change events, and unanticipated emergencies, recovery projects are designed to revitalize and rebuild resilient communities. Achieving these goals requires aligning federal funding with local rebuilding visions, cutting red tape for obtaining assistance, developing region-wide plans for rebuilding; and ensuring that communities are rebuilt to better withstand future disasters, climate events and unanticipated emergencies. Maintaining, rehabilitating, and reusing existing historic buildings can contribute to stabilizing and revitalizing neighborhoods. Community recovery and revitalization plans should be specific in the use and treatment of historic properties, coordinated with plans for new construction and infrastructure. Recognizing that historic preservation strategies are compatible with smart growth, sustainability, and resilient community principles will enable planners to create housing choices, foster a sense of place, generate jobs, maintain walkable neighborhoods, and preserve open spaces, thereby promoting a holistic community environment.
III. Historic property surveys, including those in historic districts, are tools that should be used by communities to provide a foundation for federal, state, and local planning and revitalization projects.
City-wide surveys that are incomplete or nonexistent may cause the unnecessary loss of historic properties as well as delays in project planning and implementation. Without the historical context explaining the evolution of neighborhoods and the significance of existing building stock, decision making is uninformed. In contrast, communities that have completed historic property surveys that include historic context, identify architectural, archeological, and cultural resources, and define historic districts are able to develop more effective strategies for revitalization. Surveys conducted in advance can identify areas that should be given special attention in project planning and assist developers and local officials to designate areas for tax or other financial incentives. While funds for surveys are often challenging to identify, many States have used SHPO and federal Historic Preservation Funds to update surveys consistent with the scope of work outlined in State-wide plans. Additional survey information may be forthcoming during Section 106 reviews when federal agencies and applicants identify and evaluate properties listed in or eligible for listing in the National Register of Historic Places. Regulations for some federal programs allow administrative funds to be allocated for surveys, particularly when there is a need for long-term plans to be approved for a neighborhood or target area. Federal agencies should prioritize assistance to communities for such planning, where possible. In addition, local agencies are encouraged to incorporate historic preservation survey information in local Geographic Information Systems to expedite regulatory reviews required before projects can be approved for funding.
IV. Effective citizen engagement allows community residents to identify resources they care about and share their views on local historic and cultural significance.
The consultation process under Section 106 should be designed to elicit effective and authentic citizen engagement. Such engagement will help to identify places important to the community early in the consultation process. Special attention should be given to including communities that have been overlooked in prior efforts to identify historic properties, as is often the case with those places associated with diverse populations that have minimal representation in the National Register. Such information should be routinely sought by local officials when complying with Section 106 and evaluating properties for listing in the National Register or on state surveys. SHPOs and CLG's can assist in providing historic context statements for such properties. Involving local academic institutions, civic organizations, and professional associations in the work of local preservation commissions and architectural review boards can help ensure that the views of all segments of the community inform the identification and evaluation of historic properties. Citizen engagement is also critical in the analysis of project alternatives to deal with adverse effects of redevelopment on historic properties. Many of the outcomes from Section 106 reviews are shaped by recommendations from citizens that participate as consulting parties in the process. Federal and local officials, therefore, should provide guidance and technical assistance to facilitate citizen engagement in surveys and project planning.
V. Indian tribes may have an interest in urban and rural community revitalization projects that may affect sites of historic, religious, and cultural significance to them.
As indigenous peoples of the Nation, Indian tribes have lived in many places before they became cities and towns. Accordingly, Indian tribes often have a stake in the effects of new development on their history and culture. It therefore is important to involve Indian tribes in the Section 106 reviews, particularly in the identification and evaluation of historic properties and assessment of effects. Since Indian tribes are required to be invited to participate in Section 106 as consulting parties, federal and local officials should become familiar with those Indian tribes that have ancestral and historic associations with their communities. When planning projects and conducting Section 106 reviews, planners need to look beyond archaeologists in assessing potential development sites and involve Indian tribes to ensure that cultural resources important to them inform the siting and design of projects. Indian tribes can also contribute to local sustainability efforts based on their ecological and environmental knowledge of specific geographic areas to which they attach religious and cultural significance. Involving Indian tribes early in Section 106 consultations allows them to advise the federal agency on protocols that should be followed in the event of unanticipated discoveries of sites of traditional religious and cultural significance during project implementation. Finally, Indian tribes can provide relevant input to the agency in developing mitigation measures when sites cannot be avoided.
VI. Private resources can contribute to local revitalization efforts and leverage public funds.
Private resources are instrumental in ensuring community revitalization efforts are successful and transformative. Federal grant and loan programs can be used in conjunction with private resources for local revitalization efforts such as the Department of Transportation's TIGER Program and the Environmental Protection Agency's Brownfield Grants. These programs require local communities to provide matching funds, which are often solicited from the private sector. Local institutions such as universities, hospitals, foundations, banks, land banks, and local businesses frequently provide matching funds to local governments. In addition, they often partner with developers on multi-use historic projects that benefit the community as a whole. Banking institutions are able to get credit under the Community Reinvestment Act (CRA) Program when they contribute to local revitalization efforts. A bank's CRA performance record is taken into account when evaluating their overall performance. Therefore, advance meetings with local banking institutions to discuss strategies regarding loans for commercial and residential community revitalization projects is a good approach to identifying resources to leverage public funds.
VII. Tax credits can be used to promote historic preservation projects that preserve local assets.
Recent research conducted on the impacts of using Federal Historic Tax Credits have revealed that investments in historic rehabilitation have greater positive impact on employment, state and local taxes, and the financial strength of the state than new construction. The use of federal Historic Tax Credits (HTC), Low Income Housing Tax Credits (LIHTC), and State Historic Tax Credits can often be combined to provide neighborhoods with financial, social, and economic benefits. Local governments should consider how these incentives can be used to fund not only major projects but also smaller and mid-size neighborhood projects. SHPOs are uniquely situated to leverage federal HTC projects, having worked closely with the National Park Service and the developer. After completing Part 1 of the federal HTC application, local officials should be encouraged to work closely with federal regional and field offices, land banks, SHPOs, and local realtors to identify other vacant and abandoned buildings that are candidates for rehabilitation. By stabilizing an entire neighborhood, these sites can be used for affordable housing and transit oriented development projects. NPS and SHPOs can share cases studies and best management practices on federal HTC and applicability of the
VIII. Early consideration of alternatives to avoid or minimize adverse effects to historic properties is essential to ensure proper integration of historic properties in revitalization plans.
Effective utilization of historic properties to support community revitalization goals requires that preservation be an integral part of local planning from the outset. Strategic efforts to stabilize local neighborhoods in communities experiencing substantial population loss should consider alternatives that can have a positive impact. Comprehensive neighborhood plans should disclose the criteria and processes local officials use to determine specific treatment for a building. SHPOs can also provide technical assistance when resources are available. Likewise, communities that have CLG's that work closely with SHPOs can participate in local administrative reviews and provide advice regarding how historic properties may be affected by revitalization plans. SHPOs and CLG's can coordinate with land banks to determine how they can facilitate building preservation, rehabilitation, and revitalization plans, as well as those proposed for substantial demolitions in target areas or community-wide.
IX. Flexible programmatic solutions help expedite historic preservation reviews and address situations involving recurring loss of historic properties.
Revitalization projects with federal involvement require compliance with Section 106 and other federal environmental review laws. Frequently, programmatic solutions can expedite compliance with regulatory requirements, improving the efficiency of project delivery. Section 106 Programmatic Agreements can respond to local conditions, foster larger community preservation goals, and expedite project reviews. Such agreements often clarify that plans and specifications developed for local revitalization projects, which adhere to the
X. Creative mitigation that can facilitate future preservation in communities.
“Creative mitigation” is a concept that is used in environmental reviews when it is challenging, if not impossible, to avoid adverse effects or offset them using standard mitigation approaches. In Section 106 reviews, standard mitigation measures are customarily directed at the affected historic property and may include recordation, data recovery, or curation. Often the public benefit of using these standard measures is minimal and mitigation funds might be better invested in other preservation activities. Because the Section 106 process does not
54 U.S.C. 304102(a).
U.S. Customs and Border Protection, Department of Homeland Security.
30-Day notice and request for comments; Extension of an existing collection of information.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act: Deferral of Duty on Large Yachts Imported for Sale. This is a proposed extension of an information collection that was previously approved. CBP is proposing that this information collection be extended with no change to the burden hours or to the information collected. This document is published to obtain comments from the public and affected agencies.
Written comments should be received on or before April 4, 2016 to be assured of consideration.
Interested persons are invited to submit written comments on this proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the OMB Desk Officer for Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to
Requests for additional information should be directed to Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 90 K Street NE., 10th Floor, Washington, DC 20229-1177, at 202-325-0265.
This proposed information collection was previously published in the
U.S. Citizenship and Immigration Services, Department of Homeland Security.
60-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration (USCIS) invites the general public and other Federal agencies to comment upon this proposed extension of a currently approved collection of information. In accordance with the Paperwork Reduction Act (PRA) of 1995, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days until May 2, 2016.
All submissions received must include the OMB Control Number 1615-0099 in the subject box, the agency name and Docket ID USCIS-2006-0059. To avoid duplicate submissions, please use only
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USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Samantha Deshommes, Acting Chief, 20 Massachusetts Avenue NW., Washington, DC 20529-2140, telephone number 202-272-8377 (This is not a toll-free number. Comments are not accepted via telephone message). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS Web site at
You may access the information collection instrument with instructions, or additional information by visiting the Federal eRulemaking Portal site at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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U.S. Citizenship and Immigration Services, Department of Homeland Security.
60-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration (USCIS) invites the general public and other Federal agencies to comment upon this proposed extension of a currently approved collection of information. In accordance with the Paperwork Reduction Act (PRA) of 1995, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days until May 2, 2016.
All submissions received must include the OMB Control Number 1615-0124 in the subject box, the agency name and Docket ID USCIS-2012-0012. To avoid duplicate submissions, please use only
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USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Samantha Deshommes, Acting Chief, 20 Massachusetts Avenue NW., Washington, DC 20529-2140, telephone number 202-272-8377 (This is not a toll-free number. Comments are not accepted via telephone message). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS Web site at
You may access the information collection instrument with instructions, or additional information by visiting the Federal eRulemaking Portal site at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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1. Were under the age of 31 as of June 15, 2012;
2. Came to the United States before reaching their 16th birthday, and established residence at that time;
3. Have continuously resided in the United States since June 15, 2007, up to the present time;
4. Were present in the United States on June 15, 2012, and at the time of making their request for consideration of deferred action with USCIS;
5. Entered without inspection before June 15, 2012, or their lawful immigration status expired as of June 15, 2012;
6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
7. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
These individuals will be considered for relief from removal from the United States or from being placed into removal proceedings as part of the deferred action for childhood arrivals process. Those who submit requests with USCIS and demonstrate that they meet the threshold guidelines may have removal action in their case deferred for a period of two years, subject to renewal (if not terminated), based on an individualized, case by case assessment of the individual's equities. Only those individuals who can demonstrate, through verifiable documentation, that they meet the threshold guidelines will
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National Park Service, Interior.
Notification of boundary revision.
The boundary of Saratoga National Historical Park is modified to include approximately 169 acres of land, more or less, located in Saratoga County, New York, immediately adjoining the boundary of Saratoga National Historical Park. Subsequent to the boundary revision, the National Park Service will acquire the land by purchase from Open Space Conservancy, Inc., a nonprofit conservation organization.
The effective date of this boundary revision is March 3, 2016.
The map depicting this boundary revision is available for inspection at the following locations: National Park Service, Land Resources Program Center, Northeast Region, New England Office, 115 John Street, 5th Floor, Lowell, MA 01852, and National Park Service, Department of the Interior, 1849 C Street NW., Washington, DC 20240.
Deputy Realty Officer Rachel McManus, National Park Service, Land Resources Program Center, Northeast Region, New England Office, 115 John Street, 5th Floor, Lowell, MA 01852, telephone (978) 970-5260.
Notice is hereby given that, pursuant to 54 U.S.C. 100506(c), the boundary of Saratoga National Historical Park is modified to include an adjoining tract containing 169 acres of land. The boundary revision is depicted on Map No. 374/127824, dated February 5, 2015.
54 U.S.C. 100506(c) provides that, after notifying the House Committee on Natural Resources and the Senate Committee on Energy and Natural Resources, the Secretary of the Interior is authorized to make this boundary revision upon publication of notice in the
National Park Service, Interior.
Notice of termination.
The National Park Service (NPS) is terminating preparation of an environmental impact statement (EIS) for the San Juan Promenade Extension project from El Morro Floating Battery Area to San Juan Bautista Plaza in San Juan National Historic Site, Puerto Rico. Instead, the NPS will be preparing an environmental assessment (EA) to assist the NPS in evaluating the impacts of the proposed extension of Paseo del Morro.
The EA for the extension of Paseo del Morro National Recreational Trail is expected to be distributed for public comment in the winter of 2016. The public comment period for the EA and the dates, times, and locations of public meetings will be announced through the NPS Planning, Environment, and Public Comment (PEPC) Web site
San Juan National Historic Site, 501 Calle Norzagaray, San Juan, Puerto Rico 00901.
Walter J. Chavez, San Juan National Historic Site, 501 Calle Norzagaray, San Juan, Puerto Rico 00901, by phone at (787) 729-6777.
Pursuant to the National Environmental Policy Act, 42 U.S.C. 4321
The responsible official is the Regional Director, NPS Southeast Region, 100 Alabama Street SW., 1924 Building, Atlanta, Georgia 30303.
United States International Trade Commission.
Change in scope of investigation.
Following receipt of a letter on behalf of the United States Trade Representative (USTR) dated February 16, 2016, advising that several petitioners have withdrawn requests for waivers of the competitive need limitation under the Generalized System of Preferences (GSP) program and that USTR accordingly was withdrawing its request for advice regarding such petitions, the U.S. International Trade Commission (Commission) has amended the scope of its investigation and will not provide advice regarding the withdrawn petitions.
All Commission offices, including the Commission's hearing rooms, are located in the United States International Trade Commission Building, 500 E Street SW., Washington, DC. All written submissions should be addressed to the Secretary, United States International Trade Commission, 500 E Street SW., Washington, DC 20436. The public record for this investigation may be viewed on the Commission's electronic docket (EDIS) at
Information specific to this investigation may be obtained from Mahnaz Khan, Project Leader, Office of Industries (202-205-2046 or
As a result, the Commission is terminating the portion of its investigation that concerns the waivers that are the subject of the withdrawn petitions and will not provide advice regarding them. The withdrawn petitions concern the following articles, HTS subheadings, countries, and petitioners:
In response to the USTR's letter of December 30, 2015, the Commission published its notice of institution of this investigation and the scheduling of a public hearing in connection therewith in the
The hearing date and deadlines for filing pre-hearing and post-hearing briefs and all other written submissions in this investigation remain the same as previously announced, as does the information relating to the filing of those documents. As previously announced, the Commission expects to transmit its report in this investigation to the USTR by April 28, 2016.
By order of the Commission.
Employment and Training Administration (ETA), Department of Labor (Department).
Notice.
The Department, as part of its continuing effort to reduce paperwork and respondent burden, is conducting a preclearance consultation to provide the public and Federal agencies with an opportunity to comment on continuing collection for contractor information in accordance with the Paperwork Reduction Act of 1995 [44 U.S.C. 3506(c)(2)(A)].
The PRA helps ensure that the requested data collected by the Job Corps program 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. Updates to this information collection include:
• The incorporation of the Workforce Innovation and Opportunity Act (WIOA) as Job Corps' statutory authority;
• The addition of two new Job Corps centers;
• Revised burden hours.
Currently, ETA is soliciting comments concerning the collection of data about contractor information gathering and reporting requirements (expiration date May 31, 2016).
Written comments must be submitted to the office listed in the addresses section below on or before May 2, 2016.
Submit written comments to Robert L. Mhoon, Office of Job Corps, Room N-4507, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210. Telephone number: 202-693-3211 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at 877-889-5627 (TTY/TDD). Fax: 202-693-3113. Email:
Job Corps is the nation's largest residential, educational, and career technical training program for at-risk youth. Job Corps was established in 1964 by the Economic Opportunity Act and currently is authorized by WIOA. For over 50 years, Job Corps has helped prepare nearly 2.9 million at-risk youth between the ages of 16 and 24 for success in our nation's workforce. With 126 centers in 50 states, Puerto Rico, and the District of Columbia, Job Corps assists students across the nation in attaining academic credentials, including a High School Diploma (HSD) and/or High School Equivalency (HSE) attainment, and career technical training credentials, including industry-recognized certifications, state licensures, and pre-apprenticeship credentials.
Job Corps is a national program administered by the U.S. Department of Labor (Department) through the National Office of Job Corps and six Regional Offices. The Department awards and administers contracts for the recruiting and screening of new students, center operations, and the placement and transitional support of graduates and former enrollees. Large and small corporations and nonprofit organizations manage and operate 99 Job Corps centers under contractual agreements with the Department. These contract center operators are selected through a competitive procurement process that evaluates potential operators' technical expertise, proposed costs, past performance, and other factors, in accordance with WIOA, the Competition in Contracting Act and the Federal Acquisition Regulations. The remaining 27 Job Corps centers, called Civilian Conservation Centers, are operated by the U.S. Department of Agriculture—Forest Service, via an interagency agreement.
The Department is particularly interested in comments which:
• 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 respond, including through appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (
The operation of the Job Corps program is such that many activities required of contractors must be coordinated with other organizations, both Federal and non-federal. Most of the information collection requirements of Job Corps center operators stem directly from operational needs or are necessary to ensure compliance with Federal requirements and the terms of the contract.
Job Corps contractors and operators are required to provide information which is used for, among other things, the generation of statistical reports by Federal Job Corps staff rather than the contractors. Reports are generated from data that is entered directly by contractors. Examples of this data includes ETA Forms 2110 (Center Financial Report), 2181 & 2181A (Center Operations Budget), 6-131A (Disciplinary Discharge), 6-131B (Review Board Hearings), 6-131C (Rights to Appeal), 6-40 (Student Profile), 6-61 (Notice of Termination) and 3-38 (Property Inventory Transcription.)
In addition, several forms pertain to student and facility administrative matters and are provided in Portable Data File (PDF) format. These forms include the OJC 6-37 (Inspection Residential & Educational Facilities), OJC 6-38 (Inspection Water Supply Facilities), and OJC 6-39 (Inspection of Waste Treatment Facilities).
Finally, the following are documents that center operators and other contractors are required to create, complete, or maintain according to the Job Corps Policy Requirements Handbook (PRH): Center Operations Plan, Center Maintenance Program, Annual Career Technical Skills Training (CTST), Annual Staff Training, Energy Conservation, Outreach/Public Education Plan, Health and Wellness Center Annual Program Description, Health Services Utilization Report, Alcohol Testing Report and Immunization Record.
Center staff members enter data utilizing a personal computer that transmits the data electronically to a centralized database. Many management and performance reports are created from this database.
Certain student personnel requirements such as student payroll information, student training and education courses received, student leave, disciplinary actions and medical information are also collected in an electronic information system. The initial data entry is maintained in the national database and used for multiple reporting purposes, therefore reducing the need to enter the data more than once. The total burden associated with the input of data is 36,145 hours.
Major record keeping and operational forms listed below that pertain to student facility matters are provided in PDF format. The total burden for processing these forms is 997 hours.
A total of 12,764 burden hours are estimated for the preparation of the Center Operating Plans listed below that are required for the operation of a Job Corps center.
Comments submitted in response to this comment request will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
U.S. Copyright Office, Library of Congress.
Extension of comment period.
The United States Copyright Office is extending the deadline for the submission of written comments in response to its December 31, 2015 Notice of Inquiry regarding the operation of section 512 of Title 17.
Initial written comments are now due no later than 11:59 p.m. Eastern Time on April 1, 2016.
The Copyright Office is using the regulations.gov system for the submission and posting of public comments in this proceeding. All comments are therefore to be submitted electronically through regulations.gov. Specific instructions for submitting comments are available on the Copyright Office Web site at
Jacqueline C. Charlesworth, General Counsel and Associate Register of Copyrights,
The United States Copyright Office is undertaking a public study to evaluate the impact and effectiveness of the DMCA safe harbor provisions contained in section 512 of Title 17. On December 31, 2015, the Office issued a Notice of Inquiry seeking public input on several questions relating to that topic.
National Aeronautics and Space Administration
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, the National Aeronautics and Space Administration (NASA) announces a meeting of the Technology, Innovation and Engineering (TI&E) Committee of the NASA Advisory Council (NAC).
Tuesday, March 29, 2016, 8:00 a.m. to 5:00 p.m., Local Time.
NASA Headquarters, Room MIC 6A, 300 E Street SW., Washington, DC 20546.
Mr. Mike Green, Space Technology Mission Directorate, NASA Headquarters, Washington, DC 20546, (202) 358-4710, or
The meeting will be open to the public up to the capacity of the room. This meeting is also available telephonically and online via WebEx. Any interested person may call the USA toll-free conference number 1-844-467-6272, passcode 102421, to participate in this meeting by telephone. The WebEx link is
The agenda for the meeting includes the following topics:
Attendees will be requested to sign a register and to comply with NASA security requirements, including the presentation of a valid picture ID, before receiving access to NASA Headquarters. Due to the Real ID Act, Public Law 109-13, any attendees with drivers licenses issued from non-compliant states/territories must present a second form of ID. [Federal employee badge; passport; active military identification card; enhanced driver's license; U.S. Coast Guard Merchant Mariner card; Native American tribal document; school identification accompanied by an item from LIST C (documents that establish employment authorization) from the “List of the Acceptable Documents” on Form I-9]. Non-compliant states/territories are: American Samoa, Illinois, Minnesota, Missouri, New Mexico, and Washington, Foreign nationals attending this meeting will be required to provide a copy of their passport and visa in addition to providing the following information no less than 10 working days prior to the meeting: Full name; gender; date/place of birth; citizenship; visa information (number, type, expiration date); passport information (number, country, expiration date); employer/affiliation information (name of institution, address, country, telephone); title/position of attendee; and home address to Ms. Anyah Dembling via email at
National Endowment for the Arts, National Foundation on the Arts and the Humanities.
Notice of meeting.
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), as amended, notice is hereby given that a meeting of the National Council on the Arts will be held in Conference Room 3063/3064 and Conference Rooms A & B at Constitution Center, 400 7th St. SW., Washington, DC 20506. Agenda times are approximate.
Wednesday, March 23, 2016 from 12:30 p.m. to 2:30 p.m. and Thursday, March 24, 2016 from 9:00 a.m. to 11:30 a.m.
Office of Public Affairs, National Endowment for the Arts, Washington, DC 20506, at 202/682-5570.
The meeting on March 23rd from 12:30 p.m. to 2:30 p.m., will be in Conference Room 3063/3064 and will be closed for discussion of National Medal of Arts nominations. The meeting on March 24th, in Conference Rooms A & B from 9:30 a.m. to 11:30 a.m., will be open to the public on a space available basis. The tentative agenda is as follows: The meeting will begin at 9:00 a.m. with opening remarks and voting on recommendations for funding and rejection and guidelines, followed by updates from the Chairman. There also will be the following presentations (times are approximate): From 9:30 a.m. to 9:45 a.m.—
The Thursday, March 24th session also will be webcast. To register to watch the webcasting of this open session of the meeting, go to
If, in the course of the open session discussion, it becomes necessary for the Council to discuss non-public commercial or financial information of intrinsic value, the Council will go into closed session pursuant to subsection (c)(4) of the Government in the Sunshine Act, 5 U.S.C. 552b, and in accordance with the February 15, 2012 determination of the Chairman. Additionally, discussion concerning purely personal information about individuals, such as personal biographical and salary data or medical information, may be conducted by the Council in closed session in accordance with subsection (c)(6) of 5 U.S.C. 552b.
Any interested persons may attend, as observers, Council discussions and reviews that are open to the public. If you need special accommodations due to a disability, please contact the Office of Accessibility, National Endowment for the Arts, 1100 Pennsylvania Avenue NW., Washington, DC 20506, 202/682-5733, Voice/T.T.Y. 202/682-5496, at least seven (7) days prior to the meeting.
Nuclear Regulatory Commission.
Exemption and combined license amendment; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is granting an exemption to allow a departure from the certification information of Tier 1 of the generic design control document (DCD) and is issuing License Amendment No. 43 to Combined Licenses (COLs), NPF-91 and NPF-92. The COLs were issued to Southern Nuclear Operating Company, Inc., (SNC), Georgia Power Company, Oglethorpe Power Corporation, MEAG Power SPVM, LLC., MEAG Power SPVJ, LLC., MEAG Power SPVP, LLC., and the City of Dalton, Georgia (together “the licensee”); for construction and operation of the Vogtle Electric Generating Plant (VEGP) Units 3 and 4, located in Burke County, Georgia.
The granting of the exemption allows the changes to Tier 1 information requested in the amendment. Because the acceptability of the exemption was determined in part by the acceptability of the amendment, the exemption and amendment are being issued concurrently.
March 3, 2016.
Please refer to Docket ID NRC-2008-0252 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
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Ruth C. Reyes, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-3249; email:
The NRC is granting an exemption from Tier 1 information in the certified DCD incorporated by reference in part 52 of title 10 of the
Part of the justification for granting the exemption was provided by the review of the amendment. Because the exemption is necessary in order to issue the requested license amendment, the NRC granted the exemption and issued the amendment concurrently, rather than in sequence. This included issuing a combined safety evaluation containing the NRC staff's review of both the exemption request and the license amendment. The exemption met all applicable regulatory criteria set forth in 10 CFR 50.12, 10 CFR 52.7, and Section VIII.A.4 of appendix D to 10 CFR part 52. The license amendment was found to be acceptable as well. The combined safety evaluation is available in ADAMS under Accession No. ML15258A559.
Identical exemption documents (except for referenced unit numbers and license numbers) were issued to the licensee for VEGP Units 3 and 4 (COLs NPF-91 and NPF-92). The exemption documents for VEGP Units 3 and 4 can be found in ADAMS under Accession Nos. ML15258A536 and ML15258A550, respectively. The exemption is reproduced (with the exception of abbreviated titles and additional citations) in Section II of this document. The amendment documents for COLs NPF-91 and NPF-92 are available in ADAMS under Accession Nos. ML15258A479 and ML15258A530, respectively. A summary of the amendment documents is provided in Section III of this document.
Reproduced below is the exemption document issued to Vogtle Units 3 and 4. It makes reference to the combined safety evaluation that provides the reasoning for the findings made by the NRC (and listed under Item 1) in order to grant the exemption:
1. In a letter dated October 7, 2014, and supplemented by letter dated September 4, 2015, the licensee requested from the Commission an exemption to allow departures from Tier 1 information in the certified DCD incorporated by reference in 10 CFR part 52, appendix D as part of license amendment request 14-006, “Addition of Instruments to Design Reliability Assurance Program (D-RAP).”
For the reasons set forth in Section 3.1 of the NRC staff's Safety Evaluation that supports this license amendment, which can be found at ADAMS Accession No. ML15258A559, the Commission finds that:
A. The exemption is authorized by law;
B. the exemption presents no undue risk to public health and safety;
C. the exemption is consistent with the common defense and security;
D. special circumstances are present in that the application of the rule in this circumstance is not necessary to serve the underlying purpose of the rule;
E. the special circumstances outweigh any decrease in safety that may result from the reduction in standardization caused by the exemption; and
F. the exemption will not result in a significant decrease in the level of safety otherwise provided by the design.
2. Accordingly, the licensee is granted an exemption from the certified DCD Tier 1, as described in the licensee's request dated October 7, 2014, and supplemented by letter dated September 4, 2015. This exemption is related to, and necessary for, the granting of License Amendment No. 43, which is being issued concurrently with this exemption.
3. As explained in Section 5.0 of the NRC staff's Safety Evaluation that supports this license amendment (ADAMS Accession No. ML15258A559), this exemption meets the eligibility criteria for categorical exclusion set forth in 10 CFR 51.22(c)(9). Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment needs to be prepared in connection with the issuance of the exemption.
4. This exemption is effective as of the date of its issuance.
By letter dated October 7, 2014, and supplemented by letter dated September 4, 2015, the licensee requested that the NRC amend the COLs for VEGP, Units 3 and 4, COLs NPF-91 and NPF-92. The proposed amendment is described in Section I, above.
The Commission has determined for these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
A notice of consideration of issuance of amendment to facility operating license or combined license, as applicable, proposed no significant hazards consideration determination, and opportunity for a hearing in connection with these actions, was published in the
The Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments.
Using the reasons set forth in the combined safety evaluation, the staff granted the exemption and issued the amendment that the licensee requested on October 7, 2014, as supplemented by letter dated September 4, 2015. The exemption and amendment were issued on January 12, 2016 as part of a combined package to the licensee (ADAMS Accession No. ML15258A465).
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Order; modification.
The U.S. Nuclear Regulatory Commission (NRC) has issued a general license to the Duke Energy Corporation (Duke), authorizing the operation of the Crystal River Nuclear Generating Plant Independent Spent Fuel Storage Installation (ISFSI), in accordance with its regulations. The Order is being issued to Duke to impose additional security requirements because Duke has identified near term plans to store spent fuel in an ISFSI under the general license provisions of the NRC's regulations. The Order was issued February 24, 2016, and became effective immediately.
Please refer to Docket ID NRC-2016-0046 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
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L. Raynard Wharton, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-7497; email:
Pursuant to section 2.106 of title 10 of the
The NRC has issued a general license to Duke Energy Corporation, (Duke), authorizing the operation of an ISFSI, in accordance with the Atomic Energy Act of 1954, as amended, and 10 CFR part 72. This Order is being issued to Duke because DUKE has identified near-term plans to store spent fuel in an ISFSI under the general license provisions of 10 CFR part 72. The Commission's regulations at 10 CFR 72.212(b)(5), 10 CFR 50.54(p)(1), and 10 CFR 73.55(c)(5) require licensees to maintain safeguards contingency plan procedures to respond to threats of radiological sabotage and to protect the spent fuel against the threat of radiological sabotage, in accordance with 10 CFR part 73, appendix C. Specific physical security requirements are contained in 10 CFR 73.51 or 73.55, as applicable.
Inasmuch as an insider has an opportunity equal to, or greater than, any other person, to commit radiological sabotage, the Commission has determined these measures to be prudent. Comparable Orders have been issued to all licensees that currently store spent fuel or have identified near-term plans to store spent fuel in an ISFSI.
On September 11, 2001, terrorists simultaneously attacked targets in New York, NY, and near Washington, DC, using large commercial aircraft as weapons. In response to the attacks and intelligence information subsequently obtained, the Commission issued a number of Safeguards and Threat Advisories to its licensees to strengthen licensees' capabilities and readiness to respond to a potential attack on a nuclear facility. On October 16, 2002, the Commission issued Orders to the licensees of operating ISFSIs, to place the actions taken in response to the Advisories into the established regulatory framework and to implement additional security enhancements that emerged from NRC's ongoing comprehensive review. The Commission has also communicated with other Federal, State, and local government agencies and industry representatives to discuss and evaluate the current threat environment in order to assess the adequacy of security measures at licensed facilities. In addition, the Commission has conducted a comprehensive review of its safeguards and security programs and requirements.
As a result of its consideration of current safeguards and security requirements, as well as a review of information provided by the intelligence community, the Commission has determined that certain additional security measures (ASMs) are required to address the current threat environment, in a consistent manner throughout the nuclear ISFSI community. Therefore, the Commission is imposing requirements, as set forth in Attachments 1 and 2 of this Order, on all licensees of these facilities. These requirements, which supplement existing regulatory requirements, will provide the Commission with reasonable assurance that the public health and safety, and the environment, continue to be adequately protected, and that the common defense and security continue to be adequately protected, in the current threat environment. These requirements will remain in effect until the Commission determines otherwise.
The Commission recognizes that licensees may have already initiated many of the measures set forth in Attachments 1 and 2 to this Order, in response to previously issued Advisories, or on their own. It also recognizes that some measures may not be possible or necessary at some sites, or may need to be tailored to accommodate the specific circumstances existing at Duke's facility, to achieve the intended objectives and avoid any unforeseen effect on the safe storage of spent fuel.
Although the ASMs implemented by licensees in response to the Safeguards and Threat Advisories have been sufficient to promote the common defense and security and to provide reasonable assurance of adequate protection of public health and safety, in light of the continuing threat environment, the Commission concludes that these actions should be embodied in an Order, consistent with the established regulatory framework.
To provide assurance that Duke is implementing prudent measures to achieve a consistent level of protection to address the current threat environment, Duke's general license issued pursuant to 10 CFR 72.210 shall be modified to include the requirements identified in Attachments 1 and 2 to this Order. In addition, pursuant to 10 CFR 2.202, I find that, in light of the common defense and security circumstances described above, the public health, safety, and interest require that this Order be effective immediately.
Accordingly, pursuant to Sections 53, 103, 104, 147, 149, 161b, 161i, 161o, 182, and 186 of the Atomic Energy Act of 1954, as amended, and the
A. Duke shall comply with the requirements described in Attachments 1 and 2 to this Order, except to the extent that a more stringent requirement is set forth in the Crystal River Nuclear Generating Plant's physical security plan. Duke shall demonstrate its ability to comply with the requirements in Attachments 1 and 2 to the Order no later than 365 days from the date of this Order or 90 days before the first day that spent fuel is initially placed in the ISFSI, whichever is earlier. Duke must implement these requirements before initially placing spent fuel in the ISFSI. Additionally, Duke must receive written verification from the NRC (Office of Nuclear Material Safety and Safeguards) that it has adequately demonstrated compliance with these requirements before initially placing spent fuel in the ISFSI.
B. 1. Duke shall, within twenty (20) days of the date of this Order, notify the Commission: (1) If it is unable to comply with any of the requirements described in Attachments 1 and 2; (2) if compliance with any of the requirements is unnecessary, in its specific circumstances; or (3) if implementation of any of the requirements would cause Duke to be in violation of the provisions of any Commission regulation or the facility license. The notification shall provide Duke's justification for seeking relief from, or variation of, any specific requirement.
2. If Duke considers that implementation of any of the requirements described in Attachments 1 and 2 to this Order would adversely impact the safe storage of spent fuel, Duke must notify the Commission, within twenty (20) days of this Order, of the adverse safety impact, the basis for its determination that the requirement has an adverse safety impact, and either a proposal for achieving the same objectives specified in Attachments 1 and 2 requirements in question, or a schedule for modifying the facility, to address the adverse safety condition. If neither approach is appropriate, Duke must supplement its response to Condition B.1 of this Order to identify the condition as a requirement with which it cannot comply, with attendant justifications, as required under Condition B.1.
C. 1. Duke shall, within twenty (20) days of this Order, submit to the Commission a schedule for achieving compliance with each requirement described in Attachments 1 and 2.
2. Duke shall report to the Commission when it has achieved full compliance with the requirements described in Attachments 1 and 2.
D. All measures implemented or actions taken in response to this Order shall be maintained until the Commission determines otherwise.
Duke's response to Conditions B.1, B.2, C.1, and C.2, above, shall be submitted in accordance with 10 CFR 72.4. In addition, submittals and documents produced by Duke as a result of this Order, that contain Safeguards Information as defined by 10 CFR 73.22, shall be properly marked and handled, in accordance with 10 CFR 73.21 and 73.22.
The Director, Office of Nuclear Material Safety and Safeguards, may, in writing, relax or rescind any of the above conditions, for good cause.
In accordance with 10 CFR 2.202, Duke must, and any other person adversely affected by this Order may, submit an answer to this Order within 20 days of its publication in the
The answer may consent to this Order. If the answer includes a request for a hearing, it shall, under oath or affirmation, specifically set forth the matters of fact and law on which Duke relies and the reasons as to why the Order should not have been issued. If a person other than Duke requests a hearing, that person shall set forth with particularity the manner in which his/her interest is adversely affected by this Order and shall address the criteria set forth in 10 CFR 2.309(d) and (f).
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the Internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC's Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC's public Web site at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC's public Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
If a hearing is requested by Duke or a person whose interest is adversely affected, the Commission will issue an Order designating the time and place of any hearing. If a hearing is held, the issue to be considered at such hearing shall be whether this Order should be sustained.
Pursuant to 10 CFR 2.202(c)(2)(i), Duke may, in addition to requesting a hearing, at the time the answer is filed or sooner, move the presiding officer to set aside the immediate effectiveness of the Order on the grounds that the Order, including the need for immediate effectiveness, is not based on adequate evidence, but on mere suspicion, unfounded allegations, or error.
In the absence of any request for hearing, or written approval of an extension of time in which to request a hearing, the provisions as specified in Section III shall be final twenty (20) days from the date this Order is published in the
For the Nuclear Regulatory Commission.
1. These additional security measures (ASMs) are established to delineate an independent spent fuel storage installation (ISFSI) licensee's responsibility to enhance security measures related to authorization for unescorted access to the protected area of an ISFSI in response to the current threat environment.
2. Licensees whose ISFSI is collocated with a power reactor may choose to comply with the U.S. Nuclear Regulatory Commission (NRC)-approved reactor access authorization program for the associated reactor as an alternative means to satisfy the provisions of sections B through G below. Otherwise, licensees shall comply with the access authorization and fingerprinting requirements of section B through G of these ASMs.
3. Licensees shall clearly distinguish in their 20-day response which method they intend to use in order to comply with these ASMs.
1. The licensee shall develop, implement and maintain a program, or enhance its existing program, designed to ensure that persons granted unescorted access to the protected area of an ISFSI are trustworthy and reliable and do not constitute an unreasonable risk to the public health and safety for the common defense and security, including a potential to commit radiological sabotage.
a. To establish trustworthiness and reliability, the licensee shall develop, implement, and maintain procedures for conducting and completing background investigations, prior to granting access. The scope of background investigations must address at least the past three years and, as a minimum, must include:
i. Fingerprinting and a Federal Bureau of Investigation (FBI) identification and criminal history records check (CHRC). Where an applicant for unescorted access has been previously fingerprinted with a favorably completed CHRC, (such as a CHRC pursuant to compliance with orders for access to safeguards information) the licensee may accept the results of that CHRC, and need not submit another set of fingerprints, provided the CHRC was completed not more than three years from the date of the application for unescorted access.
ii. Verification of employment with each previous employer for the most recent year from the date of application.
iii. Verification of employment with an employer of the longest duration during any calendar month for the remaining next most recent two years.
iv. A full credit history review.
v. An interview with not less than two character references, developed by the investigator.
vi. A review of official identification (
vii. Licensees shall confirm eligibility for employment through the regulations of the U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, and shall verify and ensure, to the extent possible, the accuracy of the provided social security number and alien registration number, as applicable.
b. The procedures developed or enhanced shall include measures for confirming the term, duration, and character of military service for the past three years, and/or academic enrollment and attendance in lieu of employment, for the past five years.
c. Licensees need not conduct an independent investigation for individuals employed at a facility who possess active “Q” or “L” clearances or possess another active U.S. Government-granted security clearance (
d. A review of the applicant's criminal history, obtained from local criminal justice resources, may be included in addition to the FBI CHRC, and is encouraged if the results of the FBI CHRC, employment check, or credit check disclose derogatory information. The scope of the applicant's local criminal history check shall cover all residences of record for the past three years from the date of the application for unescorted access.
2. The licensee shall use any information obtained as part of a CHRC solely for the purpose of determining an individual's suitability for unescorted access to the protected area of an ISFSI.
3. The licensee shall document the basis for its determination for granting or denying access to the protected area of an ISFSI.
4. The licensee shall develop, implement, and maintain procedures for updating background investigations for persons who are applying for reinstatement of unescorted access. Licensees need not conduct an independent reinvestigation for individuals who possess active “Q” or “L” clearances or possess another active U.S. Government granted security clearance,
5. The licensee shall develop, implement, and maintain procedures for reinvestigations of persons granted unescorted access, at intervals not to exceed five years. Licensees need not conduct an independent reinvestigation for individuals employed at a facility who possess active “Q” or “L” clearances or possess another active U.S. Government granted security clearance,
6. The licensee shall develop, implement, and maintain procedures designed to ensure that persons who have been denied unescorted access authorization to the facility are not allowed access to the facility, even under escort.
7. The licensee shall develop, implement, and maintain an audit program for licensee and contractor/vendor access authorization programs that evaluate all program elements and include a person knowledgeable and practiced in access authorization program performance objectives to assist in the overall assessment of the site's program effectiveness.
1. In a letter to the NRC, the licensee must nominate an individual who will review the results of the FBI CHRCs to make trustworthiness and reliability determinations for unescorted access to an ISFSI. This individual, referred to as the “reviewing official,” must be someone who requires unescorted access to the ISFSI. The NRC will review the CHRC of any individual nominated to perform the reviewing official function. Based on the results of the CHRC, the NRC staff will determine whether this individual may have access. If the NRC determines that the nominee may not be granted such access, that individual will be prohibited from obtaining access.
2. No person may have access to Safeguards Information (SGI) or unescorted access to any facility subject to NRC regulation, if the NRC has determined, in accordance with its administrative review process based on fingerprinting and an FBI identification and CHRC, that the person may not have access to SGI or unescorted access to any facility subject to NRC regulation.
3. All fingerprints obtained by the licensee under this Order, must be submitted to the Commission for transmission to the FBI.
4. The licensee shall notify each affected individual that the fingerprints will be used to conduct a review of his/her criminal history record and inform the individual of the procedures for revising the record or including an explanation in the record, as specified in the “Right to Correct and Complete Information,” in section F of these ASMs.
5. Fingerprints need not be taken if the employed individual (
1. A licensee shall not base a final determination to deny an individual unescorted access to the protected area of an ISFSI solely on the basis of information received from the FBI involving: an arrest more than one (1) year old for which there is no information of the disposition of the case, or an arrest that resulted in dismissal of the charge, or an acquittal.
2. A licensee shall not use information received from a CHRC obtained pursuant to this Order in a manner that would infringe upon the rights of any individual under the First Amendment to the Constitution of the United States, nor shall the licensee use the information in any way that would discriminate among individuals on the basis of race, religion, national origin, sex, or age.
1. For the purpose of complying with this Order, licensees shall, using an appropriate method listed in 10 CFR 73.4, submit to the NRC's Division of Facilities and Security, Mail Stop T-03B46M, one completed, legible standard fingerprint card (Form FD-258, ORIMDNRCOOOZ) or, where practicable, other fingerprint records for each individual seeking unescorted access to an ISFSI, to the Director of the Division of Facilities and Security, marked for the attention of the Division's Criminal History Check Section. Copies of these forms may be obtained by writing the Office of Information Services, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, by calling (630) 829-9565, or by email to
2. The NRC will review submitted fingerprint cards for completeness. Any Form FD-258 fingerprint record containing omissions or evident errors will be returned to the licensee for corrections. The fee for processing fingerprint checks includes one re-submission if the initial submission is returned by the FBI because the fingerprint impressions cannot be classified. The one free re-submission must have the FBI Transaction Control Number reflected on the re-submission. If additional submissions are necessary, they will be treated as initial submittals and will require a second payment of the processing fee.
3. Fees for processing fingerprint checks are due upon application. The licensee shall submit payment of the processing fees electronically. To be able to submit secure electronic payments, licensees will need to establish an account with Pay.Gov (
4. The Commission will forward to the submitting licensee all data received from the FBI as a result of the licensee's application(s) for CHRCs, including the FBI fingerprint record.
1. Prior to any final adverse determination, the licensee shall make available to the individual the contents of any criminal history records obtained from the FBI for the purpose of assuring correct and complete information. Written confirmation by the individual of receipt of this notification must be maintained by the licensee for a period of one (1) year from the date of notification.
2. If, after reviewing the record, an individual believes that it is incorrect or incomplete in any respect and wishes to change, correct, or update the alleged deficiency, or to explain any matter in the record, the individual may initiate challenge procedures. These procedures include either direct application by the individual challenging the record to the agency (
1. The licensee shall develop, implement, and maintain a system for personnel information management with appropriate procedures for the protection of personal, confidential information. This system shall be designed to prohibit unauthorized access to sensitive information and to prohibit modification of the information without authorization.
2. Each licensee who obtains a criminal history record on an individual pursuant to this Order shall establish and maintain a system of files and procedures, for protecting the record and the personal information from unauthorized disclosure.
3. The licensee may not disclose the record or personal information collected and maintained to persons other than the subject individual, his/her representative, or to those who have a need to access the information in performing assigned duties in the process of determining suitability for
4. The personal information obtained on an individual from a CHRC may be transferred to another licensee if the gaining licensee receives the individual's written request to re-disseminate the information contained in his/her file, and the gaining licensee verifies information such as the individual's name, date of birth, social security number, sex, and other applicable physical characteristics for identification purposes.
5. The licensee shall make criminal history records, obtained under this section, available for examination by an authorized representative of the NRC to determine compliance with the regulations and laws.
Nuclear Regulatory Commission.
Draft NUREG; extension of comment period.
On February 5, 2016, the U.S. Nuclear Regulatory Commission (NRC) solicited comments on draft NUREG, NUREG-1021, Revision 11, “Operator Licensing Examination Standards for Power Reactors.” The public comment period was originally scheduled to close on March 21, 2016. The NRC has decided to extend the public comment period to allow more time for members of the public to develop and submit their comments.
The due date of comments requested in the document published on February 5, 2016 (81 FR 6301) is extended. Comments should be filed no later than April 5, 2016. Comments received after this date will be considered if it is practical to do so, but the NRC staff is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
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•
For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Maurin Scheetz, telephone: 301-415-2758, email:
Please refer to Docket ID NRC-2016-0006 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
•
•
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Please include Docket ID NRC-2016-0006 in your comment submission.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning the removal of the exigent surcharge from existing rates on Sunday, April 10, 2016. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
On February 25, 2016, the Postal Service, in accordance with Order No. 1926, filed notice of its intention to remove the exigent surcharge from existing rates on Sunday, April 10, 2016.
The Notice includes Attachment A, which updates the Market Dominant section of the Mail Classification Schedule with the prices that will take effect upon removal of the exigent surcharge.
1. Interested persons are invited to comment on the Postal Service's removal of the exigent surcharge no later than March 16, 2016.
2. James Waclawski will continue to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in this proceeding.
3. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning an amendment to Priority Mail Contract 105 negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
On February 25, 2016, the Postal Service filed notice that it has agreed to an amendment to the existing Priority Mail Contract 105 negotiated service agreement approved in this docket.
The Postal Service also filed the unredacted amendment under seal. The Postal Service seeks to incorporate by reference the Application for Non-Public Treatment originally filed in this docket for the protection of information that it has filed under seal. Notice at 1.
The amendment modifies the contract's price clause and the associated price adjustment mechanism.
The Postal Service intends for the amendment to become effective one
The Commission invites comments on whether the changes presented in the Postal Service's Notice are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR 3015.5, and 39 CFR part 3020, subpart B. Comments are due no later than March 4, 2016. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Nina Yeh to represent the interests of the general public (Public Representative) in this docket.
1. The Commission reopens Docket No. CP2015-25 for consideration of matters raised by the Postal Service's Notice.
2. Pursuant to 39 U.S.C. 505, the Commission appoints Nina Yeh to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in this proceeding.
3. Comments are due no later than March 4, 2016.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Monday, March 21, 2016, at 4:00 p.m.
via Teleconference.
Closed.
1. Strategic Issues.
2. Financial Matters.
3. Pricing/Product Development Matters.
4. Personnel Matters and Compensation Issues.
5. Executive Session—Discussion of prior agenda items and Board governance.
The General Counsel of the United States Postal Service has certified that the meeting may be closed under the Government in the Sunshine Act.
Requests for information about the meeting should be addressed to the Secretary of the Board, Julie S. Moore, at 202-268-4800.
The following is a notice of applications for deregistration under section 8(f) of the Investment Company Act of 1940 for the month of February 2016. A copy of each application may be obtained via the Commission's Web site by searching for the file number, or for an applicant using the Company name box, at
The Commission: Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
Hae-Sung Lee, Attorney-Adviser, at (202) 551-7345 or Chief Counsel's Office at (202) 551-6821; SEC, Division of Investment Management, Chief Counsel's Office, 100 F Street NE., Washington, DC 20549-8010.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
On November 10, 2015, the International Securities Exchange, LLC (“ISE” or the “Exchange”) filed with the Securities and Exchange Commission (the “Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”)
Pursuant to ISE Rule 804(g)(1), the Exchange requires market makers
Currently, if ISE's trading system removes all of a market maker's quotes because a market-wide speed bump is triggered, the market maker may re-enter the market and resume trading upon notification to the Exchange's Market Operations.
The Exchange believes that it is appropriate to require Clearing Member approval before a market maker can re-enter the market after a market-wide speed bump because the Clearing Member guarantees the market maker's trades and bears the ultimate financial risk associated with those transactions. The Exchange notes that, while not all market makers are Clearing Members, all market makers require a Clearing Member's consent to clear transactions on their behalf in order to conduct business on the Exchange.
The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Act
Pursuant to Section 19(b)(2)(B) of the Act, the Commission is providing notice of the grounds for disapproval under consideration. The Commission is instituting proceedings because the proposal raises important issues that warrant further public comment and Commission consideration. Specifically, the Commission is instituting proceedings to allow for additional analysis of, and input from commenters with respect to, the proposed rule change's consistency with Section 6(b)(5) of the Act,
Under ISE's current rules, a market maker must enter continuous quotations for the options classes to which it is appointed.
The Exchange justifies the change as appropriate because, “[w]hile in some cases this may result in a minimal delay for a market maker that wants to reenter the market quickly following a market-wide speed bump, the Exchange believes that Clearing Member approval . . . ensure[s] that the market maker does not prematurely enter the market without adequate safeguards . . .”
The Commission requests that interested persons provide written submissions of their views, data and arguments with respect to the concerns identified above, as well as any other concerns they may have with the proposed rule change. In particular, the Commission invites the written views of interested persons concerning whether the proposal is consistent with Sections 6(b)(5)
Interested persons are invited to submit written data, views, and arguments regarding whether the
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 proposes to relocate language in current Rule 1035, entitled “Acceptable of Bid or Offer” [sic] to Phlx Rule 1019 and adopt an optional Kill Switch protection. The Kill Switch will allow Phlx members to remove quotes and cancel open orders and prevent new order submission.
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 adopt a new risk protection, a Kill Switch, applicable to all Phlx members and member organizations (hereinafter “member(s)”). The Kill Switch will allow Phlx members to remove quotes and cancel open orders and prevent new order submission. This feature provides firms with a powerful risk management tool for immediate control of their quote and order activity.
The Exchange proposes to relocate current Rule 1035, entitled “Acceptable of Bid or Offer” [sic] to currently reserved Rule 1019, title revised Rule 1019 “Acceptance of Bid or Offer,” and add a new section (b) to Rule 1019. The Phlx Options Kill Switch will be an optional tool that enables Phlx members to initiate a message(s)
If the Phlx member selects quotes to be cancelled utilizing the Kill Switch, the Phlx member must send a message to the Exchange to request the removal of all quotes requested for the specified Identifier(s).
If the Phlx member selects orders to be cancelled utilizing the Kill Switch, the Phlx member must send a message to the Exchange to request the cancellation of all orders requested for the certain specified Identifier(s).
Proposed section (b)(iii) stipulates that after quotes and/or orders are removed/cancelled by the Phlx member utilizing the Kill Switch, the Phlx member will be unable to enter additional quotes and/or orders for the affected Identifier(s) until the Phlx member has made a request to the Exchange and Exchange staff has set a re-entry indicator to enable re-entry.
The Exchange offers many risk mitigation and management tools today including, but not limited to, certain rapid fire risk controls,
The Exchange proposes to implement this rule within ninety (90) days of the implementation date. The Exchange will issue an Options Trader Alert in advance to inform market participants of such date.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The individual firm benefits of enhanced risk protections flow downstream to counter-parties both at the Exchange and at other options exchanges, thereby increasing systemic protections as well. Additionally, because the Exchange offers this risk tool to all Phlx members, the Exchange believes this will allow Phlx members to enter quotes and orders without fear of inadvertent exposure to excessive risk, which in turn will benefit investors through increased liquidity for the execution of their orders, thereby protecting investors and the public interest.
This optional risk tool as noted above will be offered to all Phlx members. The Exchange further represents that its proposal will operate consistently with the firm quote obligations of a broker-dealer pursuant to Rule 602 of Regulation NMS and that the functionality is not mandatory. Specifically, any interest that is executable against a Phlx member's quotes and orders that are received
A Market Makers' obligation to provide continuous two-sided quotes on a daily basis is not diminished by the removal of such quotes and/or orders by utilizing the Kill Switch. Market Makers will be required to provide continuous two-sided quotes on a daily basis. Market Makers that utilize the Kill Switch will not be relieved of the obligation to provide continuous two-sided quotes on a daily basis, nor will it prohibit the Exchange from taking disciplinary action against a Market Maker for failing to meet the continuous quoting obligation each trading day.
With respect to providing information regarding the removal of quotes and/or cancellation of orders as a result of the Kill Switch to the Clearing Member, each Member that transacts through a Clearing Member on the Exchange executes a Letter of Guarantee wherein the Clearing Member accepts financial responsibility for all Exchange transactions made by the Phlx member on whose behalf the Clearing Member submits the Letter of Guarantee. The Exchange believes that because Clearing Members guarantee all transactions on behalf of a member, and therefore bear the risk associated with those transactions, it is appropriate for Clearing members to have knowledge of the utilization by the member of the Kill Switch, should the Clearing member request such notification.
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 proposal does not impose an undue burden on intra-market competition because all Phlx members may avail themselves of the Kill Switch. The Kill Switch functionality is optional. The proposed rule change is meant to protect Phlx members in the event the Phlx member is suffering from a systems issue or from the occurrence of unusual or unexpected market activity that would require them to withdraw from the market in order to protect investors. The ability to control risk at either the user or group level will permit the Phlx member to protect itself from inadvertent exposure to excessive risk at each level. Reducing such risk will enable Phlx members to enter quotes and orders without fear of inadvertent exposure to excessive risk, which in turn will benefit investors through increased liquidity for the execution of their orders. Such increased liquidity
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.
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.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission will hold an Open Meeting on Monday, March 7, 2016, at 3:30 p.m., in the Auditorium (L-002) at the Commission's headquarters building, to hear oral argument in an appeal from an initial decision of an administrative law judge by respondents J.S. Oliver Capital Management, L.P. (“J.S. Oliver”), and Ian O. Mausner (“Mausner”).
On August 5, 2014, the law judge found that, beginning in 2008, J.S. Oliver, a registered investment adviser, and Mausner, its principal, violated antifraud provisions of the securities laws by cherry picking profitable trades for favored accounts and by failing to disclose uses of soft dollar commissions to their clients. The initial decision also found related compliance and recordkeeping violations. For their violations, the law judge barred Mausner from the securities industry, revoked J.S. Oliver's investment adviser registration, issued cease-and-desist orders against them, and ordered respondents to disgorge $1,376,440. The law judge also imposed civil money penalties of $3,040,000 on Mauser and $14,975,000 on J.S. Oliver.
Respondents appealed the civil money penalties imposed in the initial decision. The oral argument is likely to address what penalties, if any, are appropriate in the public interest. Also likely to be considered at oral argument is whether these administrative proceedings violate the U.S. Constitution.
For further information, please contact the Office of the Secretary at (202) 551-5400.
On November 12, 2015, the ISE Gemini, LLC (“ISE Gemini” or the “Exchange”) filed with the Securities and Exchange Commission (the “Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”)
Pursuant to ISE Gemini Rule 804(g)(1), the Exchange requires market makers
Currently, if ISE Gemini's trading system removes all of a market maker's quotes because a market-wide speed bump is triggered, the market maker may re-enter the market and resume trading upon notification to the Exchange's Market Operations.
The Exchange believes that it is appropriate to require Clearing Member approval before a market maker can re-enter the market after a market-wide speed bump because the Clearing Member guarantees the market maker's trades and bears the ultimate financial risk associated with those transactions. The Exchange notes that, while not all market makers are Clearing Members, all market makers require a Clearing Member's consent to clear transactions on their behalf in order to conduct business on the Exchange.
The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Act
Pursuant to Section 19(b)(2)(B) of the Act, the Commission is providing notice of the grounds for disapproval under consideration. The Commission is instituting proceedings because the proposal raises important issues that warrant further public comment and Commission consideration. Specifically, the Commission is instituting proceedings to allow for additional analysis of, and input from commenters with respect to, the proposed rule change's consistency with Section 6(b)(5) of the Act,
Under ISE Gemini's current rules, a market maker must enter continuous quotations for the options classes to which it is appointed.
The Exchange justifies the change as appropriate because, “[w]hile in some cases this may result in a minimal delay for a market maker that wants to reenter the market quickly following a market-wide speed bump, the Exchange believes that Clearing Member approval . . . ensure[s] that the market maker does not prematurely enter the market without adequate safeguards . . .”
The Commission requests that interested persons provide written submissions of their views, data and arguments with respect to the concerns identified above, as well as any other concerns they may have with the proposed rule change. In particular, the Commission invites the written views of interested persons concerning whether the proposal is consistent with Sections 6(b)(5)
Interested persons are invited to submit written data, views, and arguments regarding whether the proposal should be approved or disapproved by March 24, 2016. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by April 7, 2016. In light of the concerns raised by the proposed rule change, as discussed above, the Commission invites additional comment on the proposed rule change as the Commission continues its analysis of the proposed rule change's consistency with Sections 6(b)(5) and 6(b)(8),
Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to [sic] (1) investigation, disciplinary, sanction, and other procedural rules modeled on the rules of the New York Stock Exchange LLC (“NYSE”), and (2) certain conforming and technical changes. 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 (1) investigation, disciplinary, sanction, and other procedural rules that are modeled on the rules of its affiliate New York Stock Exchange LLC (“NYSE”), and (2) certain conforming and technical changes.
On July 30, 2007, the National Association of Securities Dealers, Inc. (“NASD”), NYSE, and NYSE Regulation, Inc. (“NYSE Regulation”), a not-for-profit subsidiary of the NYSE,
On June 14, 2010, the RSA was amended to retain FINRA to perform the market surveillance and enforcement functions that had, up to that point, been performed by NYSE Regulation.
In 2013, the NYSE adopted disciplinary rules that are, with certain exceptions, substantially the same as the text of the FINRA Rule 8000 Series and Rule 9000 Series, and which set forth rules for conducting investigations and enforcement actions (the “2013 NYSE Disciplinary Rule Filing”).
To achieve further rule harmonization among exchanges and to facilitate the reintegration of regulatory functions from FINRA,
The Exchange notes that some of its member organizations, by virtue of their membership in other self-regulatory organizations (“SRO”), are already subject to rules that are similar to the proposed rules. All NYSE MKT member organizations that have equity trading licenses are also NYSE members pursuant to Rule 2—Equities. Several other NYSE MKT member organizations and NYSE Amex Trading Permit (“ATP”) Holders also are members of FINRA (“Dual Members”). As such, these Dual Members are already subject to their respective Rule 8000 Series and Rule 9000 Series. Certain member organizations that are not members of FINRA or NYSE are members of The NASDAQ Stock Market (“NASDAQ”), which has similar disciplinary rules to FINRA and are therefore also already subject to similar rules. The proposed rule change would result in the Exchange and NYSE having substantially the same disciplinary process, which would closely resemble FINRA's process.
Set forth below in this Purpose section are:
• A description of the Exchange's current disciplinary rules, Rules 475-477;
• a description of the proposed rule change and transition generally;
• a more detailed description of the proposed rules with a comparison to the current rules;
• a description of technical and conforming amendments; and
• a description of current rules that will not be carried over into the proposed rule set and the reasons therefor.
This section summarizes NYSE MKT's current disciplinary rules, which
Rule 475 sets forth summary procedures under which the Exchange may prohibit or limit access to services. Under Rule 475(a), except as otherwise provided in Rule 475(b), the Exchange may not prohibit or limit any person with respect to access to services offered by the Exchange or any member or member organization thereof unless the Exchange has provided 15 days' prior written notice of, and an opportunity to be heard upon, the specific grounds for such prohibition or limitation. The Exchange must keep a record of any such proceeding. Any determination by the Exchange to prohibit or limit access to services must be supported by a statement setting forth the specific grounds for the prohibition or limitation.
Under Rule 475(b), the Exchange may summarily suspend persons subject to its jurisdiction that have been expelled or suspended by another SRO, or barred or suspended from being associated with a member or any such SRO, as long as any such summary suspension imposed by the Exchange does not exceed the termination of the suspension imposed by the other SRO. The Exchange also may suspend a member or member organization that is in such financial or operating difficulty that the Exchange determines, and so notifies the SEC, that the member or member organization cannot be permitted to continue to do business with safety to investors, creditors, other members or member organizations, or the Exchange. The Exchange also may limit or prohibit any person with respect to access to Exchange services if such person has been summarily suspended under this rule or, in the case of a person who is not a member or member organization, if the Exchange determines that such person does not meet the qualification requirements or other prerequisites for such access and such person cannot be permitted to continue to have such access with safety to investors, creditors, members, member organizations, or the Exchange.
Any person subject to summary action must receive written notice and an opportunity to be heard by the Exchange upon the specific grounds for the action, and the Exchange must keep a record of any summary proceeding. Any determination by the Exchange with respect to such summary action must be supported by a statement setting forth the specific grounds on which the summary action is based. The Commission, by order, may stay any such summary action in accordance with the provisions of the Act.
Rule 475(c) governs hearings and proceedings pursuant to Rule 475(a) and (b). Hearings are conducted by a Hearing Officer, appointed by the Exchange Board of Directors, acting alone. The Hearing Officer schedules and conducts hearings promptly and, in doing so, provides such discovery to the person whose access or suspension is the subject of such a hearing and to the Exchange officers and employees. The Hearing Officer renders determinations based upon the record at such hearings. The Hearing Officer may modify, reverse, or terminate a summary action, unless within 10 days of such determination, a request for review is filed with the Secretary of the Exchange. Any member of the Exchange Board of Directors, any member of the Committee for Review (“CFR”),
Under Rule 475(d), whenever a member or member organization fails to perform its contracts, becomes insolvent, or is in such financial or operating difficulty that it cannot be permitted to continue to do business as a member or member organization with safety to investors, creditors, other members or member organizations, or the Exchange, such member or member organization must promptly give written notice thereof to the Secretary of the Exchange.
Under Rule 475(e), any person suspended under the provisions of the rule must, at the request of the Exchange, submit to the Exchange its books and records or the books and records of any employee thereof and furnish information to or appear or testify before or cause any such employee to appear or testify before the Exchange.
Under Rule 475(f), any person suspended under Rule 475 may, at any time, be reinstated by the Exchange Board of Directors.
Under Rule 475(g), any person suspended under Rule 475 may be disciplined in accordance with the Exchange's rules for any offense committed before or after the suspension.
Under Rule 475(h), a member suspended under Rule 475 is deprived during the term of the suspension of all rights and privileges of membership, and any suspension of a member or principal executive creates a vacancy in any office or position held by such member or principal executive.
Under Rule 475(i), the limitations on the Chief Executive Officer (“CEO”) of the Exchange contained in Rule 476(l) that prohibit the CEO from initiating a call for review apply to all matters under Rule 475.
Under Rule 475(j), any member of the Exchange Board of Directors, any member of the CFR, the Exchange, and the respondent may require a review by the Exchange Board of Directors of any determination under Rule 475 by filing with the Secretary of the Exchange a written request therefor within 10 days following such determination. The Exchange Board of Directors, with the advice of the CFR, shall have the power to affirm, modify, or reverse any such determination, or remand the matter for further proceedings. Unless the Exchange Board of Directors otherwise specifically directs, the determination and the penalty, if any, of the Exchange Board of Directors after review is final and conclusive, subject to the provisions for review under the Act.
Rule 476 governs disciplinary proceedings involving charges against members, member organizations, principal executives, approved persons, employees, or others subject to the Exchange's jurisdiction. Under Rule 476(a), if such a person is adjudged guilty of certain offenses in a proceeding under Rule 476, then a Hearing Panel or Hearing Officer, in accordance with the Sanctions Guidelines in Rule 476.10,
Rule 476(b) describes the role of Hearing Panels and Hearing Officers. Under Rule 476(b), all proceedings under Rule 476, except for matters resolved by a Hearing Officer when authorized by the rule, are conducted at a hearing in accordance with the Rule and held before a Hearing Panel consisting of at least three persons of integrity and judgment: A Hearing Officer, who chairs the Hearing Panel, and at least two members of the Hearing Board, at least one of whom must be engaged in securities activities differing from that of the respondent or, if retired, was so engaged in differing activities at the time of retirement. In any disciplinary proceeding involving activities on the Floor of the Exchange, no more than one of the persons serving on the Hearing Panel may be, or if retired, may have been, active on the Floor of the Exchange. A Hearing Panel may include only one retired person.
The Chairman of the Exchange Board of Directors, subject to the approval of the Exchange Board of Directors, from time to time appoints a Hearing Board to be composed of persons of integrity and judgment who are members and principal executives of the Exchange who are not members of the Exchange Board of Directors, registered and non-registered employees of members and member organizations, and such other persons as the Chairman deems necessary. Former members, principal executives, or registered and non-registered employees of members and member organizations who have retired from the securities industry may be appointed to the Hearing Board within five years of their retirement. The members of the Hearing Board are appointed annually and serve at the pleasure of the Exchange Board of Directors.
The Chairman, subject to the approval of the Exchange Board of Directors, annually designates a Chief Hearing Officer and one or more other Hearing Officers who have no Exchange duties or functions relating to the investigation or preparation of disciplinary matters. Hearing Officers serve at the pleasure of the Exchange Board of Directors. An individual cannot be a Hearing Officer (including the Chief Hearing Officer) if he or she is, or within the last three years was, a member, principal executive, or registered or non-registered employee of a member or member organization.
Under the rule, the decision of a majority of the Hearing Panel is the decision of the Hearing Panel and is final and conclusive, unless a request to the Exchange Board of Directors for review is filed.
Rule 476(c) governs procedural matters and the conduct of the hearing. Under Rule 476(c), upon application to the Chief Hearing Officer by either party to a proceeding, the Chief Hearing Officer, or any Hearing Officer designated by the Chief Hearing Officer, resolves any and all procedural and evidentiary matters and substantive legal motions, and may require the Exchange to permit the respondent to inspect and copy documents or records in the possession of the Exchange that are material to the preparation of the defense or are intended for use by the Exchange as evidence in chief at the hearing. The respondent may be required to provide discovery of non-privileged documents and records to the Exchange. The rule does not authorize the discovery or inspection of reports, memoranda, or other internal Exchange documents prepared by the Exchange in connection with the proceeding. There is no interlocutory appeal to the Exchange Board of Directors of any determination as to which this provision applies.
Rule 476(d) governs Charge Memorandums, Answers, and motions. Under Rule 476(d), except as otherwise provided in Rule 476(g), which governs Stipulations and Consents, the specific charges against the respondent must be in the form of a written statement (a “Charge Memorandum”) and signed by an authorized officer or employee of the Exchange, or an authorized employee of another SRO with which the Exchange has entered into an RSA pursuant to Rule 1B on behalf of the Exchange. A copy of such Charge Memorandum must be filed with the Hearing Board at the same time it is served upon the respondent. Service is deemed effective by personal service of such Charge Memorandum, or by leaving the same either at the respondent's last known office address during business hours or the respondent's last place of residence as reflected in Exchange records, or upon mailing same to the respondent at such office address or place of residence. The Hearing Board assumes jurisdiction upon receipt of the Charge Memorandum.
A written Answer to the Charge Memorandum must be filed not later than 25 days from the date of service or within such longer period of time as the Hearing Officer may deem proper. The Answer must be signed by or on behalf of the respondent and filed with the Hearing Board, with a copy served on the Exchange. The Answer must indicate specifically which assertions of fact and charges in the Charge Memorandum are denied and which are admitted, and also contain any specific facts in contradiction of the charges and any affirmative defenses. A general denial is insufficient. Any assertions of fact not specifically denied in the Answer may be deemed admitted and failure to file an Answer may be deemed an admission of any facts asserted in the Charge Memorandum.
The Hearing Board sets a schedule for the filing of motions and establishes hearing dates. If the respondent fails to file an Answer, the Exchange, by motion, accompanied by proof of notice to the respondent, may request a determination of guilt by default and may recommend a penalty to be imposed. If the respondent opposes the motion, the Hearing Officer, on a determination that the respondent had adequate reason to fail to file an Answer, may adjourn the hearing date and direct the respondent to promptly file an Answer. If the default motion is unopposed, or the respondent did not have adequate reason to fail to file an Answer, or the respondent failed to file an Answer after being given an opportunity to do so, the Hearing Officer, on a determination that the respondent has had notice of the charges and that the Exchange has jurisdiction in the matter, may find guilt and determine a penalty.
Notice of the hearing is served upon the Exchange and the respondent. The respondent is entitled to be personally present. The Hearing Officer determines the specific facts at issue, and with respect to those facts only, both the Exchange and the respondent may
Rule 476(e) concerns the hearing record and time for appeal. Under Rule 476(e), the Exchange must keep a record of any hearing conducted and a written notice of the result must be served upon the respondent and the Exchange.
The determination of the Hearing Panel, or of the Hearing Officer on a determination of default, and any penalty imposed, is final and conclusive 25 days after notice has been served upon the respondent, unless a request to the Exchange Board of Directors for review of such determination and/or penalty is filed, in which case any penalty imposed is stayed pending the outcome of such review.
Rule 476(f) concerns appeals to the Exchange Board of Directors. Under Rule 476(f), the Exchange, the respondent, any member of the Exchange Board of Directors, and any member of the CFR may require a review by the Exchange Board of Directors of any determination or penalty, or both, imposed by a Hearing Panel or Hearing Officer. A written request for review must be filed with the Secretary of the Exchange within 25 days after notice of the determination and/or penalty is served upon the respondent. The Secretary of the Exchange gives notice of any such request for review to the Exchange and any respondent affected thereby.
Any review must be conducted by the Exchange Board of Directors or the CFR, in the sole discretion of the Exchange Board of Directors, and is based on oral arguments and written briefs and is limited to consideration of the record before the Hearing Panel or Hearing Officer. The CFR in turn can appoint an appeals panel to conduct the review and make a recommendation to the CFR.
Upon review, and with the advice of the CFR, the Exchange Board of Directors, by majority vote, may sustain any determination or penalty imposed, or both; may modify or reverse any such determination; and may increase, decrease or eliminate any such penalty, or impose any penalty permitted under the provisions of this rule. Unless the Exchange Board of Directors otherwise specifically directs, the determination and penalty, if any, of the Exchange Board of Directors after review is final and conclusive, subject to the provisions for review under the Act.
Notwithstanding the foregoing, if either party upon review applies for leave to adduce additional evidence, and shows to the satisfaction of the Exchange Board of Directors, with the advice of the CFR, that the additional evidence is material and that there was reasonable ground for failure to adduce it before the Hearing Panel or Hearing Officer, the Exchange Board of Directors, with the advice of the CFR, may remand the case for further proceedings, in whatever manner and on whatever conditions the Exchange Board of Directors considers appropriate.
Rule 476(g) sets forth an alternative Stipulation and Consent procedure that may be used in lieu of the procedures set forth in Rule 476(d). Under Rule 476(g), a Hearing Officer acting alone may determine whether a person subject to the Exchange's jurisdiction has committed an offense on the basis of a written Stipulation and Consent entered into between the respondent and any authorized officer or employee of the Exchange or an authorized employee of another SRO with which the Exchange has entered into an RSA pursuant to Rule 1B on behalf of the Exchange. Any such Stipulation and Consent must contain a stipulation with respect to the facts, or the basis for findings of fact by the Hearing Officer; a consent to findings of fact by the Hearing Officer, including a finding that a specified offense had been committed; and a consent to the imposition of a specified penalty.
A Hearing Officer must convene a Hearing Panel if the Hearing Officer requires clarification or further information on the Stipulation and Consent, or if either party requests a hearing before a Hearing Panel. A Hearing Officer, acting alone, may not reject a Stipulation and Consent, but must convene a Hearing Panel to consider such action.
Notice of any hearing held for the purpose of considering a Stipulation and Consent is served upon the respondent as provided in Rule 476(d). In any such hearing, if the Hearing Panel determines that the respondent has committed an offense, it may impose the penalty agreed to in such Stipulation and Consent. In addition, a Hearing Panel may reject such Stipulation and Consent.
Such rejection does not preclude the parties to the proceeding from entering into a modified Stipulation and Consent or preclude the Exchange from bringing or presenting the same or different charges to a Hearing Panel in accordance with Rule 476(d). The Exchange must keep a record of any hearing conducted under this Rule and a written notice of the result setting forth the requirements contained in Section 6(d)(1) of the Act must be served on the parties to the proceeding.
The determination of the Hearing Panel or Hearing Officer and any penalty imposed are final and conclusive 25 days after notice thereof has been served upon the respondent, unless a request to the Exchange Board of Directors for review of such determination and/or penalty is filed, in which case any penalty imposed is stayed pending the outcome of such review.
Any member of the Exchange Board of Directors and any member of the CFR may require a review by the Exchange Board of Directors of any determination or penalty, or both, imposed by a Hearing Panel or Hearing Officer in connection with a Stipulation and Consent. The respondent or the Exchange Division that entered into the Stipulation and Consent may require a review by the Exchange Board of Directors of any rejection of such Stipulation and Consent by the Hearing Panel. A written request for review must be filed with the Secretary of the Exchange within 25 days after notice of the determination and/or penalty is served on the respondent. The Secretary of the Exchange gives notice of any such request for review to the Exchange Division involved in the proceeding and any respondent affected thereby.
Any review must be conducted by the Exchange Board of Directors, or the CFR, in the sole discretion of the Exchange Board of Directors, and consists of oral arguments and written briefs and is limited to consideration of the record before the Hearing Panel or Hearing Officer. Upon review, and with the advice of the CFR, the Exchange Board of Directors, by majority vote, may fix and impose the penalty agreed to in such Stipulation and Consent or any penalty that is less severe than the stipulated penalty, or may remand for further proceedings. Unless the Exchange Board of Directors otherwise specifically directs, the determination and penalty, if any, of the Exchange Board of Directors after review is final and conclusive, subject to the provisions for review under the Act.
Rule 476(h) concerns legal representation. Under the rule, a person subject to the Exchange's jurisdiction has the right to be represented by legal counsel or other representative in any hearing or review held under Rule 476 and in any investigation before any committee, officer, or employee of the Exchange. A Hearing Officer may impose a fine or any other appropriate sanction on any party or the party's representative for improper conduct in connection with a matter before the Hearing Board, and may, if appropriate, exclude any participant, including any party, witness, attorney or representative from a hearing on the basis of such conduct.
Under Rule 476(i), a member or principal executive of the Exchange who is associated with a member organization is liable to the same discipline and penalties for any act or omission of such member organization as for the member or principal executive's own personal act or omission. The Hearing Panel that considers the charges against such member, or principal executive, or the Exchange Board of Directors upon any review thereof, may relieve him from the penalty therefor or may remit or reduce such penalty on such terms and conditions as the Hearing Panel or the Exchange Board of Directors, with the advice of the CFR, deems fair and equitable.
Rule 476(j) governs suspensions. When a member is suspended under Rule 476, such member is deprived during the term of the member's suspension of all rights and privileges of membership. The expulsion of a member terminates all membership rights and privileges.
Rule 476(k) addresses non-payment of fines and other sums due to the Exchange. Under this rule, if any approved person or registered or non-registered employee fails to pay any fine within 45 days after the same is payable, such individual may, after written notice mailed to such individual at either the member's office or last place of residence as reflected in Exchange records, be summarily suspended from association in any capacity with a member organization or have the member's approval withdrawn until such fine is paid. The rule further provides that any member, member organization or principal executive that fails to pay a fine or any other sums due to the Exchange within 45 days is reported by the Exchange Treasurer to the Chairman of the Exchange Board of Directors and, after written notice mailed to such member, member organization or principal executive of such arrearages, may be suspended by the Exchange Board of Directors until payment is made.
An individual or organization may be proceeded against for any offense other than that for which such individual or organization was suspended. In addition, the suspension or expulsion of a member or principal executive under the provisions of this rule creates a vacancy in any office or position held by the member or principal executive. Similarly, current Rule 309—Equities provides that any member, member organization or principal executive that fails to pay a fee or any other sums due to the Exchange (excluding a fine) within 45 days after the same are payable shall be reported to the Chief Financial Officer of the Exchange or designee who, after notice has been given to such member, member organization or principal executive of such arrearages, may suspend access to some or all of the facilities of the Exchange until payment is made. Written suspension notices under both Rules 309—Equities and 476(k) are immediately effective upon such notice and the rules provide no further process; upon payment of the fine or amount due, the suspension is lifted.
Under Rule 476(l), the CEO may not require a review by the Exchange Board of Directors under Rule 476 and is recused from deliberations and actions of the Board with respect to such matters.
Rule 476.10 sets forth the Exchange's Sanctions Guidelines with respect to certain options-related violations.
Under Rule 476A(a), in lieu of commencing a disciplinary proceeding under Rule 476, the Exchange may impose a fine not to exceed $5,000 on any member, member organization, principal executive, approved person, or registered or non-registered employee of a member or member organization for violation of the rules listed in Rule 476A. Any fine imposed pursuant to this rule and not contested is not publicly reported, except as may be required by SEC Rule 19d-1 and as may be required by any other regulatory authority.
Under Rule 476A(b), the person against whom a minor rule violation fine is imposed is served with a written statement, signed by an authorized officer or employee of the Exchange on behalf of the Division or Department of the Exchange taking the action, setting forth (i) the rule or rules alleged to have been violated; (ii) the act or omission constituting each such violation; (iii) the fine imposed for each such violation; and (iv) the date by which such determination becomes final and such fine becomes due and payable to the Exchange, or such determination must be contested as provided in Rule 476A(d). Such date may not be less than 25 days after the date of service of the written statement.
Under Rule 476A(c), if the person against whom a minor rule violation fine is imposed pays the fine, such payment is deemed to be a waiver by such person of such person's right to a disciplinary proceeding under Rule 476 and any review of the matter by a Hearing Panel or the Exchange Board of Directors.
Under Rule 476A(d), any person against whom a minor rule violation is imposed may contest the Exchange's determination by timely filing a written response meeting the requirements of an answer as provided in Rule 476(d), at which point the matter becomes a disciplinary proceeding subject to the provisions of Rule 476. In any such disciplinary proceeding, if the Hearing Panel determines that the person is guilty of the rule violation(s) charged, the Hearing Panel is free to impose any one or more of the disciplinary sanctions provided in Rule 476 and determine whether the rule violation(s) is minor in nature. NYSE Regulation, the person charged, any member of the Exchange Board of Directors, any member of the CFR, and any Executive Floor Governor may require a review by the Board of any determination by the Hearing Panel by proceeding in the manner described in Rule 476.
Under Rule 476A(e), the Exchange must prepare and announce to its members and member organizations from time to time a listing of the Exchange rules as to which the Exchange may impose minor rule violation fines. Such listing also indicates the specific dollar amount that may be imposed as a fine or may indicate the minimum and maximum dollar amounts that may be imposed by the Exchange with respect to any such violation. If the Exchange determines that any violation is not minor in nature, the Exchange can proceed under Rule 476 rather than under Rule 476A.
The remainder of Rule 476A sets forth the lists of rule violations that may be treated as minor rule violations and fines, which may not exceed $5,000. Part 1A sets forth a list of equities rule violations and fines applicable thereto, and Part 1C sets forth a list of options rule violations and fines applicable
Under Rule 477(a), if, prior to termination, or during the period of one year immediately following the receipt by the Exchange of written notice of the termination, of a person's status as a member, member organization, principal executive, approved person, or registered or non-registered employee of a member or member organization, the Exchange serves (as provided in Rule 476(d)) a written notice on such person that it is making inquiry into, or serves a Charge Memorandum on such person with respect to, any matter or matters occurring prior to the termination of such person's status, the Exchange may thereafter require such person to comply with any requests of the Exchange to appear, testify, submit books, records, papers, or tangible objects, respond to written requests and attend hearings in every respect in conformance with the Rules of the Exchange in the same manner and to the same extent as if such person had remained a member, member organization, principal executive, approved person, or registered or non-registered employee of a member or member organization.
Under Rule 477(b), prior to termination, or during the period of one year immediately following the receipt by the Exchange of written notice of the termination, of a person's status as a member, member organization, principal executive, approved person, or registered or non-registered employee of a member or member organization, the Exchange may, through the exercise of its jurisdiction, as described in Rule 477(a), require such person to comply with any requests of an organization or association included in Rule 476(a)(11) to appear, testify, submit books, records, papers, or tangible objects, respond to written requests and attend hearings in every respect in conformance with the Exchange rules in the same manner and to the same extent as if such person had remained a member, member organization, principal executive, approved person, or registered or non-registered employee of a member or member organization with respect to any matter or matters occurring prior to the termination of such person's status.
Under Rule 477(c), if a former member, member organization, principal executive, approved person, or registered or non-registered employee of a member or member organization, provided such notice or Charge Memorandum is or has been served, is adjudged guilty in a proceeding under Rule 476 of having refused or failed to comply with any such requirement, such person may be barred permanently, or for such period of time as may be determined, or until such time as the Exchange has completed its investigation into the matter or matters specified in such notice or Charge Memorandum, has determined a penalty, if any, to be imposed, and until the penalty, if any, has been carried out.
Under Rule 477(d), following the termination of a person's status as a member, member organization, principal executive, approved person, or registered or non-registered employee of a member or member organization, provided such notice or Charge Memorandum is or has been served, such person may also be charged with having committed, prior to termination, any other offense with which such person might have been charged had such status not been terminated. Any such charges shall be brought and determined in accordance with the provisions set forth in Rule 476.
The Exchange proposes to adopt new Rule 8000 and 9000 Series, under new Section 9B of the Office Rules titled “Disciplinary Rules.”
• Retain its currently applicable list of minor rule violations and accompanying fine levels in proposed Rules 9216(b) and 9217, rather than adopt the text of NYSE's minor rule violation plan;
• retain its options-related Sanctions Guidelines in Rule 476.10, with certain updates, and continue to apply them in sanctions imposed under the proposed Rule 9000 Series (NYSE does not have sanctions guidelines);
• retain recently adopted provisions in Rule 476(f) relating to appeals panels; and
• make certain technical and conforming changes, including changes to reflect the Exchange's equities and options membership.
The Exchange also proposes to harmonize its rules for non-payment of fees or other sums due to the Exchange, other than fines or monetary sanctions, with the NYSE's rule by adopting new Rule 41. In particular, the Exchange proposes to amend current Rule 476(k) to delete the phrase “or any other sums due to the Exchange,” and thereby limit Rule 476(k) to fines. The Exchange also proposes to delete current Rule 309—Equities, which authorizes the Exchange's Chief Financial Officer to address non-payment of amounts due to the Exchange other than fines and monetary sanctions. The Exchange proposes to adopt a new Rule 41 in the General Rules that will mirror the text of Rule 309—Equities, except that proposed Rule 41 would reference proposed Rule 8320 and would apply to the Exchange's options and equities markets. Proposed Rule 41 would also specifically state that failure to pay any fine levied in connection with a disciplinary action shall be governed by Rule 476(k) or Rule 8320, as applicable. By adopting this new rule text, the Exchange would have a single rule applicable to both its equities and options markets that is consistent with the counterpart rule of its NYSE affiliate.
The new Rule 8000-9000 Series and new Rule 41 would apply to the Exchange's equities and options markets.
The Exchange intends to announce the operative date of the new rules at least 30 days in advance in an
Specifically, the Exchange proposes that current Rule 475 would continue to apply to proceedings for which a written notice had been issued prior to the effective date of the new rules. Current Rules 476 and 476A would continue to apply with respect to a proceeding for which a Charge Memorandum had been filed with the Hearing Board under Rule 476(d) prior to the effective date of the new rules. Current Rule 476 also would continue to apply to a matter for which a written Stipulation and Consent had been submitted to a Hearing Officer prior to the effective date of the new rules. Current Rules 475, 476, or 476A would continue to apply until any such proceeding was final. In all other cases, the proposed Rule 8000 and 9000 Series, as described below, would apply.
Until the effective date, the Exchange could issue a written notice of suspension for non-payment of a fine or other sum due to the Exchange under current Rule 476(k), which would remain in effect until payment was made. Thereafter, the Exchange would proceed against an individual or entity subject to its jurisdiction that failed to pay a fine or monetary sanction under proposed Rule 8320.
As noted above, current Rule 476(a)(1)-(11) also contains substantive elements in addition to procedural elements. Specifically, Rule 476(a)(1)-(11) contains a list of offenses for which the Exchange can take disciplinary action. The proposed rule change would not alter this substantive aspect of Rule 476(a). The Exchange could continue to take disciplinary action against a member organization or other person subject to its jurisdiction for committing any of these substantive violations; following the transition described above, the Exchange would bring disciplinary cases for such offenses under the proposed Rule 9000 Series.
The Sanctions Guidelines in Rule 476.10 relating to options rule violations would continue to apply to proceedings under both Rule 476 and the Rule 9000 Series. The Exchange proposes to amend Rule 476.10 to update certain cross-references to options rules.
Similarly, the retention of jurisdiction provisions of Rule 477 would continue to apply to any member or member organization that resigned or had its membership canceled or revoked and any person whose status as a person subject to the Exchange's jurisdiction was terminated or whose registration was revoked or canceled if such member organization or person had been served with a Charge Memorandum or written notice of inquiry pursuant to Rule 477 prior to the effective date of the new rules. As described above, current Rule 477 generally provides that the Exchange retains jurisdiction for one year after such status is terminated and such jurisdiction continues if during that one-year period the Exchange has provided written notice that it is making inquiry into matters that arose prior to termination. In all other cases, the retention of jurisdiction provisions of proposed Rule 8130 would apply, which would be substantially the same as the counterpart NYSE rule. Under the proposed rule change, as described below, the Exchange would retain jurisdiction to file a complaint against any entity or individual subject to its jurisdiction for two years after such status was terminated, and the proposed Rule 8000 Series and Rule 9000 Series generally would apply.
The Exchange proposes to add italicized language to Rules 475, 476, 476A and 477 describing the proposed applicability and transition of each rule as described herein.
When the transition is complete and there are no longer any member organizations or persons who would be subject to Rules 475, 476, 476A, and 477, the Exchange intends to submit a proposed rule change that would delete any investigative and disciplinary provisions that are no longer needed. Other provisions would be retained and moved to an appropriate place in the Exchange's rules.
To continue the current coverage of the NYSE MKT disciplinary rules and conform to the NYSE rules' terminology, the proposed rule change would use the terms “member,” “member organization” and “covered person” to describe the persons to which the proposed Rule 8000 and 9000 Series apply. The term “covered person,” referenced in proposed Rule 8120(b) and defined in proposed Rule 9120(g), would include a member, principal executive, approved person, registered or non-registered employee of a member organization or an ATP Holder,
Proposed Rule 8001 would include the effective date of the proposed rule change for the Rule 8000 Series, noting the exception for the retention of jurisdiction dates in proposed Rule 8130 and the transition from current Rule 476(k) to proposed Rule 8320, as described above. The text of NYSE Rules 8110 through 8330 would be adopted as Rules 8110 through 8330.
Proposed Rule 8110 would require an NYSE MKT member or member organization to provide access to the Exchange's rules to its customers. Although there is no comparable requirement in the current rules, the Exchange currently makes available its rules on the Exchange's Web site.
Proposed Rule 8120 would provide cross-references to definitions of the terms “Adjudicator,” “covered person” and “Regulatory Staff” in proposed Rule 9120. Similarly, NYSE Rule 8120 cross-references the same three definitions. Proposed Rule 8120 is simply technical in nature, and is the same as the NYSE Rule.
Proposed Rule 8130 would set forth retention of jurisdiction provisions that are substantially the same as NYSE Rule 8130, except for the following conforming changes: “Member” would be added to paragraph (d); the cross-references in paragraph (b)(1) would be conformed to NYSE MKT's rules; and “ATP Holder”
Proposed Rule 8210 would set forth procedures for the provision of information and testimony and the inspection and copying of books by the Exchange, as amended by the NYSE in 2013.
Proposed Rule 8210(a) would require a member organization or covered person to provide information and testimony and permit the inspection of books, records, and accounts that are in such member organization's or covered person's possession, custody or control for the purpose of an investigation, complaint, examination, or proceeding authorized by the Exchange's rules. As noted above, under proposed Rule 8130, the Exchange would retain jurisdiction over a member organization or covered person to file a complaint or otherwise initiate a proceeding for two years after such member organization's or covered person's status is terminated
The Exchange also proposes new rule text in Rule 8210(a), recently proposed by NYSE, providing that in performing functions under the disciplinary code, the CRO and Regulatory Staff would function independently of the commercial interests of the Exchange and the commercial interests of the members and member organizations.
Proposed Rule 8210(b) would authorize Exchange staff to enter into regulatory cooperation agreements with a domestic federal agency or subdivision thereof or a foreign regulator. Current Rule 27—Equities permits the Exchange to enter into agreements with domestic or foreign SROs or associations, contract markets and registered futures associations, but does not specify domestic federal agencies or subdivisions thereof or foreign regulators; because the scope of current Rule 27—Equities is different, the Exchange would retain it along with proposed Rule 8210(b).
The remainder of proposed Rule 8210 would set forth certain procedures for investigations. Proposed Rule 8210(c) would require member organizations and covered persons to comply with information requests under the Rule.
Proposed Rule 8210(d) would provide that a notice under this Rule would be deemed received by the member organization or covered person (including a currently or formerly registered person) to whom it is directed by mailing or otherwise transmitting the notice to the last known business address of the member organization or the last known residential address of the covered person as reflected in the Central Registration Depository (“CRD”). With respect to a person currently associated with a member organization or ATP Holder in an unregistered capacity, a notice under this Rule would be deemed received by the person by mailing or otherwise transmitting the notice to the last known business address of the member organization or ATP Holder as reflected in the CRD. With respect to a person subject to the Exchange's jurisdiction who was formerly associated with a member organization or ATP Holder in an unregistered capacity, a notice under this Rule would be deemed received by the person upon personal service, as set forth in Rule 9134(a)(1).
If the Adjudicator or Exchange staff responsible for mailing or otherwise transmitting the notice to the member organization or covered person had actual knowledge that the address in the CRD is out of date or inaccurate, then a copy of the notice would be mailed or otherwise transmitted to: (1) The last known business address of the member organization or the last known residential address of the covered person as reflected in the CRD; and (2) any other more current address of the member organization or covered person known to the Adjudicator or Exchange staff responsible for mailing or otherwise transmitting the notice. Current Rules 475(e), 476(a)(11), and 477(a) and (b), and Rule 31 in the General Rules, which require persons subject to the Exchange's jurisdiction to provide books and records and appear and testify upon the Exchange's request, do not specify the address to which a notice of such request must be directed. The additional specificity in proposed Rule 8210(d) would afford member organizations and covered persons additional procedural protections in that respect.
If the Adjudicator or Exchange staff responsible for mailing or otherwise transmitting the notice to the member organization or covered person knew that the member organization or covered person was represented by counsel regarding the investigation, complaint, examination, or proceeding that was the subject of the notice, then the notice would be served upon counsel by mailing or otherwise transmitting the notice to the counsel in lieu of the member organization or covered person, and any notice served upon counsel would be deemed received by the member organization or covered person.
Proposed Rule 8210(e) would provide that in carrying out its responsibilities under this Rule, the Exchange may, as appropriate, establish programs for the submission of information to the Exchange on a regular basis through a direct or indirect electronic interface between the Exchange and members or member organizations. Proposed Rule 8210(f) would permit a witness to inspect the official transcript of the witness's own testimony, and permit a person who has submitted documentary evidence or testimony in an Exchange investigation to get a copy of the person's documentary evidence or the transcript of the person's testimony under certain circumstances. Finally, proposed Rule 8210(g) would require any member organization or covered person who in response to a request pursuant to this Rule provided the requested information on a portable media device to ensure that such information was encrypted. The Exchange's current rules do not contain comparable provisions.
Proposed Supplementary Material 8210.01 would provide that the rule requires member organizations and covered persons to provide Exchange staff and Adjudicators with requested books, records and accounts. In specifying the books, records and accounts “of such member organization or covered person,” paragraph (a) of the rule would refer to books, records and accounts that the broker-dealer or its associated persons make [sic] or keep [sic] relating to its operation as a broker-dealer or relating to the person's association with the member organization or ATP Holder. This would include but is not limited to records relating to an Exchange investigation of outside business activities, private securities transactions or possible violations of just and equitable principles of trade, as well as other Exchange rules and the federal securities laws. It would not ordinarily include books and records that were in the possession, custody or control of a member organization or covered person, but whose bona fide ownership was held by an independent third party and the records were unrelated to the business of the member organization or covered person. The rule would require, however, that a member organization or covered person must make available its books, records or accounts when these books, records or accounts are in the possession of another person or entity, such as a professional service provider, but the member organization or covered person controlled or had a right to demand them. The Exchange's current rules do not have comparable provisions.
Proposed Rule 8211 would set forth the procedures for the automated submission of trading data requested by the Exchange (commonly referred to as “blue sheet” data) for transactions on the Exchange. The proposed Rule is the same as its NYSE counterpart except for the inclusion of “ATP Holder.”
The procedures set forth in proposed Rule 8211 are substantially the same as current Rule 956.1NY and Rule 410A—Equities. Because FINRA performs surveillance functions based on the information gathered as a result of these rules, the Exchange believes that the procedures for the automated submission of trading data should be harmonized with the FINRA and NYSE rules. Therefore, the Exchange proposes to delete current Rule 956.1NY and Rule 410A—Equities and adopt proposed Rule 8211 instead, which is identical to NYSE Rule 8211.
Proposed Rule 8310 would set forth the range of sanctions that could be imposed in connection with disciplinary actions under the proposed rule change. Such sanctions would include censure, fine, suspension, revocation, bar, expulsion, or any other fitting sanction. The sanctions also are substantially the same as the permitted sanctions set forth in current Rule 476(a)(11), which are expulsion; suspension; limitation as to activities, functions, and operations, including the suspension or cancellation of a registration in, or assignment of, one or more stocks; fine; censure; suspension or bar from being associated with any member or member organization; or any other fitting sanction. Although there is some difference between the text of the current and proposed rules, the Exchange believes that in practice the
Proposed Rule 8310 would also allow the Exchange to impose a temporary or permanent cease and desist order against a member organization or covered person. This new authority, not currently available under the Exchange's rules, is described in further detail below in the section concerning the proposed Rule 9800 Series. Proposed Rule 8310 is the same as NYSE Rule 8310 except for the inclusion of references to “member” and “ATP Holders.”
Proposed Rule 8311 would provide that if the Commission or the Exchange imposed a suspension, revocation, cancellation or bar on a covered person, a member organization or ATP Holder may not permit such person to remain associated, and, in the case of a suspension, may not pay any remuneration that results from any securities transaction. The proposed rule is similar in result to current Rule 476(j), which provides that a member will be deprived of all rights and privileges of membership during a suspension and that an expulsion of a member terminates all rights and privileges arising out of the membership. However, the proposed rule is broader because it applies to all covered persons subject to a suspension, revocation, cancellation or bar and more explicitly prohibits the payment of compensation in the case of a suspension. Except for references to ATP Holders where appropriate, the proposed Rule is the same as NYSE Rule 8311.
Proposed Rule 8313 would provide that the Exchange will publish all final disciplinary decisions issued under the proposed Rule 9000 Series, other than minor rule violations, on its Web site.
Proposed Rule 8320(a) would provide that all fines and other monetary sanctions shall be paid to the Treasurer of the Exchange. Such monies could not be used for commercial purposes.
Proposed Rule 8320(b) and (c) would permit the Exchange, after seven days' notice in writing, to suspend or expel a member or member organization from membership or revoke the registration of a covered person for failure to pay a fine. The text of the proposed rule is the same as the text of the NYSE's rule except for the inclusion of “member” in subpart (b) to reflect the Exchange's membership.
As noted above, under current Rule 476(k), a person may be summarily suspended for failing to pay a fine within a 45-day notice period; a membership cancellation or bar also could be imposed in a regular disciplinary proceeding for non-payment of a fine. FINRA's rules do not set forth a notice period but, as a matter of practice, FINRA typically provides a respondent at least 30 days to pay a fine after the conclusion of a proceeding. As the NYSE explained in proposing its Rule 8320, a 30-day period, along with the seven days' notice provided under NYSE Rule 8320, provides respondents with an adequate amount of time to pay a fine and avoid any further sanction by the Exchange.
Proposed Rule 8330 would provide that a disciplined member organization or covered person may be assessed the costs of a proceeding. There is no comparable requirement in the current rules, although the Exchange may assess costs as a “fitting sanction” under current Rule 476(a)(11). The proposed Rule is the same as the text of the NYSE Rule.
As noted above, the text of the Rule 9000 Series would be based on the text of the NYSE Rule 9000 Series, with certain changes noted below.
Proposed Rule 9001 would set forth the effective date of the rule, noting the transitional provisions described above. The text of proposed Rule 9001 would be based on the proposed introductory text of Rule 476, except that the transition with respect to proposed Rule 8320 would be reflected in proposed Rule 8001 as described above.
Proposed Rule 9110 would state the types of proceedings to which the proposed Rule 9000 Series would apply (each of which is described below) and the rights, duties, and obligations of member organizations and covered persons, and would set forth the defined terms and cross-references. The Exchange also proposes to adopt rule text in Rule 9110(a), providing that in performing functions under the disciplinary code, the CRO and Regulatory Staff would function independently of the commercial interests of the Exchange and the commercial interests of the members and member organizations. As discussed above, this requirement is already being met and is consistent with longstanding policies and practices at the Exchange, and the proposed provision would also be consistent with rules currently in effect for the equities and options markets of the Exchange's affiliate.
Proposed Rule 9120 would set forth definitions. The definitions are identical to those in NYSE Rule 9120, except that the term “Board of Directors” would be defined in paragraph (b), rather than including a cross-reference to another rule; the term “covered person” in proposed paragraph (g) would include a reference to ATP Holders; the cross-reference in the definition of “Exchange” in proposed paragraph (n) would be conformed to NYSE MKT's rules; and the definition of “Party” in proposed paragraph (w) would include a reference to “ATP Holder” to conform to the proposed Rule 9520 Series. The Exchange also proposes to include definitions recently added to NYSE Rule 9120, including defined terms “Enforcement” and “Regulatory
• The Exchange proposes to add definitions of “Enforcement,” referring to any department reporting to the CRO of the Exchange with responsibility for investigating or imposing sanctions on a member organization or covered person, in addition to FINRA's departments of Enforcement and Market Regulation; and “Regulatory Staff,” referring to any officer or employee reporting, directly or indirectly, to the CRO of the Exchange, in addition to FINRA staff acting on behalf of the Exchange in connection with the Rule 8000 and 9000 Series.
• The Exchange proposes to include definitions of “Interested Staff” and “Party” in proposed Rules 9120(t) and 9120(w), which include the terms “Regulatory Staff” and “Enforcement,” respectively, and are identical to the definitions in the NYSE Rules.
• The Exchange proposes to number the definitions in Rule 9120 to correspond with the NYSE Rules.
Proposed Rules 9130 through 9138 would govern the service of a complaint or other procedural documents under the rules. The proposed Rules are the same as NYSE Rules 9130 through 9138.
Proposed Rule 9131 would set forth the requirements for serving a complaint or document initiating a proceeding. Proposed Rule 9132 would cover the service of orders, notices, and decisions by an Adjudicator. Proposed Rule 9133 would govern the service of papers other than complaints, orders, notices, or decisions. Proposed Rule 9134 would describe the methods of service and the procedures for service. Proposed Rule 9135 would set forth the procedure for filing papers with an Adjudicator. Proposed Rule 9136 would govern the form of papers filed in connection with any proceeding under the proposed Rule 9200 and 9300 Series. Proposed Rule 9137 would state the requirements for and the effect of a signature in connection with the filing of papers. Finally, proposed Rule 9138 would establish the computation of time.
By comparison, current Rule 476(d), which governs service of process, is generally less detailed and, as noted above, provides that service is deemed effective by personal service of the Charge Memorandum, or by leaving the same either at the respondent's last known office address during business hours or the respondent's last place of residence as reflected in Exchange records, or upon mailing same to the respondent at such office address or place of residence.
Under proposed Rule 9134, papers served on a natural person could be served at the natural person's residential address, as reflected in CRD, if applicable. When a Party or other person responsible for serving such person had actual knowledge that the natural person's CRD address was out of date, duplicate copies would be required to be served on the natural person at the natural person's last known residential address and the business address in CRD of the entity with which the natural person is employed or affiliated. Papers could also be served at the business address of the entity with which the natural person is employed or affiliated, as reflected in CRD, or at a business address, such as a branch office, at which the natural person is employed or at which the natural person is physically present during a normal business day. The Hearing Officer could waive the requirement of serving documents (other than complaints) at the addresses listed in CRD if there were evidence that these addresses were no longer valid and there was a more current address available. If a natural person were represented by counsel or a representative, papers served on the natural person, excluding a complaint or a document initiating a proceeding, would be required to be served on the counsel or representative.
Similarly, under proposed Rule 9134, papers served on an entity would be required to be made by service on an officer, a partner of a partnership, a managing or general agent, a contact employee as set forth on Form BD, or any other agent authorized by appointment or by law to accept service. Such papers would be required to be served at the entity's business address as reflected in CRD, if applicable; provided, however, that when the Party or other person responsible for serving such entity had actual knowledge that an entity's CRD address was out of date, duplicate copies would be required to be served at the entity's last known address. If an entity were represented by counsel or a representative, papers served on such entity, excluding a complaint or document initiating a proceeding, would be required to be served on such counsel or representative.
The Exchange's current rules do not explicitly permit service of a Charge Memorandum or other document on a respondent's counsel or other authorized representative. The proposed rule change would accommodate respondents who have retained counsel and have authorized them to accept service. The proposed rule change also would harmonize the Exchange's rules with many states' Rules of Professional Conduct for attorneys, which generally require that, once a person retains an attorney, unless the attorney specifically provides otherwise, all communications be directed to such attorney.
The Exchange believes that these more detailed procedures for service of process would increase the likelihood of successful service of process while providing appropriate due process protections to its member organizations and covered persons.
Proposed Rules 9140 through 9148 would contain various rules relating to the conduct of disciplinary proceedings. The proposed Rules are the same as NYSE Rules 9140 through 9148.
Proposed Rule 9141 would govern appearances in a proceeding, notices of appearance, and representation. Proposed Rule 9141 would permit a respondent to represent himself or be represented by an attorney, just as is permitted under current Rule 476(h). Current Rule 476(h) is more general, in that it permits a respondent to be represented by an attorney or other representative, while proposed Rule 9141 is more specific in that it permits a respondent to be represented by an attorney admitted to practice in the United States, permits a partnership to be represented by a partner, and permits a corporation, trust, or association to be represented by an officer of such entity. Proposed Rule 9141 also requires an attorney or representative to file a notice of appearance, which is not required under current Exchange rules.
In addition, proposed Rule 9141, in conformance with a recent NYSE amendment and based on FINRA's
Proposed Rule 9142 would require an attorney or representative to file a motion to withdraw. There is no current comparable Exchange rule.
Proposed Rule 9143(a) would prohibit certain ex parte communications. Under proposed Rule 9143(b), an Adjudicator participating in a decision with respect to a proceeding, or an Exchange employee participating or advising in the decision of an Adjudicator, who received, made, or knowingly caused to be made a communication prohibited by the Rule would be required to place in the record of the proceeding (1) all such written communications; (2) memoranda stating the substance of all such oral communications; and (3) all written responses and memoranda stating the substance of all oral responses to all such communications.
Under proposed Rule 9143(c), upon receipt of a prohibited communication made or knowingly caused to be made by any Party, any counsel to or representative of a Party, or any Interested Staff, the Exchange or an Adjudicator may order the Party responsible for the communication, or the Party who may benefit from the ex parte communication made, to show cause why the Party's claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected by reason of such ex parte communication. All participants in a proceeding could respond to any allegations or contentions contained in a prohibited ex parte communication placed in the record, and such responses would be placed in the record.
Under proposed Rule 9143(d), in a disciplinary proceeding governed by the Rule 9200 Series and the Rule 9300 Series, the prohibitions of the Rule would apply beginning with the authorization of a complaint as provided in Rule 9211, unless the person responsible for the communication had knowledge that the complaint would be authorized, in which case the prohibitions would apply beginning at the time of his or her acquisition of such knowledge. Under proposed Rule 9143(e), there would be a waiver of the ex parte prohibition in the case of an offer of settlement, letter of acceptance, waiver and consent, or minor rule violation plan letter. There is no current comparable rule.
Proposed Rule 9144 would establish the separation of functions for Interested Staff and Adjudicators and provide for waivers. There is no current comparable rule.
Proposed Rule 9145 would provide that formal rules of evidence would not apply in any proceeding brought under the proposed Rule 9000 Series. NYSE MKT does not have a current comparable rule that explicitly makes such a statement, although in practice the result is the same—formal rules of evidence do not apply to current NYSE MKT disciplinary proceedings.
Proposed Rule 9146 would govern motions a Party may make and requirements for responses and formatting. A Party would be permitted to make written and oral motions, although an Adjudicator could require that a motion be in writing. An opposition to a written motion would have to be filed within 14 days, but the moving Party would have no right to reply, unless an Adjudicator so permits, in which case such reply generally would be due within five days. Proposed Rule 9146 also would permit a Party to move for a protective order. There is no current comparable rule that contains such detail. Current Rule 476(c) simply provides that the Chief Hearing Officer or a Hearing Officer may resolve any substantive legal motions. The Exchange believes that the more detailed provisions of the proposed rule would provide additional clarity to all Parties to a proceeding.
Proposed Rule 9147 would provide that Adjudicators may rule on procedural matters. The proposed rule is similar to current Rule 476(c), which provides that the Chief Hearing Officer or a Hearing Officer may resolve any procedural matters. However, the Exchange's current rules do not explicitly provide for the Exchange Board of Directors (who are included in the proposed definition of “Adjudicator”) ruling on procedural matters.
Finally, proposed Rule 9148 would generally prohibit interlocutory review, except as provided in proposed Rule 9280 for contemptuous conduct. Similarly, current Rule 476(c) provides that there is no interlocutory appeal to the Exchange Board of Directors.
Proposed Rule 9150 would provide that a representative can be excluded by an Adjudicator for improper or unethical conduct. The proposed rule also is substantially the same as current Rule 476(h), which provides that the Hearing Board can exclude a representative for improper conduct in a proceeding, and is the same as NYSE Rule 9150.
Proposed Rule 9160 would provide that no person may act as an Adjudicator if he or she has a conflict of interest or bias, or circumstances exist where his or her fairness could reasonably be questioned. In such case, the person must recuse himself or herself, or may be disqualified. The proposed rule would cover the recusal or disqualification of an Adjudicator, the Chair of the Exchange Board of Directors, or a Director. Current Rule 22—Equities similarly prohibits a person from participating in an adjudication or consideration of a matter if he or she has a personal interest, and would apply during the transition period to proceedings under the current rules. The Exchange believes that the broader text of the proposed rule could help to increase the fairness of its proceedings and also cover matters involving the Exchange's options market. Proposed Rules 9160(b), (c), and (d) are designated as “Reserved” to maintain consistency with NYSE's rule numbering. The proposed Rule is the same as the NYSE Rule.
Proposed Rule 9200 would cover disciplinary proceedings. Proposed Rule 9211 would permit Enforcement to request the authorization of the CRO to issue a complaint against a member organization or covered person, thereby commencing a disciplinary proceeding. The proposed Rule is the same as NYSE Rule 9211. The complaint would replace the Charge Memorandum currently used under Rule 476(d), as described above, which requires that the specific charges against the respondent in the form of a written statement be
Proposed Rule 9212 would set forth the requirements of the complaint, amendments to the complaint, withdrawal of the complaint, and service of the complaint. The proposed rule would also permit the Chief Hearing Officer to select one Floor-Based Panelist, who would be a person who is, or, if retired, was, active on the Floor of the Exchange, to serve on a Hearing Panel if the complaint alleges at least one cause of action involving activities on the Floor of the Exchange. The proposed rule change would be consistent with the Exchange's practice under current Rule 476(b), which provides that in any disciplinary proceeding involving activities on the Floor of the Exchange, no more than one of the persons serving on the three-person Hearing Panel may be, or, if retired, may have been, active on the Floor of the Exchange. Proposed Rule 9212 is the same as the counterpart NYSE Rule.
Under the proposed rule change, the form of the complaint also would be more prescribed than under current Rule 476. Current Rule 476 also does not address the amendment or withdrawal of complaints.
Proposed Rule 9213 would provide for the appointment of a Hearing Officer and Panelists by the Chief Hearing Officer. Current Rule 476(b) is similar in that it provides for the appointment of a Chief Hearing Officer by the Exchange Board of Directors and the utilization of three-person Hearing Panels led by a Hearing Officer.
Proposed Rule 9214 would permit the Chief Hearing Officer to sever or consolidate two or more disciplinary proceedings under certain circumstances and permit a Party to move for such action under certain circumstances. There is no rule comparable to proposed Rule 9214 for severing or consolidating proceedings. Under current Rule 476(c), the Chief Hearing Officer or a Hearing Officer resolves all procedural matters and substantive legal motions.
Proposed Rule 9215 would set forth requirements for answering a complaint, including form, service, notice, content, defenses, amendments, default, and timing. An answer to a Charge Memorandum under current Rule 476(d) and an answer to a complaint under the proposed rule change have the same 25-day response deadline; however, proposed Rule 9215 would explicitly allow for an extension of time to answer an amended complaint.
Proposed Rules 9213 through 9215 are the same as NYSE Rules 9213 through 9215.
Proposed Rule 9216 would establish the acceptance, waiver, and consent (“AWC”) procedures by which a respondent, prior to the issuance of a complaint, may execute a letter accepting a finding of violation, consenting to the imposition of sanctions, and agreeing to waive such respondent's right to a hearing, appeal, and certain other procedures.
Enforcement could prepare and request that a member organization or covered person execute an AWC letter if Enforcement had reason to believe a violation had occurred and the member organization or covered person did not dispute the violation. The CRO would be authorized to accept or reject an AWC letter that has been executed by a member organization or covered person. If the AWC letter were accepted by the CRO, it would be deemed final and would constitute the complaint, answer, and decision in the matter 25 days after it is sent to each Director and each member of the Committee for Review, unless review by the Exchange Board of Directors is requested pursuant to proposed Rule 9310(a)(1)(B). Such review is consistent with the call for review process in connection with a Stipulation and Consent under current Rule 476(g) and the process set forth in the NYSE Rules.
While the AWC process has some similarity to the Exchange's current Stipulation and Consent procedure in Rule 476(g) in that it provides a settlement mechanism, there are certain key differences. Under current Rule 476(g), a Hearing Officer must act on a Stipulation and Consent submitted by the parties and may choose to convene a Hearing Panel. No Hearing Officer would be involved in the process under the proposed rule.
The Exchange also proposes to adopt the NYSE's process for minor rule violations while retaining the specific fine levels and list of rules included in the Exchange's current minor rule violation plan, with certain technical and conforming amendments. Under the proposed rule, the CRO, on behalf of the SRO Board, would be authorized to accept or reject a minor rule violation plan letter. If the minor rule violation plan letter were accepted by the CRO, it would be deemed final. Proposed Rule 9216(b)(4) would further provide that any fine imposed pursuant to proposed Rule 9216(b) and not contested would not be publicly reported, except as may be required by Rule 19d-1 under the Exchange Act, and as may be required by any other regulatory authority. If the letter were rejected by the CRO, the Exchange would be permitted to take any other appropriate disciplinary action with respect to the alleged violation or violations. If the letter were rejected, the member organization or covered person would not be prejudiced by the execution of the minor rule violation plan letter, and such document could not be introduced into evidence in connection with the determination of the issues set forth in any complaint or in any other proceeding.
Unlike current Rule 476A, which is described above, the proposed rule would not permit a respondent to contest a minor rule violation letter by filing an answer and converting it into a regular disciplinary proceeding, nor would the proposed rule permit any person to require a review by the Board of any Hearing Panel determination in such a proceeding. Rather, under the proposed rule, if the respondent rejects the minor rule violation letter, then a complaint must be served and filed under proposed Rule 9211 in order to begin a disciplinary proceeding, and the minor rule violation letter may not be introduced into evidence. The Exchange believes that the proposed rule provides similar and sufficient procedural protections to respondents.
Proposed Rule 9217 would set forth the list of rules under which a member organization or covered person may be subject to a fine under a minor rule violation plan as described in proposed Rule 9216(b). The Exchange would
The technical and conforming changes relating to minor rule violations are as follows. The list of equities rules violations would be supplemented with references to proposed Rules 8210 and 8211. In particular, references to the failure to submit books and records or to furnish information on the date or within the time period that the Exchange requires under Rule 476(a)(11) would be supplemented with a reference to proposed Rule 8210. References to the submission of trading data under Rule 410A—Equities would be supplemented with a reference to proposed Rule 8211.
The list of options rules violations and accompanying fine levels chart would be similarly updated. Failure to submit trade data to the Exchange in a timely manner (item (ii)(1)) would be supplemented by references to proposed Rule 8211 in both places. Failure to furnish in a timely manner books, records or other requested information or testimony in connection with an examination of financial responsibility and/or operational conditions under Rule 31 (item (ii)(2)) would be supplemented in both places with a reference to proposed Rule 8210. Delaying, impeding or failing to cooperate in an Exchange investigation under Rule Section 9A (item (ii)(5)) would be supplemented in both places with references to proposed Rule 8210. Finally, the Exchange proposes to replace the reference to Rule 476A in the first paragraph under the heading “List of Reports Required to be Filed with the Exchange by ATP Holders and Filing Deadlines” relating to the Exchange's ability to impose a $100 per day fine on any ATP Holder failing to file an enumerated report with a reference to Rule 9216(b).
The current list of minor rules includes a reference to Rule 504(b)(6)—Equities, which was deleted in August 2012;
Proposed Rules 9220 and 9222 would describe how a respondent can request a hearing, the notice of a hearing, and timing considerations. The proposed rules are the same as NYSE Rules 9220 through 9222. Proposed Rule 9221 provides that a Hearing Officer generally must provide at least 28 days' notice of the hearing. Current Rule 476 does not have comparable provisions relating to how a hearing can be ordered and time for notices; rather, current Rule 476(b) states that all proceedings under the Rule, except as to matters that are resolved by a Hearing Officer when so authorized, are conducted at a Hearing in accordance with the provisions of Rule 476.
Proposed Rules 9231 and 9232 would govern how a Hearing Panel, Extended Hearing Panel, Replacement Hearing Officer, Panelists, Replacement Panelists, and Floor-Based Panelists are appointed and their composition and criteria for selection. Proposed Rules 9231 and 9232 are the same as the counterpart NYSE rules, except for the substitution of “Exchange” for “NYSE” before “hearing board” and the use of “ATP Holders” in proposed Rule 9232 to reflect the Exchange's membership.
Under the proposed rule change, the Exchange would use FINRA's Chief Hearing Officer and Hearing Officers from FINRA's Office of Hearing Officers, rather than have the Exchange Board of Directors appoint such persons as it does under current Rule 476(b). To harmonize the Exchange's rules with the hearing process under NYSE rules, the Exchange believes that it is reasonable to utilize FINRA's Office of Hearing Officers as described in the proposed rule change.
The Exchange would continue to draw Panelists appointed from an Exchange hearing board. The hearing board would be composed of members of the Exchange who are not members of the Exchange Board of Directors and registered employees and non-registered employees of member organizations or ATP Holders, as well as former members, allied members, or registered and non-registered employees of member organizations or ATP Holders who have retired from the securities industry.
There would be one change in hearing board eligibility in the proposed rule as compared to the current rule. Currently, the Exchange requires that a Panelist cannot have been retired from the securities industry for more than five years. In order to have the largest number of potential retired Panelists available following the proposed rule change, the Exchange proposes to drop
In addition, as noted above, the Exchange proposes to permit the Chief Hearing Officer to select one Floor-Based Panelist to serve on a Hearing Panel if the complaint alleges at least one cause of action involving activities on the Floor of the Exchange, consistent with the Exchange's practice under current Rule 476(b).
Proposed Rule 9232 would include Panelist selection criteria, which are expertise, absence of any conflict of interest or bias or any appearance thereof, availability, and the frequency with which a person has served as a Panelist in the last two years, favoring the selection of a person as a Panelist who has never served or who has served infrequently as a Panelist during the period. Rule 476(b) currently does not include these criteria.
Proposed Rules 9233 and 9234 would establish the processes for recusal and disqualification of Hearing Officers, Hearing Panels, or Extended Hearing Panels. Current Rule 22—Equities similarly prohibits a person from participating in an adjudication if he or she has a personal interest but does not specifically provide for recusals and disqualifications in the manner in which the comparable NYSE rule does. The options market does not have a comparable rule. Proposed Rules 9233 and 9234 are the same as the NYSE rules.
Proposed Rule 9235 would set forth the Hearing Officer's duties and authority in detail. The proposed rule change is similar to current Rule 476(c), which gives the Hearing Officer general authority in procedural and evidentiary matters. The proposed rule is the same as NYSE Rule 9235.
Proposed Rules 9241 and 9242 would govern the substantive and procedural requirements for pre-hearing conferences and pre-hearing submissions. In addition, proposed Rule 9242, in conformance with the current NYSE rule based on FINRA's counterpart rule, would provide that no former Regulatory Staff shall, within a period of one year immediately following termination of employment with the Exchange or FINRA, provide expert testimony on behalf of any other person under the Rule 9000 Series.
As stated above, current Rule 476(c) gives Hearing Officers general authority in procedural matters, but there are no specific provisions in the current rules relating to pre-hearing conferences and submissions, nor do the current rules address expert testimony by former staff.
Proposed Rules 9250 through 9253 would address discovery, including the requirements and limitations relating to the inspection and copying of documents in the possession of Exchange staff, requests for information and limitations on such requests, and the production of witness statements and any harmless error relating to the production of such witness statements. The proposed rules are the same as NYSE Rules 9250 through 9253.
Proposed Rule 9251 would generally require Enforcement to make available to a respondent any documents prepared or obtained in connection with the investigation that led to the proceedings, except that certain privileged or other internal documents, such as examination or inspection reports or documents that would reveal an examination, investigation, or enforcement technique or confidential source, or documents that are prohibited from disclosure under federal law, are not required to be made available. A Hearing Officer may require that a withheld document list be prepared. Proposed Rule 9251 also sets forth procedures for inspection and copying of produced documents. In addition, if a Document required to be made available to a respondent pursuant to the proposed Rule was not made available by Enforcement, no rehearing or amended decision of a proceeding already heard or decided would be required unless the respondent establishes that the failure to make the Document available was not harmless error. The Hearing Officer, or, upon review under proposed Rule 9310, the Exchange Board of Directors, would determine whether the failure to make the document available was not harmless error, applying applicable Exchange, FINRA, SEC, and federal judicial precedent. The proposed Rule would not establish any preference for Exchange versus other precedent in this respect; rather, the Adjudicators could determine in their discretion what precedent to apply.
Current Rule 476(c) contains provisions that address the same subject. As described above, under that rule the Chief Hearing Officer, or any Hearing Officer designated by the Chief Hearing Officer, may require the Exchange to permit a respondent to inspect and copy documents or records in the possession of the Exchange that are material to the preparation of the defense or are intended for use by the Exchange as evidence in chief at the hearing; however, the rule does not authorize the discovery or inspection of reports, memoranda, or other internal Exchange documents prepared by the Exchange in connection with the proceeding. Under the proposed rule, there would be no materiality standard. The Exchange believes that eliminating the materiality standard will ease administration of the rule while still providing appropriate protections for internal Exchange documents.
In addition, under current Rule 476(c), the respondent may be required to provide discovery of non-privileged documents and records to the Exchange. There is no explicit counterpart in the proposed NYSE MKT or current NYSE rules, but the Exchange notes that proposed Rule 8210 may always be used to obtain non-privileged documents from a respondent. Thus, in that respect, there is no substantive difference in the result under the current or proposed rules.
Under proposed Rule 9252, a respondent could request that the Exchange invoke proposed Rule 8210 to compel the production of Documents or testimony at the hearing if the respondent can show that certain standards are met,
Under proposed Rule 9253, a respondent could file a motion to obtain certain witness statements. The Exchange's current rules do not contain such a provision.
Proposed Rules 9260 through 9269 would govern hearings and decisions. The proposed rules are the same as the counterpart NYSE rules except for the inclusion of “ATP Holder” and “member” in Rule 9268.
Proposed Rule 9261 would generally require the Parties to submit a list of documentary evidence and witnesses no later than 10 days before the hearing. The Exchange's current rules do not contain such a provision.
Proposed Rule 9262 would require persons subject to the Exchange's jurisdiction to testify under oath or affirmation at a hearing. The Exchange's current rules do not contain such a provision.
Proposed Rule 9263 would authorize the Hearing Officer to exclude irrelevant, immaterial, or unduly repetitious or prejudicial evidence and a Party to object; excluded evidence would be attached to the record as a supplemental document. Under current Rule 476(c), the Chief Hearing Officer or a Hearing Officer resolves all evidentiary issues. There is no explicit provision in the Exchange's current rules for excluded evidence to be attached to the record.
Proposed Rule 9264 would allow Parties to file a motion for summary disposition under certain circumstances and would describe the procedures for filing and ruling on such a motion. Under current Rule 476(c), the Chief Hearing Officer or a Hearing Officer resolves all procedural matters, but the Rule does not specifically address motions for summary disposition. In practice, however, Hearing Panels accept and rule on motions for summary disposition.
Proposed Rule 9265 would require that the hearing be recorded by a court reporter, that a transcript be prepared and made available for purchase, and that a Party be permitted to seek a correction of the transcript from the Hearing Officer. Current Rule 476(e) provides generally that the Exchange must keep a record of hearings.
Proposed Rule 9266 would authorize the Hearing Officer to require a post-hearing brief or proposed findings of fact and conclusions of law and would outline the form and timing for such submissions. Under current Rule 476(c), the Chief Hearing Officer or a Hearing Officer resolves all procedural matters, but the rule does not specifically address such post-hearing activities.
Proposed Rule 9267(a) would detail the required contents of the hearing record and Rule 9267(b) would describe treatment of supplemental documents attached to the record. The Exchange's current rules do not contain such a provision.
Proposed Rule 9268 would set forth the timing and the contents of a decision of the Hearing Panel or Extended Hearing Panel and the procedures for a dissenting opinion, service of the decision, and any requests for review. Other than a reference to “ATP Holder” in subparagraph (d), the proposed Rule is the same as NYSE Rule 9268.
The Exchange notes that it has a member organization affiliate.
Finally, proposed Rule 9269 would establish the process for the issuance and review of default decisions by a Hearing Officer when a respondent fails to timely answer a complaint or fails to appear at a pre-hearing conference or hearing where due notice has been provided. A Party may, for good cause shown, file a motion to set aside a default decision. A default decision would become the final disciplinary action of the Exchange if a request for review by the Exchange Board of Directors is not filed within 25 days after the date the decision is served on the Parties. The proposed rule is the same as NYSE Rule 9269.
Current Rule 476(d) provides a similar mechanism for default decisions as the proposed rule change. As described above, under the current rule, if the respondent has failed to file an Answer, the Exchange, by motion, accompanied by proof of notice to the respondent, may request a determination of guilt by default, and may recommend a penalty to be imposed. If the respondent opposes the motion, the Hearing Officer, on a determination that the respondent had adequate reason to fail to file an Answer, may adjourn the hearing date and direct the respondent to promptly file an Answer. If the default motion is unopposed, or the respondent did not have adequate reason to fail to file an Answer, or the respondent failed to file an Answer after being given an opportunity to do so, the Hearing Officer, on a determination that the respondent has had notice of the charges and that the Exchange has jurisdiction in the matter, may find guilt and determine a penalty. Unlike the proposed rule, the current rule does not contain a provision for setting aside a default decision that has been rendered.
Proposed Rule 9270 would provide for a settlement procedure for a respondent who has been notified that a proceeding has been instituted against him or her. The proposed settlement procedure would be different from the Stipulation and Consent procedure under current Rule 476(g), which is described above. The proposed rule would be the same as NYSE Rule 9270, except as described below.
Under proposed Rule 9270(a), a respondent notified of the institution of a disciplinary proceeding could make a written offer of settlement at any time, but the proposal would not stay the proceeding unless the Hearing Officer determined otherwise. The proposed rule differs from current Rule 476(g), which requires that a Stipulation and Consent be agreed to by both the respondent and Exchange staff.
Under proposed Rule 9270(b), a respondent would be prohibited from making a frivolous settlement offer or one that was inconsistent with the seriousness of the violations. Current Rule 476(g) does not contain a similar provision.
Proposed Rule 9270(c) would set forth the required content of the proposal, which would include a statement consenting to findings of fact and violations and a proposed sanction. The proposed rule would be the same as NYSE's rule, except that, like FINRA Rule 9270(c)(5), the proposed rule would also require that the proposed
Proposed Rule 9270(d) would provide that submission of a settlement offer waives a respondent's right to a hearing, the right to claim bias or ex parte communication violations, and the right to review by the Exchange Board of Directors, the Commission, or the courts. This differs from current Rule 476(g), which allows either party to request a hearing on a Stipulation and Consent or a Hearing Officer to convene a hearing on a Stipulation and Consent in certain circumstances.
Proposed Rule 9270(e) would address contested settlement offers. Under the proposed rule, if a respondent made an offer of settlement and Enforcement opposed it, the offer of settlement would be contested and thereby deemed rejected, and thus the proceeding would continue to completion under the proposed Rule 9200 Series. The contested offer of settlement would not be transmitted to the Office of Hearing Officers, the CRO, or Hearing Panel or Extended Hearing Panel, and would not constitute a part of the record in any proceeding against the respondent making the offer. The Exchange has determined that if the Parties cannot reach agreement on the offer of settlement, then the matter should proceed under the proposed Rule 9200 Series. The Exchange believes that its proposed rule would encourage respondents to make reasonable offers of settlement that will be acceptable to Enforcement and is consistent with the Exchange's current process under Rule 476(g), which does not contemplate contested settlement offers but rather requires that both the respondent and Exchange staff agree on the Stipulation and Consent.
Proposed Rule 9270(f) and (h) would address uncontested offers of settlement. Under the proposed rule, an offer of settlement would be uncontested if Enforcement does not oppose it. If a hearing on the merits had not begun, the CRO could accept the settlement offer; if a hearing on the merits had begun, the Hearing Panel or Extended Hearing Panel could accept the settlement offer.
The Exchange anticipates that the required acceptance by the CRO, Hearing Panel, or Extended Hearing Panel would help ensure objectivity and consistency among offers of settlement that are issued. The proposed rule change would also allow an offer of settlement to be called for review by the Exchange Board of Directors. The Exchange believes that this review mechanism provides an additional, appropriate check and balance to the proposed settlement process.
While the offer of settlement process has some similarity to the Exchange's current Stipulation and Consent procedure in Rule 476(g) in that it provides a settlement mechanism, there are certain key differences. Under current Rule 476(g), a Hearing Officer must act on a Stipulation and Consent submitted by the parties and may choose to convene a Hearing Panel. Under the proposed rule change, as under NYSE Rule 9270, a Hearing Officer would be required to act on an offer of settlement only if a hearing on the merits had already begun. In addition, under Rule 476(g), all determinations and penalties imposed in connection with a Stipulation and Consent are final and conclusive 25 days after notice has been served upon the respondent. As discussed below in connection with proposed Rule 9310(a)(1)(B), an offer of settlement issued before a hearing on the merits has begun would become final 25 days after being sent to each Director and member of the Committee for Review, if not called for review by the Exchange Board of Directors.
Proposed Rule 9270(i) would address disciplinary proceedings with multiple respondents and permit settlement offers to be accepted or rejected as to any one or all of such respondents. Current Rule 476(g) does not have a similar provision.
Proposed Rule 9270(j) would provide that a respondent may not be prejudiced by a rejected offer of settlement nor may such an offer of settlement be introduced into evidence. The current rules do not have a similar provision.
Proposed Rule 9280 would set forth sanctions for contemptuous conduct by a Party or attorney or other representative, which may include exclusion from a hearing or conference, and sets forth a process for reviewing such exclusions. The Exchange proposes to have the Chief Hearing Officer review exclusions. The Exchange believes that respondents and their attorneys and representatives will have adequate procedural protections with a review by the Chief Hearing Officer. Current Rule 476 does not have similar procedures for contemptuous conduct generally, but Rule 476(h) does allow for a fine or sanction for improper conduct before a Hearing Board. The proposed Rule is the same as NYSE Rule 9280.
Under proposed Rule 9290, for any disciplinary proceeding the subject matter of which also is subject to a temporary cease and desist proceeding initiated pursuant to proposed Rule 9810 or a temporary cease and desist order, hearings would be required to be held and decisions rendered at the earliest possible time. The Exchange currently does not have a similar rule. The proposed rule is the same as NYSE Rule 9290.
The Exchange's appellate and call for review processes would be set forth in the Rule 9300 Series, specifically proposed Rule 9310. The text is substantially similar to current Rule 476(f), (g) and (l), with certain differences that are described below. The text of proposed Rule 9310 is the same as NYSE Rule 9310, except as described below.
Under proposed Rule 9310(a)(1)(A), any Party, any Director, and any member of the Committee for Review could require a review by the Exchange
Proposed Rule 9310(a)(1)(B) would govern the call for review process in connection with AWC letters and offers of settlement determined to be uncontested before a hearing on the merits has begun. Under the proposed rule, any Director and any member of the Committee for Review could require a review by the Exchange Board of Directors of any determination or penalty, or both, imposed in connection with an AWC letter under Rule 9216 or an offer of settlement determined to be uncontested before a hearing on the merits has begun under Rule 9270(f), except that none of those persons could request a review by the Exchange Board of Directors of a determination or penalty concerning an Exchange member or member organization that is an affiliate of the Exchange. A request for review pursuant to proposed paragraph (a)(1)(B)(i) would be made by filing with the Secretary of the Exchange a written request stating the basis and reasons for such review, within 25 days after the AWC letter or offer of settlement has been sent to each Director and each member of the CFR. The Secretary of the Exchange would give notice of any such request for review to the Parties.
In addition, the Exchange proposes that any party could require a review by the Exchange Board of Directors of any rejection by the CRO of an AWC letter under Rule 9216 or an offer of settlement determined to be uncontested before a hearing on the merits has begun under Rule 9270(f), except that no party could request Board review of a rejection of an AWC letter or offer of settlement concerning an Exchange member or member organization that is an affiliate of the Exchange. Under subparagraph (B)(ii) of proposed Rule 9310(a)(1), such a request for review would be made by filing with the Secretary of the Exchange a written request therefor, which states the basis and reasons for such review, within 25 days after notification pursuant to Rule 9216(a)(3) or Rule 9270(h) that an AWC letter or uncontested offer of settlement or order of acceptance is not accepted by the CRO. The Exchange proposes that the Secretary of the Exchange would give notice of any such request for review to the parties.
The text of proposed Rule 9310(a)(1) differs from Rule 476 in order to align it with terms used in the remainder of the proposed Rule 9000 Series. The call for review process described in proposed Rule 9310(a)(1)(A) is consistent with the process described in Rule 476(f) and (g) regarding review of a determination or penalty imposed by a Hearing Panel. The call for review process described in Rule 9310(a)(1)(B) for AWC letters and offers of settlement before a hearing on the merits has begun differs from Rule 476 because it describes a process for reviewing determinations and penalties imposed without involvement of a Hearing Officer or Hearing Panel. No such process exists under the Exchange's current rules because Rule 476(g) provides that a Hearing Officer must act on a Stipulation and Consent submitted by the parties and may choose to convene a Hearing Panel.
The Exchange believes that allowing AWC letters and offers of settlement accepted by the CRO to be called for review by the Exchange Board of Directors, together with the proposed rule permitting parties to request Board review of a determination to reject an uncontested offer of settlement, provides an additional, appropriate check and balance to the settlement process. Allowing for such review would provide an additional layer of review for determinations made by the CRO. It would also permit all AWC letters and offers of settlement to be subject to review if requested by a Director or a member of the Committee for Review. The Exchange believes that the 25-day period in proposed Rule 9310(a)(1)(B) is reasonable and sufficient. The proposed 25-day period is consistent with the 25-day period for Board review of a Stipulation and Consent (or rejection thereof) set forth in current Rule 476(g). The proposed rule change is also consistent with the period applicable to review of a determination or penalty imposed by a Hearing Panel or Extended Hearing Panel in NYSE Rule 9310(a)(1). Similarly, the proposed rule change is consistent with the 25-day period for requesting review of a default decision under proposed Rule 9269(d).
Under proposed Rule 9310(a)(2), the Secretary of the Exchange would direct the Office of Hearing Officers, in connection with any review under paragraph (a)(1)(A), to complete and transmit a record of the disciplinary proceeding in accordance with Rule 9267. Within 21 days after the Secretary of the Exchange gives notice of a request for review to the Parties, or at such later time as the Secretary of the Exchange could designate, the Office of Hearing Officers would assemble and prepare an index to the record, transmit the record and the index to the Secretary of the Exchange, and serve copies of the index upon all Parties. The Hearing Officer who participated in the disciplinary proceeding, or the Chief Hearing Officer, would certify that the record transmitted to the Secretary of the Exchange was complete. Current Rule 476(f) does not contain such requirements.
Under proposed Rule 9310(b), any review by the Exchange Board of Directors would be based on oral arguments and written briefs and limited to consideration of the record before the Hearing Panel or Extended Hearing Panel. Proposed Rule 9310(b) also incorporates Rule 476(f)'s provision relating to appeals panels.
Upon review, and with the advice of the CFR,
Under proposed Rule 9310(c), notwithstanding the foregoing, if either Party upon review applied to the Exchange Board of Directors for leave to adduce additional evidence, and showed to the satisfaction of the Exchange Board of Directors that the additional evidence was material and that there were reasonable grounds for failure to adduce it before the Hearing Panel or Extended Hearing Panel, the Exchange Board of Directors could remand the case for further proceedings, in whatever manner and on whatever conditions the Exchange Board of Directors considered appropriate. The proposed rule is substantially the same as provided in current Rule 476(f), other than conforming and technical changes to align it with terms used in the remainder of the proposed Rule 9000 Series.
Under proposed Rule 9310(d), notwithstanding any other provisions of the proposed Rule 9000 Series, the CEO could not require a review by the Exchange Board of Directors under this Rule and would be recused from deliberations and actions of the Exchange Board of Directors with respect to such matters. The proposed rule is substantially the same as provided in current Rule 476(l), other than conforming and technical changes to align it with terms used in the remainder of the proposed Rule 9000 Series.
The proposed Rule 9520 Series would govern eligibility proceedings for persons subject to statutory disqualifications that are not FINRA members. The Exchange does not currently have any rules governing this subject matter and proposes to adopt the NYSE Rule 9520 Series.
Proposed Rule 9521 would add certain definitions relating to eligibility proceedings that are not currently part of the Exchange's rules, including definitions of “Application,” “disqualified member organization,” “disqualified person,” and “sponsoring member organization.” Proposed Rule 9521 is the same as NYSE Rule 9521 except that it includes “ATP Holder” in subparagraph (a) describing the rule's purpose and in the definition of “disqualified member organization” in subparagraph (b)(2). As noted previously, the references to ATP Holders in the proposed Rule 9520 Series relate solely to options members that have employees and not ATP Holders without employees or those associated with an options member organization.
Proposed Rule 9522 would govern the initiation of an eligibility proceeding by the Exchange and the obligation for a member organization or covered person to file an application to initiate an eligibility proceeding if it has been subject to certain disqualifications. Further, under the proposed rule, FINRA's Department of Member Regulation could approve a written request for relief from the eligibility requirements under certain circumstances. Once again, the proposed Rule is the same as its NYSE counterpart except for references to “ATP Holder” to reflect the Exchange's membership.
Proposed Rule 9523 would allow the Department of Member Regulation to recommend a supervisory plan to which the disqualified member organization, sponsoring member organization, and/or disqualified person, as the case may be, may consent and by doing so, waive the right to hearing or appeal if the plan is accepted and the right to claim bias or prejudgment, or prohibited ex parte communications. If such a supervisory plan were rejected, proposed Rule 9524 would allow a request for review by the applicant to the Exchange Board of Directors. Proposed Rule 9524 is the same as the NYSE Rule. Proposed Rule 9527 would provide that a filing of an application for review would not stay the effectiveness of final action by the Exchange unless the Commission otherwise ordered. Proposed Rule 9527 is the same as the NYSE Rule. To maintain consistency with NYSE's rule numbering, proposed Rules 9525 and 9526 would be designated “Reserved.”
Proposed Rules 9551 through 9559 would govern expedited proceedings.
Under proposed Rule 9551, Regulatory Staff could issue a written notice requiring a member or member organization
Proposed Rule 9552 would establish procedures in the event that a member organization or covered person failed to provide any information, report, material, data, or testimony requested or required to be filed under the Exchange's rules, or failed to keep its membership application or supporting documents current. In the event of the foregoing, under proposed Rule 9552, the member organization or covered person could be suspended if corrective action were not taken within 21 days after service of notice. A member organization or covered person served with a notice could request a hearing within the 21-day period. A member organization or covered person subject to a suspension could file a written request for termination of the suspension on the ground of full compliance. A member organization or covered person suspended under the
There is no provision for such an expedited proceeding under the Exchange's current rules. Under current Rule 476(a)(11), a member organization or covered person is subject to a regular, as opposed to expedited, disciplinary proceeding for failure to submit books and records or provide testimony upon request of the Exchange and for failure to update a Form BD. Proposed Rule 9552 is the same as its NYSE counterpart except for references to “ATP Holder” to reflect the Exchange's membership.
Proposed Rule 9554, relating to failures to comply with an arbitration award or related settlement or an Exchange order of restitution or Exchange settlement agreement providing for restitution, would contain similar procedures and consequences as proposed Rule 9552. Under proposed Rule 9554, if a member organization or covered person failed to comply with an arbitration award or a settlement agreement related to an arbitration or mediation under the Exchange's rules, or an Exchange order of restitution or Exchange settlement agreement providing for restitution, Regulatory Staff could provide written notice to such member organization or covered person stating that the failure to comply within 21 days of service of the notice will result in a suspension or cancellation of membership or a suspension from associating with any member organization or ATP Holder. Under current Rule 600(c)—Equities and Rule 624 of the Exchange's Arbitration Rules applicable to options members, the failure to honor an arbitration award subjects a member organization, member, or registered person to a regular disciplinary proceeding under Rule 476. Proposed Rule 9554 is also the same as its NYSE counterpart except for references to “ATP Holder.”
Proposed Rule 9555 would govern the failure to meet the eligibility or qualification standards or prerequisites for access to services offered by the Exchange. Under proposed Rule 9555, if a member organization or covered person did not meet the eligibility or qualification standards set forth in the Exchange's rules, Exchange staff could provide written notice to such member organization or covered person stating that the failure to become eligible or qualified will result in a suspension or cancellation of membership or a suspension or bar from associating with any member organization or ATP Holder.
Similarly, if a member organization or covered person did not meet the prerequisites for access to services offered by the Exchange or a member or member organization thereof or could not be permitted to continue to have access to services offered by the Exchange or a member or member organization thereof with safety to investors, creditors, members or member organizations, or the Exchange, Exchange staff could provide written notice to such member organization or covered person limiting or prohibiting access to services offered by the Exchange or a member or member organization thereof. The limitation, prohibition, suspension, cancellation, or bar referenced in the notice would become effective 14 days after service of the notice unless the member organization or covered person requested a hearing during that time, except that the effective date for a notice of a limitation or prohibition on access to services would be upon service of the notice. As described above, under Rule 475(a), the Exchange currently may prohibit or limit access to services offered by the Exchange or any member or member organization thereof if the Exchange has provided 15 days' prior written notice of, and an opportunity to be heard upon, the specific grounds for such prohibition or limitation, and provides a written decision. Proposed Rule 9555 is the same as its NYSE counterpart except for references to “member” and “ATP Holder” as appropriate to reflect the Exchange's membership.
Proposed Rule 9556 would provide procedures and consequences for a failure to comply with temporary and permanent cease and desist orders, which would be authorized by proposed Rule 9810. The Exchange currently does not issue temporary or permanent cease and desist orders and, as such, there is no counterpart in the Exchange's current rules. The proposed rule is the same as its NYSE counterpart except for references to “ATP Holder.”
Proposed Rule 9557 would allow the Exchange to issue a notice directing a member or member organization to comply with the provisions of Rule 470 (Capital Requirements for Members and Member Organizations), Rule 471 (Business Expansion Restrictions and Business Reduction Requirements), Rule 4110—Equities (Capital Compliance), 4120—Equities (Regulatory Notification and Business Curtailment), or 4130—Equities (Regulation of Activities of Section 15C Member Organizations Experiencing Financial and/or Operational Difficulties) or otherwise directing it to restrict its business activities. The notice would be immediately effective, except that a timely request for a hearing would stay the effective date for 10 business days (unless the Exchange's CRO determined otherwise) or until an order was issued by the Office of Hearing Officers, whichever was earlier. The notice could be withdrawn upon a showing that all the requirements were met. Currently, if a member organization fails to comply with Rule 4110—Equities, 4120—Equities, or 4130—Equities (which are substantially the same as FINRA Rules 4110, 4120, and 4130), the Exchange issues a notice pursuant to FINRA Rule 9557. Summary suspensions are also authorized pursuant to Rule 475(b), as described above, for any equities or options member or member organization that is in such financial or operating difficulty that the member or member organization cannot be permitted to continue to do business with safety to investors, creditors, other members or member organizations, or the Exchange. The proposed rule is the same as its NYSE counterpart except for the inclusion of references to “member” to reflect the Exchange's membership.
Proposed Rule 9558 would allow the Exchange's CRO to provide written authorization to Exchange staff to issue a written notice for a summary proceeding for an action authorized by Section 6(d)(3) of the Act. Such notice would be immediately effective. Such summary proceedings are currently authorized under Rule 475(b), under which the Exchange has authority to summarily suspend a member organization that is expelled or suspended by another SRO or a covered person that is barred or suspended by an SRO or limit or prohibit any person with respect to access to Exchange services in certain circumstances; while this rule also provides for notice and an opportunity for a hearing, it does not set forth a specific time limit for requesting a hearing. The proposed rule is the same
Proposed Rule 9559 would set forth uniform hearing procedures for all expedited proceedings under the proposed Rule 9550 Series. Currently, the Exchange does not have a rule comparable to FINRA Rule 9559. The proposed rule is the same as its NYSE counterpart except for references to “ATP Holder.”
The Exchange proposes to adopt a new Rule 9600 Series, which would set forth procedures by which a member or member organization could seek exemptive relief from current Rule 341.05 of Section 4 of the Office Rules and Rule 345.15—Equities (examination requirements); Rule 2210—Equities (communications with the public pre-filing requirements); Rule 3170—Equities (tape recording of registered persons by certain firms); Rule 4311—Equities (carrying agreements); Rule 4360—Equities (fidelity bonds); and proposed Rule 8211 (submission of electronic trading data). Under proposed Rule 9610, a member or member organization seeking exemptive relief would be required to file a written application with the appropriate department or staff of the Exchange and provide a copy of the application to the CRO. Under proposed Rule 9620, after considering the application, Exchange staff would be required to issue a written decision setting forth its findings and conclusions. The decision would be served on the Applicant pursuant to proposed Rules 9132 and 9134. Under proposed Rule 9630, an Applicant that wished to appeal the decision would be required to file a written notice of appeal with the Exchange's CRO within 15 calendar days after service of the decision. Under proposed Rule 9630(e), the CRO would affirm, modify, or reverse the decision issued under proposed Rule 9620 and issue a written decision setting forth his or her findings and conclusions and serve the decision on the Applicant. The decision would be served pursuant to proposed Rules 9132 and 9134, would be effective upon service, and would constitute final action of the Exchange.
Currently, Rule 410A(d)—Equities permits a member or member organization to seek an exception from the data format elements for submitting electronic trading data for transactions effected on the Exchange, but the Rule does not set forth specific procedures for doing so. Similarly, current Rule 345.15—Equities and Rule 341.05 of Section 4 of the Office Rules and Rule 4311—Equities permit exemptions but do not set forth specific procedures. Current Rules 2210—Equities and 4360—Equities reference FINRA's exemptive process; these rules would be amended to delete the reference to the FINRA Rule 9600 Series as the Exchange would now have its own such provisions.
The proposed Rule 9600 Series is the same as the NYSE Rule 9600 Series, except for the list of rules providing exemptive relief and references to “member” and “ATP Holder” to reflect the Exchange's membership.
The Rule 9700 Series would be marked “Reserved” to maintain consistency with NYSE's rule numbering conventions. In adopting FINRA's Rule 9000 Series in 2013, the NYSE did not adopt FINRA's Rule 9700 Series, which provides redress for persons aggrieved by the operations of any automated quotation, execution, or communication system owned or operated by FINRA, as inapplicable to the NYSE. For the same reasons, the Exchange does not propose to adopt the FINRA Rule 9700 Series. The Exchange notes that under current Rule 18—Equities, if a member organization suffers a loss related to an Exchange system failure, it can submit a claim pursuant to the procedures of that rule.
The Exchange proposes to adopt a new Rule 9800 Series to set forth procedures for issuing temporary cease and desist orders. The Exchange does not currently have a comparable rule.
Under proposed Rule 9810, with the prior written authorization of the Exchange's CRO or such other senior officers as the CRO may designate, Enforcement could initiate a temporary cease and desist proceeding with respect to alleged violations of Section 10(b) of the Act, SEC Rules 10b-5 and 15g-1 through 15g-9, Rule 476(a)(6) or Rule 2010—Equities (if the alleged violation is unauthorized trading, or misuse or conversion of customer assets, or is based on violations of Section 17(a) of the Securities Act of 1933) or Rule 476(a)(5) or Rule 2020—Equities. Proposed Rule 9820 would govern the appointment of a Hearing Officer and Panelists.
Under proposed Rule 9830, the hearing would be held not later than 15 days after service of the notice and filing initiating the temporary cease and desist proceeding, unless otherwise extended by the Hearing Officer with the consent of the Parties for good cause shown. Proposed Rule 9830 would govern how the hearing was conducted.
Under proposed Rule 9840, the Hearing Panel would be authorized to issue a written decision stating whether a temporary cease and desist order would be imposed. The Hearing Panel would be required to issue the decision not later than 10 days after receipt of the hearing transcript, unless otherwise extended by the Hearing Officer with the consent of the Parties for good cause shown. Under proposed Rule 9850, at any time after the Office of Hearing Officers served the respondent with a temporary cease and desist order, a Party could apply to the Hearing Panel to have the order modified, set aside, limited, or suspended. The Hearing Panel generally would be required to respond to the request in writing within 10 days after receipt of the request. Proposed Rule 9860 would authorize the initiation of a suspension or cancellation of a respondent's association or membership under proposed Rule 9556 if the respondent violated a temporary cease and desist order.
Finally, proposed Rule 9870 would provide that temporary cease and desist orders issued under the proposed Rule 9800 Series would constitute final and immediately effective disciplinary sanctions imposed by the Exchange, and that the right to have any action under this rule series reviewed by the Commission would be governed by Section 19 of the Act. The filing of an application for review would not stay the effectiveness of the temporary cease and desist order, unless the Commission otherwise ordered.
The proposed Rule 9800 Series is the same as the NYSE Rule 9800 Series,
The Exchange proposes the following technical and conforming changes.
Rule 0 in the Definitions under the General and Floor Rules would be amended so that it correctly cross-references the current and proposed disciplinary rule sets.
Rule 31 of the General Rules and Supplementary Material .01 would be deleted. This rule contains text that concerns requests for books and records and testimony that is duplicative of current Rule 476(a)(11) and proposed Rule 8210. Supplementary Material .02 relating to regulatory cooperation is not duplicative of proposed Rule 8210(b) and would be retained. Rule 31 would be renamed “Regulatory Cooperation.”
Rule 40 of the General Rules, which concerns denial of an ATP, would be deleted. It is a legacy rule that is duplicative of current Rule 475 and would be covered by proposed Rule 9558.
Rule 781, which concerns insolvency, cross-references current Rule 475, so a cross-reference to proposed Rule 9558 would be added.
Rule 2A—Equities would be amended to specify that the list of disciplinary sanctions currently set forth in that rule would apply to proceedings under current Rules 475 and 476, and the list of disciplinary sanctions set forth in proposed Rule 8310(a) would apply to proceedings initiated under the proposed Rule 9000 Series.
Rule 36—Equities would be amended to include a reference to proposed Rule 9558, which relates to summary proceedings for actions authorized by Section 6(d)(3) of the Act.
Rule 103B—Equities, which sets forth certain security allocation and reallocation procedures when a Designated Market Maker unit loses its registration in a specialty stock due to disciplinary proceedings, would be amended to include references to the proposed Rule 8000 Series and Rule 9000 Series.
Rule 308—Equities, which sets forth procedures for member and member organization acceptability proceedings, would be amended to reference the Chief Hearing Officer as defined in proposed Rule 9120, and delete the reference to a Chief Hearing Officer designated under legacy Rule 476(b).
The text of Rule 309—Equities would be deleted and the rule marked “Reserved” because new Rule 41 would replace it, as described above.
Rule 345A—Equities would be amended to delete a reference to recently deleted Rule 346(f)—Equities and replace it with a reference to Rule 342(e) of the Office Rules.
The Exchange deleted Rule 346(f)—Equities in its entirety and adopted a new Rule 3270—Equities (Outside Business Activities of Registered Persons), to correspond with rule changes filed by FINRA.
Rule 410A—Equities, concerning electronic trading data, would be deleted as described above.
Rule 600—Equities would be amended to include references to the disciplinary proceedings of the proposed Rule 8000 Series and Rule 9000 Series for failure to honor an arbitration award.
As the Exchange proposes to adopt Rules 9551 and 9559 and the Rule 9600 Series, Rule 2210—Equities would be amended to revise the cross-references to “FINRA,” “FINRA Rules 9551 and 9559,” and the “FINRA Rule 9600 Series.” These cross-references were adopted as part of a prior harmonization of Rule 2210—Equities with FINRA's rules and would be obsolete.
Rule 3170—Equities, concerning tape recording of registered persons by certain firms, would be amended to add a reference to the proposed Rule 9600 Series, pursuant to which exemptive relief may be sought.
Rules 4110—Equities, 4120—Equities, and 4130—Equities would be amended to revise a cross-reference to FINRA Rule 9557 as the Exchange proposes to adopt Rule 9557. Rule 4110—Equities would also be corrected to add the missing paragraph designation for paragraph (e) of the rule.
Rule 4360—Equities would be amended to provide that any request for an exemption would be processed under the proposed Rule 9600 Series rather than FINRA rules.
Rules 972, 902NY, 921NY, 923NY, 927.1NY, 927.2NY, 931NY, 955NY and 957NY contain cross-references to the current disciplinary rules. Corresponding references to the proposed disciplinary rules would be added.
Rule 991 would be amended to revise cross-references to FINRA Rules 9551 and 9559 as the Exchange proposes to adopt Rules 9551 and 9559.
Finally, as noted above, Rule 956.1NY, which concerns electronic trading data, would be deleted and marked “Reserved.”
Certain aspects of current Exchange rules described above would not be included in the proposed Rule 8000-9000 Series, because either the Exchange does not believe they are necessary or the authority is implicit in the proposed rule change.
First, under current Rule 475(f), any person suspended under Rule 475 may, at any time, be reinstated by the Exchange Board of Directors. The Exchange does not believe that it would continue to be appropriate for the Exchange Board of Directors to have the authority to overturn a suspension imposed by another Adjudicator in light of the detailed procedural rules,
Second, under current Rules 475(g) and 476(k), any person suspended under such rules may be disciplined in accordance with the Exchange's rules for any offense committed before or after the suspension. The Exchange believes that such authority is implicit in proposed Rule 9211 and need not be expressed in the proposed rule change.
Under current Rules 475(h) and 476(j) and (k), a suspended person is deprived during the term of the suspension of all rights and privileges of membership, and any suspension of a member or principal executive creates a vacancy in any office or position held by such member or principal executive. The Exchange believes that this is implicit in the concept of a suspension and need not be expressed in the proposed rule change.
Under current Rule 476(i), a member or principal executive of the Exchange who is associated with a member organization is liable to the same discipline and penalties for any act or omission of such member organization as for the member or principal executive's own personal act or omission. The Hearing Panel that considers the charges may relieve him from the penalty therefor or may adjust the penalty on such terms and conditions as the Hearing Panel or the Exchange Board of Directors deems fair and equitable. The Exchange believes that this authority is contained in the proposed rule change because complaints may be brought against both member organizations and covered persons and are subject to review by the Hearing Panel and the Exchange Board of Directors.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The proposed changes will provide greater harmonization between Exchange, NYSE, and FINRA rules of similar purpose, resulting in less burdensome and more efficient regulatory compliance for common members. As previously noted, the proposed rule text is substantially the same as the NYSE's rule text. The proposed rule change will enhance the Exchange's ability to have a direct and meaningful impact on the end-to-end quality of its regulatory program, from detection and investigation of potential violations through the efficient initiation and completion of disciplinary measures where appropriate. As such, the proposed rule change would foster cooperation and coordination with persons engaged in facilitating transactions in securities and would remove impediments to and perfect the mechanism of a free and open market and a national market system.
Certain key aspects of the Exchange's disciplinary proceedings would be retained. In particular, the Exchange would retain its current selection process for Hearing Panelists. The Exchange believes that it is necessary to do so in order to provide a fair procedure to its member organizations and covered persons, some of which are not subject to NYSE or FINRA jurisdiction. As such, the Exchange's Hearing Panelists cannot be drawn solely from a pool of NYSE or FINRA members and associated persons but rather must include NYSE MKT-only member organizations and persons with experience in NYSE MKT Floor matters in order for the Exchange's members to have a fair representation in its affairs. For the same reasons, the Exchange also believes that its Board of Directors remains the appropriate body for appeals or reviews of initial disciplinary decisions because its Board of Directors includes fair representation candidates from its membership.
The Exchange further believes that the proposed processes for settling disciplinary matters both before and after the issuance of a complaint are fair and reasonable. While such proposed rules differ both from certain aspects of the Exchange's current Stipulation and Consent process and FINRA's current settlement processes, the Exchange believes that the proposed rule change nonetheless provides adequate procedural protections to all parties and promotes efficiency.
The Exchange would retain its list of minor rule violations, which have already been approved by the Commission,
Finally, the Exchange believes that its proposed transition plan would allow for a more orderly and less burdensome transition for the Exchange's members and member organizations. The proposed delayed implementation of the new rule set would provide a clear demarcation between matters that would proceed under the new rules and those that would be completed under the legacy rules.
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 rule change is not intended to address competitive issues, but rather it is designed to (i) provide greater harmonization among Exchange, NYSE, and FINRA rules of similar purpose for investigations and disciplinary matters; and (ii) enhance the quality of the Exchange's regulatory program, from detection of violations through disciplinary actions, resulting in less burdensome and more efficient regulatory compliance and facilitating performance of regulatory functions.
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 after the date of the filing, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule 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 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 fee schedule applicable to Members
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
The Exchange's current approach to routing fees is to set forth in a simple manner certain sub-categories of fees that approximate the cost of routing to other options exchanges based on the cost of transaction fees assessed by each venue as well as costs to the Exchange for routing (
The Exchange proposes to adopt fee code YC which would be appended to orders routed to ISE Mercury beginning February 16, 2016, which is the same date that ISE Mercury initiated trading.
The Exchange anticipates that the proposed fee structure will approximate the cost of routing orders to ISE Mercury. The Exchange also notes that the proposed fee for fee code YC is higher than the fees charged by ISE Mercury and is designed to approximate Routing Costs based on the highest rate ISE Mercury charges.
The Exchange believes that the proposed rule change is consistent with the objectives of Section 6 of the Act,
These proposed rule changes do not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe that any of these changes represent a significant departure from previous pricing offered by the Exchange or pricing offered by the Exchange's competitors. Additionally, Members may opt to disfavor the Exchange's pricing if they believe that alternatives offer them better value. Accordingly, the Exchange does not believe that the proposed changes will impair the ability of Members or competing venues to maintain their competitive standing in the financial markets. The Exchange does not believe that its proposed pricing for routing to ISE Mercury burdens competition, as such rates are intended to approximate the cost of routing to ISE Mercury. The Exchange notes that it operates in a highly competitive market in which market participants can readily direct order flow to competing venues if they deem fee levels to be excessive or providers of routing services if they deem routing fee levels to be excessive. The Exchange believes that its proposal would not burden intramarket competition because the proposed rate would apply uniformly to all Members.
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.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to adjust one of the thresholds required to qualify for the Media/Contra fee cap under FINRA Rule 7620A (FINRA/Nasdaq Trade Reporting Facility Reporting Fees).
Below is the text of the proposed rule change. Proposed new language is in
The following charges shall be paid by participants for use of the FINRA/Nasdaq Trade Reporting Facility. In the case of trades where the same market participant is on both sides of a trade report, applicable fees assessed on a “per side” basis will be assessed once, rather than twice, and the market participant will be assessed applicable Non-Comparison/Accept (Non-Match/Compare) Charges as the Executing Party side only.
.01 through .02 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.
The FINRA/Nasdaq Trade Reporting Facility (“TRF”) is a facility of FINRA that is operated by Nasdaq, Inc. (“NASDAQ”)
FINRA and NASDAQ are in the process of amending the LLC Agreement to reflect the name change, and FINRA will file a separate proposed rule change to update the FINRA manual accordingly.
Pursuant to the FINRA Rule 7600A Series, FINRA members that are FINRA/Nasdaq TRF participants are charged fees and may qualify for fee caps (Rule 7620A) and also may qualify for revenue sharing payments for trade reporting to the FINRA/Nasdaq TRF (Rule 7610A). These rules are administered by NASDAQ, in its capacity as the Business Member and operator of the FINRA/Nasdaq TRF on behalf of FINRA,
Pursuant to Rule 7620A, FINRA members are charged fees for “Non-Comparison/Accept (Non-Match/Compare)” trades. Such trades are defined as transactions that are not subject to the ACT Comparison process, and they may be submitted as media or non-media,
FINRA recently filed a proposed rule change
In proposing the Media/Contra fee cap, NASDAQ, as the Business Member, advised FINRA that following implementation, it would monitor the fees paid by Contra Parties and would consider whether any adjustments to the fee cap or qualifying thresholds would be appropriate. Since adopting the Media/Contra fee cap, no FINRA member has achieved the level of Media/Contra trades to equal, or exceed, 55% of its total FINRA/Nasdaq TRF volume. NASDAQ, as the Business Member, designed the Media/Contra fee cap to make pricing more competitive to attract and retain participants on the FINRA/Nasdaq TRF, and because no FINRA member currently qualifies for the Media/Contra fee cap, NASDAQ has determined to reduce the level of Media/Contra trades required to qualify for the fee cap. Specifically, NASDAQ has determined to reduce the level from 55% of the member's total FINRA/Nasdaq TRF volume to 35%. NASDAQ believes that reducing the level of Media/Contra trades required to qualify will make the fee cap more attainable for FINRA members.
Accordingly, FINRA, as the SRO Member, is proposing to amend Rule 7620A to reflect the proposed reduction in the level of Media/Contra trades required to qualify for the Media/Contra fee cap. FINRA also is proposing a technical amendment to clarify that the reference to a member's “total TRF volume” means its total FINRA/Nasdaq TRF volume.
FINRA has filed the proposed rule change for immediate effectiveness. The effective date will be the date of filing, February 23, 2016.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(5) of the Act,
As discussed in SR-FINRA-2015-053, NASDAQ, as the Business Member, advised FINRA that the Media/Contra fee cap is not unfairly discriminatory because the fee cap would most benefit those Contra Parties that have significant volume on the FINRA/Nasdaq TRF and thus may pay larger trade reporting fees than firms with comparable “Executing Party” volume that qualify for a fee cap. NASDAQ anticipates that the proposed rule change will make the fee cap more attainable for these Contra Parties. In addition, FINRA members that are not subject to capped fees can choose to report trades to a competing TRF (or, in this instance, a market maker may elect to route its orders to an ATS that reports to a competing TRF).
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. The proposed rule change would not impose new fees or fee rate increases on any member firm, and will reduce the fees paid by some members to the extent they qualify under the new, lower criteria. NASDAQ, as the Business Member, has advised FINRA that the estimated fee savings to member firms that qualify for the Media/Contra fee would be in the range of $0-$20,000 per month per firm based on overall market and participant activity and number of trading days in the month. NASDAQ has further advised FINRA that, based on current trading practices, NASDAQ estimates that approximately three to eight member firms may be able to take advantage of the fee reductions associated with the Media/Contra fee cap with the proposed reduction in the level of trades required to qualify.
As discussed in SR-FINRA-2015-053, FINRA members have trade reporting alternatives other than the FINRA/Nasdaq TRF, so to the extent the proposed rule change is viewed as burdensome among market participants, those participants may choose not to avail themselves of the fee cap and maintain the status quo with respect to fees or adjust their trading practices. This would permit members to mitigate any direct or indirect costs imposed by this proposal. Moreover, by making the fee cap more attainable, the proposed rule change may promote competition among FINRA members by reducing the fee burden on certain FINRA members who are unable to qualify for the existing fee cap, and FINRA members can choose their trading partners, which determination may in part be based on the fees of the particular TRF applicable to Contra Parties. Lastly, FINRA does not believe that the proposed rule change burdens competition among reporting facilities because each is free to adjust their [sic] respective fees to remain competitive with the FINRA/Nasdaq TRF, to the extent the proposed rule change makes the FINRA/Nasdaq
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Small Business Administration.
Notice.
In order to carry out the Women-Owned Small Business Federal Contract Program (WOSB Program), the U.S. Small Business Administration (SBA) was required by section 825 of the National Defense Authorization Act of 2015 to conduct a new study identifying the industries in which women-owned small businesses are underrepresented in Federal contracting and to report to Congress on the results of that study by January 2, 2016. In accordance with this statutory mandate, SBA has provided this report to Congress and with this notice, notifies the public of the results of this study and identifies the industries designated by SBA as eligible for the WOSB Program.
This notice is effective March 3, 2016. The designations of industries contained in this notice apply to all solicitations issued on or after the effective date.
Mr. Leo Sanchez, Office of Government Contracting, U.S. Small Business Administration, 409 Third Street SW., Washington, DC 20416; (202) 619-1658;
Under section 8(m) of the Small Business Act, 15 U.S.C. 637(m), SBA is responsible for implementing and administering the WOSB Program, which went into effect on February 4, 2011. The purpose of the WOSB Program is to ensure that women-owned small businesses (WOSBs) have an equal opportunity to participate in Federal contracting and to help attain the Federal government's goal of awarding five percent of its prime contract dollars to WOSBs. The WOSB Program authorizes Federal contracting officers to restrict competition for an acquisition to WOSBs if there is a reasonable expectation that at least two WOSBs will submit offers that meet the requirements of the acquisition at a fair and reasonable price and if the acquisition is for a good or service assigned a North American Industry Classification System (NAICS) code in which SBA has determined that WOSBs are “substantially underrepresented.” The WOSB Program also authorizes contracting officers to award a sole source contract assigned such a NAICS code to a WOSB if only one WOSB can be identified that can perform the contract at a fair and reasonable price. In addition, Economically Disadvantaged Women-Owned Small Businesses (EDWOSBs) can likewise receive set-asides and sole source awards similar to those described above for WOSBs, and in a larger set of industries where SBA has determined that WOSBs are “underrepresented” but not substantially so.
In order to identify the industries eligible for set-asides under the WOSB Program, the Small Business Act required the SBA Administrator to conduct a study to identify those industries in which small business concerns owned and controlled by women are underrepresented in Federal contracting. 15 U.S.C. 637(m)(4). SBA awarded a contract to the Kauffman-RAND Institute for Entrepreneurship Public Policy (RAND) to complete a study of the underrepresentation of WOSBs in Federal prime contracts by industry code. RAND published the study in April 2007.
In 2014, Congress amended the Small Business Act to require SBA to submit a report to Congress reflecting the results of a new study by January 2, 2016, and then continue to conduct a new study every five years. Public Law 113-291 825(c) (Dec. 19, 2014). In response to this statutory mandate, SBA asked the Office of the Chief Economist (OCE) of the U.S. Department of Commerce for assistance in conducting a new study on the WOSB Program, which would analyze data to help SBA determine those NAICS codes in which WOSBs are underrepresented and substantially underrepresented in Federal contracting. OCE looked at whether, holding constant various factors that might influence the award of a contract, the odds of winning Federal prime contracts by firms that were owned by women were greater or less than the odds of winning contracts by otherwise similar businesses.
In its analysis, OCE controlled for the size and age of the firm; its membership in various categories of firms for which the Federal government has government-wide prime contracting goals; its legal form of organization; its level of government security clearance; and its Federal prime contracting past performance ratings. OCE also looked at whether women-owned businesses typically have significantly different experiences in winning contracts depending on their industry. OCE performed this analysis at the four-digit NAICS industry group level. OCE included each firm in its sample in an industry analysis if the firm had registered as being able to perform work in that industry or if the firm had won a contract assigned to that industry.
OCE found that women-owned businesses were less likely to win Federal contracts in 254 of the 304 industries included in the study.
In 109 out of the 304 industries, OCE found that women-owned businesses have statistically significant lower odds of winning Federal contracts than otherwise similar non-women-owned businesses at the 95% confidence level. SBA has determined that the finding by OCE of a statistically significant lower likelihood of winning contracts demonstrates that WOSBs are substantially underrepresented in these 109 NAICS codes. However, of these industries, 17 are in sectors 42 and 44-45, which are not applicable to Federal contracts under SBA's regulations. 13 CFR 121.201. These 17 industry group NAICS codes are set forth in Table 1, Industries Part of Sectors 42 and 44-45, Not Applicable to Federal Contracts Under SBA Regulations.
In addition, OCE found that in 145 out of the 304 industries, the odds of women-owned businesses winning contracts were lower than those of otherwise similar non-women-owned businesses, but there was not a statistically significant difference between the odds of winning for the two groups. Although there was not a finding of statistical significance for these industries, 21 of them were previously found by the RAND study to be industries in which WOSBs are underrepresented or substantially underrepresented. Thus, SBA has information showing historical underrepresentation of women-owned businesses in these 21 industries, which is consistent with the OCE finding that women-owned businesses are less likely to win contracts. As a result, SBA finds that it possesses sufficient data to determine that WOSBs are underrepresented in these 21 industries. SBA also believes that this decision fulfills the intent of the Small Business Act, which demonstrates the intent that the designations of eligible industries be based on at least five years of data.
The full OCE study is available on SBA's Web site at
Based on the above, SBA finds a total of 113 industry groups eligible for Federal contracting under the WOSB Program. This includes 21 4-digit NAICS industry groups in which WOSBs are underrepresented (meaning contracting officers can make EDWOSB set-aside and sole source awards in these industries) and 92 4-digit NAICS industry groups in which WOSBs are substantially underrepresented (meaning contracting officers can make WOSB set-aside and sole source awards in these industries). EDWOSB concerns are eligible to be considered for both WOSB and EDWOSB set-aside and sole
The 21 NAICS codes in which WOSBs are underrepresented are set forth in Table 2, NAICS Codes in which WOSBs are Underrepresented.
The 92 NAICS codes in which WOSBs are substantially underrepresented are set forth in Table 3, NAICS Codes in which WOSBs are Substantially Underrepresented.
SBA has posted the list of designated NAICS codes on its Web site at
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the imported objects to which this notice pertains, contact the Office of Public Diplomacy and Public Affairs in the Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
Surface Transportation Board.
Notice of construction and operation exemption.
The Board is granting an exemption under 49 U.S.C. 10502 from the prior approval requirements of 49 U.S.C. 10901 for Lone Star Railroad, Inc., to construct and operate a new line of railroad in Howard County, Tex. The Line would be used to provide rail service to an industrial park near Big Spring, Tex., via a connection with an existing Union Pacific Railroad Company mainline that extends between Dallas and El Paso, Tex. This exemption is subject to environmental mitigation conditions.
The Board, however, is denying, without prejudice, the petition for exemption with respect to Southern Switching Company's proposed operation of the newly constructed line because the record does not support the authority requested.
The exemption with respect to the proposed construction by Lone Star Railroad, Inc., will be effective on April 2, 2016; petitions to reconsider or reopen must be filed by March 23, 2016.
An original and 10 copies of all pleadings, referring to Docket No. FD 35874 must be filed with the Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001. In addition, one copy of each filing in this proceeding must be served on petitioners' representative: Thomas F. McFarland, P.C., 208 South LaSalle Street, Suite 1890, Chicago, IL 60604-1112.
Allison Davis at (202) 245-0378. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at (800) 877-8339. Copies of written filings will be available for viewing and self-copying at the Board's Public Docket Room, Room 131, and will be posted to the Board's Web site.
Additional information is contained in the Board's decision. Board decisions and notices are available on our Web site at
By the Board, Chairman Elliott, Vice Chairman Miller, and Commissioner Begeman.
Tennessee Valley Authority.
Notice of intent.
The Tennessee Valley Authority (TVA) intends to prepare an environmental impact statement (EIS) addressing the impacts of alternative plans for managing public lands on eight TVA reservoirs in Alabama, Kentucky and Tennessee: Chickamauga, Fort Loudoun, Great Falls, Kentucky, Nickajack, Normandy, Wheeler and Wilson. TVA also proposes to use the information included in these eight reservoir land management plans (RLMP) to revise its Comprehensive Valleywide Land Plan. Public comment is invited concerning the scope of the EIS, including the appropriate uses for TVA-managed public lands on these reservoirs and environmental issues that should be addressed as a part of this EIS.
Comments must be received on or before April 4, 2016.
Written comments should be sent to Matthew Higdon, Tennessee Valley Authority, 400 West Summit Hill Drive (WT11D), Knoxville, Tennessee 37902. Comments may also be emailed to
For information on the EIS process, contact Matthew Higdon, NEPA Specialist, by email at
This notice is provided in accordance with the Council on Environmental Quality's regulations (40 CFR parts 1500 to 1508) and TVA's procedures for implementing the National Environmental Policy Act (NEPA), and Section 106 of the National Historic Preservation Act and its implementing regulations (36 CFR part 800).
TVA is a corporate agency and instrumentality of the United States, established by an act of Congress in 1933, to foster the social and economic welfare of the people of the Tennessee Valley region and to promote the proper use and conservation of the region's natural resources. Shortly after its creation, TVA began a dam and reservoir construction program that required the purchase of approximately 1.3 million acres of land for the creation of 46 reservoirs within the Tennessee Valley region. Most of these lands are located underneath the water of the reservoir system or have since been sold by TVA or transferred to other state or federal agencies. Today, approximately 293,000 acres of land along TVA reservoirs are managed by TVA for the benefit of the public.
TVA's eight RLMPs will address management of approximately 138,222 acres of TVA-managed public lands surrounding the following reservoirs: Chickamauga, Fort Loudon, Great Falls, Nickajack and Normandy in Tennessee; Wheeler and Wilson in Alabama; and Kentucky in Tennessee and Kentucky. In the EIS, TVA will consider the potential environmental impacts of the eight RLMPs and the allocation of
TVA has developed a proposed RLMP for each reservoir and made initial land use zone allocations for each reservoir parcel. These proposed RLMPs are the result of TVA's initial review of the suitable uses of parcels at each reservoir and will be considered as an Action Alternative in the EIS. TVA invites the public to review the proposed plans and parcel allocations on the TVA Web site during the scoping period and to submit comments, questions or suggestions on its proposal. Additional Action Alternative(s) may be developed based on public input submitted to TVA during the scoping period. If multiple Action Alternatives are considered, the primary difference between alternatives would be the amount of land allocated to each of these zones. Typically, lands currently committed to a specific use would be allocated in the RLMP to that current use; however, changes that support TVA goals and objectives will be considered. Committed lands include those subject to existing long-term easements, leases, licenses and contracts; lands with outstanding land rights; and lands that are necessary for TVA project operations.
In the EIS, TVA will also consider a No Action alternative, under which TVA would continue to rely on previous land planning designations or current management of parcels. Of the eight reservoirs, seven have land use plans that were developed using different methodology and land use categories. Two reservoirs (Fort Loudoun and Normandy) were planned using TVA's Forecast System in the 1960s or 1970s; four reservoirs (Chickamauga, Kentucky, Nickajack, and Wheeler) were planned in the 1980s and 1990s under the Multiple-Use Tract Allocation Methodology. A land plan has never been developed for Great Falls Reservoir, and only a portion of Wilson Reservoir has been planned previously. TVA will apply the single-use allocation methodology in developing new RLMPs for the eight reservoirs. Once completed, all TVA land plans will be based on the same methodology, ensuring that future management policies can be consistently applied across the region, as intended under TVA's 2011 Natural Resource Plan.
In its Natural Resource Plan, TVA established a Comprehensive Valleywide Land Plan (CVLP) to guide uses of the 293,000 acres of TVA-managed property on 46 reservoirs. The CVLP identifies target ranges for different types of land use allocations for the region. When establishing the CVLP in 2011, TVA based these ranges on parcel allocations from existing plans as well as “rapid assessments,” which were initial allocation designations of reservoir parcels conducted in order to establish an initial CVLP target range. Since 2011, TVA has conducted more thorough assessments of parcels on the eight reservoirs and found in many cases that the initial allocations do not accurately reflect actual uses of parcels, the presence of sensitive resources, or existing land rights or restrictions for parcels. Incorporating these corrections into the proposed RLMPs would necessitate minor revisions to the CVLP target ranges. Therefore, as part of this planning effort, TVA proposes to revise the CVLP ranges accordingly to the zone allocations proposed in the Action Alternative(s). The proposed revisions to the CVLP target ranges do not reflect a change to any other decisions made by TVA in its Natural Resource Plan. TVA remains committed to implementing its Natural Resource Plan and meeting the goals and objectives of the CVLP.
In addition to the Natural Resource Plan, this planning process is necessary to comply with TVA's Land Policy (2006), which governs the planning, retention and disposal of land under TVA's stewardship. The reservoir land planning process provides a consistent method of evaluating suitable uses of TVA public land in a manner that systematically incorporates information, analyses, and input from the public, stakeholders, partners and TVA specialists, and protects significant resources (including threatened and endangered species, cultural resources, wetlands, unique habitats, natural areas, water quality and the visual character of the reservoir). This planning effort is also consistent with TVA's Shoreline Management Initiative (SMI). The EIS will tier from the Final EIS for the SMI (1998), which evaluated alternative policies for managing residential shoreline development on TVA reservoirs. Residential shoreline properties occur on the eight reservoirs, and the proposed RLMPs will not affect the policies for their management.
Public scoping is integral to the process for implementing NEPA and ensures that issues are identified early and properly studied; issues of little significance do not consume substantial time and effort; and analysis is thorough and balanced. TVA's NEPA procedures require that the scoping process commence soon after a decision has been reached to prepare an EIS to ensure an early and open process for determining the scope and for identifying the significant issues related to a proposed action. TVA anticipates that the major issues addressed in the EIS include water quality, water supply, aquatic and terrestrial ecology, endangered and threatened species, wetlands, prime farmlands, floodplains, recreation, aesthetics including visual resources, land use, historic and archaeological resources and socioeconomic resources.
TVA invites members of the public as well as Federal, state, and local agencies and Native American tribes to comment on the scope of the EIS. Comments on the scope should be submitted no later than the date given under the
After consideration of the public's input and analyzing the environmental consequences of each alternative, TVA will issue a draft EIS for public review and comment. TVA will notify the public of the draft EIS' availability and plans to hold public meetings during the review period. TVA expects to release the draft EIS and associated RLMPs in late 2016 and the final EIS and RLMPs in 2017. Once the NEPA review is completed, the final RLMPs and revised CVLP allocations will be submitted to the TVA Board of Directors for approval and adopted as guidelines for management of TVA public land consistent with the agency's
40 CFR 1501.7.
Federal Aviation Administration, DOT.
Notice of intent for Waiver of Aeronautical Land-Use.
The Federal Aviation Administration (FAA) is considering a proposal to change a portion of the airport from aeronautical use to nonaeronautical use and to authorize the conversion of the airport property. The proposal consists of one parcel of land containing a total of approximately 2.583.
The property was acquired using City and FAA funds through the AIP Program from 1983-1987. The land comprising this parcel is outside the forecasted need for aviation development and, thus, is no longer needed for indirect or direct aeronautical use. The airport wishes to develop this land for compatible commercial, nonaeronautical use. The income from the conversion of this parcel will benefit the aviation community by reinvestment in the airport.
Approval does not constitute a commitment by the FAA to financially assist in the conversion of the subject airport property nor a determination of eligibility for grant-in-aid funding from the FAA. The disposition of proceeds from the conversion of the airport property will be in accordance with FAA's Policy and Procedures Concerning the Use of Airport Revenue, published in the
Comments must be received on or before April 4, 2016.
Send comments on this document to Mr. Cameron Bryan, Federal Aviation Administration, Acting Manager, Texas Airports Development Office, 10101 Hillwood Parkway, Fort Worth, TX 76177.
Mr. Bill Welstead, Aviation Director, City of Fort Worth, 4201 N. Main St. Suite 200, Fort Worth, TX 76106, telephone (817) 392-5400, or Mr. Anthony Mekhail, Federal Aviation Administration, Texas Airports Development Program Manager, 10101 Hillwood Parkway, Fort Worth, TX 76177, telephone (817) 222-5663, FAX (817) 222-5989. Documents reflecting this FAA action may be reviewed at the above locations.
Federal Aviation Administration, DOT.
Notice.
The Federal Aviation Administration (FAA) announces its findings on the noise compatibility program submitted by Lafayette Airport Commission under the provisions of 49 U.S.C. (the Aviation Safety and Noise Abatement Act, hereinafter referred to as “the Act”) and 14 CFR part 150. These findings are made in recognition of the description of Federal and nonfederal responsibilities in Senate Report No. 96-52 (1980). On April 4, 2012, the FAA determined that the noise exposure maps submitted by Lafayette Airport Commission under Part 150 were in compliance with applicable requirements. On November 23, 2015, the FAA approved the Lafayette Regional Airport noise compatibility program. Both of the recommendations of the program were approved.
The effective date of the FAA's approval of the Lafayette Regional Airport noise compatibility program is November 23, 2015.
DOT/FAA Southwest Region, Tim Tandy, Environmental Protection Specialist, ASW-640D, 10101 Hillwood Parkway, Fort Worth, Texas 76177. Telephone (817) 222-5644.
This notice announces that the FAA has given its overall approval to the noise compatibility program for Lafayette Regional Airport, effective November 23, 2015.
Under section 47504 of the Act, an airport operator who has previously submitted a noise exposure map may submit to the FAA a noise compatibility program which sets forth the measures taken or proposed by the airport operator for the reduction of existing non-compatible land uses and prevention of additional non-compatible land uses within the area covered by the noise exposure maps. The Act requires such programs to be developed in consultation with interested and affected parties including local communities, government agencies, airport users, and FAA personnel.
Each airport noise compatibility program developed in accordance with Federal Aviation Regulations (FAR) Part 150 is a local program, not a Federal program. The FAA does not substitute its judgment for that of the airport proprietor with respect to which measures should be recommended for action. The FAA's approval or disapproval of FAR Part 150 program recommendations is measured according to the standards expressed in Part 150 and the Act and is limited to the following determinations:
a. The noise compatibility program was developed in accordance with the provisions and procedures of FAR Part 150;
b. Program measures are reasonably consistent with achieving the goals of reducing existing non-compatible land uses around the airport and preventing the introduction of additional non-compatible land uses;
c. Program measures would not create an undue burden on interstate or foreign commerce, unjustly discriminate against types or classes of aeronautical uses, violate the terms of airport grant agreements, or intrude into areas preempted by the Federal Government; and
d. Program measures relating to the use of flight procedures can be implemented within the period covered by the program without derogating safety, adversely affecting the efficient use and management of the navigable airspace and air traffic control systems, or adversely affecting other powers and responsibilities of the Administrator prescribed by law.
Specific limitations with respect to FAA's approval of an airport noise
Approval does not constitute a commitment by the FAA to financially assist in the implementation of the program nor a determination that all measures covered by the program are eligible for grant-in-aid funding from the FAA. Where federal funding is sought, requests for project grants must be submitted to the FAA Regional Office in Fort Worth, Texas.
The Lafayette Airport Commission submitted to the FAA on November 29, 2011 the noise exposure maps, descriptions, and other documentation produced during the noise compatibility planning study conducted from August 14, 2013 through August 6, 2014. The Lafayette Regional Airport noise exposure maps were determined by FAA to be in compliance with applicable requirements on April 4, 2012. Notice of this determination was published in the
The Lafayette Regional Airport study contains a proposed noise compatibility program comprised of actions designed for phased implementation by airport management and adjacent jurisdictions from August 6, 2014 to the year 2017. It was requested that the FAA evaluate and approve this material as a noise compatibility program as described in section 47504 of the Act. The FAA began its review of the program on May 25, 2015 and was required by a provision of the Act to approve or disapprove the program within 180 days (other than the use of new or modified flight procedures for noise control). Failure to approve or disapprove such program within the 180-day period shall be deemed to be an approval of such program.
The submitted program contained two proposed actions for noise mitigation off the airport. The FAA completed its review and determined that the procedural and substantive requirements of the Act and FAR Part 150 have been satisfied. The overall program, therefore, was approved by the FAA effective November 23, 2015.
Outright approval was granted for both of the specific program elements. A preventive land use mitigation measure would offer owners of vacant residential parcels located within the existing DNL 65 contour the opportunity to participate in the Avigation Easement Acquisition Program. A remedial measure would offer owners of residential properties located within the DNL 65 contour the opportunity to participate in the Avigation Easement Acquisition Program.
These determinations are set forth in detail in a Record of Approval signed by the FAA Southwest Region Airports Division Manager on November 23, 2015. The Record of Approval, as well as other evaluation materials and the documents comprising the submittal, are available for review at the FAA office listed above and at the administrative offices of the Lafayette Airport Commission. The Record of Approval also will be available on-line at
Federal Aviation Administration (FAA), DOT.
Notice of request to release airport property.
The FAA proposes to rule and invite public comment on the release of land at the Gainesville Municipal Airport under the provisions of Section 125 of the Wendell H. Ford Aviation Investment Reform Act for the 21st Century (AIR 21).
Comments must be received on or before April 4, 2016.
Comments on this application may be mailed or delivered to the FAA at the following address: Mr. Cameron Bryan, Acting Manager, Federal Aviation Administration, Southwest Region, Airports Division, Texas Airports Development Office, ASW-650, 10101 Hillwood Parkway, Fort Worth, Texas 76177.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Mr. Barry Sullivan, City Manager, at the following address: 2300 Airport Drive, Gainesville, Texas 76240.
Mr. Anthony Mekhail, Program Manager, Federal Aviation Administration, Texas Airports Development Office, ASW-650, 10101 Hillwood Parkway, Fort Worth, TX 76177, Telephone: (817) 222-5663, email:
The request to release property may be reviewed in person at this same location.
The FAA invites public comment on the request to release property at the Gainesville Municipal Airport under the provisions of the AIR 21.
The following is a brief overview of the request: City of Gainesville requests the release of 20 acres of non-aeronautical airport property. The property is located on the southeast side of the airport, bordered by US HWY 82 to the south. The property to be released will be sold and revenues shall be used to enhance development, operations and maintenance of the airport. Any person may inspect the request in person at the FAA office listed above under
In addition, any person may, upon request, inspect the application, notice and other documents relevant to the application in person at the Gainesville Municipal Airport, telephone number (940) 668-4500.
In accordance with part 211 of Title 49 Code of Federal Regulations (CFR), this document provides the public notice that by a document dated February 9, 2016, the Denton County Transportation Authority (DCTA) has petitioned the Federal Railroad Administration (FRA) for an extension of its existing waiver of compliance from certain provisions of the Federal railroad safety regulations. Specifically, DCTA is requesting an extension of its existing relief from the following parts and specific regulations of 49 CFR part 238, Passenger Equipment Safety Standards (Sections 238.115, 238.121, 238.223, 238.305, 238.309, and Appendix D); Part 229, Railroad
DCTA operates its “A-train” commuter rail service along a 21.3-mile corridor adjacent to and parallel with Interstate 35 between Dallas, TX, and Denton, TX, featuring six station stops. The commuter rail operation is contracted to Herzog for vehicle and right-of-way maintenance, dispatching services, dispatching, and operations. The corridor also has a currently active freight operation served by the Dallas Garland and Northeastern Railroad, which provides freight service to customers in the Lewisville, TX, area. The passenger operations are temporally separated from freight operations through a plan on file with FRA using interlocked derails on the southern terminus and stub-end track on the northern terminus. In its extension request, DTCA states that a real-time shunt monitoring system is being installed in conjunction with Positive Train Control.
DCTA operates Stadler diesel multiple-unit (DMU) vehicles constructed to meet European safety standards for crashworthiness and related safety measures. As asserted in its original petition, DCTA chose these vehicles because DCTA believes that they offer an equivalent or higher level of safety, security, and performance to the passenger and crew than conventional FRA-compliant equipment.
In a July 13, 2011, decision letter, FRA granted relief from the Federal railroad safety regulations listed above. Additionally, FRA invoked its authority under 49 U.S.C. 20306 to exempt DCTA from the requirements of 49 U.S.C. 20302 for sill steps and end handholds. The current waiver expires on July 13, 2016.
FRA notes that this docket number includes a separate permanent decision letter dated May 31, 2012, which was granted in accordance with FRA's October 2011 final report and guidelines on “Technical Criteria and Procedures for Evaluating the Crashworthiness and Occupant Protection Performance of Alternatively Designed Passenger Rail Equipment for Use in Tier I Service,” issued by the Engineering Task Force (ETF). This letter, known as the “Alternatively Designed Vehicle (AVT)” waiver, was granted to DCTA for use of its Stadler GTW 2/6 DMUs, finding that they are in compliance with crashworthiness criteria contained in the ETF guidelines. DCTA is not requesting any modification of the conditions contained in that decision letter.
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 18, 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
Federal Transit Administration, DOT.
Notice of proposed revisions to circular and request for comment.
The Federal Transit Administration (FTA) has placed in the docket and on its Web site proposed guidance in the form of a Circular to assist grantees in complying with various Equal Employment Opportunity regulations and statutes. The purpose of this Circular is to provide recipients of FTA financial assistance with instructions and guidance necessary to carry out the U.S. Department of Transportation's Equal Employment Opportunity regulations (*****). FTA is updating its “Equal Employment Opportunity (EEO) Program Guidelines for Grant Recipients” to clarify the requirements for compliance. By this notice, FTA invites public comment on the proposed circular.
Comments must be submitted by May 2, 2016. Late-filed comments will be considered to the extent practicable.
Please submit your comments by only one of the following methods, identifying your submission by docket No. FTA-2016-0013. All electronic submissions must be made to the U.S. Government electronic site at
(1)
(2)
(3)
(4)
Anita Heard, Office of Civil Rights, Federal Transit Administration, 1200 New Jersey Avenue SE., Room E54-420, Washington, DC 20590, phone: (202) 493-0318, or email,
FTA is updating its EEO Circular to clarify what recipients must do to comply with Titles VI and VII of the Civil Rights Act of 1964, Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), 49 U.S.C. Chapter 53 (the Federal Transit law), other Federal civil rights statutes, and the U.S. Department of Transportation (DOT) regulations in 49 CFR part 21 . The EEO Circular, last revised in 1988 when the Federal Transit Administration (FTA) was called the Urban Mass Transportation Administration (UMTA), requires changes to bring EEO-related guidance up to date. This notice provides a summary of proposed changes to Circular 4704.1, “Equal Employment Opportunity Program Guidelines for Grant Recipients.” The final Circular, when adopted, will supersede the existing circular.
The proposed Circular incorporates the Department of Labor's standards for an affirmative action program; the Equal Employment Opportunity Commission (EEOC) regulations; the guidelines for an effective implementation of Executive Order 11246, as amended; section 503 of the Rehabilitation Act of 1973, as amended; Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), and the Americans with Disabilities Act of 1990; and other civil rights statutes related to employment practices. These laws ban discrimination and require Federal contractors and subcontractors to take affirmative action to ensure that all individuals have an equal opportunity for employment, without regard to race, color, religion, sex, age, national origin, disability, veteran status, or genetic information. Additionally, since the existing Circular went into effect, legislation and court cases have transformed affirmative action policies and affected recipients' and beneficiaries' responsibilities. The proposed Circular would incorporate these changes in law and judicial interpretations. Also, the proposed Circular would incorporate lessons learned from FTA administered oversight activities, including triennial and state management reviews, and discretionary EEO compliance reviews. During these reviews, FTA identified problems related to ambiguous language in the existing Circular. These problems included failure to conduct utilization analyses, failure to develop effective and measurable goals and timetables, and failure to execute a written plan for internal and external dissemination of its EEO Policy. The proposed circular reorganizes, clarifies, and provides examples of the information that must be included in a compliant EEO program. This document does not include the proposed circular on which FTA seeks comment; however, an electronic version may be found on FTA's Web site at
Readers familiar with the existing FTA Circular 4704.1 will notice a number of changes to the proposed circular.
The proposed circular eliminates outdated nomenclature, such as references to “UMTA,” references to the “Urban Mass Transit Act,” and removes references to statutory provisions such as the “Federal Aid Urban System Program.” The title of the proposed circular has been change to “Equal Employment Opportunity (EEO) Requirements and Guidelines for Federal Transit Administration Recipients.”
We have also reorganized the proposed circular for ease-of-read. The existing Circular is organized as follows:
Chapter I—General;
Chapter II—Coverage;
Chapter III—EEO Program Components;
Chapter IV—Types of Compliance Reviews;
Chapter V—Remedial Actions and Enforcement Procedures; and
Chapter VI—Discrimination Complaints.
The proposed circular is organized as follows:
Chapter 1—Introduction and Applicability;
Chapter 2—EEO Program Requirements; and
Chapter 3—EEO Compliance Oversight, Complaints, and Enforcement
Proposed Chapter 1 includes existing Chapters 1 and 2, excluding the “Frequency of Update” subsection from existing Chapter II. Proposed Chapter 2 includes the “Frequency of Update” subsection and existing Circular Chapter III. The Proposed Chapter 3 includes Chapters IV, V, and VI from the existing Circular.
FTA seeks comments on the scope and content of the proposed Circular, specifically as to whether there are areas that need more clarification or explanation, or topics that were overlooked. FTA also seeks suggestions for resources that should be included in the proposed Circular, including good practices and sample materials. Additional items FTA seeks comment on are included in the chapter-by-chapter analysis below.
Chapter 1 of the proposed circular is an introductory chapter that reviews the organization of the circular, the authority for establishing the circular, and applicability to grantees.
The proposed circular chapter includes added sections entitled Introduction, Organization of this Circular, and Authorities. The content of the Introduction and Authorities sections contain updated information currently covered in Chapter I of the existing circular. The authority for the EEO program requirements includes
Where the current circular definitions reference UMTA, the proposed definitions reference FTA. We have proposed new definitions where current law has created new terminology or where terms are unclear or undefined in the existing circular. Some definitions have been updated to comply with existing law or to increase clarity. Where applicable, we have used the same definitions found in rulemakings or other circulars to ensure consistency.
Proposed new definitions include: Adverse impact, Complainant, Disability, Disparate impact, Disparate treatment, Employee, Equal Employment Opportunity Program (EEOP), Equal Employment Opportunity statutes and regulations, Federal financial assistance, FTA activity, One-person rule, Programs or activities, Protected class, and Transit-related employee. Proposed updated definitions include: Applicant, Compliance, Contractor, Discrimination, Good faith efforts, Minority persons, Noncompliance, Primary recipient, Recipient or Grantee, and Secretary. Two definitions have been removed in the proposed circular: Affirmative Action Plan and Probable Noncompliance.
FTA seeks comment on potential changes to the Memorandum of Understanding (MOU) between FTA and the Federal Highway Administration (FHWA). Currently, FTA has the responsibility for reviewing, monitoring, and approving state DOT's EEO Programs in accordance with FTA's regulations, policies, and guidance, while FHWA has the responsibility for reviewing, monitoring and approving state DOT's EEO Programs in accordance with FHWA's regulations, policies, and guidance. Although FHWA currently requires an annual to multiyear program submission, FTA requires EEOP submissions on a triennial basis. FTA seeks comments on developing an updated MOU between FTA and FHWA, which would allow state DOTs to submit a single EEO program that will satisfy both FTA and FHWA requirements.
FTA also seeks comment regarding a potential change to the threshold for Equal Employment Opportunity Program submission from the current standard of grantees with 50 transit-related employees, to grantees with 100 transit-related employees.
FTA seeks comment on establishing a Memorandum of Understanding between FTA and the Department of Labor (DOL) with regard to EEO program submissions and approval. The MOU would allow the agency to submit an EEO Program that would satisfy both FTA and DOL submission requirements.
FTA seeks comment on the content of Chapter 1.
Chapter 2 of the proposed Circular discusses how frequently a grantee must submit an updated Equal Employment Opportunity Program (EEOP). The proposed Frequency of Update section is moved from the current Chapter II—Coverage and combined with the components of the current Chapter III—EEO Program Requirements. The Frequency of Update section proposes to remove the discretion of the FTA Office of Civil Rights to request less information from a recipient when the previous EEO program has not changed significantly in the intervening three years.
Proposed Chapter 2 primarily explains the seven required elements of an EEOP for FTA review. The chapter details proposed required language, required supporting documentation, the type of analysis that must be conducted, and the acceptable methods to report the results of the analysis. The seven elements proposed are:
A majority of proposed Chapter 2 has been relocated from Chapters II and III of the existing circular. However, those familiar with the EEOP will notice a few changes in these sections.
Proposed subsection 2.2.2, “Dissemination,” increases the frequency requirement for meeting with top management officials to discuss the EEOP from a minimum of “semiannually” to a minimum of “quarterly.” This section also proposes simplification of and updated language for External Dissemination requirements.
Impartiality is important to the EEOP's credibility. Specifically, the separation of functions would entail separating the EEO Officer position from human resources positions and other positions that serve defensive functions in an agency, such as the legal office. With regards to “Designation of Personnel Responsibility” in proposed subsection 2.2.3, FTA proposes to add a requirement that agencies must “ensure that no conflicts of position or conflicts of interest occur or appear to occur with respect to the EEO Officer's role.” The proposed Circular would require “the functional unit that reviews EEO matters be separate and apart from the unit that represents the agency in EEO complaints.” This proposed section also adds requirements for the EEO Officer's EEOP Responsibilities, including reviewing the agency's nondiscrimination plan with all managers and supervisors, periodic reviews of policies, procedures, and union agreements, providing training for employees and managers, advising employees and applicants of training and development opportunities, and auditing of EEO Policy statement postings to ensure compliance. The section also proposes to alter existing responsibilities, including a requirement for reporting “quarterly” instead of “periodically” on each department's progress toward goals, and “investigating” complaints of discrimination instead of “processing” such complaints. FTA proposes to remove the requirement that the EEO Officer concur in all hires and promotions.
In the area of Agency EEO Responsibilities, the proposed circular updates and streamlines some of the enumerated requirements in the existing circular and adds two responsibilities. FTA proposes requirements to add and update a personnel database, and to encourage employee participation to support the advancement of the EEOP. The proposed section removes explicit requirements for assisting in the identification of problem areas, active involvement in affinity groups and community organizations, career counseling of employees, and participation in periodic audits to ensure each agency unit is compliance. FTA believes the concepts in the removed items are captured elsewhere in Chapter 2.
Proposed subsection 2.2.4, “Utilization Analysis,” requires agencies to use EEO-4 reporting categories. This proposal changes the approach to Utilization Analysis in the
Proposed subsection 2.2.5, “Goals and Timetables,” proposes to require agencies to set long term and short term numerical goals and timetables for each individual minority group, broken down by specific racial/ethnic subcategories for men and women. This section includes changes to the guidelines for goal setting, including a guideline to set goals that are realistic and measurable. The proposed requirements reduce the long term goal period from 4-5 years to 2 or more years. FTA also proposes to add a requirement that agencies collect reports from unit managers on a scheduled basis to determine what goals are being met and to review these reports with all levels of management.
Proposed subsection 2.2.6, “Assessment of Employment Practices,” removes reference to “Affirmative Action” in the heading. It also proposes to move discussion of self-analysis from the Goals and Timetables section of the current circular to proposed subsection 2.2.6. We propose to add a requirement that statistical data show any potential impact of an agency's employment practices on persons with disabilities and veterans. This includes the number of applicants for employment, the number hired, and the number promoted, cross-references by sex and race. Having this data will assist in measuring the effectiveness of outreach and recruitment efforts for persons with disabilities and veterans. The proposed section also adds requirements for a description of the agency's training programs, review of wage and salary structure, establishment of privacy protocols, and collection of reports from unit managers on a scheduled basis in a manner similar to Goals and Timetables requirements.
Proposed subsection 2.2.7, “Monitoring and Reporting,” updates the description of the purposes of the monitoring and reporting system. The proposed section adds a requirement for agencies to describe the complaint process and maintain a log of complains. The proposed section also requires agencies to maintain records on applicants, hires, transfers, promotions, training and termination. Finally, the proposed section adds a list of Required EEOP Attachments.
FTA seeks comment on the content of Chapter 2. With regards to the EEOP process, FTA seeks comment on the paperwork burdens for carrying out the requirements set forth in the proposed circular. Specifically FTA seeks comment on how long it will take to develop an EEO Program with the requirements set out in Chapter 2 of the proposed Circular. FTA also seeks suggestions from grantees regarding how to use information technology to decrease the amount of time it takes to develop an EEO Program.
Chapter 3 of the proposed circular combines topics covered in chapters IV, V, and VI of the existing circular. It explains how FTA carries out its EEO oversight and enforcement responsibilities. This includes a discussion of factors that lead to FTA conducting a compliance review such as lawsuits, complaints, or investigations conducted by organizations other than FTA, insufficient EEO program submissions, EEO findings, or recommendations from prior triennial, state management reviews that are deficient. The chapter explains the EEO compliance review process and the required steps for implementing corrective actions for any deficiencies found during the review. The chapter also covers the complaint process and how grantees can file a complaint.
Proposed section 3.1, “Compliance Oversight,” updates the description of types of oversight reviews and authorities for such reviews. FTA proposes to change the description of compliance reviews to encompass all reviews and remove the distinction between “Application Reviews” and “Post-Approval Reviews” in the existing circular. Further, FTA proposes to change the frequency requirement for compliance reviews outside of the Triennial Review or State Management Review cycle. The current circular requires these reviews “at least once every 3 years.” FTA proposes to change the frequency to allow FTA to determine the frequency and scope of the reviews at its discretion and on a case-by-case basis.
Proposed section 3.1.3 removes the explanation of Remedial Action Plans.
Proposed section 3.2, “Complaints,” is reorganized and proposes to add significantly more detail to the complaint process. In proposed subsection 3.2.6, FTA proposes to add an Administrative Closure option.
FTA seeks comment on the content of Chapter 3.
Proposed Appendix A adds a list of references to the proposed circular. A similar list is contained on the cover page of the existing circular. The proposed list of references in Appendix A updates and adds references based on the current state of the law and guidance.
FTA seeks comment on the content of Appendix A.
Issued in Washington, DC.
National Highway Traffic Safety Administration, (NHTSA), Department of Transportation.
Denial of a petition for a defect investigation.
This notice sets forth the reasons for denying a petition (DP15-007) submitted to NHTSA under 49 U.S.C. 30162 and 49 CFR part 552, requesting that the agency “have Toyota correct software defects in their electronic throttle control software” and then “issue a national recall of all effected [sic] vehicles and have Toyota replace the old faulty code with the new safer code.”
Mr. Stephen McHenry, Vehicle Control Division, Office of Defects Investigation, NHTSA, 1200 New Jersey Avenue SE., Washington, DC 20590. Telephone 202-366-4883. Email
Interested persons may petition NHTSA requesting that the agency initiate an investigation to determine
In a letter dated September 15, 2015, Dr. James Stobie (the petitioner) requested that NHTSA “have Toyota correct software defects in their electronic throttle control software” and then “issue a national recall of all effected [sic] vehicles and have Toyota replace the old faulty code with the safer code.” Dr. Stobie references two previous defect petitions related to unintended acceleration in Toyota vehicles that NHTSA recently evaluated and denied. The petitioner stated that his petition contains new information affecting NHTSA's conclusions in the previous petition evaluations. This includes: (1) Information related to a crash that occurred as his wife was attempting to park their model year 2010 Lexus HS250H; (2) the source of EDR data in Toyota vehicles; (3) alleged defects in the Toyota Electronic Throttle Control (ETC) software; and (4) a recall conducted by Honda in Japan. NHTSA has reviewed the material cited by the petitioner. The results of this review and our evaluation of the petition are set forth in the DP15-007 Petition Analysis Report, published in its entirety as an appendix to this notice.
After a thorough assessment of the material submitted by the petitioner, the information already in NHTSA's possession, and the potential risks to safety implicated by the petitioner's allegations, it is unlikely that an order concerning the notification and remedy of a safety-related defect would result from any proceeding initiated by granting Dr. Stobie's petition. After full consideration of the potential for finding a safety related defect in the vehicle, and in view of NHTSA's enforcement priorities and its previous investigations into this issue, the petition is denied.
On September 23, 2015, the National Highway Traffic Safety Administration (NHTSA) received a September 15, 2015 letter from Dr. James Stobie, Ph.D. (the petitioner), petitioning the agency to “have Toyota correct software defects in their electronic throttle control software” and then “issue a national recall of all effected [sic] vehicles and have Toyota replace the old faulty code with the safer code.” The petition cites a crash that occurred as his wife was attempting to park their model year 2010 Lexus HS250H in an angled parking space facing a brick building and references two previous Toyota unintended acceleration defect petitions that NHTSA evaluated and denied. Dr. Stobie's petition also alleges that new information not considered by the Agency in those prior petitions should be evaluated by NHTSA. This new information includes: (1) The facts and circumstances of a crash that occurred as his wife was attempting to park their model year 2010 Lexus HS250H; (2) the source of EDR data in Toyota vehicles; (3) alleged defects in the Toyota Electronic Throttle Control (ETC) software; and (4) a recall conducted by Honda in Japan.
The Toyota EDR collects pre-trigger data (vehicle speed, engine speed, brake switch status, and accelerator pedal position sensor #1 voltage) from the vehicle's High Speed Controller Area Network (HS-CAN), which is refreshed either periodically or immediately by the respective control modules.
The EDR
In 2010, NHTSA's Vehicle Research and Test Center (VRTC) conducted testing to validate the EDR pre-crash data used in NHTSA field investigations.
The EDR download report clearly notes these issues in the first two items of Data Limitations section on page one of the report:
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In 2012, the National Research Council released a report that included a review of NHTSA's processes for investigating allegations of sudden unintended acceleration in Toyota and other vehicles.
The crash identified by the petitioner involved a sudden acceleration incident experienced by his wife as she attempted to park the family's 2010 Lexus HS250H on June 20, 2015, while on the grounds of the United States Naval Academy.
Mrs. Stobie described the sudden unintended acceleration incident in several complaints submitted to ODI from June 21, 2015 to August 17, 2015 (VOQ's 10726415, 10726781, and 10749195). She provided the following statement in the most recent complaint (VOQ 10749195):
The petitioner provided a copy of the EDR download data (Table 2).
The EDR data shows that at the most recent EDR sample prior to impact (t = −0.8 s), the vehicle is nominally within 10 ft. of the building, travelling approximately 7 ft./s, the accelerator is at approximately 22 percent of full apply and the brake is not applied. The recorded data at the airbag trigger point (t = 0 s), shows that the accelerator pedal was fully applied
In support of his allegation that data provided to the EDR was corrupted by an undefined software error, the petitioner notes that the EDR erroneously states that the brake pedal and accelerator were both being pressed at the same time. Other vehicle data shows that they were not: This information does not validate the conclusion adopted in the petition. Separate data downloaded from the Hybrid Control Unit (HCU) for the petitioner's vehicle indicates that the brake pedal and the accelerator pedal were not applied simultaneously at any time during the key cycle in which the petitioner's accident occurred.
In addition, as noted by the petitioner, brake testing conducted by Toyota field inspectors after the incident found that the system performed normally and was capable of stopping a vehicle at full throttle:
Based on the recorded vehicle speeds, the vehicle was inside the parking space when the most significant acceleration occurred. At this time and distance from impact, a driver would normally be applying the brake or coasting and not applying the accelerator to full throttle. Although the driver alleged that the brakes were not effective during the incident, the brakes had no prior history of malfunction and the post-incident inspection did not identify any issues with the brake system. Review of the EDR and HCU data indicate very late activation of the Brake Stop Lamp Switch after full application of the accelerator pedal. These data do not support the driver's statement that the brake was applied when the acceleration occurred. Based on the foregoing information, this incident appears to be a case of pedal misapplication.
The petitioner correctly notes that the EDR receives the Accelerator Rate voltage from the engine computer and not directly from the pedal and asserts that this is “new critical information about EDR data.” In the petitioner's view, the analog to digital conversion of the accelerator pedal signal and subsequent processing by the engine computer creates a potential pathway for an unknown software error to create erroneous accelerator position data. However, this is not “new” information about the source of the accelerator pedal position data sampled and recorded by the EDR. All prior work by the agency related to Toyota EDR data dating back to the joint NHTSA/NASA study, including the two previous petitions and other studies referenced in that work, recognized and reported that the EDR samples Accelerator Rate voltage data from the HS-CAN bus. Further, as discussed below, the engine computer software has been exhaustively examined, including analysis in the NHTSA/NASA study, and no one, even consultants who have offered testimony asserting the software is defective, has identified a specific and reproducible mechanism or set of conditions that produces unintended acceleration or the “false” data phenomenon put forward in the petition. As noted in the prior work and in Section 2.1.1 of this report, the HS-CAN bus receives the Accelerator Rate data from the engine control module, which refreshes the data every 512 ms (see Table 1).
The EDR continuously samples the HS-CAN data once per second and stores the data in a temporary buffer. The EDR only saves this data, along with the trigger data, when it detects a triggering event such as a crash. Because of the manner in which the ECM updates/refreshes the data to the HS-CAN, the “recorded” Accelerator Rate data saved by the EDR is not necessarily the “actual” data at the precise time intervals captured by the EDR. For example, the Accelerator Rate recorded by the EDR for the petitioner's crash at the trigger point (t = 0 s) is not necessarily the actual data at the trigger point, but the most recent value refreshed to the HS-CAN over the prior 512 ms. This explains why it is possible for the EDR data to show that the accelerator appeared to be applied fully at the same time the brake switch was in the ON position when the HCU data shows that the brake and the accelerator were not applied simultaneously.
The petitioner states that software defect theories posited by plaintiff experts in
ODI's assessment of the software defect theories is not substantially different from that of one of the plaintiff attorneys who hired the software experts. These plaintiff attorneys provided the following characterization of the software experts' work and findings in a document related to the Toyota SUA property loss settlement in 2013:
In addition, an October 2013 order from the presiding judge in the Toyota ETC multi-district litigation provided the following characterization of the software defect theories cited by the petitioner when issuing a ruling in a sudden acceleration case:
The petitioner references a 2014 recall of 175,000 Honda Fit vehicles in Japan as an example of a software defect causing unintended acceleration accidents (Honda Foreign Campaign Number 14F-057). The Honda recall addressed programming flaws that may result in unintended acceleration during specific operating conditions. Honda's Foreign Recall Report to NHTSA described the programming flaws and operating conditions:
Honda was able to reproduce the conditions described in the recall and develop a software update to address the “lurching” concerns. The conditions addressed by the Honda recall are associated with brief surges that occur when the accelerator pedal is being applied under specific operating conditions and, thus, are not related to the petitioner's incident or allegations (which claim sustained acceleration during brake application), nor have they been observed in the general population of Toyota ETC vehicles. Finally, ODI is not aware of any vehicle defect theories, from the software experts cited by the petitioner or anyone else, that have similarly documented and reproduced a sudden unintended acceleration condition in the Toyota vehicles that would be attributable to the electronic throttle control software in those vehicles.
The petitioner does not provide any new evidence in support of his petition. In our view, a defects investigation is unlikely to result in a finding that a defect related to motor vehicle safety exists, or a NHTSA order for the notification and remedy of a safety related defect as alleged by the petitioner, at the conclusion of the requested investigation. Therefore, given a thorough analysis of the potential for finding a safety related defect in the vehicle, and in view of NHTSA's enforcement priorities and its previous investigations into this issue, the petition is denied. This action does not constitute a finding by NHTSA that a safety related defect does not exist. The agency will take further action if warranted by future circumstances.
49 U.S.C. 30162(d); delegations of authority at 49 CFR 1.50 and 501.8.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Grant of petition.
This document announces a decision by the National Highway Traffic Safety Administration (NHTSA) that certain model year (MY) 2006-2007 European market Ferrari 599 GTB passenger cars (PCs) manufactured prior to September 2007 that were not originally manufactured to comply with all applicable Federal motor vehicle safety standards (FMVSS), are eligible for importation into the United States because they are substantially similar to vehicles originally manufactured for importation into and sale in the United States that were certified by their manufacturer as complying with the safety standards (the U.S. certified version of the MY 2007 Ferrari 599 GTB PC), and they are capable of being readily altered to conform to the standards.
This decision became effective on February 26, 2016.
For further information contact George Stevens, Office of Vehicle Safety Compliance, NHTSA (202-366-5308).
Under 49 U.S.C. 30141(a)(1)(A), a motor vehicle that was not originally manufactured to conform to all applicable FMVSS shall be refused admission into the United States unless NHTSA has decided that the motor vehicle is substantially similar to a motor vehicle originally manufactured for importation into and sale in the United States, certified as required under 49 U.S.C. 30115, and of the same model year as the model of the motor vehicle to be compared, and is capable of being readily altered to conform to all applicable FMVSS.
Petitions for eligibility decisions may be submitted by either manufacturers or importers who have registered with NHTSA pursuant to 49 CFR part 592. As specified in 49 CFR 593.7, NHTSA publishes notice in the
J.K. Technologies, LLC, of Baltimore, Maryland (“JK”) (Registered Importer# RI-90-006), petitioned NHTSA to decide whether MY 2006-2007 European market Ferrari 599 GTB PCs manufactured prior to September 2007 are eligible for importation into the United States. NHTSA published a notice of the petition on March 24, 2014 (79 FR 16099) to afford an opportunity for public comment. The reader is referred to that notice for a thorough description of the petition.
On April 23, 2014, NHTSA received comments from Ferrari North America, Inc. (FNA), on behalf of Ferrari SpA, the vehicle's original manufacturer. In its comments, Ferrari stated that while it agreed that the U.S.- and the non-U.S.-certified versions of the vehicle are “substantially similar” within the meaning of 49 U.S.C. 30141(a)(1)(A)(i), it strongly disputed JK's assertions that the non-U.S.-certified version could be readily altered to comply with all applicable FMVSS. FNA elaborated by presenting detailed reasons for its assertions with respect to specific FMVSS.
On May 21, 2014, NHTSA forwarded FNA's comments to JK to accord it an opportunity to respond and asked it to submit its response by June 4, 2014. By letter dated June 10, 2014, JK requested a 45-day extension in order to gather engineering data to adequately address the concerns raised by FNA. NHTSA approved JK's request for extension. JK provided its initial response on August 17, 2014 and submitted supplemental information on February 17, 2015.
A summary of FNA's comments, JK's responses, and the conclusions that NHTSA has reached with regard to the issues raised by the parties is set forth below.
NHTSA has reviewed the petition, FNA's comments and JK's responses to those comments, and has concluded that only the nonconforming European Market versions of the vehicles described in the petition are substantially similar to the U.S.-certified version of the MY 2006 and 2007 Ferrari 599 GTB PC and are capable of being readily altered to comply with all applicable FMVSS. NHTSA has also decided that an RI who imports or modifies one of these vehicles must include in the statement of conformity and associated documents (referred to as a “conformity package”) it submits to NHTSA under 49 CFR 592.6(d) specific proof, as described below, to show that the vehicle was manufactured to conform to, or was successfully altered to conform to, each of the following standards:
FMVSS No. 101
JK responded that it has the Ferrari tools and the required access to reflash all computers as required.
NHTSA has decided that a description of how the programming changes were completed and how compliance with the standard was verified must be included in each conformity package. Photographs, printouts, and/or images of the installation computer's monitor (“screenshots”), as practicable, must also be submitted as proof that the reprogramming was carried out successfully.
FMVSS No. 108
JK responded that it has the Ferrari tools and the required access to reflash all computers as required.
NHTSA has decided that a description of how the programming changes were accomplished and how compliance with FMVSS No. 108 is verified must accompany each conformity package. Photographs, printouts, and/or screenshots, as practicable, must also be submitted as proof that the reprogramming was carried out successfully.
FMVSS No. 111
JK responded that no comment is necessary.
NHTSA has decided that proof, including photographs, must be submitted with each conformity package to show that the vehicle is equipped with a driver's side rear view mirror that allows the vehicle to meet the applicable requirements of FMVSS No. 111.
FMVSS No. 114
JK responded that it has the Ferrari tools and the required access to reflash all computers as required.
NHTSA has decided that a description of how the programming changes were completed and how compliance was verified must accompany each conformity package. Additionally, photographs, printouts, and/or screenshots, as practicable, must be submitted as proof that the reprogramming was carried out successfully.
FMVSS No. 118
Despite FNA's comment, NHTSA has decided that a description of how the vehicle's conformity was determined must accompany each conformity package. If any modifications were necessary to achieve conformity, a description of those modifications must be included in the conformity package.
FMVSS No. 138
JK responded that it has access to the appropriate equipment and has experience in installing TPMS and the
NHTSA notes that because the subject nonconforming vehicles were manufactured prior to September 1, 2007, the date on or after which 100% of passenger cars must meet the requirements of FMVSS No. 138, compliance of the subject vehicles with FMVSS No. 138 is not an issue. An RI only needs to conform a vehicle to standards that are fully phased in by the vehicle's date of manufacture.
FMVSS No. 205
JK responded that the vehicle it inspected was equipped with compliant glazing, as it is properly labeled. JK states that each vehicle imported will be inspected and if not in compliance, will be brought into compliance by adding the appropriate glass.
NHTSA has decided that photographic evidence of the required markings to demonstrate that the glazing complies with the standard must be submitted with each conformity package.
FMVSS No. 207
JK disagreed with FNA's claim that there is a “dip” in the chassis, but noted that some of the chasses have “different seat mounts.” JK provided parts listings and diagrams showing the different mounts.
JK also responded that the seat frames and mounting points are the same in the U.S.-model and European market vehicles, but observed that there are four brackets that are welded to the [chasses] of the European market vehicles on the passenger side only that could be removed, and U.S.-model seats and seat runners installed onto the resulting flat surface of the [chassis].
Ferrari also commented that, “JKT acknowledges that both driver and passenger seating systems in the European vehicle must be replaced with U.S. seats.”
JK responded:
The reason the seats need to be replaced is NOT a safety issue. It's a leather matching issue. If you “choose” to replace the passenger seat so that you get the U.S. seat with the baby seat tether hole, then you must replace the driver's seat to match the leather color [in the a replaced passenger seat].
If you choose to make a template and cut the hole for the baby seat tether [in the passenger seat] then you do not need to replace either seat. There is NO difference in the design or mounting points between the European seats and the U.S. seats. There are differences in the levels of the leather and options in both the U.S. seats and the European seats.
NHTSA has decided that a description of the seating systems present on the vehicle at the time of importation, including all differences from the U.S.-model, with part numbers and diagrams where applicable, and a description of all modifications necessary to conform the vehicle to the standard must accompany each conformity package. Additionally, photographs, as practicable, must be submitted as proof that modifications were carried out successfully.
FMVSS No. 208
JK responded that the installation of the U.S. version instrument panel and reprogramming will ensure that a compliant system is installed providing the telltales that meet the requirements of FMVSS No. 208.
JK further stated that after the brackets are removed, it can install the rails and seats properly with the software and systems. JK states that it will program, reset, and test the systems, bringing them into compliance with the standard.
JK later clarified that the European vehicle it inspected was equipped with the proper parts as well as the proper programs and systems to meet the requirements of the standard in the same manner as the U.S.-version of the vehicle, including the complete instrument systems, dash, and “passenger airbag off” light.
NHTSA has decided that each conformity package must include a detailed description of the occupant protection system in place on the vehicle at the time it was delivered to the RI and a similarly detailed description of the occupant protection system in place after the vehicle is altered, including photographs of all required labeling. The description must also include assembly diagrams and associated part numbers for all components that were removed from and installed on the vehicle, a description of how the programming changes were completed, and a description of how compliance was verified. Additionally, photographs (
FMVSS No. 209
JK responded that the vehicle it inspected was equipped with “the correct belts.” JK indicated that if a vehicle is equipped with the non-compliant four-point seat belts it can make the appropriate tools to install the correct belts, using a U.S.-model vehicle as a guide.
NHTSA has decided that each conformity package must include photographic evidence that conforming safety belts have been installed in the vehicle. Safety belt anchorages are addressed in the following discussion of FMVSS No. 210.
FMVSS No. 210
JK responded that any vehicle found to be equipped with the optional belts and lacking the aforementioned anchorage would have to be modified to meet this standard. JK further states that it will draw a template from a U.S. donor vehicle and that, as a result, all parts and engineering of the anchorage would be identical to the Ferrari mounting point. JK asserts that less than one percent of production is equipped with the optional belts.
NHTSA has decided that conformity packages for vehicles that require modification must include a detailed description of the alterations made to achieve conformity with the standard. The description must include sufficient information to validate how the alterations allowed the vehicle to meet the requirements of the standard. This information must include photographic evidence that the modification was carried out, as well as testing and/or engineering analysis reports documenting how the RI has verified that the alterations will allow the vehicle to meet all applicable requirements of the standard.
FMVSS No. 225
JK responded that it has the parts and tools to install the anchorage properly.
NHTSA has decided that conformity packages for vehicles that require modification must include a detailed description of the alterations made to achieve conformity with the standard. The description must include sufficient information to validate how the alterations allowed the vehicle to meet the requirements of the standard. This information must include photographic evidence that the modification was carried out, as well as testing and/or engineering analysis reports documenting how the RI has verified that the alterations will allow the vehicle to meet all applicable requirements of the standards.
FMVSS No.
JK responded that no comment was necessary.
NHTSA has decided that the fuel system modifications identified in the petition are necessary to bring the vehicles into compliance with the standard. Additionally, NHTSA has decided that each conformity package must include a detailed description of all modifications made to achieve conformity with the standard. This description must include part numbers for each part replaced and be supported with photographic evidence of the modifications made to achieve conformity.
FMVSS No. 401
JK responded that it has access to all of the parts and programming necessary to bring the vehicle into compliance.
NHTSA has decided that each conformity package must include a description of how the programming changes were completed and how compliance was verified. Additionally, photographs, printouts, and/or screenshots, as practicable, must be submitted as proof that the reprogramming was carried out.
49 CFR part 581
JK responded that no comment was necessary.
NHTSA has decided that each conformity package must include a detailed description of all modifications made to achieve conformity with the standard, including necessary modifications to the bumper reinforcements. This description must include part numbers for each part replaced and be supported with photographic evidence of the modifications made to achieve conformity.
In addition to the information specified above, each conformity package must include evidence showing how the RI verified that the changes it made in loading or reprograming vehicle software to achieve conformity with each FMVSS did not also cause the vehicle to fall out of compliance with any other applicable FMVSS.
Accordingly, on the basis of the foregoing, NHTSA hereby decides that model year 2006 and 2007 European market Ferrari 599 GTB passenger cars not originally manufactured to comply with all applicable FMVSS and manufactured from September 1, 2006 to August 31, 2007 are substantially similar to model year 2007 Ferrari 599 GTB passenger cars manufactured prior to September 1, 2007 for importation into and/or sale in the United States and certified under 49 U.S.C. 30115, and are capable of being readily altered to conform to all applicable Federal Motor Vehicle Safety Standards.
After the original 2006 Ferrari 599 GTB petition was granted on July 7, 2009, NHTSA amended the definition of the term “model year” in 49 CFR 593.4 for the purpose of import eligibility decisions. The amendment was made to eliminate much of the confusion confronting RIs over the issue of whether a given vehicle manufactured for sale abroad has a substantially similar U.S.-certified counterpart of the same model year. The amendment, made in a final rule published on August 25, 2011 (76 FR 53072), deleted “the calendar year that begins on September 1 and ends on August 31 of the next calendar year,” as one of the alternative definitions of the term
In light of this change in the definition of “model year,” as well as Ferrari's failure to raise any issue regarding the model year designation in response to the original model year 2006 599 GTB petition, NHTSA considers Ferrari's comment on this issue in the subject petition to be moot.
Consequently, NHTSA reaffirms that nonconforming Ferrari 599 GTB passenger cars manufactured between January 1, 2006 and August 31, 2006 continue to be eligible under VSP-518.
NHTSA has also decided that nonconforming model year 2006 European market Ferrari 599 GTB passenger cars manufactured from September 1, 2006 through December 31, 2006 and nonconforming model year 2007 European market Ferrari 599 GTB passenger cars manufactured from September 1, 2006 through December 31, 2007, are admissible under vehicle eligibility number VSP-576. This number must be indicated on the form HS-7 accompanying entry of the vehicles eligible for entry.
49 U.S.C. 30118, 30120: delegations of authority at 49 CFR 1.95 and 501.8.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Receipt of petition.
Supreme Corporation (Supreme), has determined that certain model year (MY) 2015-2016 Supreme Classic American Trolley buses manufactured between October 1, 2014 and November 2, 2015, do not fully comply with paragraph S6 of Federal Motor Vehicle Safety Standard (FMVSS) No. 205,
The closing date for comments on the petition is April 4, 2016.
Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited at the beginning of this notice and submitted by any of the following methods:
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Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that your comments were received, please enclose a stamped, self-addressed postcard with the comments. Note that all comments received will be posted without change to
Documents submitted to a docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the Internet at
The petition, supporting materials, and all comments received before the close of business on the closing date indicated above will be filed and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the extent possible. When the petition is granted or denied, notice of the decision will be published in the
Pursuant to 49 U.S.C. 30118(d) and 30120(h) (see implementing rule at 49 CFR part 556), Supreme submitted a petition for an exemption from the notification and remedy requirements of 49 U.S.C. Chapter 301 on the basis that this noncompliance is inconsequential to motor vehicle safety.
This notice of receipt of Supreme's petition is published under 49 U.S.C. 30118 and 30120 and does not represent any agency decision or other exercise of judgment concerning the merits of the petition.
Affected are approximately 21 MY 2015-2016 Supreme Classic American Trolley buses manufactured between October 1, 2014 and November 2, 2015.
Supreme explains that the noncompliance is that the windshields on the subject Trolley's do not contain the “AS1” markings as required by paragraph S6 of FMVSS No. 205.
Paragraph S6 of FMVSS No. 205 requires in pertinent part:
S6. Certification and marking.
S6.1 A prime glazing material manufacturer, must certify, in accordance with 49 U.S.C. 30115, each piece of glazing material to which this standard applies that is designed—
(a) As a component of any specific motor vehicle or camper; or
(b) To be cut into components for use in motor vehicles or items of motor vehicle equipment.
S6.2 A prime glazing manufacturer certifies its glazing by adding to the marks required by section 7 of ANSI/SAE Z26.1-1996, in letters and numerals of the same size, the symbol “DOT” and a manufacturer's code mark that NHTSA assigns to the manufacturer. NHTSA will assign a code mark to a manufacturer after the manufacturer submits a written request to the Office of Vehicle Safety Compliance, National Highway Traffic Safety Administration, 400 Seventh Street SW., Washington, DC 20590. The request must include the company name, address, and a statement from the manufacturer certifying its status as a prime glazing manufacturer as defined in S4.
In addition, paragraph S5.1 of FMVSS No. 205 incorporates by reference ANSI Z26.1-1996 and other industry
In addition to any other markings required by law, ordinance, or regulation, all safety glazing materials manufactured for use in accordance with this standard shall be legibly and permanently marked in letters and numerals . . . with the words American National Standard or the characters AS and . . . In addition to the preceding markings and immediately adjacent to the words American National Standard or the characters AS, each piece of glazing material shall further be marked . . . if complying with the requirements of Section 4, Application of Tests, Item 1 with the numeral 1; . . .
Supreme stated its belief that the subject noncompliance is inconsequential to motor vehicle safety for the following reasons:
(1) Supreme stated that the subject windshields meet all performance and other requirements of FMVSS No. 205 with the exception of the subject noncompliance.
(2) Supreme stated its belief that repair services for the subject windshields will not be affected because replacement windshields are typically obtained through Supreme distributors who have the correct and compliant replacement glazing.
(3) Supreme also stated that they have not received any consumer complaints, claims, or warranty claims related to this noncompliance.
(4) Supreme additionally made mention of similar inconsequential noncompliance petitions that were granted by the agency relating noncompliances that Supreme believes are similar to the subject FMVSS No. 205 noncompliance.
Supreme has informed NHTSA that for all affected vehicles that remain in Supreme's inventory and the inventory of Supreme's distributors, permanent markings in compliance with FMVSS No. 205 will be added to the vehicle windshields before delivery under a sale or lease.
In summation, Supreme believes that the described noncompliance of the subject windshields is inconsequential to motor vehicle safety, and that its petition, to exempt Supreme from providing recall notification of noncompliance as required by 49 U.S.C. 30118 and remedying the recall noncompliance as required by 49 U.S.C. 30120 should be granted.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, any decision on this petition only applies to the subject buses that Supreme no longer controlled at the time it determined that the noncompliance existed. However, any decision on this petition does not relieve equipment distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant buses under their control after Supreme notified them that the subject noncompliance existed.
49 U.S.C. 30118, 30120: Delegations of authority at 49 CFR 1.95 and 501.8.
Department of Transportation.
Notice of order to show cause (Order 2016-2-23); Docket DOT-OST-2014-0149.
The Department of Transportation is directing all interested persons to show cause why it should not issue an order tentatively finding Exec Air Inc. of Naples d/b/a ExecAir fit, willing, and able to provide scheduled passenger service as a commuter air carrier using small aircraft pursuant to Part 135 of the Federal Aviation Regulations.
Persons wishing to file objections should do so no later than March 11, 2016.
Objections and answers to objections should be filed in Docket DOT-OST-2014-0149 and addressed to U.S. Department of Transportation, Docket Operations, (M-30, Room W12-140), 1200 New Jersey Avenue SE., West Building Ground Floor, Washington, DC 20590, and should be served upon the parties listed in Attachment A to the order.
Catherine J. O'Toole, Air Carrier Fitness Division (X-56, Room W86-489), U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590, (202) 366-9721.
Internal Revenue Service (IRS), Treasury.
Notice.
This document contains a Notice that the IRS is accepting applications from qualified organizations for a part-year Low Income Taxpayer Clinic (LITC) matching grant to provide representation to low income taxpayers and education about taxpayer rights and responsibilities to individuals who speak English as a second language in certain identified geographic areas. The grant will cover the last six months of the 2016 grant year, from July 1, 2016, through December 31, 2016. The supplemental application period shall run from March 1, 2016, to April x1, 2016.
Despite the IRS's efforts to foster parity in availability and accessibility in the selection of organizations receiving LITC matching grants and the continued increase in clinic services nationwide, there remain communities that are underrepresented by clinics.
For the supplemental application period, the IRS will focus on geographic areas where there is limited or no clinic representation.
The IRS will award up to $1.28 million in funding to qualifying organizations, subject to the limitations of Internal Revenue Code section 7526. A qualifying organization may receive a matching grant of up to $100,000 per year. Organizations currently receiving a grant are not eligible to apply during this supplemental application period. Grant funds may be awarded for start-up expenditures incurred during the grant year. The selection process for these part-year grants may not be complete before the beginning of the application period for the 2017 grant year; thus, applicants for a part-year grant will be expected to submit a separate application for full-year funding for the 2017 grant year during
Below is a list that contains the identified underserved geographic areas:
Qualifying organizations that provide representation to low income taxpayers involved in a tax controversy with the IRS and educate individuals for whom English is a second language (ESL) regarding their taxpayer rights and responsibilities under the Internal Revenue Code are eligible for a grant. An LITC must provide services for free or for no more than a nominal fee.
Examples of qualifying organizations include: (1) Clinical programs at accredited law, business or accounting schools whose students represent low income taxpayers in tax controversies with the IRS and (2) organizations exempt from tax under I.R.C. § 501(a) whose employees and volunteers represent low income taxpayers in tax controversies with the IRS.
In determining whether to award a grant, the IRS will consider a variety of factors, including: (1) The number of taxpayers who will be assisted by the organization, including the number of ESL taxpayers in that geographic area; (2) the existence of other LITCs assisting the same population of low income and ESL taxpayers; (3) the quality of the program offered by the organization, including the qualifications of its administrators and qualified representatives, and its record, if any, in providing representation services to low income taxpayers; (4) the quality of the application, including the reasonableness of the proposed budget; (5) the organization's compliance with all federal tax obligations (filing and payment); (6) the organization's compliance with all federal non-tax obligations (filing and payment); (7) whether debarment or suspension (31 CFR part 19) applies, or whether the organization is otherwise excluded from or ineligible for a federal award; and (8) alternative funding sources available to the organization, including amounts received from other grants and contributions, and the endowment and resources of the institution sponsoring the organization.
Grant applications for the last six months of the 2016 grant year must be electronically filed at
The LITC Program Office is located at: Internal Revenue Service, Taxpayer Advocate Service, LITC Grant Program Administration Office, TA:LITC, 1111 Constitution Avenue NW., Room 1034, Washington, DC 20224. Copies of the
The LITC Program Office at (202) 317-4700 (not a toll-free number) or by email at
Section 7526 of the Internal Revenue Code authorizes the IRS, subject to the availability of appropriated funds, to award qualified organizations matching grants of up to $100,000 per year for the development, expansion, or continuation of qualified low income taxpayer clinics. A qualified organization is one that represents low income taxpayers in controversies with the IRS and informs individuals for whom English is a second language of their taxpayer rights and responsibilities, and does not charge more than a nominal fee for its services (except for reimbursement of actual costs incurred).
Low Income Taxpayer Clinics ensure the fairness and integrity of the tax system for taxpayers who are low income or speak English as a second language by providing
Applications that pass the eligibility screening process will undergo a two-tier evaluation process. Applications will be subject to both a technical evaluation and a Program Office evaluation. The final funding decision is made by the National Taxpayer Advocate, unless recused. The costs of preparing and submitting an application (or a request for continued funding) are the responsibility of each applicant. Each application will be given due consideration and the LITC Program Office will notify each applicant once funding decisions have been made.
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 TD 9451, Guidance Necessary to Facilitate Business Election Filing.
Written comments should be received on or before May 2, 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 Sara Covington, at 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.
Transportation Security Administration, DHS.
Final rule.
The Transportation Security Administration (TSA) is amending its civil aviation security regulations to specify that TSA may use advanced imaging technology (AIT) to screen individuals at security screening checkpoints. This rule is issued to comply with a decision of the U.S. Court of Appeals for the District of Columbia Circuit, which ordered TSA to engage in notice-and-comment rulemaking on the use of AIT for passenger screening.
Effective May 2, 2016.
Chawanna Carrington, Acting Passenger Screening Program Portfolio Section Lead-Checkpoint Solutions and Integration Division, Office of Security Capabilities—Transportation Security Administration,
You can get an electronic copy using the Internet by—
(1) Searching the electronic Federal Docket Management System (FDMS) Web page at
(2) Accessing the Government Printing Office's Web page at
In addition, copies are available by writing or calling the individual in the
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires TSA to comply with small entity requests for information and advice about compliance with statutes and regulations within TSA's jurisdiction. Any small entity that has a question regarding this document may contact the person listed in the
Congress has charged the Transportation Security Administration (TSA), a component of the U.S.
By Federal regulation, “[n]o individual may enter a sterile area or board an aircraft without submitting to the screening and inspection of his or her person and accessible property in accordance with the procedures being applied to control access to that area or aircraft. . . .” 49 CFR 1540.107(a). The final rule amends this regulation to specify that the screening and inspection of a person may include the use of advanced imaging technology (AIT).
Congress has directed the Secretary of Homeland Security to “give a high priority to developing, testing, improving, and deploying, at airport screening checkpoints, equipment that detects nonmetallic, chemical, biological, and radiological weapons, and explosives.” 49 U.S.C. 44925(a).
The AIT currently deployed by TSA is a millimeter wave imaging technology that can detect metallic and non-metallic objects on an individual's body or concealed in his clothing without physical contact. The technology bounces electromagnetic waves off the body to detect anomalies. If an anomaly is detected, a pat-down of the area where the anomaly is located is usually performed to determine if a threat is present.
AIT addresses a critical weakness in aviation security regarding the inability of walk-through metal detectors (WTMDs) to screen for non-metallic explosives and other non-metallic threat items. AIT provides detection capability for weapons, explosives, and other objects concealed under a person's clothing that may not trigger a metal detector. TSA has determined that use of AIT is the most effective technology currently available to detect both metallic and non-metallic threat items concealed on passengers, such as the non-metallic explosive used by the so-called “Christmas Day bomber” in 2009 in his attempt to blow up an American passenger aircraft.
AIT is an essential component of TSA's risk-based security approach. This approach relies on a comprehensive security system including state-of-the-art technologies (such as AIT), a highly-trained frontline workforce, intelligence analysis and information sharing, behavior detection, explosives detection canine teams, Federal Air Marshals (FAMS), and regulatory enforcement.
In 2012, Congress enacted the FAA Modernization and Reform Act of 2012, Public Law 112-95, which required TSA to ensure that all AIT used to screen passengers must be equipped with and employ automatic target recognition (ATR) software. 49 U.S.C. 44901(l). That software eliminates passenger-specific (
There are approximately 793 AIT machines deployed at nearly 157 airports nationwide. AIT screening is safe for all passengers and the technology meets all national health and safety standards. Passengers generally may decline AIT screening and opt instead for a pat-down.
The final rule is adopted to comply with a ruling of the United States Court of Appeals for the District of Columbia Circuit. In
When estimating the cost of a rulemaking, agencies typically estimate future expected costs imposed by a regulation over a period of analysis. As the AIT unit life cycle is 10 years from deployment to disposal, the period of analysis for estimating the cost of the rule is 10 years. TSA has revised the NPRM Regulatory Impact Analysis (RIA) assumption of an 8-year life cycle for AIT units to 10 years based on a recent life cycle cost estimate (LCCE) report.
TSA estimates the total cost of the rule from 2008-2017 to be $2,146.31 million (undiscounted). TSA incurs over 98 percent of all
AIT generates benefits by reducing security risks because it is capable of detecting both metallic and non-metallic weapons and explosives.
To describe further the security benefits from AIT, TSA performed a break-even analysis to compare the potential direct costs of an averted terrorist attack to the net cost of AIT. Agencies use a break-even analysis when quantification of benefits is not possible. According to OMB Circular No. A-4, “Regulatory Analysis,” such an analysis answers the question, “How small could the value of the non-quantified benefits be (or how large would the value of the nonquantified costs need to be) before the rule would yield zero net benefits?”
In the NPRM, TSA proposed to amend 49 CFR 1540.107 by adding a new paragraph to specify that the screening and inspection of an individual prior to entering a sterile area of an airport or boarding an aircraft may include the use of AIT. TSA defined AIT as “screening technology used to detect concealed anomalies without requiring physical contact with the individual being screened.” TSA received many comments stating that the definition was too broad. Commenters also expressed confusion and uncertainty regarding the use of the word “anomalies.” Some commenters suggested privacy safeguards be included in the final rule.
In response to those comments, TSA changed the definition in the final rule. TSA is adopting the definition of AIT created by Congress in the FAA Modernization and Reform Act of 2012.
In response to public comments, TSA also revised the RIA published with the NPRM to include a break-even analysis and pertinent data that has become available since the publication of the NPRM, including an updated AIT deployment schedule. TSA's major changes to the RIA from the NPRM are:
• Revising the airport listings to include 460 airports instead of 448. The updated airport list includes new, previous, and former airports that operated AIT units and are regulated under 49 CFR part 1542.
• Updating the AIT life cycle and period of analysis from 8 to 10 years based on a recent LCCE report from the TSA Office of Security Capabilities (OSC). Using the information from this report, TSA also revised its previous assumption about the share of Passenger Screening Program expenditures spent on AIT technology.
• Revising the number of AIT units to be deployed from 821 to 793 throughout the period of analysis (2008-2017) based on new data.
• Revising the total wait time for a passenger that opts-out of AIT screening from 80 to 150 seconds to include passenger time spent waiting for a same gender Transportation Security Officer (TSO) to perform the pat-down.
• Revising the calculation of utilities costs to incorporate new data on the hours of AIT operation from the TSA's Performance Management Information System (PMIS) database.
• Refining the calculation of personnel costs by using information on specific labor hours dedicated to AIT operation in response to new data on hours of AIT operation.
• Revising the calculation of training costs to incorporate newly available historical data on the hours of participation for each training course required for AIT operation and new training and development costs.
• Including a break-even analysis to answer the question, “How small could the value of the non-quantified benefits be (or how large would the value of the non-quantified costs need to be) before the rule would yield zero net benefits?”
• Revising language within the RIA and final rule to state that passengers “may generally opt-out of AIT screening” to reflect current DHS policy.
TSA published
Other commenters made statements regarding the impact of AIT screening on their travel choices. Many of these commenters indicated they no longer travel by air because of the use of AIT. Some said they limit their airline travel as much as possible because of AIT screening. An individual commenter cited a news article that highlights increasing ridership of Amtrak over airline travel. Several other individual commenters noted that international travelers no longer want to visit the United States because of AIT screening. According to another individual commenter, the AIT scanners have created an “adversarial tension” between TSOs and travelers that is detrimental to security.
A few commenters discussed TSA's statement in the NPRM that the public generally approves of the AIT scanners. For example, an individual commenter stated this claim was not supported by data regarding the public's approval. Other commenters suggested that TSA should not assume the lack of complaints about AIT to be support for the use of AIT. For example, a privacy advocacy organization stated that TSA has not taken into consideration the number of passengers who choose AIT over a pat-down because it is faster and potentially less invasive of personal privacy, not because they support the use of AIT. Another individual commenter, however, acknowledged that National ABC and CBS news polls indicated that the majority of poll participants favored full body scanners at airports.
TSA takes the issues raised in the comments regarding the screening experience seriously and has instituted changes in its policies to address these concerns. New risk-based policies have transformed the agency from one that screens every passenger in the same manner to one that employs a more effective, risk-based, intelligence-driven approach. Adopting a risk-based approach permits much-needed flexibility to adjust to changing travel patterns and shifting threats.
For example, beginning in 2011, after analyzing intelligence reports, TSA instituted new screening procedures for passengers under the age of 12 and those ages 75 and older to expedite screening and reduce the need for a pat-down to resolve alarms.
As explained in the NPRM, in order to address privacy concerns and meet the statutory requirement to install and employ ATR software on all AIT units, TSA removed all backscatter AIT machines from screening checkpoints, and only millimeter wave AIT machines equipped with ATR are used to screen passengers. The ATR displays a generic outline on which boxes appear where an anomaly is detected. The outline is displayed on the AIT machine so that the passenger and the TSO are able to see the boxes. No specific image of an individual is created.
TSA disagrees with statements that use of AIT has had a material impact on U.S. air travel and the comments did not contain data in support. TSA was unable to find empirical evidence that air travel is reduced due to AIT. TSA notes that based on PMIS data collected from 2009, the first full year of data collection, through 2013, the last full year of data available at the time TSA began drafting this final rule, approximately one percent of passengers have selected a pat-down over AIT screening.
A non-profit organization referenced 49 U.S.C. 44903(b)(2)(A) and 49 U.S.C. 44903(b)(2)(B) to support its statement that the proposed rule is inconsistent with statutory requirements to protect passengers and the public interest in promoting air transportation. The organization stated that TSA is not authorized “to sexually assault passengers” under current statutes or regulations. An individual commenter stated that TSA, as a Federal agency, has no jurisdiction over public airports, which the commenter stated are mostly on state land. Another individual commenter alleged that the
Prior to the terrorist attacks of September 11, 2001, and the enactment of the Aviation and Transportation Security Act (ATSA),
As explained in the NPRM, Congress has directed that TSA prioritize the development and deployment of new technologies to detect all types of terrorist weapons at airport screening checkpoints, including the submission of a strategic plan to promote the optimal utilization and deployment of a range of detection technologies, including, “backscatter x-ray scanners.”
One individual commenter stated that a congressional directive is insufficient to supplant TSA's duty to make a reasoned decision regarding the use of AIT. An individual commenter expressed concern that TSA did not act in accordance with the congressional direction because the agency acted without either public input or independent testing, and pursued a technology the commenter stated was purchased as part of a “corrupt deal.” Another individual commenter stated that Congress authorized TSA to procure and deploy AIT only as a secondary screening tool at security checkpoints—not as a primary means of screening. Other individual commenters stated that even if Congress has authorized the proposed deployment of AIT, the proposed use of AIT is not necessarily legal or the appropriate course of action, and TSA was not performing the agency's own due diligence in trying to restrain the executive and legislative branches subsequent to congressional direction.
AIT provides greater detection capability for weapons, explosives, and other threats concealed on a passenger's body that may not trigger a metal
Commenters stated that the proposed rule and justification provided in the NPRM would not meet the arbitrary and capricious standard applied to agency actions under the APA. A privacy advocacy group stated that factors regarding effectiveness, alternatives, and health risks were not considered and the term “anomaly” was not adequately explained.
Commenters also stated that the proposed regulatory language effectively failed to provide the public with adequate notice and denied the public the opportunity to provide meaningful comment because the rule is too broad and vague, and descriptive information on the program was omitted.
An individual commenter wrote that noncompliance with APA requirements indicated TSA acts as it chooses without accountability. Another individual commenter requested TSA to commit to complying with APA requirements in the future. A non-profit organization requested that TSA hold public hearings in the future before imposing new procedures and policies, but specified that the agency should retain the authority to declare emergency regulations and procedures without public hearings or a comment period. Further, an individual commenter suggested that TSA withdraw the proposed rule and issue an advance notice of proposed rulemaking to allow TSA to gather missing information in order to receive comments that are more meaningful. An advocacy group and an individual commenter stated that TSA only issued a NPRM because it was court-ordered. Other commenters wrote that TSA had the option to request public input prior to implementing and deploying AIT scanners.
A subsequent decision by the same court, however, indicates that TSA's decision not to engage in rulemaking prior to deploying AIT was not unreasonable. Following the court's APA ruling, EPIC petitioned the court to recover attorney's fees under the Equal Access to Justice Act (EAJA). 28 U.S.C. 2412(d). The EAJA allows attorney's fees to be recovered unless the position of the government “was substantially justified or . . . special circumstances make an award unjust.”
Federal regulation stipulates that no individual may enter the sterile area of an airport or board an aircraft without submitting to the screening and inspection of his or her person and accessible property “in accordance with the procedures being applied to control access to that area or aircraft. . . .” 49 CFR 1540.107(a). This requirement was originally promulgated by the FAA through notice and comment rulemaking and then transferred to TSA by ATSA.
Although TSA acknowledges that it did not engage in notice and comment rulemaking related to the deployment of AIT specifically prior to its use, TSA does not agree with statements by commenters that there was no public notice of TSA's use of AIT. Prior to the deployment of AIT, TSA conducted years of testing on the safety, effectiveness, and efficiency of the
As directed by the court, TSA issued the NPRM and invited public comment on its proposed regulation regarding the use of AIT for primary screening of passengers. The NPRM invited public comment on a variety of issues related to the use of AIT, including the threat to aviation security, types of AIT equipment, privacy safeguards, safety, AIT procedures and items discovered using AIT. TSA received thousands of comments on these issues. In response to comments and to avoid confusion, TSA has altered the regulatory text in the final rule. TSA has determined not to define AIT using the term “anomaly”; instead, TSA has adopted the statutory definition of AIT,
Others stated that AIT is impermissible under Federal case law. Several individual commenters cited the holding in
Other court cases cited in the comments to support claims that AIT violates the Fourth Amendment include:
An individual commenter observed that, even though AIT use was not found to be in violation of the Fourth Amendment in
Like other exceptions created by courts for searches that do not require a warrant, the administrative search within the airport context reflects the careful balancing of the public's privacy interests against the compelling goal of protecting the traveling public. As explained by the D.C. Circuit in
With the addition of ATR software and the elimination of any individual image, the balance tips even more in favor of the government. Courts have also held that, “absent a search, there is no effective means of detecting which airline passengers are reasonably likely to hijack an airplane.”
Commenters' claims and citations to support the position that the least intrusive search method must be adopted are contrary to U.S. Supreme Court precedent in
TSA is not required to use any of the alternatives to AIT mentioned in the comments to achieve the legal requirements of a valid search. For example, all baggage, whether checked or carry-on, is already screened as required under 49 U.S.C. 44901. Limiting an airport search to baggage, however, would not address the threat that a person could conceal an explosive on his or her person. The government has latitude under the Fourth Amendment to choose among
The other cases cited in the comments, particularly those relating to whether consent is required for airport screening, are inapplicable. Both
One individual commenter stated that it is outside of TSA's mission to identify and confiscate items that are not a threat (
The use of AIT to conduct passenger screening does not implicate any constitutional rights in the manner described in the comments. Passengers are not restricted regarding their speech or right to assemble so long as they do not interfere with screening.
Federal courts have long held that airport screening searches do not violate a traveler's right to travel.
As to the comment regarding the confiscation of items that are not a security threat such as illegal drugs, the purpose of TSA screening is to prevent weapons, explosives, and other items that could pose a security threat (prohibited items) from being carried into the sterile area of the airport or onboard an aircraft in order to ensure the freedom of movement for people and commerce. 49 CFR 1540.111. TSA's mission has not changed. TSOs do not search for other illegal items. When searching for prohibited items, however, it is not unusual for TSOs to uncover items that may be evidence of criminal activity. When that happens, the TSO turns such matters over to law enforcement officers to resolve, consistent with applicable criminal statutes. TSOs do not take possession of such items. In addition, once an anomaly is detected by AIT, or a metal object is detected by a WTMD, or either screening system misalarms, additional screening must take place to determine whether there is an item, and if so, if the item detected is a threat to aviation security. As the court in
TSA's pat-down procedures are designed to ensure that any touching of the body by a TSO is minimally intrusive while effectively screening for prohibited items. A TSO does not touch a passenger's body unless necessary to resolve an AIT alarm, or unless the passenger has opted for a pat-down, and the procedures are largely similar to those employed to resolve WTMD alarms. Touching of the body to perform this essential security function is fully within the scope of TSA's authority, and TSA's procedures are consistent with civil and criminal state laws. Sexual molestation or inappropriate touching of a passenger by an employee is strictly prohibited and TSA has procedures in place to investigate any allegations of such conduct thoroughly. TSA takes all allegations of misconduct seriously.
Passengers who believe they have experienced unprofessional conduct at a security checkpoint may request to speak to a supervisor at the checkpoint or write to the TSA Contact Center at
Several commenters discussed the evolving threat from nonmetallic explosives. A few individual commenters suggested that TSA's response to the increased threat of nonmetallic explosives is not sustainable because terrorists will find other ways to hide devices. A few individual commenters disagreed with TSA's focus on nonmetallic threats, because these types of weapons have been used for several decades.
A few individual commenters suggested that the long lines at checkpoints, which the commenters stated are caused by TSA screening, are more attractive targets to terrorists than airplanes. Lastly, several individual commenters stated there is no evidence indicating that terrorist threats similar in magnitude to September 11, 2001, are increasing.
TSA also agrees that security procedures and equipment must continue to evolve as the threat evolves. As discussed above, AIT is the most effective technology currently available to detect both metallic and nonmetallic threats, both explosive and non-explosive, concealed under passenger clothing, TSA continues to research and test new equipment and procedures to stay ahead of evolving threats.
TSA agrees that long lines at the checkpoints could pose a security risk and has taken steps to address long lines by monitoring throughput. However, TSA remains focused on the fundamentals of security, and strives to strike a balance between security effectiveness and line efficiency. Passengers can obtain information before they leave for the airport on what items are prohibited; acceptable ID; rules for liquids, gels and aerosols; and traveling with children. Guidance for travelers with disabilities, medical conditions or medical devices, tips for dressing and packing, and information on traveling with food and gifts is provided. In addition, as noted in the NPRM, the Web site contains instructions on AIT screening procedures. 78 FR 18296. Preparing in advance for security screening and following the instructions of the TSOs are the most effective ways to reduce lines at the checkpoint.
An advocacy group alleged that TSA's “trusted traveler program” approach would weaken security because it can eliminate entire classes of passengers from AIT screening. The commenter recommended that TSA consider other, less invasive and cost-effective screening procedures that would allow TSA to implement AIT as a secondary, rather than a primary, screening tool. Furthermore, the commenter suggested that TSA enhance layers of security by testing canine bomb detection, face recognition, and explosives residue machines, in an effort to reduce the need for AIT scanning.
TSA does not agree with commenters that using AIT, as a secondary screening method, would be as effective as currently deployed. Limiting its use to resolve alarms of the WTMD, which can only detect metallic threats, would severely restrict our ability to prevent adversaries from smuggling non-metallic weapons and explosives on board an aircraft.
As discussed above, AIT is the best technology currently available to detect both metallic and nonmetallic threats, and explosives as well as non-explosives. TSA has tested the effectiveness of the technology, and the equipment must meet TSA detection standards to be deployed in an airport. In addition, testing is conducted by the DHS Transportation Security Laboratory (TSL). The TSL Independent Test and Evaluation group provides certification and qualification tests and laboratory assessments on explosive detection capability. TSA procurement specifications require that any AIT system must meet certain thresholds with respect to the detection of items concealed under a person's clothing. While the detection requirements of AIT are classified, the procurement specifications state that any approved system must be sensitive enough to detect smaller items.
Regarding the comments recommending racial profiling, transportation security screening is regulated by the Constitution, federal law, and applicable DHS and component policies setting forth the appropriate limits on use of race, ethnicity, and other characteristics. In addition, racial profiling is not an effective security measure and can easily be defeated. It is premised on the erroneous assumption that any particular individual of one race or ethnicity is more likely to engage in misconduct than any particular individual of another race or ethnicity. In addition to being ineffective,
Many submissions discussed the efficacy of AIT to detect anomalies concealed under the clothing of a passenger. Some commenters stated that AIT scanners are not effective because they cannot detect items that are concealed under fake skin, under skin folds, or under shoes, implanted bombs, and objects hidden inside of a person. A few individuals stated that objects are not detected if concealed on the side of the body. A commenter stated that a passenger was able to bring an empty metal box concealed under clothing through AIT units without detection. The commenter believed that the metal box was not detected because the rate at which the AIT beams reflect off the metal is the same rate at which beams reflect the background. The commenter stated that if an object like the metal box were placed at the side of a body, the object beam reflection would look no different from the blackened background. According to another individual commenter, a peer-reviewed publication in the Journal of Homeland Security stated that explosives with low “Z” like plastics look like flesh to the scanner because flesh is also low “Z.” A few individual commenters referred to a video posted by a blogger that the commenters stated portrayed a man who was able to conceal objects (both metal and nonmetal) from an AIT scanner by sewing the objects into the lining of his shirt.
Some commenters discussed the ability of AIT to detect plastic, powder, and liquid explosives. One individual commenter stated that a 2007 government audit found that agents were able to pass through security checkpoints with explosives and bomb parts. Commenters stated that the explosives used by the “underwear bomber” and “shoe bomber” would not be detected by AIT. A commenter stated that a 2010 Government Accountability Office (GAO) report indicated that it remains unclear whether the AIT would have detected the weapon used in the December 2009 Christmas Day bomber incident based on the preliminary information GAO had received. An advocacy group also expressed concern that AIT scanners cannot detect pentaerythritol tetranitrate (the powder explosive the group states was used by the Christmas Day bomber), and claimed that this chemical continues to be used in other domestic and international terror attempts. An individual commenter alleged AIT could not detect explosives molded into specific shapes. Another individual commenter stated that since there are claims that AIT cannot detect powder explosives, AIT scanners are not fulfilling the statutory provision at 49 U.S.C. 44925 which TSA has used as justification for deploying AIT.
An individual commenter suggested that, although the AIT scanners can adequately detect metal in firearms and concealed knives, security screening should also be able to detect explosives with negligible false negative rates and low false positive rates. The commenter recommended that a reasonable detection limit would be no lower than 20 percent of the amount of the explosive needed to bring an airplane down. The commenter suggested that systems that detect significant quantities of explosives or detonators should be used for screening baggage and items concealed under clothing.
A few individuals expressed concern that because AIT on its own cannot differentiate between threatening objects and non-threatening objects, passengers carrying non-threatening objects are subject to more intrusive, secondary searches including pat-downs. A community organization stated that travelers of the Sikh religion are often subject to secondary searches even when the AIT scanner did not identify any anomalies. Similarly, an individual commenter stated that, although AIT scanners can detect anomalies, often times a pat-down could not resolve whether the anomaly is a threat. An individual commenter, however, remarked that continued use of AIT would reduce the number of pat-downs as well as enhance detection of nonmetallic weapons, because AIT is effective in detecting threats. The commenter suggested that AIT checkpoints be re-designed to minimize the level of intrusion and embarrassment associated with scanned images.
Many commenters wrote that AIT scanners are no more effective at addressing security threats than other, less invasive screening methods. A few individual commenters and advocacy groups suggested that the NPRM has not adequately justified the ability of AIT to reduce significantly the threat of terror attacks on aircraft compared to alternative screening practices. Some individual commenters stated that the WTMD is more effective at detecting metallic items than AIT. A few of these individual commenters remarked that WTMD is as effective as AIT overall, but they preferred WTMD because it is less invasive than AIT. An advocacy group suggested that a cost-benefit analysis of AIT would certainly justify the scanners if they were effective in deterring terrorism compared to screening alternatives. An individual commenter also stated there is not enough evidence of increased threats using nonmetallic objects to justify the need for body scanners. The commenter explained that prior to AIT, nonmetallic objects were addressed by less-invasive means including WTMDs, bomb-sniffing dogs, Federal Air Marshals, and explosives detection machines. The commenter also stated that nonmetallic weapons that are small enough to conceal on the body do not pose a threat. One individual commenter, however, discussed examples where the use of the AIT scanner was instrumental in identifying weapons concealed under clothing. The commenter stated that there is no alternative technology that can assist in detecting explosives and other harmful objects that can be used to harm travelers.
Many commenters, including a non-profit organization, an advocacy group, and individual commenters, made general statements that AIT scanners are ineffective because of reported high false positive rates. An individual commenter stated that travelers might be more accepting of the invasiveness of AIT scanners if TSA revealed data regarding the effectiveness of the technology (
An individual commenter stated that AIT scanners are not effective in identifying a passenger with a threatening weapon because passengers can travel from airports or terminals that do not use AIT scanners. The commenter stated that passengers could also avoid detection by placing a weapon on a companion passenger under 12 years of age or on a pet. The commenter also stated that AIT scanners are ineffective at making air travel safer because the long lines make passengers more vulnerable to terror attacks. An individual commenter, however, wrote that the AIT scanners are more effective as a deterrent to terrorists than random pat-downs or profiling because of the expectation that the AIT will scan all passengers entering the sterile area.
The millimeter wave AIT equipment currently deployed at airports to screen passengers uses ATR software that enables the AIT automatically to identify irregularities on passengers using imaging analysis techniques based on contour, pattern, and shape. The AIT is designed to detect irregularities concealed under clothing; therefore, commenters are correct that it may detect items that do not pose a threat. Commenters also are correct that in order to determine whether AIT has alarmed on a threat item, a TSO will conduct further screening at the location where the AIT has indicated that there is an anomaly, thereby eliminating the need to pat-down the entire body. Generally, a passenger is only touched if an anomaly is indicated by AIT, and only the part of the body where the machine has indicated an anomaly is located is touched during the pat-down. At times, ETD or other forms of additional screening may be employed to resolve an alarm and to clear a passenger for entry into the sterile area after AIT screening. Passengers are advised to avoid wearing clothing with large metal embellishments and large metal jewelry and to remove all items in their pockets to reduce the possibility that the AIT will alarm on innocuous items.
TSA is aware of the audits conducted by the GAO on the effectiveness of screening measures. However, AIT was not in use at the checkpoint when the GAO tested security procedures described in the 2007 report cited by a commenter.
TSA disagrees with the comments alleging that because there is no direct evidence that AIT has prevented a terrorist attack on its own, the technology is not effective. As the Supreme Court pointed out in rejecting a similar argument in
Further, the fact that AIT, or any single security measure, may not be completely foolproof does not mean that it is ineffective and should not be used at all. A discussion of the alternatives to AIT considered by TSA is included in the RIA. TSA has always maintained that AIT is the best technology currently available to detect the threat of nonmetallic and other dangerous items and that a comprehensive security system is the best means to detect and deter terrorist attacks as no single layer by itself, including AIT, may be sufficient. Accordingly, TSA agrees with commenters that other security measures, including those mentioned in the comments such as canine, Federal Air Marshalls, and explosive detection systems, should also be deployed to increase the chance that a threat will be detected. TSA does in fact employ all of those measures. However, TSA does not
In response to a comment regarding the redesign of the checkpoint to minimize embarrassment of passengers during the screening process, TSA points out that since May 2013, TSA has only deployed AIT with ATR software at the airport. ATR eliminates the individual image and produces a generic outline that is visible to the passenger and the TSO. In addition, TSA offers passengers who must undergo a pat-down the opportunity to have the pat-down conducted in a private screening location that is not visible to the traveling public.
Currently there are approximately 793AIT machines located at almost 157 airports nationwide. Given limited resources, TSA uses a risk-based approach to deploy AIT and continues to assess and test “next generation” AIT systems, which TSA anticipates will improve anomaly detection capability, decrease processing time, and better suit the physical constraints of airport checkpoints.
TSA is aware that the European Commission adopted a legal framework on security scanners.
An individual commenter stated the need for long-term studies, including potential effects of the AIT equipment if it were to malfunction, become “out of spec,” or suffer from poor maintenance.
All of the AIT units are regularly inspected by the manufacturer to ensure that they operate effectively and meet TSA specifications. In addition, the units are tested each day prior to use at the checkpoint. If the equipment does not meet operational specifications, it cannot be used.
The GAO released a report, “Advanced Imaging Technology: TSA Needs Additional Information before Procuring Next-Generation Systems,” in March 2014 describing the types of tests TSA conducts on AIT.
Several commenters, including a privacy advocacy organization, a non-profit organization, and individual commenters, cautioned that TSA screeners could be at risk and should be provided with dosimeters to ensure that their exposure is within acceptable limits. An individual commenter stated that, although TSA claimed that the radiation scan only affects the surface of the skin, skin cancer is the largest incidence of cancer in the world, and it is caused by radiation exposure on the skin. Another commenter stated that eyes are particularly susceptible to radiation. A few individuals suggested that imaging technology using radiation should not be used at all since alternatives exist. Other commenters stated that the question that needs to be asked with respect to the safety of AIT scanning is not whether the increase in deaths is below some arbitrary value, but whether the lives saved through avoiding a terrorist attack are greater than the lives lost through an increased incidence of cancer or other diseases arising from the use of AIT scanners. Lastly, a few individuals mentioned that because of their exposure to radiation for medical treatment, they are not comfortable getting further, unnecessary exposure from AIT scanners.
Contrary to assertions by some commenters and as discussed in the NPRM, general-use backscatter units were independently evaluated and found to be within national standards for acceptable radiation exposure by the Food and Drug Administration (FDA)'s Center for Devices and Radiological Health (CDRH), the National Institute of Standards and Technology, the Johns Hopkins University Applied Physics Laboratory and the U.S. Army Public Health Command.
In addition, in June 2013, the American Association of Physicists in Medicine released the results of an independent study of the general-use backscatter units previously used by TSA for screening passengers.
In the NPRM, TSA noted that DHS had requested the National Academies of Sciences, Engineering, and Medicine to review previous studies as well as current processes to estimate radiation exposure resulting from the general-use backscatter equipment. That study was released in October 2015 and confirms that radiation doses did not exceed the ANSI/HPS standard.
As explained in the NPRM, the ANSI/HPS standard takes into consideration individuals who may be more susceptible to radiation health effects, such as pregnant women, children, and persons who receive radiation treatments, as well as the general exposure to ionizing radiation present in the environment. 78 FR 18295. In fact, the radiation emissions from the general-use backscatter equipment were so low that they were below the environmental radiation emissions that individuals are exposed to every day, and individuals would have to be screened more than 200 times a year to exceed the negligible individual dose, which is still below the ANSI/HPS standard.
As explained in the NPRM, the millimeter wave equipment uses non-ionizing radio frequency energy. 78 FR 18294-18295. The millimeter wave equipment used by TSA must comply with the 2005 Institute of Electrical and Electronics Engineers, Inc. Standard for Safety Levels with Respect to Human Exposure to Radio Frequency Electromagnetic Fields (IEEE Std. C95.1
TSA implemented safety protocols to ensure that AIT is safe for passengers and the TSA workforce. When backscatter machines were still in use, each individual AIT machine was tested once a year to verify that radiation emitted fell within the national safety standards. Regular testing is also conducted on checkpoint machines that use x-ray technology, such as baggage scanners. This testing is performed by the manufacturers or maintenance providers in accordance with their TSA contracts. Because of the regular testing of TSA equipment, there is no need for operators to wear dosimeters to measure radiation emissions. In the event that a radiation test was to reveal that the emission was above the standard, the machine would be immediately taken out of service and TSA would conduct a system-wide review.
One commenter warned that ionizing radiation might cause deoxyribonucleic acid (DNA) damage that leads to carcinogenesis and that a model used by the health physics community would predict the probability of a fatal cancer about the same as the probability of being killed by a terrorist in an airplane. However, the commenter expressed the belief that the real danger is very high local radiation exposures if the mechanical scanning mechanism and associated systems for shutting off the x-ray beam fail. Another individual disputed TSA's statement that independent tests had been conducted on backscatter technology, and the commenter stated that subsequent information showed that the tests were flawed, their results were misused, or they were not conducted by truly independent entities.
A few commenters, including an individual commenter and a privacy advocacy group, remarked on the ineffectiveness of backscatter machines. One of them suggested that the x-ray beam might not be able to distinguish between explosives and tissue when an explosive package is shaped to fit in with natural body contours. An individual commenter stated that even though TSA is removing backscatter scanners from airports, until the process is complete, they would continue to be used at some airports. Another individual recommended that TSA investigate the bad management decision that led to a waste of tax dollars on what the commenter described as an obviously unacceptable technology. Another commenter suggested that backscatter technology was adopted because of lobbying by politically connected individuals with a financial interest in the machines. A few commenters discussed TSA's selection to use Rapiscan as the vendor for AIT scanners. According to some individual commenters, the choice of using Rapiscan as the vendor is inappropriate because a former DHS Secretary was reported to have lobbied for Rapiscan and AIT prior to his departure from the agency.
Regarding the marginal effects of x-ray radiation, as TSA noted in the NPRM, 78 FR 18295-18296, the ANSI/HPS standard reflects the standard for a negligible individual dose of radiation established by the National Council on Radiation Protection and Measurements at 10 microsieverts per year. Efforts to reduce radiation exposure below the negligible individual dose are not warranted because the risks associated with that level of exposure are so small as to be indistinguishable from the risks attendant to environmental radiation that individuals are exposed to every day. The level of radiation emitted by the Rapiscan Secure 1000 is so low that most passengers would not have exceeded even the negligible individual dose. The European Commission released a report conducted by the Scientific Committee on Emerging and Newly Identified Health Risks on the risks related to the use of security scanners for passenger screening that use ionizing radiation such as the general-use backscatter AIT machines.
Regarding commenters' concerns that ionizing radiation might cause deoxyribonucleic acid (DNA) damage, as TSA noted in the NPRM, the annual dose limits in ANSI/HPS N43.17 are based on dose limit recommendations for the general public published by the National Council on Radiation Protection and Measurements in Report 116, “Limitations of Exposure to Ionizing Radiation.” The dose limits were set with consideration given to individuals, such as pregnant women, children, and persons who receive radiation treatments, who may be more susceptible to radiation health effects. Further, the standard also takes into consideration the fact that individuals are continuously exposed to ionizing radiation from the environment. ANSI/HPS N43.17 sets the maximum permissible dose of ionizing radiation from a general-use system per security screening at 0.25 microsieverts. The standard also requires that individuals should not receive 250 microsieverts or more from a general-use x-ray security screening system in a year.
Regarding comments about whether AIT can distinguish between explosives and tissue when an explosive package is shaped to fit in with natural body contours, the AIT equipment is designed and tested to find such items.
Regarding comments about the procurement of backscatter technology and Rapiscan, all TSA acquisitions were in compliance with Federal procurement standards. TSA issued a competitive solicitation for companies to submit AIT machines for qualification testing, and while competitive pricing was submitted by two vendors, only Rapiscan was qualified and placed on the Qualified Product List before the planned award date of September 2009. The award was then made to Rapiscan for the initial order.
Although some commenters supported the use of millimeter wave technology over backscatter technology, an individual and an advocacy organization stated they were disinclined to take the government at its word with regard to health assurances because the government has been wrong before, including TSA assurances about Rapiscan machines. An individual commenter stated that millimeter wave machines are no more acceptable than other scanners, but those who must fly will choose them to avoid a pat-down.
One individual commenter recommended another technology for detecting explosives—passive Terahertz (THz) imaging. According to the commenter, there would be no probing radiation, but the warm body emits sufficient THz radiation to form an image, with high explosives standing out in the image as a dark patch.
TSA is aware of the paper cited by commenters that reportedly found that THz radiation could affect biological function, but only under specific conditions and extended exposure. The paper, “DNA Breathing Dynamics in the Presence of a Terahertz Field,” was published by scientists from the Theoretical Division and Center for Nonlinear Studies at Los Alamos National Laboratory in 2010. The millimeter wave machines deployed by TSA do not operate in the THz range, or at the power level referenced in the paper, and the exposure time for passengers screened by AIT is approximately 1,000 times less than the exposure time referenced in the paper.
TSA has evaluated other technologies to assess whether they are safe, meet all applicable government and industry standards, are effective against known and anticipated threats, and require the least disruption and intrusion on passenger privacy possible. For example, TSA has tested passive THz systems in the past and found that they were not effective in detecting explosive threats in an airport environment. Likewise, TSA considered Infrared technology but found that detection capability and operational effectiveness were limited. However, TSA continues to research and assess engineering developments and new technologies for use in the airport.
One commenter noted that passengers must reveal private medical conditions to TSA officers who are not trained in medicine, and others stated that investigating private details of passengers' bodies is deeply offensive and has no security value. A community organization agreed that privacy is invaded when a passenger is forced to share personal secrets that are not otherwise observable in public—especially sensitive medical and gender identity issues. One commenter, however, expressed the opinion that over the years, TSA staff has become more respectful of individual passenger privacy.
A privacy advocacy group pointed out that since January 2008, TSA has published four Privacy Impact Assessments (PIAs) regarding the agency's deployment of body scanners at U.S. airports. The commenter opined that all of these have failed to identify the numerous privacy risks to air travelers. An individual commenter suggested that TSA should be required to regularly report to Congress about its efforts to discover weaknesses in its mechanisms to protect the privacy of individuals scanned by its systems.
Some submissions suggested other technologies and procedures for safeguarding privacy. Among the procedures recommended by one individual were: (1) Providing a generic image of all scanned passengers and (2) allowing a person to leave if selected for a manual search, provided the person exhibits no other suspicious behavior. One commenter suggested that if the AIT screening procedures detect potentially dangerous objects hidden in passengers' private areas, the passengers should be allowed to remove the suspicious objects, show them to TSA officers, and be rescreened using AIT. Another individual suggested developing technology to combat scanner fatigue, providing oversight in screening rooms, and addressing the threat of privacy or security breaches when the status of a passenger is relayed by two-way radio.
TSA has posted information on AIT technologies and ATR on its Web site, and published a PIA in January 2008 with subsequent updates. TSA also conducted outreach with national press and privacy advocacy groups to discuss AIT. While most PIAs are required on information systems that collect information in identifiable form, which AIT does not, DHS nevertheless conducted PIAs on TSA's use of AIT. As explained in the PIA, “the operating protocols of remote viewing for AIT machines that were not equipped with ATR software, coupled with no image retention, are strong privacy protections . . . ATR software provides even greater privacy protections by eliminating the human image . . . .”
TSA disagrees with the alternate procedures suggested by some of the commenters. Federal courts have upheld TSA's procedure to require passengers to complete the screening process once it has been initiated by the passenger. As the U.S. Court of Appeals for the Ninth Circuit explained in
A privacy advocacy group pointed out that the scanners were designed to include Ethernet connectivity, Universal Serial Bus access, and hard disk storage, but the proposed rule does not include safeguards against storing, copying, or otherwise circulating images. An advocacy group added that the scanners are worse than a physical strip-search because they produce an image that can be stored indefinitely, transferred around the globe in seconds, and copied an infinite number of times without the copies degrading. According to an individual commenter, law enforcement officers can record images without the passenger's knowledge. Some commenters, including individuals and a privacy advocacy association, recommended that TSA clarify what happens to the images captured, who gets to see them, and whether the practice of deleting the image after each screening is absolute. A couple of individual commenters also suggested that TSA should show the public exactly how detailed the image seen in the screening room is, or allow passengers being scanned to observe the personnel monitoring the images. A few individuals, however, expressed support for TSA's efforts to protect passenger privacy by ensuring that the images are anonymous and are automatically deleted from the system after the remotely located security officer clears them.
Initial versions of AIT were manufactured with storage and transmittal functions that TSA required manufacturers to disable prior to installation at airports. TSA confirmed that these functions were disabled during factory acceptance testing and site acceptance testing. The TSOs were not able to activate the functions. As explained in the NPRM, images were transmitted securely between the unit and the viewing room so they could not be lost, modified, or disclosed.
The AIT devices at airports do not have the ability to transmit, store, or print images. While use of AIT in other locations, such as courthouses, was discussed in the comments, TSA does not operate AIT in those locations. AIT that is equipped with ATR software does not produce an individual image; even prior to the use of ATR, TSA's privacy safeguards, detailed in the NPRM, would have prevented the production, let alone release, of images described in the comments.
Submissions included remarks about the adequacy of information and signs at screening checkpoints about the AIT screening process. For example, multiple commenters stated that TSA currently lists the scanner as optional, in small print on an 11 x 14 inch poster at a crowded checkpoint. Commenters suggested there is a lack of adequate signage informing passengers of the right to opt-out of AIT. One of these individual commenters suggested that, in order to allow passengers adequate time to read about their right to opt-out of AIT, these signs should be posted throughout the security waiting area instead of in the area where passengers are being called forward for screening. A commenter stated that different airports want people to indicate that they are opting out at different times, but passengers have no way of knowing when to opt out. An advocacy group stated that notification of the opt-out option is not large enough and is placed in an area where passengers will not see the notice. A non-profit organization stated that passengers continue to report that signs are not available, even though TSA stated in the NPRM that detailed explanation of AIT procedures is available on its Web site, and signs are posted at checkpoints.
Other individuals and a privacy advocacy group emphasized that the pat-down is not a reasonable alternative. Many individual commenters remarked that when they choose to opt-out of AIT, they are treated with suspicion, public ridicule, hostility, and retaliation (
Numerous commenters, including a community organization, a non-profit organization, and individual commenters, characterized the pat-down as groping or sexual assault that involves touching or rubbing of the breasts and genitals of passengers. The pat-downs were referred to as rough, painful, invasive, offensive, intrusive, humiliating, demeaning, and degrading. Some commenters provided anecdotal accounts related to their experiences being screened by TSA. The majority of these comments referred to personal accounts of pat-downs, including statements that the pat-downs were abusive and extended wait times. Other individual commenters stated that because of their negative pat-down experiences, they have cancelled air travel plans. A number of individual commenters stated that in their experience, TSA employees generally treat passengers in a courteous and professional manner.
Commenters also expressed concerns regarding profiling. A few individual commenters, for example, stated that TSA staff intentionally chose young, female travelers for pat-downs at a higher rate than other travelers. Other commenters suggested that TSA staff discriminate against children and elderly women. It was the concern of an individual commenter that an enhanced pat-down of a child can be detrimental to the child's understanding of the appropriateness of an adult touching them. Furthermore, the individual commenter remarked that the separation of the child from their parent for screening results in distress for both the parent and child. Several individuals, a non-profit organization, and an advocacy group expressed concern for children that must undergo touching during pat-downs. Many individuals and an advocacy group also mentioned psychological trauma caused by pat-downs, particularly for rape survivors and victims of sexual abuse. A few individual commenters noted that pat-downs impose unnecessary risks, given that most TSA screeners do not change their gloves often enough to prevent the spread of disease.
While commenters wrote that the thoroughness of the pat-down is inappropriate, it would not make sense to allow passengers to opt out of AIT unless the alternative has similar ability to detect both metallic and non-metallic threat items. The pat-downs are tailored to address the known threat posed by concealed metallic or non-metallic explosives or other weapons, including those concealed on culturally sensitive areas of the body in order to evade detection. The court in the
The pat-down procedures are described on TSA's Web site.
TSOs are trained to be courteous and respectful to all passengers and to provide assistance to facilitate the screening process. TSA will make every effort to be respectful of passengers' concerns, including those who have particular sensitivities to physical touching and to accommodate a person's needs. TSOs may not deliberately delay or modify a pat-down in order to convince passengers to choose AIT screening; such activity may subject a TSO to discipline, up to and including termination.
As explained on TSA's Web site, TSA has established a national hotline for passengers with disabilities, medical conditions, or other circumstances to assist passengers to prepare for the screening process prior to flying.
Passengers who believe they have experienced unprofessional conduct at a security checkpoint may request to speak to a supervisor at the checkpoint or write to the TSA Contact Center at
According to an individual commenter, screening procedures are not implemented consistently at checkpoints and airports because TSA employees are not familiar with the procedures. Another individual commenter stated that since metal detectors and pat-downs are the screening methods used for TSA employees and passengers using TSA's “Pre-Check” screening process, the general public should be screened in the same manner. Similarly, a few individuals suggested there are several loopholes in the AIT screening process (groups of passengers that are ineligible for AIT) that render AIT useless.
Others provided comments regarding the non-public nature of TSA's Standard Operating Procedures (SOPs). Most commenters questioned why information about screening procedures is not released to the public. An individual commenter stated that because the AIT scanners have been deployed, and “enhanced pat-downs” are in effect, TSA should be able to release procedures for the screening process. An advocacy group stated that, if TSA does not provide its SOPs to the public, the public will be unaware of the checkpoint requirements and what, if any, guidelines there are for decision-making by TSA staff or contractors as to what constitutes a screening. The commenter suggested that TSA has kept the SOPs from the public so screening practices can be varied and unpredictable. The commenter stated that as a result, travelers could not distinguish legitimate demands from illegitimate or unauthorized demands.
An individual commenter suggested that the majority of passengers are uninformed about the risks associated with AIT and the screening process. This commenter, as well as another individual, stated that passengers need to know what is expected of them at TSA checkpoints before they can give consent to how they will be searched. Similarly, another commenter stated that because TSA has the authority to fine passengers for refusing to complete screening, it is incumbent upon TSA to publish the details about the screening process.
A community organization stated that those with medical issues are often chosen for secondary screening at a higher rate than those without medical issues. According to a community organization, although the TSA Web site explains that the head coverings of travelers, including Sikh turbans, could be subject to additional security screening, TSA staff has advised Sikh travelers that screening of the turbans is mandatory, even if the screening device has not alarmed during screening. The same commenter also stated that Sikh travelers continue to experience disparate rates of secondary screening despite TSA's Web site stating that AIT scanners can detect threats under layers of clothing without physical inspection of the traveler. The commenter concluded that TSA should conduct public, independent audits of TSA screening practices to determine the extent of profiling based on race, ethnicity, religion and national origin. A non-profit organization, however, suggested that failure to profile passengers based on ethnicity, religion, and national origin would undermine risk-based security strategies.
Some commenters, including individuals and non-profit organizations, expressed concern regarding the potential theft of personal items during AIT screening. Several of these commenters suggested that alternatives like WTMD allow the passenger to maintain control of their non-metallic valuables during screening and that control is relinquished when a passenger is separated from their possessions to be screened by AIT.
TSA's SOPs are internal documents that contain instructions for TSOs on how to operate equipment and conduct screening. TSOs receive extensive training to perform screening as described in the SOPs. These documents are SSI and cannot be shared with the public. 49 CFR part 1520. The SSI status of these documents has been upheld by the courts and is outside the scope of this rulemaking.
TSA's Pre✓
TSA does not engage in any type of religious profiling. Special consideration is given to passengers who wear religious head coverings. As explained on TSA's Web site, persons wearing any type of head covering may be subject to additional screening of the head covering if the TSO cannot reasonably determine that the head area is free of a threat item.
TSA makes every effort to ensure that passengers are able to maintain sight of their carry-on baggage except while it is inside the x-ray machine. Generally, carry-on baggage is being x-rayed while the passenger undergoes AIT screening and usually the passenger completes AIT screening before the baggage screening is complete. TSA will cooperate with State and local law enforcement if a theft occurs. TSA has a zero-tolerance policy for theft by its officers. Any allegation of such activity is investigated, and if infractions are proven, offenders are disciplined, which can include removal from the agency's employment.
Many submissions addressed passengers with disabilities or medical conditions that make them ineligible for AIT screening. Several commenters expressed their general opposition to the use of AIT for those with medical conditions. Individual commenters explained that because of their insulin pumps they do not have a choice but to opt-out of AIT and therefore are subjected to invasive pat-downs and longer screening periods. Other commenters stated that the AIT scanners discriminate against those with a physical disability or medical issue. Some commenters suggested that travelers with physical disabilities should not be made to go through the often-taxing process of pat-down procedures. A privacy advocacy group stated that TSA has not considered the negative impact the proposed rule has on travelers with special needs, particularly those with medical devices. The commenter stated that aside from pat-downs, which the commenter described as embarrassing or humiliating, no alternative screening is discussed for those travelers who have medical devices, like prosthetics and pacemakers, which prevent them from being screened using an AIT scanner. An individual commenter expressed fear that the electromagnetic field of the AIT scanners may be calibrated to a level that would cause their heart pump to malfunction. An individual commenter stated that because the proposed rulemaking has not addressed the potential impacts that TSA screening activities may have on rape victims, TSA should stop using body imaging technology, cease the practice of pat-downs, and rely on the use magnetometers. An advocacy group and individual commenters expressed concern for the emotional effect that both pat-downs and body imaging technology can have on travelers who have experienced past emotional and physical trauma due to sexual assaults.
A number of individual commenters expressed concern regarding the AIT screening procedures and related privacy issues for transgender individuals. An advocacy group provided information regarding the term “transgender” and referred to Office of Personnel Management guidance on the process of gender transition. Several commenters, including advocacy groups, stated that transgender individuals are concerned that the screening process will lead to discrimination, the revelation of their gender status to screeners and others at the checkpoint, and humiliation. An individual commenter stated that transgender people often receive heightened scrutiny of their bodies and documents because of a lack of education and prejudice by TSA screeners. Some individual commenters and advocacy groups explained that the screening process for transgender individuals with prosthetics could be difficult because the prosthetics are detected as anomalies by the AIT scanners, which leads to a more extensive search of their person and questioning from TSA staff. Some individual commenters and advocacy
Some commenters, however, expressed support for the use of AIT. For example, travelers with joint replacements stated a preference for AIT because a full body search would otherwise be required with WTMD screening. An individual commenter who expressed support for AIT also recommended that the scanners be enlarged to accommodate medical equipment carried by travelers.
TSA has specific screening procedures for passengers with disabilities and medical conditions, and those procedures are described on TSA's Web site.
TSA advises passengers to remove all items from their pockets to lessen the possibility that a pat-down will be needed to resolve an anomaly detected by AIT. All AIT units used for screening are equipped with ATR software, which eliminates the individual image and only reveals a generic outline.
TSA recognizes the concerns of the transgender community and provides information on the screening process for transgender travelers on its Web site at
TSA trains its officers to be courteous and to treat passengers with dignity and respect. Travelers who believe they have experienced unprofessional conduct at a security checkpoint are encouraged to request a supervisor at the checkpoint to discuss the matter immediately or to submit a concern to TSA's Contact Center at
A few individual commenters and advocacy groups stated that TSA should clarify key terms in the NPRM, including “anomaly.” A commenter stated that in the absence of any definitions of “submit” or “screening,” the rule would be unconstitutionally vague and overbroad. The commenter implied that such definitions are required in order for travelers to understand “what is prohibited or what is forbidden” by TSA. Similarly, an individual commenter and an advocacy group noted that the lack of details regarding screening and inspection leaves passengers uninformed regarding TSA's authority and what options passengers have. The advocacy group suggested that the lack of clarity leaves TSA checkpoint procedures unpredictable and inconsistent. An advocacy group recommended that if the word “anomalies” were changed to the detection of prohibited foreign items that pose special risks of creating physical danger in the aviation environment, the public's trust in TSA would increase.
Several commenters generally stated that the definition of AIT is ambiguous. A few commenters, including a privacy advocacy group, suggested that the definition of AIT was vague because it did not state that AIT involves the production of images. Similarly, a non-profit organization stated the definition of AIT is too broad in that it allows TSA to use other tools and technologies in addition to AIT. An individual commenter noted that the vagueness of the regulation leaves the reader with limited understanding of the intention of the NPRM. One individual commenter stated that the proposed regulatory text in the NPRM is unconstitutionally vague.
Similarly, an advocacy group suggested that the proposed rule should be revised to clarify the rights and responsibilities of passengers and TSA with regard to AIT scanning. The commenter stated that the
Some commenters provided suggestions as to how the proposed rule could include protections for passengers. A non-profit organization requested that a “code of conduct” towards passengers and a “passenger bill of rights” be included in the regulations. Furthermore, an advocacy group suggested that (1) passengers have the option to be screened in private and with a witness of the passenger's choosing; (2) there be a limitation on the requirement for a passenger to lift or remove clothing; and (3) pat-downs be limited to the areas on the body where an anomaly was detected by the AIT scanner. The same advocacy group recommended that the TSA Traveler's Civil Rights Policy be codified in the final rule and should include nondiscrimination based on gender identity.
Some commenters recommended specific wording to be added to the proposed regulatory text to (1) allow TSA to search locations that are likely targets; (2) protect the Fourth Amendment concerns of private citizens; (3) eliminate costs associated with legal challenges; and (4) lower operational costs.
An individual commenter proposed adding text to clarify that screening to detect anomalies will be conducted using the least intrusive means. A community organization recommended expanding the proposed regulation to include specifics regarding how and when AIT can be used; when enhanced pat-down searches are to be conducted; that information on AIT be provided to passengers prior to AIT screening; to codify a pat-down search option; and to address the images generated by AIT. A non-profit organization suggested that the proposed rule define AIT as “active” imaging technology as opposed to “advanced” so the technology can be differentiated from “passive” imaging technology.
An advocacy group suggested that in order to assure passengers that images from the AIT scanners will not be retained, the definition of the AIT scanners should describe the technology as one that allows screening without subsequent retention of individual passenger image data. The same commenter proposed that training regarding how to work with diverse populations be required in the final rule.
A few commenters, including individual commenters and a non-profit organization, stated that TSA's summary of the proposed rule was a misrepresentation of the facts and screening options.
TSA declines to make a number of other changes to the regulatory text proposed by commenters. TSA does not refer to the option to undergo a pat-down instead of AIT in the regulatory text. As noted throughout this preamble, AIT use generally is optional. TSA recognizes that some passengers do not wish to be screened by AIT and generally, they may choose to undergo a pat-down. Other screening options are not permitted as the pat-down has the similar capability to detect both metallic and non-metallic threats. TSA also recognizes that some passengers are ineligible for AIT (for example, they are not able to stand unattended or raise their arms in the manner required for AIT screening). These passengers must undergo a pat-down in lieu of AIT. TSA also notes that it may require AIT use, without the opt-out alternative, as warranted by security considerations in order to safeguard transportation
As discussed above, in response to comments, TSA has removed the term “anomaly” from the regulatory text to avoid confusion regarding the meaning of the term. However, TSA is not adopting comments regarding the use of the terms “screening” and “submit.” These terms are used throughout TSA regulations; in the NPRM, TSA did not propose to modify any other regulatory provisions that use these terms, and TSA believes that it could be confusing to add a general definition that would affect those provisions. Nor does TSA believe that a definition specific to this section would be particularly useful, given that relatively few commenters found material ambiguity in the terms “screening” and “submit.” TSA notes that a definition of “screening function” is contained in 49 CFR 1540.5. TSA does not intend to alter that definition in this rulemaking. TSA's changes to the regulatory text are intended to maintain consistency with the definition of AIT developed by Congress to limit the use of AIT for screening passengers and to address privacy concerns. TSA believes that using a different definition or including terminology not used by Congress, such as “active” or “passive,” would not meaningfully enhance the clarity of the provision, and could create confusion about what is meant by “active” and “passive.” In addition, by adopting the statutory definitions in the regulation, TSA will deploy the types of AIT equipment that Congress intended to be used to conduct passenger screening.
As discussed in previous responses and in the NPRM, TSA's Web site provides a public description of AIT procedures for passengers.
Congress has vested TSA with broad authority to use the equipment, measures and procedures TSA deems necessary to protect transportation security.
In the NPRM, TSA proposed to codify the use of AIT to conduct security screening to comply with the ruling in
In addition, codification of alternative screening options would seriously impede the flexibility needed to respond to security threats. TSA's procedures and equipment are designed to assist in the detection of concealed items that individuals are attempting to smuggle into the sterile area or on board an aircraft.
In short, TSA could not operate effectively if it was required to conduct notice and comment rulemaking whenever a change in a security equipment, policy, or procedure was needed. The APA generally does not require TSA to amend or issue regulations for most checkpoint screening equipment, policy, and procedure changes; for TSA to voluntarily submit to such a requirement would undermine TSA's ability to adapt quickly to new security threats and “mire the agency in fruitless delay, expense, and inefficiency.”
In addition, although TSA has determined not to codify additional policies and procedures in the regulatory text, TSA advises the public on what to expect at the checkpoint, and constantly strives to improve the screening experience. When TSA policies affecting screening are modified, TSA provides additional information to the public through its Web site as appropriate. TSA acknowledges the concerns expressed by commenters seeking assurance that they are being treated in accordance with established policies and procedures. TSA has posted screening information on its Web site to facilitate the secure and efficient processing of passengers when they arrive at an airport.
Finally, regulatory text is not needed to address commenters' stated constitutional concerns as multiple courts of appeal have found that TSA's airport screening protocols do not violate the Fourth Amendment. For example, the
TSA performed its cost analysis using the most recent, comprehensive and readily available data. Federal law and regulations require all passengers to be screened prior to boarding an aircraft. There was no need to perform a probabilistic or statistical analysis to estimate the populations affected as TSA used its actual passenger screening records in its estimates. Furthermore, data used to determine AIT capabilities are based on years of tests on detection capabilities and performance standards. TSA did not include radiation-related costs in the RIA because the level of radiation from AIT was determined to be so low as to present a negligible risk to passengers, airline crew, airport employees, and TSA employees. The machines were tested, and doses were found to be below the ANSI/HPS standards. The standards consider the impact of radiation on individuals, such as pregnant women, children, and persons who receive radiation treatments, who may be more susceptible to radiation health effects. AIT equipment has been subject to extensive, independent testing that has confirmed that it is safe for individuals being screened, equipment operators, and bystanders. The exposure to ionizing x-ray beams emitted by the backscatter machines that were removed pursuant to statute, as well as the non-ionizing electromagnetic waves from the millimeter wave machines are well below the limits allowed under relevant national health and safety standards
The cost estimates in the NPRM RIA Summary Tables 4 through 6 are displayed in thousands of dollars, as presented in the table titles as “Costs in $1,000s.” For example, $1 shown in Table 4 represents one thousand dollars. In the final rule RIA, costs are presented in millions of dollars throughout the document to avoid confusion.
Many other commenters, including a non-profit organization and individuals, suggested that the proposed rule would increase wait times at the security checkpoints, leading to passenger delays. At least one comment referenced an examination of AIT use in Australia that found that passenger screening time through the trial lane took slightly longer than the passenger screening time through a standard screening lane, most likely caused by the higher alarm rate, with the data suggesting that the average passenger is six times more likely to alarm in the body scanner than the standard lane. Some commenters estimated that the process of opting out—including waiting for a TSO of the same-sex to perform the pat-down—from AIT would delay a passenger by at least 15 minutes. The commenters urged TSA to account for the additional time spent by passengers waiting to pass through airport security. An individual commenter suggested that AIT would reduce wait times for screening, particularly for passengers with joint replacements that would otherwise trigger WTMDs.
Some submissions addressed TSA's personnel costs associated with the proposed rule. Some commenters stated that AIT operation requires more TSOs than the WTMD, which results in larger payroll costs. Another commenter disputed TSA's estimates of personnel costs. Specifically referencing the constant salary used to estimate personnel costs in the RIA, the commenter stated that using a salary level that grows over time by 1.15 percent would increase personnel costs by $33 million.
Many submissions addressed TSA's equipment costs associated with the proposed rule. A few commenters identified equipment costs that they stated were missing from the RIA. An individual commenter and a non-profit
TSA estimated all personnel costs associated with the deployment of AIT. For the RIA, which accompanied the NPRM, TSA estimated this cost using assumptions from TSA's Screener Allocation Model (SAM) that dictates the allocation of personnel to each airport. The SAM takes into account the number of personnel it takes to operate WTMDs and AITs and also the different configurations (or “modsets”) in which these machines are implemented. TSA based its estimation of personnel costs on the number of AIT machines that were forecasted to be deployed nationwide for years 2012-2015 and the number of personnel required to operate each machine. Finally, TSA applied the average TSO's fully loaded wage rate to estimate costs.
TSA estimated the full life cycle costs relating to the use and deployment of AIT. TSA divided the cost components into four categories: Acquisition, installation, and integration; maintenance; test and evaluation; and program management office (PMO) costs. With respect to the comment on the replacement costs, replacement costs are not included in a life-cycle analysis. The RIA analyzes costs and benefits for one life-cycle of AIT and therefore does not include replacement costs.
A full description of these costs is in Chapter 2 of both the NPRM and final rule RIA.
TSA compared AIT to other alternatives and concluded that AIT is the alternative that represents the best technology, currently available, to detect metallic and nonmetallic threats to commercial air travel.
Other commenters recommended that TSA include estimates for legal costs in the cost-benefit analysis because of the likelihood of further litigation regarding the use of AIT. An individual commenter suggested that AIT scanners would result in medical equipment costs to passengers (
A commenter requested that TSA provide clarification on the assumptions used to develop the AIT program management costs (
TSA analyzed the potential cost impacts associated with the implementation of AIT in its cost analysis. TSA concluded that there are no additional legal costs to stakeholders for the deployment and use of AIT pursuant to TSA regulatory requirements. Litigation costs are not a direct cost of the rule because such costs do not result from compliance with the rule. Additionally, any estimate of litigation expenses would be highly speculative and would not inform TSA's decision of AIT deployment. However,
The most significant advantage of using AIT is the enhancement of air transportation security because AIT can detect nonmetallic threats concealed under clothing. It also reduces the need for a pat-down, which would be required with the WTMD for individuals with medical implants such as a pacemaker or a metal knee replacement. Thus, AIT reduces the cost and inconvenience to passengers with this medical equipment. As explained in a previous response, the FDA tested the effect of AIT on different types of medical devices, including insulin pumps, and found no impact. Thus, TSA does not include costs of medical devices in the analysis.
Before the development of the ATR software, TSA instituted rigorous safeguards to protect the privacy of individuals who are screened using AIT. The DHS Chief Privacy Officer conducted several PIAs to ensure that TSA adequately addressed privacy concerns related to AIT screening. The PIA describes the strict measures TSA uses to protect privacy. While TSA was unable to produce a quantitative impact of perceived privacy issues, TSA included a thorough qualitative discussion regarding this issue in the NPRM RIA (Chapter 2, page 99). Additionally, TSA did not receive any public comments providing a methodology to be used on the economic valuation of how perceived privacy issues could be calculated. Finally, the use of AIT to screen passengers has been upheld by the courts as reasonable under the Fourth Amendment, even prior to the mandatory use of ATR.
To run the passenger screening program, TSA provides internal PMO support and contractor support. Because PMO support reflects the day-to-day support of the entire screening program, TSA is unable to identify PMO spending allocated to AIT specifically. To account for these costs to AIT, TSA assumed that the PMO cost was 10 percent of the total cost of AIT in the NPRM RIA, based on subject matter expert estimates from other technology contracts. For the final rule, TSA revised this estimate to 15 percent based on an internal Life Cycle Cost Estimate analysis of the passenger screening program.
Finally, TSA addresses the use of random selection in its discussion of alternatives considered, apart from AIT, in Chapter 3 of the final rule's RIA.
Several individual commenters and a non-profit organization discussed benefits in terms of the number of attacks that need to be thwarted in order to justify the costs of the AIT rule. Some of these commenters, including two non-profit organizations, cited a research study that concluded AIT would need to avert more than one attack originating from a U.S. airport every 2 years in order to justify the cost of the scanners. The commenters stated that AIT would not achieve this threshold. An individual commenter suggested that had AIT scanners been used over the last 12 years, only two attacks would have been avoided. The commenter stated this would not have justified the cost. Another individual commenter stated that people are more at risk of dying in motor vehicle accidents than in a terrorist attack on an airplane originating in the United States. The commenter concluded that AIT would not be the most efficient approach to reducing risk. Other commenters stated that AIT would not increase security to the degree TSA claims until deployed in every airport and every security lane. A commenter argued that because “a potential terrorist intent on downing an airliner with body-borne explosives would need only to observe which airports or security areas lack [AIT] scanners to defeat the security measure.” The commenter suggested that the absence of an attack could not be attributed to AIT.
Some commenters recommended types of benefits that should be analyzed. An individual commenter suggested that TSA quantify the benefits of the rule in terms of lives saved and avoided disruptions to the economy. Another commenter stated that the analysis should consider the potential benefits of reallocating the costs associated with AIT to other screening methods.
Other commenters stated that AIT might provide some level of security benefits, but that it was not worth the cost. Commenters stated the risk reduction benefits of AIT in particular made it a poor investment and that people are more at risk of dying in motor vehicle accidents than in a terrorist attack on an airplane originating in the United States. One commenter stated that risk of a terrorist attack to commercial aviation is so low that it is a risk that can be endured by the public. TSA disagrees that the risk reduction attributable to AIT does not make AIT worth using. TSA is charged with safeguarding the travelling public with respect to aviation and fulfilling legal mandates. Risk and national security are complex issues and commenters may not be considering that a perceived low level of risk may be due to deterrence provided by AIT or other national security efforts to prevent such attacks.
Another commenter stated that the benefits from AIT would not be fully realized until AIT is deployed at every airport and in every checkpoint lane. While TSA did not provide monetized benefits or “degree of benefits,” TSA did describe the fact that AIT is the only technology currently available for field deployment that can detect both metallic and non-metallic weapons and explosives. Additionally, implementing an “all or nothing” strategy for airport security ignores the fact that some airports are at a higher risk for a terrorist attack than others are. TSA uses a risk-based approach to deploy AIT machines in airports that are considered higher-risk in order to try to minimize risk to commercial air travel given TSA's finite resources. Other commenters stated that AIT is a poor investment for screening and that TSA should use its funds in another technology or manner altogether. Another commenter argued that the baseline security infrastructure (pre-AIT) is capable of handling the current level of risk to commercial air travel. Both conclusions discount the fact that currently, AIT is the only screening technology able to detect a non-metallic weapon or explosives concealed under a person's clothing. Eliminating AIT would increase the risk to successful terrorist attacks than what is currently incurred because it would leave commercial air travel more vulnerable to an attack with a non-metallic weapon or explosive. The commenters also stated that the risk of a terrorist attack to commercial air travel was less than that of a fatal motor vehicle accident. It is unclear to TSA how the risk associated with motor vehicles should influence TSA's decision making on airport screening practices. Regardless of the safety or security risks associated with other modes of transportation, TSA should pursue the most effective security measures reasonably available so that the vulnerability of commercial air travel to terrorist attacks is reduced.
Commenters that consider only the most easily quantifiable impacts of a terrorist attack, such as the direct cost of an airplane crashing, are only considering a portion of the impacts of an attack. As TSA explained in the NPRM's Initial RIA, terrorist attacks not only cause direct costs in lives lost and property damage, but also cause substantial indirect effects and social costs (such as fear) that are harder to measure but which must also be considered by TSA when deciding whether an investment in security is cost-beneficial. For example, Ackerman and Heinzerling state “. . . terrorism `works' through the fear and demoralization caused by uncontrollable uncertainty. Efforts to offset this fear by attaching necessarily arbitrary numbers to the probabilities of being harmed by a terrorist seem, especially in a post-September 11 world, ridiculous.”
In addition, AIT use is fully consistent with TSA's mandate. The Administrator of TSA has overall responsibility for civil aviation security, and Congress has conferred on him authority to carry out that responsibility.
TSA has added break-even analysis to the benefits section in the final rule. According to OMB Circular No. A-4, “Regulatory Analysis,” the break-even analysis answers the question, “How small could the value of the non-quantified benefits be (or how large would the value of the non-quantified costs need to be) before the rule would yield zero net benefits?”
Commenters also stated that using AIT scanners would lead to lost or stolen property. Another commenter stated that the RIA failed to account for decreases in economic productivity because of the rule. Further, an individual commenter suggested that the proposed rule is not justified because the investment in AIT scanners would not reduce mortality by as much as other government programs or initiatives. In particular, the commenter suggested that AIT would not prevent terror attacks but would instead redirect them to alternate locations. Another commenter stated that the analysis should consider the use of newer
TSA also addressed potential health concerns regarding the ionizing radiation emitted by general-use backscatter technology. The radiation dose a passenger receives from a general-use backscatter AIT screening has been independently evaluated by the FDA's Center for Devices and Radiological Health, the National Institute for Standards and Technology, the Johns Hopkins University Applied Physics Laboratory, and the American Association of Physicists in Medicine. All results affirmed that the radiation dose for individuals being screened, operators, and bystanders was well below the dose limits specified by ANSI/HPS N43.17.
TSA does not believe, and no compelling evidence has been submitted, that AIT increases the risk of lost or stolen property. Passengers are able to monitor their bags prior to submission into the x-ray machine and after x-ray screening is completed. The deployment of AIT does not create vulnerabilities in the security system since testing and experience have shown that AIT is the best technology currently available to detect metallic and nonmetallic threats (see Chapter 4 of both the NPRM and final rule RIA).
TSA does not believe, and no credible evidence has been submitted, that AITs reduce economic productivity. With regard to comments that AIT does not reduce mortality rates as much as other government programs or initiatives, the funding of other government programs is beyond the scope of this rule. Regardless of the effectiveness of other governments programs, TSA should pursue the most effective security measures so that the vulnerability of commercial air travel to terrorist attacks is reduced. TSA conducted an alternatives analysis and found AIT to be the most effective countermeasure for both metallic and non-metallic items concealed under a person's clothing. With respect to AIT redirecting attacks to other targets, TSA does not believe that the existence of other targets precludes TSA from ensuring the security of commercial air travel, which has a high level of risk. TSA included the costs of research and development for AIT and for the deployment of AIT technology (see Chapter 2 in both the NPRM and final rule RIA). TSA will continue to conduct research and evaluate new technologies to enhance transportation security.
Multiple submissions also commented on Alternative 2 (combination of WTMD and pat-down). Several commenters suggested that screening consisting of pat-downs and metal detectors would be sufficient. A few commenters suggested that because AIT scanners are not effective and are intrusive, a combination of WTMD and pat-down screening should be used instead.
Many submissions commented on Alternative 3 (combination of WTMD and ETD screening). Individual commenters, a non-profit organization, and advocacy groups expressed support for Alternative 3 without providing additional substantive comment. Commenters suggested that the use of ETDs and WTMDs are more effective, less costly, and less intrusive.
Many submissions discussed other alternatives for TSA consideration. A non-profit organization, a privacy advocacy group, and individual commenters recommended that TSA return to using WTMDs and hand-wand metal detectors during the screening process. Other commenters urged TSA to rely on traditional police and intelligence work and canine explosives detection teams to detect and deter threats. A commenter recommended that TSA use mass spectrometry methods to detect threats in air samples. Other commenters suggested TSA explore other technologies to reduce reliance on AIT and pat-downs and to be able to detect explosives within body cavities. A non-profit organization recommended that TSA consider testing face recognition, explosives residue machines, and suspicious behavior systems for secondary screening. Another non-profit organization urged TSA to use less invasive screening technologies such as infrared imaging.
Alternative 2 is more physically intrusive than AIT, significantly increases the wait times and opportunity costs for the traveling public, and is more costly with respect to personnel because it requires more TSOs to meet the high volume of passengers. In addition, this alternative does not provide the same level of screening as AIT in detecting nonmetallic threats because not every passenger would receive a pat-down, particularly when used only on a random basis. Based on field tests, TSA estimates the pat-down procedure takes 150 seconds to perform (70 second average wait time for the same gender TSO to meet the passenger and 80 seconds to complete the pat-down procedure). Therefore, performing pat-downs on a significant number of passengers necessitates either a substantial increase in staffing levels to maintain the current passenger throughput level (approximately 150 passengers per hour per lane) or abandonment of that throughput target altogether, with the attendant consequences for passengers described above. Finally, AIT is a machine-based methodology for detecting non-metallic threat items, which provides a more consistent outcome over time. TSA anticipates future advancements to AIT in detection capability, throughput, and privacy protection. Due to the reasons outlined above, TSA rejected Alternative 2.
With regard to Alternative 3, although ETDs would help reduce the risk of nonmetallic explosives being taken
Some of the other alternatives discussed in the comments, such as explosives detection canine and behavior detection screening, are not as effective as AIT in screening a large volume of passengers in the least amount of time and require additional costs; however, TSA does use such alternatives whenever available as added layers of security at the airport.
A few commenters made other recommendations to TSA with regard to alternatives. For example, an individual commenter urged TSA to conduct research on alternative screening technology, provide educational outreach on the security measures to the public, and train flight attendants and inform passengers of what to do in response to suspicious activity. A commenter recommended using AIT as a secondary screening method on a more limited basis. Another individual commenter asked why TSA does not require travelers to go through both AIT and WTMD. The commenter suggested that travelers should be subjected to both technologies.
TSA does not use an “all or nothing” approach, as alleged in a comment. TSA uses a number of security measures to prevent attacks on commercial air travel. AIT is another security measure included in the multiple layers of security currently deployed. WTMDs, ETDs, and pat-downs are also used for screening. TSA reviewed these alternatives with respect to risk reduction, cost, impact on passengers and operational feasibility and determined that AIT is the best technology currently available to detect metallic and nonmetallic threats concealed under clothing.
Several commenters declared that the cost-benefit analysis in the NPRM is insufficient and inadequate and referred to AIT as costly. The commenters suggested that the analysis does not justify the cost relative to the risks or improvement in TSA's ability to detect threats to safe air travel. A privacy advocacy group stated that TSA did not fully evaluate the costs and benefits of AIT as compared to WTMDs and ETDs, as required under Executive Orders (E.O.s) 13563 and 12866. An individual commenter urged TSA to account for all of the risks associated with AIT and include difficult-to-quantify costs in the analysis. A non-profit organization stated that despite their cost, AIT scanners are cost-beneficial in deterring
A non-profit organization and an individual commenter suggested that the proposed rule would have a substantial direct effect on States under E.O. 13132, Federalism. Both commenters discussed the experience of Texas, which attempted to pass an anti-groping law that would have affected TSA's screening process. According to the commenters, news reports stated that TSA sent the Texas legislature a letter threatening to close all Texas airports if the bill passed. The commenters suggested that TSA's interference with a State legislature's activity demonstrates the substantial direct effect AIT would have on States. A commenter also explained that States are responsible for inspecting radiological devices and licensing unit operators. As a result, the commenter suggested that the rule would require State governments to inspect the AIT units and license operators of AIT units, which would have a direct effect on States.
Two individual commenters stated that TSA must prepare an environmental impact statement in accordance with National Environmental Protection Act (NEPA). One of the commenters urged TSA to assess the human health impacts associated with AIT. The other commenter explained that the environmental impact statement would need to assess the impact of increased motor vehicle travel (
TSA disagrees with comments claiming that deployment of AIT has a federalism impact. Federal law requires that screening be carried out by a Federal Government employee. 49 U.S.C. 44901(a). Prior to the creation of TSA, passenger screening was the responsibility of air carriers pursuant to regulations issued by FAA. Passenger screening is not conducted by State employees, and the final rule does not have a substantial direct effect on the
Finally, an environmental impact statement under NEPA is not required. There is no evidence that use of AIT to screen passengers will have a non-negligible impact on motor vehicle travel. In addition, independent studies have confirmed that the exposure to non-ionizing electromagnetic waves from the millimeter wave AIT machines is below the limits allowed under relevant national health and safety standards and cause no known adverse health effects.
Another set of commenters urged TSA to provide a detailed risk reduction analysis to support the rulemaking, such as the classified version that TSA cited in the NPRM. The commenters suggested that TSA at least release a redacted version or a summary of its risk-reduction analysis of AIT. A non-profit organization stated that TSA is obligated to disclose whether AIT would be cost-effective in reducing this risk. The commenter cited another risk-reduction analysis that was published by academic researchers in a peer-reviewed journal to indicate that these analyses can be published without revealing technical details or threat information that may legitimately be kept confidential.
An individual commenter recommended that TSA design the AIT rule so that the agency would be able to conduct a “look back” analysis after the rule is implemented. The commenter explained that TSA would be able to collect empirical data on impacts such as AIT's effectiveness of detecting various security threats, and the amount of time added to the security screening process. Another individual commenter referenced the report and suggested that TSA analyze the cost and benefits of AIT in the areas of personal privacy, freedom, and convenience.
Some individual commenters stated that TSA staff is not trained in screening techniques or on how to behave professionally. A few individual commenters suggested that TSA create a process to hold TSA employees accountable for their actions. Individual commenters recommended that employees wear badges with contact information, such as their full name and badge number. A commenter also recommended that TSA place employees on probation for receiving three or more customer service reports within 6 months. Another individual commenter suggested that TSA publicize any existing processes for anonymous reporting. A few individual commenters expressed concern and provided information regarding the reported off-duty criminal activities of TSA screeners. Several commenters stated generally that the security at airports has not increased the safety of air travel.
TSA is continually updating and enhancing the training of its TSOs to improve effectiveness and to reinforce that screening be conducted in a professional and courteous manner. TSA investigates all allegations of misconduct and takes appropriate action, which can include referral to law enforcement and termination of employment. TSOs wear identification badges. TSA's Web site, at
TSA believes that its layers of security have vastly improved the security posture of the Nation's transportation systems. A terrorist has to overcome multiple security measures in order to carry out an attack and is more likely to be pre-empted, deterred, or fail during the attempt.
In keeping with U.S. obligations under the Convention on International Civil Aviation, it is TSA policy to comply with ICAO Standards and Recommended Practices to the maximum extent practicable. TSA determined that there are no ICAO Standards and Recommended Practices that correspond to this regulation.
Changes to Federal regulations must undergo several economic analyses. First, E.O. 12866, Regulatory Planning and Review (58 FR 51735, October 4, 1993), as supplemented by E.O. 13563, Improving Regulation and Regulatory Review (76 FR 3821, January 21, 2011), directs each Federal agency to propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (5 U.S.C. 601
In conducting these analyses, TSA has determined:
1. This rule is a significant regulatory action that is economically significant under sec. 3(f)(1) of E.O. 12866. Accordingly, the OMB has reviewed this regulation.
2. A Final Regulatory Flexibility Analysis suggests this rulemaking would not have a significant economic impact on a substantial number of small entities.
3. This rulemaking would not constitute a barrier to international trade.
4. This rulemaking does not impose an unfunded mandate on State, local, or tribal governments, or on the private sector.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
When estimating the cost of a rulemaking, agencies typically estimate future expected costs imposed by a regulation over a period of analysis. For this RIA, TSA uses a 10-year period of analysis to align with the 10-year AIT life cycle from deployment to disposal.
TSA presents AIT costs in tables 2 through 4. Table 2 reports the total costs from 2008-2014 to be $1,439.32 million (undiscounted).
Table 3 reports total costs for projected years 2015-2017 to be $706.99 million (undiscounted), $666.47 million discounted at three percent, and $618.18 million discounted at seven percent.
Table 4 reports total costs for years 2008-2017 to be $2,146.31 million (undiscounted). During 2008-2017, TSA estimates that personnel and equipment life cycle costs are the largest categories of expenditures.
Implementing AIT into the passenger screening program is beneficial because it enhances commercial aviation security. AIT improves security by assisting TSA in the detection of non-metallic, as well as metallic, explosives concealed under the clothing of passengers. Terrorists continue to test our security measures in an attempt to find and exploit vulnerabilities (see the Background section in this preamble). The threat to aviation security has evolved to include the use of non-metallic explosives, non-metallic explosive devices, and non-metallic weapons. The examples presented below highlight the increased real world threats of non-metallic explosives to commercial aviation:
• On December 22, 2001, on board an airplane bound for the United States, Richard Reid attempted to detonate a non-metallic bomb concealed in his shoe.
• On December 25, 2009, a bombing plot by AQAP culminated in Umar Farouk Abdulmutallab's attempt to blow up an American aircraft over the United States using a non-metallic explosive device hidden in his underwear.
• In October 2010, AQAP attempted to destroy two airplanes in flight using non-metallic explosives hidden in two printer cartridges.
• In May 2012, AQAP developed another non-metallic explosive device that could be hidden in an individual's underwear and detonated while on board an aircraft.
The deployment of AIT generates benefits that come from reducing security risks through AIT, which is capable of detecting both metallic and non-metallic weapons and explosives.
TSA uses a break-even analysis to frame the relationship between the potential benefits of the rulemaking and the costs of implementing the rule. When it is not possible to quantify or monetize a majority of the incremental benefits of a regulation, OMB recommends conducting a threshold, or “break-even” analysis. According to OMB Circular No. A-4, “Regulatory Analysis,” such an analysis answers the question, “How small could the value of the non-quantified benefits be (or how large would the value of the nonquantified costs need to be) before the rule would yield zero net benefits?”
TSA used five types of aircrafts to represent five different scenarios where an attacker detonates a body-bomb on a domestic passenger aircraft, the type of attack AIT is meant to mitigate. The five types of aircraft fall into two assigned categories: High-capacity, long range aircraft typically used for international travel; and medium-capacity and long-range aircraft typically used for cross-country travel or popular routes. TSA used the Bureau of Transportation Statistics' T-100
• Airbus A380-Airbus' long-range aircraft with a 544 seat capacity
• Boeing 777-200LR-Boeing's long-range aircraft with 317 seat capacity
• Boeing 737-700-A medium-range aircraft with a seating capacity range between 126 and 149 (median of 138 used to represent passengers and crew)
• Boeing 737-800-A medium-range aircraft with a seating capacity range between 162 and 189 (median of 176 used to represent passengers and crew)
• Airbus A320-100/200-A medium-range aircraft with a 150 seat capacity
To conduct the break-even analysis, TSA estimated the major direct costs for these attack scenarios, which can be viewed as the benefits of avoiding an attack. The break-even analysis does not include the macroeconomic impacts that could occur due to a major attack. In addition to the direct impacts of a terrorist attack in terms of lost life and property, there are other more indirect impacts, particularly on aviation based terrorist attacks that are difficult to measure. As noted by Cass Sunstein in the Laws of Fear, “. . . fear is a real social cost, and it is likely to lead to other social costs. If, for example, people are afraid to fly, the economy will suffer in multiple ways . . . .”
TSA assumed all the passengers and crew are killed in each scenario and used the value of statistical life (VSL) of $9.1 million per fatality as adopted by the U.S. Department of Transportation (DOT)
The replacement cost of the aircraft and emergency response costs
In Table 6 and Table 7, TSA presents annualized cost estimates and quantitative benefits of AIT deployment and operation. In Table 6, TSA shows the annualized net cost of AIT from 2015 to 2017. As previously explained, costs incurred from 2008-2014 occurred in the past. However, given that the life cycle of the AIT technology considered in this analysis is 10 years, TSA has also added Table 7 showing the annualized net cost of AIT from 2008-2017.
As alternatives to the preferred regulatory proposal presented in the NPRM and final rule, TSA examined three other options. The following table briefly describes these options, which include use of WTMD only (no action), increased use of physical pat-down searches that supplements primary screening with WTMDs, and increased use of ETD screening that supplements primary screening with WTMDs. These alternatives, and the reasons why TSA rejected them in favor of the rule, are discussed in detail in Chapter 3 of the regulatory impact analysis located in this docket and summarized in Table
The Regulatory Flexibility Act (RFA) of 1980 requires agencies to consider the impacts of their rules on small entities. Under the RFA, 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. Individuals and States are not considered “small entities” based on the definitions in the RFA (5 U.S.C. 601).
This final rule codifies the use of AIT to screen passengers boarding commercial aircraft for weapons, explosives, and other prohibited items concealed on the body. The only additional direct cost small entities incur due to this rule is for utilities, because of increased power consumption from AIT operation. TSA identified 106 small entities (105 small governmental jurisdictions and one small privately-owned airport) based on the Small Business Administration size standards that potentially incur additional utilities costs due to AIT. Of the 106 small entities, seven currently have AITs deployed and are not reimbursed by TSA for the payment of utilities. Consequently, AIT causes seven small entities, or 1.5 percent (7/460) of all airports, to incur additional direct costs during the period of analysis.
These entities incur an incremental cost for utilities from an increased consumption of electricity from AIT operation. To estimate these costs, TSA uses the average kilowatts (kW) consumed per AIT unit on an annual basis. Depending on the size of the airport, TSA estimates the average additional utilities costs to range from $290 to $921 per year while the average annual revenue for these small entities ranges from $8.4 million to $213.3 million per year.
The Trade Agreement Act of 1979 prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. TSA has assessed the potential effect of this rulemaking and has determined that it will have only a domestic impact and therefore no effect on any trade-sensitive activity.
The UMRA is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and tribal governments. Title II of the UMRA requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in a $100 million or more expenditure (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.”
This rulemaking does not contain such a mandate. The requirements of Title II of the UMRA, therefore, do not apply and TSA has not prepared a statement.
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501.
As protection provided by the PRA, as amended, 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.
TSA has analyzed this rulemaking under the principles and criteria of E.O. 13132, Federalism. TSA determined that this action will not have a substantial direct effect on the States, or the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, does not have federalism implications.
TSA has reviewed this rulemaking for purposes of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347) and has determined that this action will not have a significant effect on the human environment. This action is covered by categorical exclusion (CATEX) number A3(b) and (d) in DHS Management Directive 023-01 (formerly Management Directive 5100.1), Environmental Planning Program, which guides TSA compliance with NEPA.
The energy impact of this rulemaking has been assessed in accordance with the Energy Policy and Conservation Act (EPCA), Public Law 94-163, as amended (42 U.S.C. 6362). TSA has determined that this rulemaking is not a major regulatory action under the provisions of the EPCA.
Air carriers, Aircraft, Airports, Civil Aviation Security, Law enforcement officers, Reporting and recordkeeping requirements, Screening, Security measures.
For the reasons set forth in the preamble, the Transportation Security Administration amends Chapter XII of Title 49, Code of Federal Regulations, as follows:
49 U.S.C. 114, 5103, 40113, 44901-44907, 44913-44914, 44916-44918, 44925, 44935-44936, 44942, 46105.
(d) The screening and inspection described in paragraph (a) of this section may include the use of advanced imaging technology. Advanced imaging technology used for the screening of passengers under this section must be equipped with and employ automatic target recognition software and any other requirement TSA deems necessary to address privacy considerations.
(1) For purposes of this section, advanced imaging technology-
(i) Means a device used in the screening of passengers that creates a visual image of an individual showing the surface of the skin and revealing other objects on the body; and
(ii) May include devices using backscatter x-rays or millimeter waves and devices referred to as whole body imaging technology or body scanning machines.
(2) For purposes of this section, automatic target recognition software means software installed on an advanced imaging technology device that produces a generic image of the individual being screened that is the same as the images produced for all other screened individuals.
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