Page Range | 15153-15415 | |
FR Document |
Page and Subject | |
---|---|
81 FR 15360 - Sunshine Act Meeting | |
81 FR 15355 - Sunshine Act Meeting Notice | |
81 FR 15228 - Certain Hot-Rolled Steel Flat Products From the Republic of Korea: Affirmative Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination | |
81 FR 15222 - Certain Hot-Rolled Steel Flat Products from Japan: Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination | |
81 FR 15290 - Applications for New Awards; Fulbright-Hays Doctoral Dissertation Research Abroad Fellowship Program | |
81 FR 15153 - Black Stem Rust; Additions of Rust-Resistant Species and Varieties | |
81 FR 15188 - Schedules of Controlled Substances: Placement of UR-144, XLR11, and AKB48 Into Schedule I; Correction | |
81 FR 15399 - Public Notice For Waiver of Aeronautical Land-Use Assurance Mankato Regional Airport, Mankato, MN | |
81 FR 15244 - Certain Hot-Rolled Steel Flat Products From the United Kingdom: Affirmative Preliminary Determination of Sales at Less Than Fair Value, Postponement of Final Determination and Extension of Provisional Measures | |
81 FR 15225 - Certain Hot-Rolled Steel Flat Products From the Netherlands: Affirmative Preliminary Determination of Sales at Less Than Fair Value, Postponement of Final Determination and Extension of Provisional Measures | |
81 FR 15235 - Certain Hot-Rolled Steel Flat Products From Brazil: Affirmative Preliminary Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Extension of Provisional Measures | |
81 FR 15315 - Final Action Under the NIH Guidelines for Research Involving Recombinant or Synthetic Nucleic Acid Molecules (NIH Guidelines) | |
81 FR 15241 - Certain Hot-Rolled Steel Flat Products From Australia: Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination | |
81 FR 15347 - Request for Public Comment: 30-Day Information Collection: Indian Health Service Forms To Implement the Privacy Rule | |
81 FR 15231 - Certain Hot-Rolled Steel Flat Products From the Republic of Turkey: Affirmative Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination | |
81 FR 15200 - Partial Approval and Partial Disapproval of Air Quality State Implementation Plans; Arizona; Infrastructure Requirements To Address Interstate Transport for the 2008 Ozone NAAQS | |
81 FR 15413 - Notice of Increase in Civil Penalty for Violations of National Traffic and Motor Vehicle Safety Act | |
81 FR 15413 - Tax Design Challenge; Requirements and Procedures | |
81 FR 15326 - Notification of the Removal of Conditions of Entry on Vessels Arriving From the Republic of Cuba | |
81 FR 15323 - Information Collection Request to Office of Management and Budget; OMB Control Number: 1625-0104 | |
81 FR 15325 - Information Collection Request to Office of Management and Budget; OMB Control Number: 1625-0105 | |
81 FR 15398 - Actions Taken at March 10, 2016, Meeting | |
81 FR 15326 - National Boating Safety Advisory Council; Vacancies | |
81 FR 15324 - National Boating Safety Advisory Council | |
81 FR 15238 - Aluminum Extrusions From the People's Republic of China: Amended Final Results of Countervailing Duty Administrative Review; 2013 | |
81 FR 15327 - Port Access Route Study (PARS): In Nantucket Sound | |
81 FR 15240 - Xanthan Gum From the People's Republic of China: Preliminary Rescission of 2014-2015 Antidumping Duty New Shipper Review | |
81 FR 15352 - Fees Development and Communications | |
81 FR 15354 - Notice of Meeting | |
81 FR 15216 - Radio Broadcasting Services; Maryville, Missouri | |
81 FR 15411 - Notice of Proposed Buy America Waiver for a Fall Arrest System | |
81 FR 15356 - New Postal Product | |
81 FR 15407 - Notice of Proposed Buy America Waiver for Steel Excavator With a Continuous Wield Platform | |
81 FR 15409 - Notice of Proposed Buy America Waiver for Ductless Mini-Split System Air Conditioning Systems | |
81 FR 15415 - Submission for OMB Review; Comment Request | |
81 FR 15248 - National Essential Fish Habitat Summit Public Meeting | |
81 FR 15396 - Reporting and Recordkeeping Requirements Under OMB Review | |
81 FR 15357 - Proposed Collection; Comment Request | |
81 FR 15360 - Principal Life Insurance Company, et al., Notice of Application | |
81 FR 15384 - Principal Life Insurance Company, et al., | |
81 FR 15375 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Change Adopting a Decommission Extension Fee for receipt of the NYSE MKT BBO and NYSE MKT Trades Market Data Products | |
81 FR 15363 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Adopting a Decommission Extension Fee for Receipt of the NYSE BBO and NYSE Trades Market Data Products | |
81 FR 15350 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Extension With Change, of a Previously Approved Collection; Return A-Monthly Return of Offenses Known to Police and Supplement to Return A-Monthly Return of Offenses Known to Police | |
81 FR 15247 - Mid-Atlantic Fishery Management Council (MAFMC); Public Meetings | |
81 FR 15159 - Indirect Stock Transfers and the Coordination Rule Exceptions; Transfers of Stock or Securities in Outbound Asset Reorganizations | |
81 FR 15278 - Manual for Courts-Martial; Amendments to Appendix 22 | |
81 FR 15295 - Application to Export Electric Energy; Tenaska Energía de Mexico, S. de R.L. de C.V. | |
81 FR 15302 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding Company | |
81 FR 15302 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
81 FR 15173 - Milton W. Chu, M.D.; Filing of Color Additive Petition | |
81 FR 15404 - Qualification of Drivers; Exemption Applications; Vision | |
81 FR 15272 - Manual for Courts-Martial; Proposed Amendments | |
81 FR 15153 - List of Approved Spent Fuel Storage Casks: Holtec International HI-STORM 100 Cask System; Amendment No. 9, Revision 1 | |
81 FR 15217 - Hours of Service of Drivers; Parts and Accessories: ArcelorMittal Indiana Harbor, LLC, Application for Exemptions | |
81 FR 15401 - Qualification of Drivers; Exemption Applications; Vision | |
81 FR 15220 - Shasta-Trinity National Forest; California; Lower McCloud Fuels Management Project | |
81 FR 15397 - Texas Disaster Number TX-00464 | |
81 FR 15397 - Louisiana Disaster Number LA-00062 | |
81 FR 15397 - New Jersey Disaster #NJ-00046 | |
81 FR 15350 - Agency Information Collection Activities: Proposed eCollection eComments Requested; Revision to a Currently Approved Collection; Community Policing Self-Assessment (CP-SAT) | |
81 FR 15351 - Agency Information Collection Activities; Proposed eCollection, eComments Requested; Extension Without Change of a Previously Approved Collection, Annual Reporting for Manufacturers of Listed Chemicals | |
81 FR 15348 - Filing of Plats of Survey: Oregon/Washington | |
81 FR 15349 - Notice of Public Meeting: Bureau of Land Management Nevada Resource Advisory Councils | |
81 FR 15346 - Endangered and Threatened Wildlife and Plants; Receipt of Application for an Incidental Take Permit; Availability of Low-Effect Habitat Conservation Plan and Associated Documents; Polk County, FL | |
81 FR 15345 - Endangered and Threatened Wildlife and Plants; Receipt of Application for an Incidental Take Permit; Availability of Low-Effect Habitat Conservation Plan and Associated Documents; Osceola County, FL | |
81 FR 15349 - Notice of Public Meeting, Twin Falls District Resource Advisory Council, Idaho | |
81 FR 15410 - Notice of Proposed Buy America Waiver for a Radio Communications System | |
81 FR 15406 - Notice of Proposed Buy America Waiver for Special Trackwork Turnout Switch Components | |
81 FR 15313 - Prospective Grant of Exclusive License: Development and Commercialization of Cancer Immunotherapy | |
81 FR 15171 - Airworthiness Directives; Agusta S.p.A. Helicopters | |
81 FR 15154 - Airworthiness Directives; Turbomeca S.A. Turboshaft Engines | |
81 FR 15296 - Grand River Dam Authority; Notice of Request To Reduce Comment Period From 60 to 30 Days on Draft Amendment Application and Soliciting Comments, Motions To Intervene, and Protests | |
81 FR 15297 - Combined Notice of Filings #2 | |
81 FR 15300 - Commission Information Collection Activities (FERC-500 and FERC-542); Consolidated Comment Request | |
81 FR 15299 - Combined Notice of Filings #1 | |
81 FR 15311 - 2016 Parenteral Drug Association/Food and Drug Administration Joint Conference: Aligning Manufacturing Goals With Patient Needs Through Successful Innovation and Compliance | |
81 FR 15366 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing of Proposed Rule Change Amending and Restating the Fifth Amended and Restated Bylaws of the Exchange's Ultimate Parent Company, Intercontinental Exchange, Inc., To Implement Proxy Access | |
81 FR 15378 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change Amending and Restating the Fifth Amended and Restated Bylaws of the Exchange's Ultimate Parent Company, Intercontinental Exchange, Inc., To Implement Proxy Access | |
81 FR 15371 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing of Proposed Rule Change Amending and Restating the Fifth Amended and Restated Bylaws of the Exchange's Ultimate Parent Company, Intercontinental Exchange, Inc., To Implement Proxy Access | |
81 FR 15310 - Assessment of Radiofrequency-Induced Heating in the Magnetic Resonance Environment for Multi-Configuration Passive Medical Devices; Guidance for Industry and Food and Drug Administration Staff; Availability | |
81 FR 15173 - Banned Devices; Proposal To Ban Powdered Surgeon's Gloves, Powdered Patient Examination Gloves, and Absorbable Powder for Lubricating a Surgeon's Glove | |
81 FR 15303 - Submission for OMB Review; Contractors Performing Private Security Functions Outside the United States | |
81 FR 15303 - Submission for OMB Review; Drug-Free Workplace | |
81 FR 15304 - Information Collection; Bid Guarantees, Performance and Payment Bonds, and Alternative Payment Protections | |
81 FR 15306 - Disease, Disability, and Injury Prevention and Control Special Emphasis Panel (SEP): Initial Review | |
81 FR 15305 - Disease, Disability, and Injury Prevention and Control Special Emphasis Panel (SEP): Initial Review | |
81 FR 15307 - Disease, Disability, and Injury Prevention and Control Special Emphasis Panel (SEP): Initial Review | |
81 FR 15308 - Disease, Disability, and Injury Prevention and Control Special Emphasis Panel (SEP): Initial Review | |
81 FR 15308 - Request for Nominations of Candidates To Serve on the Board of Scientific Counselors, National Center for Environmental Health/Agency for Toxic Substances and Disease Registry (BSC, NCEH/ATSDR) | |
81 FR 15305 - Advisory Council for the Elimination of Tuberculosis (ACET) | |
81 FR 15355 - New Postal Product | |
81 FR 15248 - Marine Mammals; File No. 19706 | |
81 FR 15309 - Agency Information Collection Activities; Proposed Collection; Comment Request; the National Maltreatment Reporting System | |
81 FR 15394 - Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing of Proposed Rule Change To Offer Remote ITCH to Trade Options Wave Ports | |
81 FR 15382 - Order Granting Limited Exemptions From Exchange Act Rule 10b-17 and Rules 101 and 102 of Regulation M to First Trust Dorsey Wright Dynamic Focus 5 ETF Pursuant to Exchange Act Rule 10b-17(b)(2) and Rules 101(d) and 102(e) of Regulation M | |
81 FR 15387 - Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing of a Proposed Rule Change To List and Trade Shares of the Pointbreak Diversified Commodity Fund of the Pointbreak ETF Trust Under BATS Rule 14.11(i), Managed Fund Shares | |
81 FR 15358 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Transaction Fees at Rule 7018(a) | |
81 FR 15313 - National Institute of Environmental Health Sciences, Notice of Closed Meetings | |
81 FR 15314 - National Institute of Diabetes and Digestive and Kidney Diseases; Notice of Meeting | |
81 FR 15315 - National Cancer Institute, Notice of Meeting | |
81 FR 15322 - Center for Scientific Review, Notice of Closed Meetings | |
81 FR 15322 - Office of the Director, National Institutes of Health Notice of Meeting | |
81 FR 15314 - Submission for OMB Review; 30-day Comment Request: Cancer Genomics Cloud Pilots Survey (NCI) | |
81 FR 15357 - International Product Change-Global Expedited Package Services-Non-Published Rates | |
81 FR 15334 - Extension of the Designation of Sierra Leone for Temporary Protected Status | |
81 FR 15328 - Extension of the Designation of Liberia for Temporary Protected Status | |
81 FR 15339 - Extension of the Designation of Guinea for Temporary Protected Status | |
81 FR 15159 - Customs and Border Protection's Bond Program; Correction | |
81 FR 15401 - Public Notice For Waiver for Aeronautical Land-Use Assurance at Big Spring McMahon-Wrinkle Airport, Big Spring, TX | |
81 FR 15400 - Notice of Availability of a Final Environmental Assessment (Final EA) and a Finding of No Significant Impact (FONSI)/Record of Decision (ROD) for a Proposed Airport Traffic Control Tower and Base Building at Peoria International Airport, Peoria, Illinois. | |
81 FR 15400 - Notice of Request To Release Airport Property | |
81 FR 15352 - FOIA Advisory Committee; Solicitation for Committee Member Nominations | |
81 FR 15249 - Takes of Marine Mammals Incidental to Specified Activities; Seabird Research Activities in Central California, 2016-2017 | |
81 FR 15289 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; National Longitudinal Transition Study 2012 Phase II | |
81 FR 15156 - Standards for Business Practices of Interstate Natural Gas Pipelines; Correction | |
81 FR 15260 - Comparability Determination for the European Union: Dually-Registered Derivatives Clearing Organizations and Central Counterparties | |
81 FR 15190 - Negotiated Noncompetitive Leasing for the Use of Sand, Gravel, and Shell Resources on the Outer Continental Shelf | |
81 FR 15205 - Air Plan Disapprovals; MS; Prong 4-2008 Ozone, 2010 NO2, | |
81 FR 15295 - Extension of Comment Period; Invitation for Public Comment To Inform the Design of a Consent-Based Siting Process for Nuclear Waste Storage and Disposal Facilities | |
81 FR 15210 - Unlicensed White Space Devices |
Animal and Plant Health Inspection Service
Forest Service
International Trade Administration
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Community Living Administration
Food and Drug Administration
Indian Health Service
National Institutes of Health
Coast Guard
U.S. Citizenship and Immigration Services
U.S. Customs and Border Protection
Fish and Wildlife Service
Land Management Bureau
Ocean Energy Management Bureau
Drug Enforcement Administration
Office of Government Information Services
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Federal Transit Administration
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.thefederalregister.org and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Animal and Plant Health Inspection Service, USDA.
Direct final rule; confirmation of effective date.
On January 22, 2016, the Animal and Plant Health Inspection Service published a direct final rule. The direct final rule notified the public of our intention to amend the black stem rust quarantine and regulations by adding nine varieties to the list of rust-resistant
The effective date of the direct final rule published January 22, 2016, at 81 FR 3701, is confirmed as March 22, 2016.
Dr. Richard N. Johnson, National Policy Manager, Black Stem Rust, Pest Management, PHP, PPQ, APHIS, 4700 River Road Unit 26, Riverdale, MD 20737-1231; (301) 851-2109.
Black stem rust is one of the most destructive plant diseases of small grains that is known to exist in the United States. The disease is caused by a fungus (
The black stem rust quarantine and regulations, which are contained in 7 CFR 301.38 through 301.38-8 (referred to below as the regulations), quarantine the conterminous 48 States and the District of Columbia and govern the interstate movement of certain plants of the genera
On January 22, 2016, the Animal and Plant Health Inspection Service (APHIS) published in the
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We solicited comments on the rule for 30 days ending February 22, 2016, and indicated that, if we received written adverse comments or written notice of intent to submit adverse comments, we would publish a document in the
We received two comments by that date. One commenter fully supported the rule. The other commenter stated that the rule should not be promulgated because it promoted interstate commerce of
7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80, and 371.3.
Section 301.75-15 issued under Sec. 204, Title II, Pub. L. 106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 issued under Sec. 203, Title II, Pub. L. 106-224, 114 Stat. 400 (7 U.S.C. 1421 note).
Nuclear Regulatory Commission.
Direct final rule; confirmation of effective date.
The U.S. Nuclear Regulatory Commission (NRC) is confirming the effective date of March 21, 2016, for the direct final rule that was published in the
Please refer to Docket ID NRC-2015-0156 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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Robert D. MacDougall, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-5175; email:
On January 6, 2016 (81 FR 371), the NRC published a direct final rule amending its regulations in part 72 of title 10 of the
For the Nuclear Regulatory Commission.
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for certain Turbomeca S.A. Makila 2A and 2A1 turboshaft engines. This AD requires tightening the nut attaching the swivel union to the engine power turbine module M04. This AD was prompted by two occurrences of commanded in-flight shutdown following low oil pressure warning. We are issuing this AD to prevent loosening of the nut and oil leakage from the low-pressure oil system, which could lead to in-flight shutdown of the engine and forced landing.
This AD becomes effective April 6, 2016.
We must receive comments on this AD by May 6, 2016.
You may send comments by any of the following methods:
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For service information identified in this AD, contact Turbomeca S.A., 40220 Tarnos, France; phone: 33 0 5 59 74 40 00; telex: 570 042; fax: 33 0 5 59 74 45 16. You may view this service information at the FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call 781-238-7125. It is also available on the Internet at
You may examine the AD docket on the Internet at
Besian Luga, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7750; fax: 781-238-7199; email:
This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2016-0016, dated January 15, 2016 (referred to hereinafter as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
Two occurrences of commanded in-flight shut down following low oil pressure warning were reported. In both cases the nut attaching the swivel union to the power turbine module 04 was found completely loose. After further investigation, it was determined that the application of Turbomeca Service Bulletin (SB) No. 298 79 2831 may have led to incorrect torque application or loosening of the nut.
Turbomeca S.A. has issued Alert Mandatory Service Bulletin No. A298 79 2835, Version A, dated January 14, 2016, to provide guidance to assist operators in resolving this unsafe condition. You may obtain further information by examining the MCAI in the AD docket on the Internet at
This product has been approved by the aviation authority of France and is approved for operation in the United States. Pursuant to our bilateral agreement with the European Community, EASA has notified us of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. This AD requires tightening the nut attaching the swivel union to the engine power turbine module M04.
Turbomeca S.A. has issued Alert Mandatory Service Bulletin No. A298 79 2835, Version A, dated January 14, 2016. The service information describes procedures for tightening the nut attaching the swivel union to the engine power turbine module (M04). 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
An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because operators are required to take action with 7 days or 30 engine hours after the effective date of this AD. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.
We estimate that this AD affects 10 engines installed on airplanes of U.S. registry. We also estimate that it will take about 1 hour per engine to comply with this AD. The average labor rate is $85 per hour. No additional parts are required. Based on these figures, we estimate the total cost of the AD to U.S. operators to be $850.
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 AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this AD:
(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 to the extent that it justifies making a regulatory distinction, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective April 6, 2016.
None.
This AD applies to all Turbomeca S.A. Makila 2A and 2A1 turboshaft engines that have incorporated Turbomeca S.A. Service Bulletin No. 298 79 2831, Version B, dated November 13, 2015, or earlier.
This AD was prompted by two occurrences of in-flight shutdowns as a result of the nut, attaching the swivel union to the power turbine module M04, coming loose. We are issuing this AD to prevent loosening of the nut, and oil leakage from the low pressure oil system, which could lead to in-flight shutdown of the engine and forced landing.
Comply with this AD within the compliance times specified, unless already done.
(1) Within 30 engine hours or 7 days after the effective date of this AD, whichever occurs first, apply 15 Newton-meters torque to the nut, part number 9560130990, attaching the swivel union to the engine power turbine module M04. Use a backup wrench to prevent the swivel union from rotating.
The Manager, Engine Certification Office, FAA, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request. You may email your request to:
(1) For more information about this AD, contact Besian Luga, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7750; fax: 781-238-7199; email:
(2) Refer to MCAI European Aviation Safety Agency AD 2016-0016, dated January 15, 2016, for more information. You may examine the MCAI in the AD docket on the Internet at
(3) Turbomeca S.A. Alert Mandatory Service Bulletin No. A298 79 2835, Version A, dated January 14, 2016, which is not incorporated by reference in this AD, can be obtained from Turbomeca S.A., using the contact information in paragraph (g)(4) of this AD.
(4) For service information identified in this AD, contact Turbomeca S.A., 40220 Tarnos, France; phone: 33 0 5 59 74 40 00; telex: 570 042; fax: 33 0 5 59 74 45 16.
(5) You may view this service information at the FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call 781-238-7125.
None.
Federal Energy Regulatory Commission.
Correcting amendments.
This document contains corrections to the final rule that was published in the
Effective March 22, 2016.
Gary D. Cohen (legal issues), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, Telephone: (202) 502-8321, Email:
The Commission published a document in the
Natural gas, Reporting and recordkeeping requirements.
In consideration of the foregoing, the Commission amends part 157, chapter I, title 18,
15 U.S.C. 717-717z.
(a) * * *
(1)
(2)
(3)
(4)
(5)
(6)
(i) Location, length, and size of pipelines.
(ii) Location and size (rated horsepower) of compressor stations.
(iii) Location and designation of each point of connection of existing and proposed facilities with:
(A) Main-line industrial customers, gas pipeline or distribution systems, showing towns and communities served and to be served at wholesale and retail, and
(B) Gas-producing and storage fields, or other sources of gas supply.
(7)
(8)
(i) Diameter, wall thickness, and length of pipe installed and proposed to be installed and the diameter and wall thickness of the installed pipe to which connection is proposed.
(ii) For each proposed new compressor station and existing station, the size, type and number of compressor units, horsepower required, horsepower installed and proposed to be installed, volume of gas to be used as fuel, suction and discharge pressures, and compression ratio.
(iii) Pressures and volumes of gas at the main line inlet and outlet connections at each compressor station.
(iv) Pressures and volumes of gas at each intake and take-off point and at the beginning and terminus of the existing and proposed facilities and at the intake or take-off point of the existing facilities to which the proposed facilities are to be connected.
(9)
(10)
(i) Assumptions, bases, formulae, and methods used in the development and preparation of such diagrams and accompanying data.
(ii) A description of the pipe and fittings to be installed, specifying the diameter, wall thickness, yield point, ultimate tensile strength, method of fabrication, and methods of testing proposed.
(iii) When lines are looped, the length and size of the pipe in each loop.
(iv) Type, capacity, and location of each natural gas storage field or facility, and of each dehydration, desulphurization, natural gas liquefaction, hydrocarbon extraction, or other similar plant or facility directly attached to the applicant's system, indicating which of such plants are owned or operated by applicant, and which by others, giving their names and addresses.
(v) If the daily design capacity shown in
(vi) The maximum allowable operating pressure of each proposed facility for which a certificate is requested, as permitted by the Department of Transportation's safety standards. The applicant shall certify that it will design, install, inspect, test, construct, operate, replace, and maintain the facilities for which a certificate is requested in accordance with Federal safety standards and plans for maintenance and inspection or shall certify that it has been granted a waiver of the requirements of the safety standards by the Department of Transportation in accordance with the provisions of section 3(e) of the Natural Gas Pipeline Safety Act of 1968. Pertinent details concerning the waiver shall be set forth.
(11)
(i) Those production areas accessible to the proposed construction that contain sufficient existing or potential gas supplies for the proposed project; and
(ii) How those production areas are connected to the proposed construction.
(12)
(i) Names and locations of customer companies and municipalities, showing the number of residential, commercial, firm industrial, interruptible industrial, residential space-heating, commercial space-heating, and other types of customers for each distribution system to be served at retail or wholesale; and the names and locations of each firm and interruptible direct industrial customer whose estimated consumption totals 10,000 Mcf or more in any calendar month or 100,000 Mcf or more per year together with an explanation of the end use to which each of these industrial customers will put the gas.
(ii) Applicant's total annual and peak day gas requirements by classification of service in paragraph (a)(11)(i) of this section, divided as follows: Gas requirements for each distribution area where gas is sold by applicant at retail; for each wholesale customer; for all main line direct industrial customers; and company use and unaccounted-for gas, for both the applicant and each wholesale customer.
(iii) Total past and expected curtailments of service by the applicant and each wholesale customer proposing to receive new or additional supplies of gas from the project, all to be listed by the classifications of service in paragraph (a)(12)(i) of this section.
(iv) Explanation and derivation of basic factors used in estimating future requirements, including, for example: Peak-day and annual degree-day deficiencies, annual load factors of applicant's system and of its deliveries to its proposed customers; individual consumer peak-day and annual consumption factors for each class of consumers, with supporting historical data; forecasted saturation of space-heating as related to past experience; and full detail as to all other sources of gas supply available to applicant and to each of its customers, including manufacturing facilities and liquid petroleum gas.
(v) Conformed copy of each contract, letter of intent or other agreement for sale or transportation of natural gas proposed by the application. Indicate the rate to be charged. If no agreements have been made, indicate the basis for assuming that contracts will be consummated and that service will be rendered under the terms contemplated in the application.
(vi) A full description of all facilities, other than those covered by the application, necessary to provide service in the communities to be served, the estimated cost of such facilities, by whom they are to be constructed, and evidence of economic feasibility.
(vii) A copy of each market survey made within the past three years for such markets as are to receive new or increased service from the project applied for.
(viii) A statement showing the franchise rights of applicant or other person to distribute gas in each community in which service is proposed.
(ix) When an application requires a statement of total peak-day or annual market requirements of affiliates, whose operations are integrated with those of applicant, to demonstrate applicant's ability to provide the service proposed or to establish a gas supply, estimates and data required by this paragraph (a)(12)(ix) shall also be stated in like detail for such affiliates.
(x) When the proposed project is for service which would not decrease the life index of the total system gas supply by more than one year, the data required in paragraphs (a)(12)(i) to (ix), inclusive, of this section need be submitted only as to the particular market to receive new or additional service.
(13)
(14)
(15)
(i) A description of the class (
(ii) Statement of anticipated cash flow, including provision during the period of construction and the first 3 full years of operation of proposed facilities for interest requirements, dividends, and capital requirements.
(iii) A balance sheet and income statement (12 months) of most recent data available.
(iv) Comparative pro forma balance sheets and income statements for the period of construction and each of the first 3 full years of operation, giving effect to the proposed construction and proposed financing of the project.
(v) Any additional data and information upon which applicant proposes to rely in showing the adequacy and availability of resources for financing its proposed project.
(vi) In instances for which principal operations of the company have not commenced or where proposed rates for services are developed on an incremental basis, a brief statement explaining how the applicant will determine the actual allowance for funds used during construction (AFUDC) rate, or if a rate is not to be used, how the applicant will determine the actual amount of AFUDC to be capitalized as a component of construction cost, and why the method is appropriate under the circumstances.
(16)
(i) A statement showing affiliation between applicant and any parties to such agreements or arrangements. See Exhibit D, paragraph (a)(4) of this section.
(ii) Conformed copies of all construction, engineering, management, and other similar service agreements or contracts in any way operative with respect to construction, operation, or financing of facilities which are the subject of the application or will be applicable under system operations.
(17)
(i) Gas system annual revenues and volumes of natural gas related thereto, subdivided by classes of service, and further subdivided by sales to direct industrial customers, sales to other gas utilities, and other sales, indicating billing quantities used for computing charges,
(ii) Gas system annual operating expenses classified in accordance with the Commission's Uniform System of Accounts for Natural Gas Companies; the annual depreciation, depletion, taxes, utility income, and resulting rate of return on net investment in gas plant including working capital. In addition if enlargement or extension of facilities is involved, the cost of service attributable solely to the proposed facilities shall be stated separately with supporting data.
(iii) When the data required in paragraphs (a)(17)(i) and (ii) of this section is not submitted, applicant shall provide in lieu thereof a statement in sufficient detail to show clearly the effect on the operating revenues and operating expenses of the estimated revenues and expenses related to the proposed facility.
(18)
(19)
(A) Identification of the applicable presently effective rate schedules, when no additional tariff filings will be required, or
(B) When changes are required in applicant's presently effective tariff, or if applicant has no tariff, pro forma copies of appropriate changes in or additions to the effective tariff or a pro forma copy of the new gas tariff proposed, or
(C) When a new rate is proposed, a statement explaining the basis used in arriving at the proposed rate. Such statement shall clearly show whether such rate results from negotiation, cost-of-service determination, competitive factors or others, and shall give the nature of any studies which have been made in connection therewith.
(ii) When new rates or changes in present rates are proposed or when the proposed facilities will result in a material change in applicant's average cost of service, such statement shall be accompanied by supporting data showing:
(A) System cost of service for the first calendar year of operation after the proposed facilities are placed in service.
(B) An allocation of such costs to each particular service classification, with the basis for each allocation clearly stated.
(C) The proposed rate base and rate of return.
(D) Gas operating expenses, segregated functionally by accounts.
(E) Depletion and depreciation.
(F) Taxes with the basis upon which computed.
U.S. Customs and Border Protection, Department of Homeland Security.
Final rule; correction.
U.S. Customs and Border Protection (CBP) published in the
Effective on March 22, 2016.
Kara Welty, Revenue Division, Office of Administration, Customs and Border Protection, Tel. (317) 614-4614.
On November 13, 2015, U.S. Customs and Border Protection (CBP) published in the
Prior to the amendments effectuated by CBP Dec. 15-15, § 113.26(a) permitted filing of a bond or rider up to 30 days before the bond's effective date. CBP's intent, as stated in the preamble to CBP Dec. 15-15 at pages 70156 and 70160 of the November 13, 2015,
Bonds, Copyrights, Counterfeit goods, Customs duties and inspection, Imports, Reporting and recordkeeping requirements, Restricted merchandise, Seizures and forfeitures.
For reasons discussed in the preamble, CBP amends 19 CFR part 113 with the following correcting amendment:
6 U.S.C. 101,
(a)
Internal Revenue Service (IRS), Treasury.
Final regulations and removal of temporary regulations.
This document contains final regulations under sections 367, 1248, and 6038B of the Internal Revenue Code (Code). These regulations finalize the elimination of one of two exceptions to the coordination rule between asset transfers and indirect stock transfers for certain outbound asset reorganizations. The regulations also finalize modifications to the exception to the coordination rule for section 351 exchanges so that it is consistent with the remaining asset reorganization exception. In addition, the regulations finalize modifications to the procedures for obtaining relief for failures to satisfy certain reporting requirements. Finally, the regulations finalize certain changes with respect to transfers of stock or securities by a domestic corporation to a foreign corporation in a section 361
Joshua G. Rabon at (202) 317-6937 (not a toll-free number).
On August 20, 2008, the Department of the Treasury (Treasury Department) and the IRS published proposed regulations (REG-209006-89) under sections 367, 1248, and 6038B of the Code (2008 proposed regulations) in the
The Treasury Department and the IRS received one comment regarding the remaining exceptions to the coordination rule. In general, the coordination rule provides that if, in connection with an indirect stock transfer, a U.S. person (U.S. transferor) transfers assets to a foreign corporation (foreign acquiring corporation) in an exchange described in section 351 or 361, section 367 applies first to the asset transfer and then to the indirect stock transfer. Pursuant to the exceptions to the coordination rule, sections 367(a) and (d) will not apply to the outbound transfer of assets by the U.S. transferor to the foreign acquiring corporation to the extent those assets (re-transferred assets) are transferred by the foreign acquiring corporation to a domestic corporation in certain nonrecognition transactions, provided certain conditions are satisfied. Both of the remaining exceptions require that the transferee domestic corporation's adjusted basis in the re-transferred assets not be greater than the U.S. transferor's adjusted basis in those assets, disregarding any basis increase attributable to gain or income recognized by the U.S. transferor on the outbound asset transfer (basis comparison test).
The commenter first inquired whether the remaining coordination rule exceptions apply on a transaction-by-transaction basis such that the conditions of an exception, including the basis comparison test, must be satisfied with respect to all the re-transferred assets, or, alternatively, whether the exceptions apply on an asset-by-asset basis such that the conditions of an exception may be satisfied with respect to a portion of the re-transferred assets. The Treasury Department and the IRS have determined that the regulations clearly provide that the coordination rule exceptions apply to a transaction in its entirety and not on an asset-by-asset basis. See, for example, paragraph (d)(3) of Example 6C of the 2013 temporary regulations, illustrating the application of the coordination rule and the relevant exception using a transaction-based analysis. Thus, the 2013 temporary regulations are not clarified in response to this comment.
Given this transaction-based treatment, the commenter then requested a modification to the aspect of the basis comparison test that disregards an increase in basis in the re-transferred assets in the hands of the transferee domestic corporation that is attributable to gain or income recognized by the U.S. transferor on the outbound transfer of the re-transferred assets to the foreign acquiring corporation. The comment requested that the rule be extended to disregard a basis increase in the re-transferred assets that is attributable to gain or income recognized by the foreign acquiring corporation on the transfer of the re-transferred assets to the transferee domestic corporation when that gain or income is subject to U.S. tax (such as gain recognized by the foreign acquiring corporation with respect to U.S. real property that is subject to U.S. tax under section 897). These regulations do not provide for such an extension.
The coordination rule exceptions were first introduced in proposed regulations (INTL-54-91) published in the
The Treasury Department and the IRS remain concerned that the coordination
Accordingly, the text of the 2013 temporary regulations is adopted without substantive revision. The text is updated where appropriate for ministerial purposes. For example, the appropriate title for the LB&I officer responsible for determining whether a failure to comply with the reporting requirements was due to reasonable cause and not willful neglect is “Director of Field Operations, Cross Border Activities Practice Area of Large Business & International.” It is expected that future guidance projects will update titles in other sections of the existing regulations as appropriate. The corresponding 2013 temporary regulations are removed.
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 is hereby certified that the collections of information contained in these regulations will not have a significant economic impact on a substantial number of small entities. Accordingly, a regulatory flexibility analysis is not required. These regulations primarily will affect United States persons that are large corporations engaged in corporate transactions among their controlled corporations. Thus, the number of affected small entities—in any of the three categories defined in the Regulatory Flexibility Act (small businesses, small organizations, and small governmental jurisdictions)—will not be substantial. The Treasury Department and the IRS estimate that small organizations and small governmental jurisdictions are likely to be affected only insofar as they transfer the stock of a controlled corporation to a related corporation. While a certain number of small entities may engage in such transactions, the Treasury Department and the IRS do not anticipate the number to be substantial. Pursuant to section 7805(f) of the Code, the NPRM preceding this regulation was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
The principal author of these regulations is Joshua G. Rabon of the Office of Associate Chief Counsel (International). 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 1.367(a)-3 is also issued under 26 U.S.C. 367(a).
The revisions and addition read as follows:
(d) * * *
(2) * * *
(vi) * * *
(B)
(
(
(
(
(3) * * *
(ii)
(ii)
(ii)
(e)
(ii)
(2)
(3)
(i) The conditions set forth in § 1.367(a)-7(c) are satisfied with respect to the section 361 exchange.
(ii) If the transferred stock or securities are of a domestic corporation, the U.S. target company (as defined in paragraph (c)(1) of this section) complies with the reporting requirements of paragraph (c)(6) of this section, and the conditions of paragraphs (c)(1)(i), (ii), and (iv) of this section are satisfied with respect to the transferred stock or securities.
(iii) If the U.S. transferor owns (applying the attribution rules of section 318, as modified by section 958(b)) five percent or more of the total voting power or the total value of the stock of the transferee foreign corporation immediately after the transfer of the transferred stock or securities in the section 361 exchange, then the conditions set forth in paragraphs (e)(3)(iii)(A), (B), and (C) of this section are satisfied.
(A) Except as otherwise provided in this paragraph (e)(3)(iii)(A), each U.S. transferor shareholder that is a qualified U.S. person (as defined in paragraph (e)(6)(vii) of this section) owning (applying the attribution rules of section 318, as modified by section 958(b)) five percent or more of the total voting power or the total value of the stock of the transferee foreign corporation immediately after the reorganization enters into a gain recognition agreement that satisfies the conditions of paragraph (e)(6) of this section and § 1.367(a)-8. A U.S. transferor shareholder is not required to enter into a gain recognition agreement pursuant to this paragraph if the amount of gain that would be subject to the gain recognition agreement (as determined under paragraph (e)(6)(i) of this section) is zero.
(B) With respect to non-control group members that are not described in paragraph (e)(3)(iii)(A) of this section, the U.S. transferor recognizes gain equal to the product of the aggregate ownership interest percentage of such non-control group members multiplied by the gain realized by the U.S. transferor on the transfer of the transferred stock or securities.
(C) With respect to each control group member that is not described in paragraph (e)(3)(iii)(A) of this section, the U.S. transferor recognizes gain equal to the product of the ownership interest percentage of such control group member multiplied by the gain realized by the U.S. transferor on the transfer of the transferred stock or securities.
(4)
(5)
(ii)
(6)
(i) The amount of gain subject to the gain recognition agreement shall equal the product of the ownership interest percentage of the U.S. transferor shareholder multiplied by the gain realized by the U.S. transferor on the transfer of the transferred stock or securities, reduced (but not below zero) by the sum of the amounts described in paragraphs (e)(6)(i)(A),(B), (C), and (D) of this section.
(A) Gain recognized by the U.S. transferor with respect to the transferred stock or securities under section 367(a)(1) (including any portion treated as a deemed dividend under section 1248(a)) that is attributable to such U.S. transferor shareholder pursuant to § 1.367(a)-7(c)(2) or (e)(5).
(B) A deemed dividend included in the income of the U.S. transferor with respect to the transferred stock under § 1.367(b)-4(b)(1)(i) that is attributable to such U.S. transferor shareholder pursuant to § 1.367(a)-7(e)(4).
(C) If the U.S. transferor shareholder is subject to an election under § 1.1248(f)-2(c)(1), a deemed dividend included in the income of the U.S. transferor pursuant to § 1.1248(f)-2(c)(3) that is attributable to the U.S. transferor shareholder.
(D) If the U.S. transferor shareholder is not subject to an election under § 1.1248(f)-2(c)(1), the hypothetical section 1248 amount (as defined in § 1.1248(f)-1(c)(4)) with respect to the stock of each foreign corporation transferred in the section 361 exchange attributable to the U.S. transferor shareholder.
(ii) The gain recognition agreement shall include the election described in § 1.367(a)-8(c)(2)(vi).
(iii) The gain recognition agreement shall designate the U.S. transferor
(iv) If the transfer of the transferred stock or securities in the section 361 exchange is pursuant to a triangular asset reorganization, the gain recognition agreement shall include appropriate provisions that are consistent with the principles of § 1.367(a)-8 for gain recognition agreements involving multiple parties. See § 1.367(a)-8(j)(9).
(v) The gain recognition agreement shall not be eligible for termination upon a taxable disposition pursuant to § 1.367(a)-8(o)(1) unless the value of the stock or securities received by the U.S. transferor shareholder in exchange for the stock or securities of the U.S. transferor under section 354 or 356 is at least equal to the amount of gain subject to the gain recognition agreement filed by such U.S. transferor shareholder.
(vi) Except as otherwise provided in this paragraph (e)(6)(vi), if gain is subsequently recognized by the U.S. transferor shareholder under the terms of the gain recognition agreement pursuant to § 1.367(a)-8(c)(1)(i), the increase in stock basis provided under § 1.367(a)-8(c)(4)(i) with respect to the stock received by the U.S. transferor shareholder shall not exceed the amount of the stock basis adjustment made pursuant to § 1.367(a)-7(c)(3) with respect to the stock received by the U.S. transferor shareholder. This paragraph (e)(6)(vi) shall not apply if the U.S. transferor shareholder and the U.S. transferor are members of the same consolidated group at the time of the reorganization.
(vii) For purposes of this section, a qualified U.S. person means a U.S. person, as defined in § 1.367(a)-1T(d)(1), but for this purpose does not include domestic partnerships, regulated investment companies (as defined in section 851(a)), real estate investment trusts (as defined in section 856(a)), and S corporations (as defined in section 1361(a)).
(7)
(8)
(ii)
(B) In order to meet the requirements of § 1.367(a)-7(c)(2)(i), UST must recognize gain equal to the portion of the inside gain (as defined in § 1.367(a)-7(f)(5)) attributable to non-control group members (X), or $7.50x. The $7.50x of gain is computed as the product of the inside gain ($50x) multiplied by X's ownership interest percentage in UST (15%). Pursuant to § 1.367(a)-7(f)(5), the $50x of inside gain is the amount by which the aggregate fair market value ($200x) of the section 367(a) property (as defined in § 1.367(a)-7(f)(10), or Asset A and the CFC1 stock) exceeds the sum of the inside basis ($150x) of such property and the product of the section 367(a) percentage (as defined in § 1.367(a)-7(f)(9), or 100%) multiplied by UST's deductible liabilities (as defined in § 1.367(a)-7(f)(2), or $0x). Pursuant to § 1.367(a)-7(f)(4), the inside basis equals the aggregate basis of the section 367(a) property transferred in the section 361 exchange ($150x), increased by any gain or deemed dividends recognized by UST with respect to the section 367(a) property under section 367 ($0x), but not including the $7.50x of gain recognized by UST under § 1.367(a)-7(c)(2)(i). Pursuant to § 1.367(a)-7(e)(1), the $7.50x of gain recognized by UST is treated as recognized with respect to the CFC1 stock and Asset A in proportion to the amount of gain realized in each. However, because there is no gain realized by UST with respect to Asset A, all $7.50x of the gain is allocated to the CFC1 stock. Furthermore, FA's basis in the CFC1 stock, as determined under section 362 is increased by the $7.50x of gain recognized by UST. See § 1.367(a)-1(b)(4)(i)(B).
(C) The requirement to recognize gain under § 1.367(a)-7(c)(2)(ii) is not applicable
(D) Each control group member (US1 and US2) must separately compute any required adjustment to stock basis under § 1.367(a)-7(c)(3).
(ii)
(B) Unlike paragraph (e),
(C) In order to meet the requirements of paragraph (e)(3)(iii)(C) of this section, UST must recognize $5x of gain attributable to US2 (computed as the product of the $100x of gain realized with respect to the transfer of the CFC1 stock multiplied by the 5% ownership interest percentage of US2). The $5x of gain recognized is not included in the computation of inside basis (see § 1.367(a)-7(f)(4)(i)), but reduces (but not below zero) the amount of gain recognized by UST pursuant to § 1.367(a)-7(c)(2)(ii) that is attributable to US2. Furthermore, FA's basis in the CFC1 stock as determined under section 362 is increased for the $5x of gain recognized. See § 1.367(a)-1(b)(4)(i)(B). Assuming US1 and X enter into the gain recognition agreements described in paragraph (ii)(B) of this
(D) As described in paragraph (ii)(B) of
(E) As described in paragraph (ii)(C) of
(F) Each control group member (US1 and US2) must separately compute any required adjustment to stock basis under § 1.367(a)-7(c)(3).
(G) The amount of gain subject to the gain recognition agreement filed by each of US1 and X is determined pursuant to paragraph (e)(6)(i) of this section. With respect to US1, the amount of gain subject to the gain recognition agreement is $80x. The $80x is computed as the product of US1's ownership interest percentage (80%) multiplied by the gain realized by UST in the CFC1 stock as determined prior to taking into account the application of any other provision of section 367 ($100x), reduced by the sum of the amounts described in paragraphs (e)(6)(i)(A) through (D) of this section attributable to US1 ($0x). With respect to X, the amount of gain subject to the gain recognition agreement is $7.50x. The $7.50x is computed as the product of X's ownership interest percentage (15%) multiplied by the gain realized by UST in the CFC1 stock as determined prior to taking into account the application of any other provision of section 367 ($100x), reduced by the sum of the amounts described in paragraphs (e)(6)(i)(A) through (D) of this section attributable to X ($7.50x, as computed in paragraph (ii)(D) of this
(H) In order the meet the requirements of paragraph (e)(6)(ii) of this section, each gain recognition agreement must include the election described in § 1.367(a)-8(c)(2)(vi). Furthermore, pursuant to paragraph (e)(6)(iii) of this section, US1 and X must be designated as the U.S. transferor on their respective gain recognition agreements for purposes of § 1.367(a)-8.
(ii)
(B) UST's transfer of the CFC1 stock and CFC2 stock to FA pursuant to the section 361 exchange is subject to § 1.367(b)-4(b)(1)(i), which applies prior to the application of § 1.367(a)-7(c). See paragraph (e)(1) of this section. UST (the exchanging shareholder) is a U.S. person and a section 1248 shareholder with respect to CFC1 and CFC2 (each a foreign acquired corporation). However, UST is not required to include in income as a deemed dividend the section 1248 amount with respect to the CFC1 stock ($20x) or CFC2 stock ($130x) under § 1.367(b)-4(b)(1)(i) because, immediately after UST's section 361 exchange of the CFC1 stock and CFC2 stock for FA stock (and before the distribution of the FA stock to US1, US2, and X under section 361(c)(1), FA, CFC1, and CFC2 are controlled foreign corporations as to which UST is a section 1248 shareholder. See § 1.367(b)-4(b)(1)(ii)(A). However, if UST were required to include in income as a deemed dividend the section 1248 amount with respect to the CFC1 stock or CFC2 stock (for example, if FA were not a controlled foreign corporation), such deemed dividend would be taken into account prior to the application of § 1.367(a)-7(c). Furthermore, because US1, US2, and X are all persons described in paragraph (e)(3)(iii)(A) of this section, any such deemed dividend would increase inside basis. See § 1.367(a)-7(f)(4).
(C) In order to meet the requirements of § 1.367(a)-7(c)(2)(i), UST must recognize gain equal to the portion of the inside gain attributable to non-control group members (X), or $68x. The $68x of gain is computed as the product of the inside gain ($340x) multiplied by X's ownership interest percentage in UST (20%), reduced (but not below zero) by $0x, the sum of the amounts described in § 1.367(a)-7(c)(2)(i)(A) through (C). Pursuant to § 1.367(a)-7(f)(5), the $340x of inside gain is the amount by which the aggregate fair market value ($400x) of the section 367(a) property (Asset A, CFC1 stock, and CFC2 stock) exceeds the sum of the inside basis ($60x) and $0x (the product of the section 367(a) percentage (100%) multiplied by UST's deductible liabilities ($0x)). Pursuant to § 1.367(a)-7(f)(4), the inside basis equals the aggregate basis of the section 367(a) property transferred in the section 361 exchange ($60x), increased by any gain or deemed dividends recognized by UST with respect to the section 367(a) property under section 367 ($0x), but not including the $68x of gain recognized by UST under § 1.367(a)-7(c)(2)(i). Under § 1.367(a)-7(e)(1), the $68x gain recognized is treated as being with respect to the CFC1 stock, CFC2 stock, and Asset A in proportion to the amount of gain realized by UST on the transfer of the property. The amount treated as recognized with respect to the CFC1 stock is $4x ($68x gain multiplied by $20x/$340x). The amount treated as recognized with respect to the CFC2 stock is $26x ($68x gain multiplied by $130x/$340x). The amount treated as recognized with respect to Asset A is $38x ($68x gain multiplied by $190x/$340x). Under section 1248(a), UST must include in gross income as a dividend the $4x gain recognized with respect to the CFC1 stock and the $26x gain recognized with respect to CFC2 stock. Furthermore, FA's basis in the CFC1 stock, CFC2 stock, and Asset A, as determined under section 362, is increased by the amount of gain recognized by UST with respect to such property. See § 1.367(a)-1(b)(4)(i)(B). Thus, FA's basis in the CFC1 stock is $24x ($20x increased by $4x of gain), the CFC2 stock is $56x ($30x increased by $26x of gain), and Asset A is $48x ($10x increased by $38x of gain).
(D) The requirement to recognize gain under § 1.367(a)-7(c)(2)(ii) is not applicable because the portion of the inside gain attributable to US1 and US2 (control group members) can be preserved in the stock received by each such shareholder. As described in paragraph (ii)(C) of this Example 3, the inside gain is $340x. US1's attributable inside gain of $170x (equal to the product of $340x inside gain multiplied by US1's 50% ownership interest percentage, reduced by $0x, the sum of the amounts described in § 1.367(a)-7(c)(2)(ii)(A)(
(E) Each control group member (US1 and US2) separately computes any required adjustment to stock basis under § 1.367(a)-7(c)(3). US1's section 358 basis in the FA stock received of $180x (equal to US1's basis in the UST stock exchanged) is reduced to preserve the attributable inside gain with respect to US1, less any gain recognized with respect to US1 under § 1.367(a)-7(c)(2)(ii). Because UST does not recognize gain on the section 361 exchange with respect to US1 under § 1.367(a)-7(c)(2)(ii) (as determined in paragraph (ii)(D) of this
(F) UST's distribution of the FA stock to US1, US2, and X under section 361(c)(1)
(G) If, however, UST along with US1 and US2 (each a section 1248 shareholder of FA immediately after the distribution) elect to apply the provisions of § 1.1248(f)-2(c) (as provided in § 1.1248(f)-2(c)(1)), the amount that UST is required to include in income as a dividend under § 1.1248(f)-1(b)(3) ($120x total section 1248(f) amount as computed in paragraph (ii)(F) of this
(
(
(
(H) As stated in paragraph (ii)(G)(
(
(
(
(I) Under § 1.1248(f)-2(c)(3), neither US1 nor US2 is required to reduce the aggregate section 358 basis in the portions of their respective shares of FA stock, and UST is not required to include in gross income any additional deemed dividend.
(
(
(J) The amount of gain subject to the gain recognition agreement filed by each of US1 and US2 is determined pursuant to paragraph (e)(6)(i) of this section. The amount of gain subject to the gain recognition agreement filed by US1 with respect to the stock of CFC1 and CFC2 is $10x and $65x, respectively. The $10x and $65x are computed as the product of US1's ownership interest percentage (50%) multiplied by the gain realized by UST in the CFC1 stock ($20x) and CFC2 stock ($130x), respectively, as determined prior to taking into account the application of any other provision of section 367, reduced by the sum of the amounts described in paragraphs (e)(6)(i)(A) through (D) of this section with respect to the CFC1 stock and CFC2 stock attributable to US1 ($0x with respect to the CFC1 stock, and $0x with respect to the CFC2 stock). The amount of gain subject to the gain recognition agreement filed by US2 with respect to the stock of CFC1 and CFC2 is $6x and $39x, respectively. The $6x and $39x are computed as the product of US2's ownership interest percentage (30%) multiplied by the gain realized by UST in the CFC1 stock ($20x) and CFC2 stock ($130x), respectively, as determined prior to taking into account the application of any other provision of section 367, reduced by the sum of the amounts described in paragraphs (e)(6)(i)(A) through (D) of this section with respect to the CFC1 stock and CFC2 stock attributable to US2 ($0x with respect to the CFC1 stock, and $0x with respect to the CFC2 stock). X is not required to enter into a gain recognition agreement because the amount of gain that would be subject to the gain recognition agreement is $0x with respect to the CFC1 stock, and $0x with respect to the CFC2 stock, computed as X's ownership percentage (20%) multiplied by the gain realized in the stock of CFC1 ($20x multiplied by 20%, or $4x) and CFC2 ($130x multiplied by 20%, or $26x), reduced by the amount of gain recognized by UST with respect to the stock of CFC1 and CFC2 that is attributable to X pursuant to § 1.367(a)-7(c)(2) ($4x and $26x, respectively, as determined in paragraph (ii)(C) of this
(9)
(g) * * *
(1) * * *
(vii) * * *
(A) Except as provided in this paragraph (g)(1)(vii), the rules of paragraph (e) of this section apply to transfers of stock or securities occurring on or after April 17, 2013. For matters covered in this section for periods before April 17, 2013, but on or after March 13, 2009, see § 1.367(a)-3(e) as contained in 26 CFR part 1 revised as of April 1, 2012. For matters covered in this section for periods before March 13, 2009, but on or after March 7, 2007, see § 1.367(a)-3T(e) as contained in 26 CFR part 1 revised as of April 1, 2007. For matters covered in this section for periods before March 7, 2007, but on or after July 20, 1998, see § 1.367(a)-8(f)(2)(i) as contained in 26 CFR part 1 revised as of April 1, 2006.
(ix) Paragraphs (d)(2)(vi)(B)(
(a) through (e)(3) [Reserved]. For further guidance, see § 1.367(a)-6T(a) through (e)(3).
(4)
(e)(5) through (i) [Reserved]. For further guidance, see § 1.367(a)-6T(e)(5) through (i).
(a)
(2)
(ii)
(b) * * *
(1) * * * The provisions of § 1.1248(f)-3(a) apply to distributions occurring on or after April 17, 2013.
The revision reads as follows:
(f) * * *
(3)
(ii)
(B)
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for Agusta S.p.A. (Agusta) Model A109A, A109A II, A109C, A109E, A109K2, A109S and AW109SP helicopters. This proposed AD would require visually inspecting the tail rotor drive shaft assembly (drive shaft) for a crack. This proposed AD is prompted by the discovery of three cracks on the drive shaft of a Model A109S helicopter. The proposed actions are intended to detect a crack on the drive shaft to prevent failure of the driveshaft, failure of the tail rotor, and subsequent loss of helicopter control.
We must receive comments on this proposed AD by May 23, 2016.
You may send comments by any of the following methods:
•
•
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You may examine the AD docket on the Internet at
For service information identified in this proposed rule, contact AgustaWestland, Product Support Engineering, Via del Gregge, 100, 21015 Lonate Pozzolo (VA) Italy, ATTN: Maurizio D'Angelo; telephone 39-0331-664757; fax 39-0331-664680; or at
Martin R. Crane, Aviation Safety Engineer, Safety Management Group, Rotorcraft Directorate, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email
We invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.
We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.
EASA, which is the aviation authority for Italy, has issued AD No. 2015-0054, dated March 27, 2015, to correct an unsafe condition for Model A109A with retrofit kit part number 109-0820-27-101 installed, and Model A109A II, A109C, A109E, A109K2, A109LUH, A109S, and AW109SP helicopters.
EASA advises that during scheduled maintenance on a Model A109S helicopter, three cracks were found on the drive shaft. An investigation could not determine the cause of the cracking but concluded it could not have been caused by fatigue. This condition, if not detected and corrected, could lead to tail rotor failure, possibly resulting in loss of helicopter control, EASA advises. EASA AD No. 2015-0054 consequently requires a one-time inspection of the drive shaft, and replacing the drive shaft if cracks are found.
These helicopters have been approved by the aviation authority of Italy and are approved for operation in the United States. Pursuant to our bilateral agreement with Italy, EASA, its technical representative, has notified us of the unsafe condition described in its AD. We are proposing this AD because we evaluated all known relevant information and determined that an unsafe condition is likely to exist or develop on other products of the same type design.
We reviewed AgustaWestland Bollettino Tecnico (BT) No. 109-147 for Model A109A helicopters with retrofit kit P/N 109-0820-27-101 installed, Model A109A II, and Model A109C helicopters; BT No. 109EP-143 for Model A109E helicopters; BT No. 109K-68 for Model A109K2 helicopters; BT No. 109S-067 for Model A109S
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 proposed AD would require, within 50 hours time-in-service, visually inspecting the drive shaft for a crack and replacing the drive shaft if it is cracked.
The EASA AD applies to Agusta Model A109LUH helicopters. This proposed AD would not because that model does not have an FAA type certificate.
We consider this proposed AD to be an interim action. The design approval holder has not determined the cause of the unsafe condition identified in this proposed AD. If a cause is determined and actions developed to address the cause, we might consider additional rulemaking.
We estimate that this proposed AD would affect 142 helicopters of U.S. Registry and that labor costs average $85 per work-hour. Based on these estimates, we expect the following costs:
• Inspecting the drive shaft would require 9 work-hours and no parts. The estimated cost would be $765 per helicopter and $108,630 for the U.S. fleet.
• Replacing the drive shaft would not require additional labor hours. Parts would cost $6,082 per helicopter.
According to Agusta service information, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage by Agusta. Accordingly, we have included all costs in our cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed, 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 to the extent that it justifies making a regulatory distinction; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD applies to Agusta S.p.A. Model A109A, A109A II, A109C, A109E, A109K2, A109S, and AW109SP helicopters with a tail rotor drive shaft assembly (drive shaft), part number 109-8412-02-1 or 109-8412-02-3, installed, certificated in any category.
This AD defines the unsafe condition as a crack in a drive shaft. This condition could result in failure of a drive shaft, failure of the tail rotor, and subsequent loss of helicopter control.
We must receive comments by May 23, 2016.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
Within 50 hours time-in-service:
(1) Visually inspect each drive shaft in accordance with the Compliance Instructions, paragraph 4, of AgustaWestland Bollettino Tecnico (BT) No. 109-147, dated March 25, 2015; BT No. 109EP-143, dated March 25, 2015; BT No. 109K-68, dated March 25, 2015; BT No. 109S-067, dated March 25, 2015; or BT No. 109SP-094, dated March 25, 2015, as applicable for your model helicopter.
(2) If there is a crack, replace the drive shaft before further flight.
(1) The Manager, Safety Management Group, FAA, may approve AMOCs for this AD. Send your proposal to: Martin R. Crane, Aviation Safety Engineer, Safety Management Group, Rotorcraft Directorate, FAA, 10101 Hillwood Pkwy, Fort Worth, TX 76177; telephone (817) 222-5110; email
(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC.
The subject of this AD is addressed in European Aviation Safety Agency (EASA) AD No. 2015-0054, dated March 27, 2015. You may view the EASA AD on the Internet at
Joint Aircraft Service Component (JASC) Code: 6510, Tail Rotor Drive Shaft.
Food and Drug Administration, HHS.
Notice of petition.
The Food and Drug Administration (FDA or we) is announcing that we have filed a petition, submitted by Milton W. Chu, M.D., proposing that the color additive regulations be amended to provide for the safe use of titanium dioxide and [phthalocyaninato (2-)] copper as orientation marks for intraocular lenses.
The color additive petition was filed on February 19, 2016.
Laura Dye, Center for Food Safety and Applied Nutrition (HFS-265), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740-3835, 240-402-1275.
Under section 721(d)(1) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 379e(d)(1)), we are giving notice that we have filed a color additive petition (CAP 6C0305), submitted by Milton W. Chu, M.D., 5800 Santa Rosa Rd., Suite 111, Camarillo, CA 93012. The petition proposes to amend the color additive regulations in § 73.3126
We have determined under 21 CFR 25.32(l) 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.
Food and Drug Administration, HHS.
Proposed rule.
The Food and Drug Administration (FDA or Agency) has determined that Powdered Surgeon's Gloves, Powdered Patient Examination Gloves, and Absorbable Powder for Lubricating a Surgeon's Glove present an unreasonable and substantial risk of illness or injury and that the risk cannot be corrected or eliminated by labeling or a change in labeling. Consequently, FDA is proposing these devices be banned.
Submit either electronic or written comments by June 20, 2016.
You may submit comments as follows:
Submit electronic comments in the following way:
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• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
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• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
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Elizabeth Claverie-Williams, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 2508, Silver Spring, MD 20993, 301-796-6298, email:
The Medical Device Amendments of 1976 (Pub. L. 94-295) (the amendments), amending the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 321
FDA is proposing to ban powdered surgeon's gloves (21 CFR 878.4460), powdered patient examination gloves (21 CFR 880.6250), and absorbable powder for lubricating a surgeon's glove (21 CFR 878.4480). Non-powdered gloves are not included in this ban. In order to clarify this distinction, we are proposing to amend the descriptions of these devices in the regulations to specify that, if the ban were to be finalized, these regulations would apply only to non-powdered gloves. FDA's conclusions, which are discussed in this document, are based on an evaluation of all available data and information known to the Agency. However, to the extent that there is additional information that we should consider regarding the risks and benefits of powdered gloves, comments should be submitted as described previously.
The proposed rule would apply to all powdered gloves except powdered radiographic protection gloves. FDA has determined that the banning standard does not apply to this type of glove. In addition, we are not aware of any powdered radiographic protection gloves that are currently on the market. The proposed ban would not apply to powder used in the manufacturing process (
Medical gloves play a significant role in the protection of both patients and health care personnel in the United States. Health care personnel rely on medical gloves as barriers against transmission of infectious diseases and contaminants when conducting surgery, as well as when conducting more limited interactions with patients.
Various types of powder have been used to lubricate gloves so that wearers could don the gloves more easily. The first lubricant powder used to aid in surgical glove donning, introduced in the late nineteenth century, was composed of
In the 1980s, preventing the transmission of acquired immunodeficiency syndrome (AIDS) became a major public health concern. The Centers for Disease Control and Prevention (CDC) recommended that health care workers use appropriate barrier precautions to prevent exposure to the human immunodeficiency virus (HIV) and other bloodborne pathogens. Responding to heightened concerns about cross-contamination between patients and health care workers, in the
On December 12, 1990, FDA published regulations describing certain circumstances under which surgeon's and patient examination gloves would be considered adulterated (55 FR 51254). The regulations established the sampling plans and test methods for glove leakage defects that we would use to determine whether gloves were adulterated (see 21 CFR 800.20). These sampling plans and test methods were further updated in 2006 (December 19, 2006, 71 FR 75865 at 75876). Subsequently, we initiated inspections of glove manufacturers to ensure conformance with the acceptable quality levels identified in the regulation.
In 1997, FDA issued its Medical Glove Powder Report (Ref. 5), which described the risks presented by glove powder and the state of the medical glove market at that time. We reviewed the clinical and experimental data on the risks and adverse events associated with the use of powder on surgical and medical gloves available at that time in the medical literature. We also reviewed the information in our MedWatch database on the adverse events associated with the use of powdered gloves. In addition, the Agency reviewed the commercial information available at that time on sources for medical gloves, relative numbers and types of gloves, and the costs of different glove types. FDA found that glove powder could cause inflammation and granulomas, and that aerosolized glove powder on natural rubber latex (NRL) gloves can carry allergenic proteins that have the potential to cause respiratory allergic reactions.
Even though the Agency was aware of certain health risks presented by glove powder, based on the totality of information available in 1997, the Agency opted not to initiate a ban. At the time, use of chlorination was the most common alternative to powder for the purpose of lubricating NRL surfaces. However, the chlorination process was recognized to cause physical damage to gloves and to alter the physical properties of treated gloves if not performed properly (Ref. 5). In 1997, FDA was concerned that widespread use of glove chlorination would compromise some of the mechanical and physical properties of gloves including shelf life, grip, and in-use durability, since these were widely recognized risks of poorly managed chlorination processes. Polymer coatings to replace glove powder for glove lubrication had been developed but, because of their increased cost, were not yet in widespread use at the time. The report concluded that banning powdered gloves in 1997 would cause a market shortage of medical gloves, which could result in inferior glove products and increased costs to the U.S. health care system due to a lack of immediate availability of suitable alternatives.
We identified two options in 1997: (1) Provide adequate information for the consumer to make an informed decision by, among other things, requiring that the amount of water-soluble NRL proteins and the amount of glove powder present in powdered gloves be stated on the product label and establishing upper limits for the amount of these substances allowed in gloves, or (2) initiate the process to ban glove powder at some predetermined time in the future and require manufacturers to convert to powder-free production or provide safety data, including foreign body and airborne allergen concerns, by a certain date.
At that time, the Agency determined that the first option was preferable and issued the draft guidance entitled “Draft Guidance for Industry and FDA Staff: Medical Glove Guidance Manual” on July 30, 1999 (Ref. 6). In addition to other changes, including the natural rubber latex caution statement for gloves made of NRL, this document advised industry that FDA recognized the newly issued consensus standard ASTM D6124, “Standard Test Method for Residual Powder on Medical Gloves,” which established an accepted method to measure residual powder or debris on medical gloves (Ref. 2). In the draft guidance, we recommended that medical gloves have no more than 2 mg of residual powder or debris per glove in order to label that glove as “powder-free.” Since 1999, gloves with low amounts of residual powder after manufacturing have been referred to as “powder-free” or “powderless.” Such gloves may have residual powder from the manufacturing process removed by washing and chlorination, and they may be coated with a polymer to aid donning. For comparison, powdered medical gloves contain approximately 120 to 400 mg of residual particulates, mold release, and donning powder.
In addition to the draft guidance issued in 1999, in the same issue of the
FDA did not finalize the 1999 Draft Guidance. The Draft Guidance was withdrawn when we issued our “Guidance for Industry and FDA Staff—Medical Glove Guidance Manual,” on January 22, 2008 (Ref. 1). Recognition and use of ASTM D6124 to reduce the powder burden on medical gloves continued in the revised guidance. Since we issued the draft guidance in 1999, the number of adverse events reported to FDA related to glove use and the number of powdered glove devices seeking premarket clearance have decreased.
FDA has received several citizen petitions regarding the use of glove powder. In 1998, a citizen petition was submitted by Public Citizen requesting that FDA ban the use of cornstarch powder in the manufacture of latex surgeon's and patient examination gloves (see Docket No. FDA-2008-P-0531). While there was scientific evidence in 1998 that indicated that the use of glove powder was associated with negative health consequences (partly due to the ability of glove powder to facilitate sensitization of health care workers to NRL and partly due to adverse effects due only to contact with glove powder), as discussed previously, quality concerns, the lack of suitable alternatives, and costs weighed against FDA initiating the process to remove powdered gloves from the market. Moreover, the impact of reductions in the amount of NRL protein used in gloves and in the amount of powder added to gloves, which were being done as means to mitigate the risk of health care worker sensitization to NRL, had not yet been studied for a reasonable length of time. As a result of these considerations, we did not grant the 1998 petition to ban the use of glove powder.
Approximately a decade later, between 2008 and 2011, FDA received three petitions requesting, among other things, that the Agency ban the use of cornstarch powder on NRL and synthetic latex surgical and examination gloves (FDA-2008-P-0531-0001, FDA-2009-P-0117-0001, and FDA-2011-P-
FDA is proposing to ban the following devices: (1) Powdered surgeon's gloves (21 CFR 878.4460), (2) powdered patient examination gloves (21 CFR 880.6250), and (3) absorbable powder for lubricating a surgeon's glove (21 CFR 878.4480).
Because the classification regulations for these device types do not distinguish between powdered and non-powdered versions, FDA is proposing to amend the descriptions of these devices in the regulations to specify that, if this proposed ban is finalized, these regulations will apply only to non-powdered gloves while the powdered version of each type of glove will be added to 21 CFR 895 Subpart B—Listing of Banned Devices.
Section 516(a)(1) of the FD&C Act authorizes FDA to ban a device intended for human use by regulation if it finds, on the basis of all available data and information, that such a device “presents substantial deception or an unreasonable and substantial risk of illness or injury.” A banned device is adulterated under section 501(g) of the FD&C Act (21 U.S.C. 351(g)).
In determining whether a deception or risk of illness or injury is “substantial,” FDA will consider whether the risk posed by the continued marketing of the device, or continued marketing of the device as presently labeled, is important, material, or significant in relation to the benefit to the public health from its continued marketing (see 21 CFR 895.21(a)(1)). Although FDA's device banning regulations do not define “unreasonable risk,” in the preamble to the final rule promulgating 21 CFR part 895, we explained that, with respect to “unreasonable risk,” it “will conduct a careful analysis of risks associated with the use of the device relative to the state of the art and the potential hazard to patients and users” (44 FR 29214 at 29215, May 18, 1979). The state of the art with respect to this proposed rule relates to current technical and scientific knowledge and medical practice as it pertains to the various medical gloves that are used when treating patients.
Thus, in determining whether a device presents an “unreasonable and substantial risk of illness or injury,” FDA analyzes the risks and the benefits the device poses to patients and, in the case of powdered gloves, other individuals who come in contact with these devices, by comparing those risks and benefits to the risks and benefits posed by alternative devices and/or treatments being used in current medical practice. Actual proof of illness or injury is not required; we need only find that a device presents the requisite degree of risk on the basis of all available data and information (H. Rep. 94-853 at 19; 44 FR 29215).
Whenever FDA finds, on the basis of all available data and information, that the device presents substantial deception or an unreasonable and substantial risk of illness or injury, and that such deception or risk cannot be, or has not been, corrected or eliminated by labeling or by a change in labeling, FDA may initiate a proceeding to ban the device (see 21 CFR 895.20). If FDA determines that the risk can be corrected through labeling, FDA will notify the responsible person of the required labeling or change in labeling necessary to eliminate or correct such risk (see 21 CFR 895.25).
Section 895.21(d) requires this proposed rule to summarize: (1) The Agency's findings regarding substantial deception or the unreasonable and substantial risk of illness or injury; (2) the reasons why FDA initiated the proceeding; (3) the evaluation of the data and information FDA obtained under provisions (other than section 516) of the FD&C Act, as well as information submitted by the device manufacturer, distributer, or importer, or any other interested party; (4) the consultation with the classification panel; (5) the determination that labeling, or a change in labeling, cannot correct or eliminate the deception or risk; (6) the determination of whether, and the reasons why, the ban should apply to devices already in commercial distribution, sold to ultimate users, or both; and (7) any other data and information that FDA believes are pertinent to the proceeding.
We have grouped some of these together within broader categories and address them in the following order:
• Evaluation of data and information regarding glove powder, including data and information FDA obtained under provisions other than section 516 of the FD&C Act, information submitted by the device manufacturer and other interested parties, the consultation with the classification panel, and other data and information that FDA believes are pertinent to the proceeding, with respect to:
• The reasons FDA initiated the proceeding, our determination that glove powder presents an unreasonable and substantial risk of illness or injury (FDA has not made a finding regarding substantial deception);
• FDA's determination that labeling, or a change in labeling, cannot correct or eliminate the risk; and
• FDA's determination that the ban applies to devices already in commercial distribution and sold to ultimate users, and the reasons for this determination.
A thorough review of the information that has become available since FDA issued the Medical Glove Powder Report in 1997 (Ref. 5) supports FDA's conclusion that powdered surgeon's gloves, powdered patient examination gloves, and absorbable powder for
In reaching the conclusions that form the basis for this proposed rule, FDA considered evidence from multiple sources. FDA re-examined the 1997 Report on Medical Glove Powder (Ref. 5) along with its scientific and clinical literature references, its analysis of reported adverse events due to the use of gloves, and its analysis of glove market availability (Ref. 5). In addition, we performed a more contemporary analysis of relevant scientific literature and of adverse events related to medical glove use from 1992 through 2014 and obtained new market availability data on medical glove use by type. We also reviewed the information contained in related citizen petitions, as well as the comments associated with the petitions. Further, the Agency reviewed the public statements and actions of other U.S. government Agencies, U.S. health care organizations, and of foreign governments concerning powdered natural rubber latex gloves.
The sections that follow discuss the information that FDA evaluated as part of the decision to propose this ban. Sections II.A and II.B provide a concise summary of the benefits and risks that FDA believes are posed by the use of powdered gloves. Section II.C provides a discussion on the state of the art as it pertains to medical gloves. Sections II.D, II.E, and II.F provide detailed discussions of the scientific literature, actions of other regulatory and professional organizations, and adverse event reports that formed the basis of the summaries in sections II.A and II.B.
To help determine whether powdered gloves present an unreasonable and substantial risk of illness or injury, FDA issued a notice in the
Some studies have reported that alternatives to powdered gloves, such as vinyl gloves, may not provide as good of dexterity and biological impermeability as NRL gloves (Ref. 8). However, this proposed ban does not include non-powdered NRL gloves, which offer the same performance characteristics of powdered NRL gloves, and several studies have found that alternatives, such as nitrile and neoprene gloves, offer the same level of protection, dexterity, and performance as NRL gloves (Ref. 9 to 14). Thus, the only benefits to using powdered gloves that FDA has been able to identify is a greater ease of donning and doffing and decreased tackiness of gloves packaged together.
Although some risks of these devices are similar for all glove types, the level and types of risks presented by powdered gloves can vary depending on the composition of the glove (synthetic versus NRL) and its indicated uses (surgeon's glove versus patient examination glove). While we acknowledge that powdered synthetic patient examination gloves present less risk than powdered NRL surgeon's gloves, we concluded that the risks posed by either of these glove types is unreasonable and substantial in relation to the minimal benefits that powdered gloves offer, especially when considering the benefits and risks posed by readily available alternative devices (discussed in section II.C). The identified risks of powdered gloves are as follows:
The powder used for lubricating a surgeon's glove, which is often used to lubricate patient examination gloves as well, presents risks not only to the user and patient, but also to other individuals that might be exposed to it. This powder, often referred to as Absorbable Dusting Powder or ADP, has been shown to cause acute severe airway inflammation, granulomas, and adhesions. These risks are present before the glove is lubricated with the powder. Then, during the lubrication process, the powder particles may absorb harmful contaminants (Ref. 15). As mentioned previously, the risks presented by glove powder can vary depending on the type of glove on which it is used. When used on NRL gloves, powder has the ability to adhere to latex allergenic proteins that, when aerosolized and inhaled, present significant risks to patients, including inflammatory responses, hypersensitivity reactions, and allergic reactions (see risks on powdered NRL gloves in the paragraphs that follow). Additionally, latex sensitive individuals can experience cutaneous reactions upon skin exposure to the latex allergenic proteins adherent to the powder (Refs. 15 and 16). These consequences of powder may persist even after patients or health care workers are no longer in contact with the powder. Risks such as allergic reactions, granulomas, and adhesions can be long-lasting, and may not be mitigated by removing powder after exposure (Refs 17 to 19).
When absorbable dusting powder is used on NRL gloves, the combination presents specific risks that apply to both surgeon's and patient examination gloves. The powder used to lubricate these gloves may bind to natural rubber latex proteins. The powder carries the latex protein, resulting in a latex aerosol whenever health care workers put on or remove the gloves. Clinical and laboratory studies indicate that glove powder facilitates impaired respiratory function due to allergic and inflammatory responses to NRL in health care personnel and in animals exposed to glove powder because
Although powdered synthetic surgeon's gloves do not present the risk of allergic reactions due to aerosolized powder that is carrying latex, the use of powdered synthetic gloves still presents the risk of exposing individuals to the powder via inhalation, which can lead to airway inflammation. Additionally, use of these gloves by health care providers can expose patients' tissues during surgery and invasive examinations to deposits of glove powder, which could then result in granuloma formation in any exposed site, as well as peritoneal and other tissues adhesions. Recent studies show that cornstarch glove powder causes peritoneal adhesion formation and granulomatous reactions in experimental animal models (Refs. 24, 36 to 39) as well as in exposed patient tissues with resulting patient injury (Refs. 40 and 41). In addition to risk of powder-induced adhesion formation, many in vitro and animal studies have shown the adverse effects of glove powder on wound healing, including increases in wound inflammation (Refs. 42 to 44). These studies indicate that powder may promote infection in wounds, which can lead to wound healing complications.
Although the powder on patient examination gloves is not exposed to internal organs during surgery, these gloves still present a substantial risk of illness or injury because they are nevertheless exposed to internal tissue when employed in procedures such as oral, vaginal, gynecological, and rectal examinations. Powder may be introduced to the female reproductive tract during gynecological exams (Refs. 45 to 47), which may lead to female reproductive complications (Refs. 18, 48 to 50). The migration of powder into the reproductive tract was demonstrated in an animal model and human clinical studies (Refs. 21, 40, 51). The wearers of these gloves can also facilitate the migration of powder from these gloves into the body when handling instruments such as endoscopes or when performing postsurgical wound care. Thus, the powder on synthetic patient exam gloves presents risks similar to those of the powder on synthetic surgeon's gloves, including granulomas and adhesions, and the resulting complications. Finally, as with synthetic surgeon's gloves, powdered patient examination gloves also can expose those in their proximity to the risk of powder inhalation, even if not carrying NRL.
FDA has considered the reasonableness of the risks of powdered surgeon's gloves, powdered patient examination gloves, and absorbable powder for lubricating a surgeon's gloves relative to the state of the art,
Over the last two decades FDA has observed a progressive increase in the use of non-powdered gloves. Since 1998, medical glove manufacturers have developed a variety of non-powdered gloves, which can be made from various materials, including NRL, polyvinyl chloride, nitrile, and neoprene. Both non-powdered patient examination and non-powdered surgeon's gloves are currently marketed. These alternatives are readily available at similar costs to powdered gloves. As a result, both industry and glove users appear to be shifting away from the use of powdered gloves, which has led to an increase in the manufacturing and usage of alternative non-powdered gloves. Annual sales figures from 2000 through 2008 indicate a consistent increase in non-powdered surgeon's and patient examination glove sales as a percent of total glove sales, and recent projections of annual gloves sales indicate that at least 93 percent of medical providers have switched to non-powdered gloves (Ref. 52).
These trends can be at least partially attributed to scientific studies that have been conducted in this area that have helped raise public awareness of powder-induced latex hypersensitivity, peritoneal adhesions, granulomas, and other adverse events that can result from using powdered gloves. These trends can also be partially attributed to increased public awareness resulting from the availability of studies that have examined the effects of glove powder and the public health benefits that result from its removal from the market, along with industry initiatives to improve donning, doffing, and protection of non-powdered gloves, which have helped to move the state of the art forward to the use of alternative non-powdered gloves.
As described previously, some users of powdered gloves have noted ease of donning or doffing as a benefit over non-powdered gloves. However, a study of various brands of powdered and non-powdered NRL gloves by Cote et al. found that there are non-powdered latex gloves that are easily donned with wet or dry hands with relatively low force compared to the forces required to don powdered latex examination gloves (Ref. 53). Additional non-powdered alternatives to powdered gloves include synthetic gloves, which are traditionally non-powdered and offer similar levels of performance to powdered gloves and non-powdered NRL gloves (Refs. 9, 14, 54).
Studies that have examined the effects of removing powdered gloves from health care environments have shown that removing these devices consistently results in a reduction of the types of adverse events associated with glove powder. Korniewicz et al. examined the effect of conversion from powdered NRL surgical gloves to non-powdered NRL surgical gloves on operating room personnel (Ref. 32). This study found that conversion to non-powdered NRL gloves reduced adverse events related to exposure to NRL, including a significant decrease in skin and upper respiratory symptoms. During the course of the study, the authors also evaluated user satisfaction for non-powdered gloves and found that users rated their satisfaction, on average, the same or better than before conversion from powdered gloves to non-powdered
In another study on the effects of eliminating powdered NRL gloves from a hospital, Allmers et al. found that eliminating powdered NRL gloves reduced aerogenic NRL allergen loads and allowed latex-sensitized or latex-allergic health care workers to continue working (Ref. 25). Allmers et al. further assessed the effects of switching to non-powdered NRL gloves on the incidence of NRL allergy in personnel working in multiple health care facilities insured by the German Professional Association for Health Services and Welfare (Ref. 27). This study concluded that there was a significant correlation between an increase in the purchase of non-powdered NRL gloves and a decline in NRL-induced occupational asthma. In a subsequent study, Allmers et al. further showed that a reduction in the use of powdered NRL gloves correlated with a dramatic decline in reported NRL-induced occupational skin disease (Ref. 26). The authors of these studies concluded that removing powdered NRL gloves from health care environments successfully reduced the development of NRL-induced allergies. These observations have been confirmed by several other studies that are described further in section II.D (Refs. 21, 30, 32 to 35, 55).
FDA also expects that the removal of powdered gloves from health care environments will reduce the risks of using powdered synthetic gloves, such as granuloma formation in any exposed site, as well as peritoneal and other tissues adhesions. As discussed previously, recent literature has shown that cornstarch glove powder causes peritoneal adhesion formation and granulomatous reactions in experimental animal models (Refs. 24, 36 to 39) as well as in exposed patient tissues with resulting patient injury (Refs. 40 and 41). In addition to risk of powder-induced adhesion formation, many in vitro and animal studies have shown the adverse effects of glove powder on wound healing, including increases in wound inflammation (Refs. 42 to 44). Non-powdered gloves do not carry these risks, and their exclusive use should greatly reduce the risk of these adverse health effects in health care settings.
In comparison to the evidence considered in 1997, FDA has concluded that this proposed ban would likely have minimal economic and shortage impact on the health care industry, such that, if they have not already, health care entities that currently use powdered gloves should have little trouble transitioning to non-powdered alternatives. As described previously, there are many readily available alternatives to powdered gloves that provide similar or better protection and utility without the risks associated with powdered gloves, and available market projections and data have shown that these alternatives that represent the state of the art have already resulted in a shift away from powdered gloves. Further, more studies are now available on the positive health benefits associated with the restriction or elimination of the use of powdered gloves in health care environments where they were previously prevalent. Based on an examination of all these factors, FDA has determined that the state of the art,
In 1997, FDA issued the Medical Glove Powder Report (Ref. 5), discussing the potential adverse health effects of medical glove powder, along with alternatives and market information available at that time. Adverse health events documented in the scientific literature review section of the Medical Glove Powder Report included a discussion on aerosolized glove powder on NRL gloves carrying allergenic proteins that efficiently sensitized health care providers to NRL antigens. This exposure subsequently triggered respiratory allergic reactions including asthma and allergic rhinitis, conjunctivitis, and dyspnea. In addition, as discussed previously, the powdered gloves of health care providers expose patients to certain risks, including granuloma formation, as well as peritoneal and other tissue adhesions when exposed during surgery or an invasive procedure.
Since the publication of the Medical Glove Powder Report, there have been additional scientific studies published regarding the risks related to the use of medical glove powder. Many of these references were submitted to the Agency in support of the petitions received in 2008, 2009, and 2011. We also performed our own review of the scientific literature to ensure that all available evidence, including all available scientific evidence, was considered in its decision-making process. The most relevant articles gathered from these sources are briefly summarized in this document.
Clinical and laboratory studies published after 1998 still indicate that glove powder facilitates impaired respiratory function due to allergic and inflammatory responses to NRL in health care personnel and in animals exposed to glove powder because aerosolized powder particles carrying NRL antigens into the health care environment and the respiratory tracts of exposed health care personnel and patients make NRL sensitization a much more efficient process than it would be in the absence of glove powder (Refs. 8, 20 to 23). The newer studies also continue to show that cornstarch glove powder causes adhesion formation and granulomatous reactions in experimental animal models (Refs. 24, 36 to 39), as well as in exposed patient tissues with resulting patient injury (Refs. 40 and 41).
In vitro and animal studies continue to show the adverse effects of glove powder on experimental wound healing, including increases in wound inflammation (Refs. 42 to 44). Most importantly, since 1997, more data have become available on the positive health benefits associated with the restriction or elimination of the use of powdered gloves in health care environments where they were previously permitted. We reviewed studies from clinics and hospitals that have converted to either non-powdered NRL gloves or to powder-free gloves of all materials. These studies reported reductions in NRL allergy development and respiratory symptoms among health care workers (Refs. 20, 21, 23, 25 to 27, 29 to 34, 39). Although this has not been a universal finding, FDA recognizes the positive association between decreased usage of glove powder, especially on NRL gloves, and decreased adverse health events in the health care setting.
Epidemiological studies comparing the adverse health events and economic consequences in health care settings before and after conversion to powder-free gloves have limitations, such as the size of studies, the endpoint data collected, and the different populations studied. Some studies include the period before the amount of NRL protein in surgical and examination gloves was reduced. Others were performed abroad where U.S. regulations do not apply and the amounts of NRL protein and powder remaining on gloves are not stated. Despite these limitations, the preponderance of evidence suggests that use of low NRL protein powder-free gloves significantly reduces occupational asthma and the incidence of individuals developing allergies to NRL in the health care workplace (Refs. 20, 21, 23, 25 to 27, 29 to 34, 39). Importantly, these studies did not report
Charous et al. (Ref. 20) reported in 2000 that a dental office was able to reduce airborne NRL antigen levels to undetectable levels with the exclusive use of non-powdered NRL gloves, permitting a highly sensitized staff member to continue to work there. Also in 2002, Kujala et al. (Ref. 22) studied NRL gloves agitated in laboratory test chambers and found that the concentration of airborne NRL allergens correlated with high levels of airborne glove powder rather than with the NRL antigen concentrations in the medical glove material. In addition, Ahmed et al. (Ref. 8) reviewed the literature to 2004 on occupational NRL allergy and concluded that the use of low NRL protein powder-free gloves reduced symptoms and markers of sensitization in hospitals that had removed powdered NRL gloves from their workplaces; however, they noted that alternatives such as nitrile and vinyl gloves may not provide as good dexterity and biological impermeability as natural rubber latex gloves. The practicality of using non-powdered gloves was studied in 1998 by Cote et al. (Ref. 53) who performed a prospective randomized trial measuring the force required for volunteers to don various gloves in the laboratory without tearing the glove. They concluded that there were available powder-free gloves that can be donned easily with forces that are comparable to those required for powdered glove donning.
Individual hospitals, health care systems, regional authorities and countries have evaluated the extent of NRL allergies among their staff and the effects of removing glove powder from the gloves used in their facilities. In 1998, Handfield-Jones (Ref. 56) found that at least 0.9 percent of health care workers in an English district general hospital had confirmable NRL allergies. Anecdotal accounts suggested that problems had worsened as glove use increased. Allmers et al. (Ref. 25) in 1998 reported a prospective study in a single hospital in Germany to evaluate the effect of eliminating powdered NRL gloves from the workplace and also giving NRL-free gloves to sensitized workers. Six of seven sensitized health care workers showed a decrease in NRL-specific Immunoglobulin E antibody concentration during followup after the elimination of powdered NRL gloves in that hospital. Two other health care workers were able to stop using asthma medication and antiallergic drugs. The study authors concluded that eliminating powdered NRL gloves reduced aerogenic NRL allergen loads and allowed sensitized or allergic health care workers to continue working.
Not every physician or locality was equally concerned about the risk associated with the use of glove powder. In 1999, Sellar and Sparrow (Ref. 57) surveyed ophthalmologists in northern England and found that, despite relatively high awareness of risks associated with powdered glove use during ophthalmic surgery, such as sterile endophthalmitis or iritis in patients, up to 15 percent of surveyed United Kingdom ophthalmic surgeons were using powdered gloves in their surgical practices. However, in 2000, Petsonk (Ref. 58) found that the role of glove powder in binding and transferring NRL antigens was widely acknowledged in the scientific literature and noted that interventions, such as limiting the use of glove powder, seemed likely to result in a decline in the prevalence of NRL allergies. Additionally, in 2000, Jackson et al. (Ref. 31) reported that 70 hospitals in the United States and 3 in Europe had registered on an Internet Web site as institutions using only powder-free gloves; however, the article did not specify whether these hospitals had removed only NRL powdered gloves from their workplaces or whether synthetic latex powdered gloves were removed from use as well, and the Web site is no longer registered. The conclusion of Jackson et al. was that the leadership shown by the hospitals that registered as not using powdered gloves should serve as a catalyst for FDA to ban the use of cornstarch on examination and surgical gloves.
In 2001, Liss and Tarlo (Ref. 33) reviewed the number of allowed occupational asthma claims in health care workers reported to the Ontario Workplace Safety and Insurance Board over time as the replacement use of powder-free synthetic latex or low protein NRL gloves was encouraged, starting in 1996, throughout the province of Ontario. Reported health care-related occupational asthma claims ranged from 7 to 11 per year during 1991 to 1994 and fell to 1 to 2 claims per year in 1997 to 1999 as exposure to powdered NRL gloves decreased. Tarlo et al. (Ref. 55) also reported on the experience with occupational allergy to NRL in an Ontario teaching hospital network of two hospitals. In this hospital system, the number of workers identified with NRL allergy each year rose from 1 in 1988 to 6 in 1993 and to 25 in 1994 after staff education and surveillance for the manifestations of NRL allergy. Powder-free, low protein NRL gloves replaced non-sterile gloves in 1995 in this hospital system, after which new workers with reported NRL allergy dropped to eight in 1995, to three in 1997 and to one in 1999. NRL allergy-related time lost from work and workers' compensation claims fell significantly after powder-free, low protein NRL gloves replaced powdered non-sterile gloves in this Ontario hospital system. In 2002, Saary et al. (Ref. 23) resurveyed the upper-year students and faculty of a dental school in Ontario for NRL allergy using the same methods as those used in the study performed by Tarlo et al. (Ref. 55). In 1995, the school was using powdered NRL gloves in patient care. Following the 1995 survey, the school changed to powder-free, low protein NRL gloves. In 2000, the incidence of positive prick tests to NRL fell from 10 percent (in 1995) to 3 percent and there were significant reductions in the incidence of urticaria and immediate pruritus after glove contact reported by the dental students.
Allmers et al. (Ref. 27) reported in 2002 occupational allergy to NRL data from the German Professional Association for Health Services and Welfare, which covered approximately half of all German hospitals and all dental offices. In 1998, Germany banned the use of powdered NRL gloves in health care facilities. From 1996 through 2001, the incidence of suspected occupational NRL allergy declined steadily as the use of powder-free NRL examination gloves and powder-free NRL sterile gloves overtook the use of powdered gloves in 1998 and 2000, respectively, in German acute care hospitals. The authors concluded that primary prevention of occupational NRL allergies could be achieved through practical interventions such as decreasing the use of powdered NRL gloves. Allmers et al. (Ref. 26) reassessed the effects of the 1998 German ban on powdered NRL gloves in 2004 and found that between 1996 and 2002, the incidence of suspected cases of NRL-induced occupational allergies reported to the German statutory accident insurance carrier decreased by almost 80 percent.
Charous et al. (Ref. 28) reviewed the scientific literature available in 2002 and subsequently recommended using only non-powdered sterile NRL gloves or low-protein NRL powdered sterile gloves as evaluation of the effect on occupational NRL allergic reactions continued, in order to reduce the burden of NRL allergy and its effects on health care personnel. Cuming (Ref. 29) also noted that the link between glove powder and the occurrence of NRL allergies and postoperative
Edelstam and colleagues (Ref. 21) described the implementation of a powder-free environment in a Stockholm hospital. These authors administered symptom questionnaires to hospital staff designed to detect symptoms highly suggestive of occupational NRL allergy. They found that 8 months after a powder-free policy was fully implemented in the hospital there was a significant reduction in reported hand itching, eczema, and upper respiratory tract disorders in health care workers. The authors also noted that reduced costs associated with lower work absence rates may offset higher costs associated with the use of powder-free medical gloves.
In 2005, Korniewicz et al. (Ref. 32) examined whether switching to low NRL protein powder-free surgical gloves in the operating room suite of a single U.S. university hospital was worth the cost. Surveys prior to and 7 to 12 months after the conversion to powder-free surgical gloves found that 27 percent fewer health care workers reported skin symptoms and 12 percent fewer health care works reported upper respiratory symptoms related to NRL exposure. These authors concluded that the use of powder-free low protein NRL gloves reduced symptoms and resulted in workers compensation cost savings. In addition, because fewer different types of gloves were purchased after the conversion to non-powdered surgical gloves, a glove cost savings of $10,000 per year was estimated for the hospital. In a 2006 report, Filon and Radman (Ref. 30) described the results of following 1,040 health care workers in Trieste for 3 years before and after the introduction of powder-free gloves with low NRL levels. After the introduction of powder-free gloves, no new cases of NRL allergy, as diagnosed by skin test hypersensitivity to NRL were identified in the followup survey. The authors concluded that avoiding unnecessary NRL glove use and using non-powdered NRL gloves (and non-NRL gloves for sensitized health care workers) could stop the progression of symptoms of NRL allergy and avoid new cases of health care provider sensitization to NRL.
In 2008, Malerich et al. (Ref. 34) studied the effect of transitioning from powdered to powder-free NRL gloves on workers' compensation claims in a U.S. multihospital system, the Geisinger Health System, between 1997 and 2005. They estimated that 52 percent of the system work force at that time was occupationally exposed to NRL gloves. In 2001, the system transitioned to powder-free NRL gloves. The incidence of NRL-related workers' compensation claims decreased progressively after 2001, from 62 claims over the 5 year period before the change to only 18 claims in the next 4 years. The average annual savings in NRL-related compensation claims was estimated to be over $30,000. Although the cost of the powder-free NRL gloves resulted in a 36 percent increase in the cost of gloves, this was partially offset by the elimination of the costs of washing powder off the surgical gloves, estimated at about $57,000.
Vandenplas et al. (Ref. 35) reported in 2009 on changes in the incidence of NRL-related occupational asthma (OA) claims from health care providers submitted to the Workers' Compensation Board of Belgium from 1992 through 2004. Definite and probable NRL-related OA incidence per 100,000 full-time equivalents for health care workers was 10.9 per 100,000 in 1991, 19.7 per 100,000 in 1998, and 3.8 per 1,000,000 in 2003. The overall usage index of NRL-powdered glove use was 80.9 percent in 1989 and fell to 17.9 percent by 2004. The non-sterile NRL-powdered glove use index fell from 80.5 percent to 14.4 percent. However, the sterile procedure, NRL-powdered glove use index changed only from 84.6 percent to 48.9 percent over this 15-year period.
Although the adverse event risks of glove powder on a variety of tissues were well-documented before 1997, investigations to understand the pathogenesis of tissue damage caused by glove powder have continued. In 1999, Chegini and Rong (Ref. 36) studied the effect of glove powder, NRL proteins, and lipopolysaccharide added directly to the peritoneal cavity of mice and found that glove powder worsened the inflammatory response to tissue injury caused by NRL proteins and lipopolysaccharide alone. The study suggested that this interaction could contribute to inflammatory or immune reactions and the development of adhesions after abdominal surgery. Sjösten et al. (Ref. 38) published a study in 2000 showing that the intravaginal deposition of free glove powder in rabbit vaginas prior to laparotomy led to dense pelvic adhesions and even attachment of the Fallopian tube to the peritoneal wall after laparotomy with standardized trauma on the left Fallopian tube and the ipsilateral peritoneum. The control group was not exposed to glove powder and experienced only loose adhesions after laparotomy with standardized trauma. The authors recommended against the use of powdered gloves during gynecologic surgery.
In 2001, van den Tol et al. (Ref. 39) found that starch, either washed from gloves or pure base starch, when added to the peritoneal cavity of rats during laparotomy plus surgical peritoneal trauma, caused increased peritoneal adhesion formation. When tumor cells were added to the peritoneal cavity at the end of the experimental surgery, increased adhesion and growth of the tumor cells occurred in rats who also received powder contamination of the peritoneal cavity. These authors recommended that powdered gloves no longer be used during intra-abdominal surgery on the basis of these results. In 2003, Barbara et al. (Ref. 24) found that after guinea pigs were sensitized to NRL antigens, with or without added cornstarch powder given by intraperitoneal injection, the guinea pigs who received NRL antigens mixed with cornstarch had increased antibody production and antigen-induced constriction of the bronchial tubes when challenged with an aerosol of NRL antigens compared to animals who received intraperitoneal NRL antigens alone. They concluded that cornstarch powder used as a donning agent on NRL gloves can increase sensitization to NRL compared to exposure to NRL antigens alone.
In 2002, Smither et al. (Ref. 41) presented a case report of a 58-day-old male infant with bilateral scrotal masses due to a foreign body reaction to glove powder following a pyloromyotomy performed shortly after birth. In 2004, Sjösten et al. (Ref. 40) extended their prior work on the adverse effects of glove powder in animals to a clinical observational study. They found that in patients who underwent vaginal examination 1 or 4 days prior to a scheduled hysterectomy with either powdered or non-powdered gloves, examination of the removed tissues postoperatively detected more starch particles in the cervix and uterus of patients examined with powdered gloves. There were no differences between the patient groups in the numbers of starch particles seen in the distant sites of the Fallopian tubes or the peritoneal fluid. In 2 patients examined with powdered gloves, no starch particles were found, and 3 patients examined with only powder-free gloves had a few starch particles in their tissues.
Odum et al. (Ref. 43) studied a guinea pig model of paravertebral abscess formation. They reported that when slurries of either calcium carbonate (CaCO
Over the past several years, some domestic health care organizations, health care systems, and other nations have banned or restricted the use of glove powder because of its deleterious effects on the body. Organizations such as the National Institute for Occupational Safety and Health (NIOSH), the American Academy of Allergy, Asthma, and Immunology (ACAAI), the American College of Surgeons (ACS), and the American Nurses Association have all issued statements discouraging the use of powdered NRL gloves (Refs. 59 to 61). In June 1997, the NIOSH of the CDC issued an Alert titled “Preventing Allergic Reactions to Natural Rubber Latex in the Workplace” (Ref. 59) in which it recommended that if NRL gloves are used in the workplace, they should not be powdered. The ACS issued a statement from their Committee on Perioperative Care in 1997 that recommended that surgeons should insist on using only non-powdered (“powder-free”) surgeons gloves (Ref. 62). The ACAAI issued a recommendation (Ref. 60) on the use of NRL gloves in 1997 and stated that only non-powdered (“powder-free”) NRL gloves should be purchased and used in order to reduce NRL aeroallergen levels and exposure to them.
Moreover, health care systems including the Johns Hopkins Hospital, the Cleveland Clinic's network of nine hospitals, and the University of Virginia Healthcare System have all restricted or banned the use of powdered NRL gloves in their facilities (Refs. 63-64). Finally, the international health care systems of Germany and the United Kingdom have also independently taken steps against the use of powdered NRL gloves due to the dangers of the devices and the hazards they pose in the health care setting (Refs. 65-66).
The Occupational Safety and Health Administration (OSHA) of the Department of Labor (DOL) issued a Technical Information Bulletin (TIB 99-04-12) in 1999 and updated it in 2008 (SHIB 01-28-2008) (Ref. 67) describing the risk of sensitization to natural rubber latex products used in the workplace. In both of its documents, OSHA recommended that, if NRL gloves must be used, they should be non-powdered (“powder-free”).
In the 1998 CDC Guideline for Infection Control in Hospital Personnel-1998 (Ref. 68), CDC addressed the issues of NRL sensitization in the health care workplace and recommended that the use of non-powdered natural rubber latex gloves would be more efficient than other interventions such as trying to wash powder off gloves in reducing NRL allergy in the workplace when NRL gloves were retained instead of replaced.
In January 2000, the New Jersey Department of Health and Senior Services (DHSS) issued “Guidelines on the Management of Natural Rubber Latex Allergy; Selecting the Right Glove for the Right Task” (Ref. 69) for the health care facility environment. The New Jersey DHSS recommended that reduced powder or, preferably, non-powdered NRL gloves be used when NRL gloves are selected.
Allmers and colleagues (Ref. 25) reported that a revised version of the technical regulations for dangerous substances (TRGS 540) was published in Germany in December 1997 that stated that the use of powdered natural rubber latex gloves was not permissible in the workplace; only “powder-free” NRL gloves could be used.
In the United Kingdom in 2008, the National Health Service (NHS) Plus Occupational Health Clinical Effectiveness Unit, in association with the Royal College of Surgeons, issued evidence-based guidelines (Ref. 70) on “the occupational aspects of latex allergy management.” These guidelines include the recommendation that when NHS employers determine that a NRL glove is the most suitable choice for use against a specific hazard, the NRL glove selected should be a low NRL protein glove without glove powder.
In 2011, the Association of Professionals in Infection Control and Epidemiology (APIC) responded to the FDA's request for comments on information related to risks and benefits of powdered gloves (Docket No. FDA-2011-N-0027). APIC stated (Ref. 71) that it supported the use of powder-free surgeon's gloves in health care. It stated also that it agreed with the position of the ACS and that of the Association of Perioperative Registered Nurses (AORN) that powdered gloves increase the risk of sensitization to NRL antigens. APIC also noted that the evidence for the role of glove powder in surgical site infection risk is limited.
On its own initiative, FDA evaluated adverse event reports for medical gloves that use powder as additional information to help determine whether the standard for initiating a ban was met and, if so, whether a ban was the appropriate regulatory action to address the unreasonable and substantial risk of illness or injury presented by powdered gloves.
We performed a search of our Manufacturer and User Facility Device Experience (MAUDE) database to isolate reports through September 30, 2015, to evaluate the number of adverse events reported for all types of medical gloves. A total of 3,780 reports were identified, including some that identify inflammation and granulomas. The reports retrieved in this query date back to 1992. Charting the reports entered by year indicates a bell curve in which the majority of reports were entered in 1999 with 783 reports. Since 1999, the number of adverse events reported for these devices has consistently decreased, and since 2003, the number of adverse events reported for these devices has tapered off to consistently remain below 100 per year. FDA believes that this reduction can be
As discussed in section VIII “Economic Analysis of Impacts,” market analysis clearly indicates that use of powdered gloves is declining, but some individuals and organizations continue to use them despite the risks of illness or injury they present. As such, health care workers, patients, and other individuals who come in contact with glove powder are being exposed to risks unnecessarily, which is one of the reasons that FDA decided to initiate this ban.
As described in section 1.D, section 516(a)(1) of the FD&C Act authorizes FDA to ban a device intended for human use by regulation if it finds, on the basis of all available data and information, that such a device “presents substantial deception or an unreasonable and substantial risk of illness or injury” In this section, we describe the reasons we initiated the proceeding to ban powdered gloves, including the determination that powdered gloves present an unreasonable and substantial risk of illness or injury. In order to make this determination, we analyzed both the benefits and the risks that these devices pose to those that may come into contact with them, comparing those benefits and risks to the benefits and risks posed by similar alternative devices.
As explained in section II, the level and types of risk presented by powdered gloves varies depending on the composition and intended use of the glove. While some glove types present less risk than others, we have concluded that the public's exposure to such risk is substantial in relation to the nominal public health benefit derived from the continued marketing of these devices. Further, it is FDA's position that exposure to these risks is unreasonable in the current market where suitable alternatives are readily available that carry none of the risks presented by powdered gloves.
The risk of acute severe airway inflammation due to ADP inhalation is a risk presented by all powdered glove types and absorbable powder alone and is considered important, material, and significant in relation to the minimal potential benefits of greater ease of donning and doffing and decreased tackiness. In considering these risks relative to the state of the art and alternative non-powdered gloves that do not present risks of acute severe airway inflammation, FDA has determined that these risks are substantial and unreasonable.
The risks of inflammatory responses, hypersensitivity reactions, and allergic reactions, including asthma, allergic rhinitis, conjunctivitis, and dyspnea, are risks presented by all powdered latex glove types. FDA has determined that these risks are important, material, and significant risks in relation to the minimal potential benefits of greater ease of donning and doffing and decreased tackiness. In relation to the state of the art of alternative non-powdered gloves that do not present risks of inflammatory responses, hypersensitivity reactions, and allergic reactions, we conclude that these risks are substantial and unreasonable.
The risk of granuloma and adhesion formation is presented to patients and health care workers via exposure to internal tissue through the use of powdered latex or synthetic surgeon's and patient examination gloves. FDA has determined that this risk is important, material, and significant in relation to the minimal potential benefits of greater ease of donning and doffing and decreased tackiness. In relation to the state of the art of
A critical aspect of these devices that FDA considered in coming to the decision to propose this ban is their ability to affect persons other than the individual who decides to wear or use them. Patients often do not know the type of gloves being worn by the health care professional treating them, but are still exposed to the potential dangers of those gloves. Glove powder's expansive danger zone includes persons, including other health care workers, completely unaware or unassociated with its employment. In addition, users wear gloves as a conventional prophylactic measure to prevent harm, but may be exposed to the myriad harms posed by powdered gloves. Although we have noticed a progressive reduction in the market share of powdered gloves, some individuals and institutions continue to use them. This, in turn, has led to continued exposure to the risks presented by powdered gloves.
In aggregate, the risks posed by these devices include severe airway inflammation, hypersensitivity reactions, allergic reactions (including asthma), allergic rhinitis, conjunctivitis, dyspnea, as well as granuloma and adhesion formation when exposed to internal tissue. The state of the art of both surgeon's and patient examination gloves includes non-powdered alternatives that provide similar performance as the various powdered glove types do: That is, there are many non-powdered gloves available that have the same level of protection, dexterity, and performance. The benefits of these devices appear to only include ease of donning and doffing and increased tackiness. We have concluded that these benefits are nominal, and that the risks that are posed by the continued marketing of powdered gloves outweigh those benefits in all instances, especially in light of the current state of the art, and the fact that readily available alternatives exist in today's market that carry none of these risks. As such, FDA has determined that the standard to ban powdered gloves has been met, and that it is appropriate to issue this proposal to ban.
FDA has determined that powdered surgeon's gloves, powdered patient examination gloves, and absorbable powder for lubricating a surgeon's glove present an unreasonable and substantial risk of illness or injury to individuals, and that no change in labeling could correct the risk of illness or injury presented by the continued use of these devices. FDA has determined that a ban is the appropriate regulatory approach to addressing risks posed by glove powder. No labeling or warnings can mitigate the risks posed by these devices.
As discussed previously, powdered gloves have additional or increased risks to health compared to non-powdered gloves related to the spread of powder and powder-transported contaminants such as latex allergens through aerosols and inhalation or direct or indirect contact with wounds, oral, vaginal, rectal tissue, etc. Although labeling can raise awareness of these risks, we do not conclude that labeling can effectively mitigate these risks because it cannot prohibit the spread of glove powder or powder-transported contaminants. In addition, an important aspect of these devices is their ability to affect persons other than the individual who decides to wear or use them. For example, patients often do not know the type of gloves being worn by the health care professional treating them, but are still exposed to the potential dangers. Similarly, glove powder's ability to aerosolize and carry NRL proteins exposes individuals to harm via inhalation or surface contact. Glove powder's expansive danger zone includes persons completely unaware or unassociated with its employment and without the opportunity to consider the devices' labeling. Because of this inherent quality, adequate directions for use cannot be written that would ensure the safe and effective use of these devices for all persons that might come in contact with them.
In the now withdrawn draft guidance entitled “Draft Guidance for Industry and FDA Staff: Recommended Warning for Surgeon's Gloves and Patient Examination Gloves that Use Powder,” FDA proposed a general voluntary warning for powdered glove devices in order to alert users to the potential adverse health effects of medical glove powder while FDA assessed the benefits and risks of glove powder (Ref. 7) (80 FR 26059). In order to facilitate this assessment, concurrent with the issue of this draft guidance document, we issued a notice in the
Although the use of powdered gloves has declined in recent years, the use of these devices has not been eliminated, and patients and health care workers continue to be exposed to the risks of glove powder. Due to the ability of powder to affect people who would not have an opportunity to read warning labels, such a label would be ineffective at informing the affected persons of potential risks. In addition, potential warning labels would raise awareness of the risks, but would not eliminate the risks posed by glove powder. Therefore, despite declining use of powdered gloves and previous warning label suggestions, FDA has determined no label or warning can mitigate the risks posed by these devices.
Due to the nature of the risks presented by glove powder that are posed simply by virtue of the powder being used, we do not conclude that additional or new labeling can adequately correct or eliminate the risks. As such, in light of all available data and information, FDA has determined that it should address the risks posed by glove powder by banning its use.
FDA has determined that this ban, if finalized, should apply to devices already in commercial distribution and devices already sold to the ultimate user, as well as to devices that would be sold or distributed in the future. (See 21 CFR 895.21(d)(7).) This means that powdered gloves currently being used in the marketplace would be subject to this ban, and thus adulterated under section 501(g) of the FD&C Act and would be subject to enforcement action.
FDA made this determination because the risks of illness or injury to individuals who are currently exposed to these devices is equally unreasonable and substantial as it would be for future individuals that might be exposed to powdered gloves. Indeed, because suitable alternatives already exist in the current marketplace, and because the market trends have shown that powder glove use is steadily decreasing, it is likely that the remaining users of powder gloves will be able to quickly transition to alternatives that are equally effective and carry none of the risks associated with powdered gloves. Further, because of the steady decrease
This proposed rule, if finalized, would amend §§ 878.4460, 878.4480, 880.6250, 895.102, 895.103, and 895.104. FDA's legal authority to modify §§ 878.4460, 878.4480, 880.6250, 895.102, 895.103, and 895.104 arises from the device and general administrative provisions of the FD&C Act (21 U.S.C. 352, 360f, 360h, 360i, and 371).
FDA has carefully considered the potential environmental effects of this proposed rule and of possible alternative actions. In doing so, we focused on the environmental impacts of its action as a result of disposal of unused powdered surgeon's gloves, powdered patient examination gloves, and absorbable powder for lubricating a surgeon's glove that will need to be handled after the rule is finalized.
The environmental assessment (EA) considered each of the alternatives in terms of the need to provide maximum reasonable protection of human health without resulting in a significant impact on the environment. The EA considered environmental impacts related to landfill and incineration of solid waste. The proposed action, if finalized, will result in an initial batch disposal of unused powdered surgeon's gloves, powdered patient examination gloves, and absorbable powder for lubricating a surgeon's glove at user facilities nationwide, followed by a rapid decrease in the rate of disposal of these devices, as supplies are depleted. The proposed action does not change the ultimate disposition of these devices but expedites their rate of disposal and ceases future production. Overall, given the limited number of powdered surgeon's gloves, powdered patient examination gloves, and absorbable powder for lubricating a surgeon's glove, currently in commercial distribution, the proposed action is expected to have no significant impact on landfill and solid waste facilities and the environment in affected communities.
The Agency has concluded that the proposed rule will not have a significant impact on the human environment, and that an environmental impact statement is not required. FDA's finding of no significant impact (FONSI) and the evidence supporting that finding, contained in an EA prepared under 21 CFR 25.40, may be seen in the Division of Dockets Management (see
We have examined the impacts of the proposed rule under Executive Order 12866, Executive Order 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Orders 12866 and 13563 direct us to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). We have developed a comprehensive Economic Analysis of Impacts that assesses the impacts of the proposed rule. We believe that this proposed rule is not a significant regulatory action as defined by Executive Order 12866.
The Regulatory Flexibility Act requires us to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because this rule imposes no new burdens, we propose to certify that the final rule would not have a significant economic impact on a substantial number of small entities.
The Unfunded Mandates Reform Act of 1995 (section 202(a)) requires us to prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $144 million, using the most current (2014) Implicit Price Deflator for the Gross Domestic Product. This proposed rule would not result in an expenditure in any year that meets or exceeds this amount.
The proposed rule, if finalized, would prohibit marketing of powdered surgeon's gloves, powdered patient examination gloves, and absorbable powder for lubricating surgeon's gloves. The rule does not cover or include powdered radiographic gloves. In the past, powdering gloves was a popular method to make the gloves easier to put on and remove. However, recent studies indicate that these powders pose an unnecessary risk to medical workers (Ref. 73 and 74). Their results note that these powders carry the latex material on latex gloves. As a result, medical workers who are sensitive to latex are occasionally exposed to enough latex to develop an allergy.
Adopting the proposed rule is expected to provide a positive net benefit (estimated benefits minus estimated costs) to society. Banning powdered glove products is not expected to impose any costs to society because improvements to non-powdered gloves have made these products as affordable and easy to put on as powdered gloves. The ban is expected to reduce the adverse events associated with using powdered gloves. Total annual benefits are estimated to range between $26.6 million and $29.3 million.
The Economic Analysis of Impacts of the proposed rule performed in accordance with Executive Order 12866, Executive Order 13563, the Regulatory Flexibility Act, and the Unfunded Mandates Reform Act is available at
FDA is proposing that any final rule based on this proposed rule become effective 30 days after the date of its publication in the
FDA tentatively concludes that this proposed rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.
FDA has analyzed this proposed rule in accordance with the principles set forth in Executive Order 13132. Section 4(a) of the Executive order requires Agencies to “construe . . . a Federal statute to preempt State law only where the statute contains an express preemption provision or there is some other clear evidence that the Congress intended preemption of State law, or where the exercise of State authority conflicts with the exercise of Federal authority under the Federal statute.” Federal law includes an express preemption provision that preempts certain State requirements “different from or in addition to” certain Federal requirements applicable to devices (21 U.S.C. 360k; See
The following references are on display in the Division of Dockets Management (see
Medical devices.
Administrative practice and procedure, Labeling, 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 parts 878, 880, and 895 be amended as follows:
21 U.S.C. 351, 360, 360c, 360e, 360j, 360l, 371.
(a)
21 U.S.C. 351, 360, 360c, 360e, 360j, 371.
(a)
21 U.S.C. 352, 360f, 360h, 360i, 371.
A powdered surgeon's glove is a device made of natural rubber latex or synthetic latex, intended to be worn by operating room personnel to protect a surgical wound from contamination. A powdered surgeon's glove incorporates powder for purposes other than manufacturing.
A powdered patient examination glove is a disposable device made of natural rubber latex or synthetic latex, intended for medical purposes, that is worn on the examiner's hand or finger to prevent contamination between patient and examiner. A powdered patient examination glove incorporates powder for purposes other than manufacturing.
Absorbable powder for lubricating a surgeon's glove is a powder made from cornstarch that meets the specifications for absorbable powder in the United States Pharmacopeia (U.S.P.) and that is intended to be used to lubricate the surgeon's hand before putting on a surgeon's glove. The device is absorbable through biological degradation.
Drug Enforcement Administration, Department of Justice.
Notice of proposed rulemaking; correction.
The Drug Enforcement Administration published a document in the
Interested persons may file written comments on this correction to the initial proposal in accordance with 21 CFR 1308.43(g). The DEA is requesting comments on this change only and is not soliciting comments on other aspects of the May 14, 2015, notice of proposed rulemaking published at 80 FR 27611. Electronic comments must be submitted, and written comments must be postmarked, on or before April 21, 2016. Commenters should be aware that the electronic Federal Docket Management System will not accept comments after 11:59 p.m. Eastern Time on the last day of the comment period.
To ensure proper handling of comments, please reference “Docket No. DEA-417C” on all correspondence, including any attachments. The Drug Enforcement Administration encourages that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the Web page or to attach a file for lengthier comments. Please go to
Barbara J. Boockholdt, Office of Diversion Control, Drug Enforcement Administration; Mailing Address: 8701 Morrissette Drive, Springfield, Virginia 22152; Telephone: (202) 598-6812.
Please note that all comments received are considered part of the public record. They will, unless reasonable cause is given, be made available by the Drug Enforcement Administration (DEA) for public inspection online at
If you want to submit confidential business information as part of your comment, but do not want it to be made publicly available, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment.
Comments containing personal identifying information and confidential business information identified as directed above will generally be made publicly available in redacted form. If a comment has so much confidential business information or personal identifying information that it cannot be effectively redacted, all or part of that comment may not be made publicly available. Comments posted to
An electronic copy of this document is available at
The DEA implements and enforces Titles II and III of the Comprehensive Drug Abuse Prevention and Control Act of 1970, as amended. 21 U.S.C. 801-971. Titles II and III are referred to as the “Controlled Substances Act” and the “Controlled Substances Import and Export Act,” respectively, and are collectively referred to as the “Controlled Substances Act” or the “CSA” for the purposes of this action. 21 U.S.C. 801-971. The DEA publishes the implementing regulations for these statutes in title 21 of the Code of Federal Regulations (CFR), chapter II. The CSA and its implementing regulations are designed to prevent, detect, and eliminate the diversion of controlled substances and listed chemicals into the illicit market while providing for the legitimate medical, scientific, research, and industrial needs of the United States. Controlled substances have the potential for abuse and dependence and are controlled to protect the public health and safety.
Under the CSA, each controlled substance is classified into one of five schedules based upon its potential for abuse, its currently accepted medical use in treatment in the United States, and the degree of dependence the substance may cause. 21 U.S.C. 812. The initial schedules of controlled substances established by Congress are found at 21 U.S.C. 812(c) and the current list of scheduled substances is published at 21 CFR part 1308. 21 U.S.C. 812(a).
Pursuant to 21 U.S.C. 811(a)(1), the Attorney General may, by rule, “add to such a schedule or transfer between such schedules any drug or other substance if he * * * finds that such drug or other substance has a potential for abuse, and * * * makes with respect to such drug or other substance the findings prescribed by subsection (b) of section 812 of this title for the schedule in which such drug is to be placed * * *.” The Attorney General has delegated scheduling authority under 21 U.S.C. 811 to the Administrator of the DEA. 28 CFR 0.100.
The CSA provides that proceedings for the issuance, amendment, or repeal of the scheduling of any drug or other substance may be initiated by the Attorney General (1) on her own motion; (2) at the request of the Secretary of the Department of Health
UR-144, XLR11, and AKB48 are currently subject to schedule I controls on a temporary basis, pursuant to 21 U.S.C. 811(h). 80 FR 27854, May 15, 2015. On May 14, 2015, the Administrator of the DEA published a notice of proposed rulemaking (NPRM) to permanently schedule (1-pentyl-1
In the NPRM, the DEA inadvertently proposed the addition of these substances in schedule I under 21 CFR 1308.11(g), cannabimimetic agents, by adding paragraphs (g)(16) through (18). These substances should have been proposed to be added in schedule I under 21 CFR 1308.11(d), hallucinogenic substances. This rulemaking therefore corrects the NPRM by proposing the placement of these substances in 21 CFR 1308.11(d) by adding paragraphs (d)(48) through (50). Because the DEA is proposing to classify these substances as schedule I hallucinogenic substances, then by operation of 21 U.S.C. 802(14), this classification will include any optical, positional, or geometric isomers. Interested persons may file written comments on this change in accordance with 21 CFR 1308.43(g). The DEA is requesting comments on this change only and is not soliciting comments on other aspects of the May 14, 2015, NPRM. The DEA previously had provided an opportunity for comments on other aspects of the NPRM on May 14, 2015, through June 15, 2015.
This correction has no effect on the regulatory analyses statements that were published with the notice of proposed rulemaking published in the
In proposed rule FR Doc. 2015-11762, beginning on page 27611 in the issue of May 14, 2015, make the following corrections.
(d) * * *
Bureau of Ocean Energy Management, Interior.
Proposed rule.
This rule proposes regulations to address the use of Outer Continental Shelf (OCS) sand, gravel and shell resources for shore protection, beach restoration, or coastal wetlands restoration projects by Federal, State, or local government agencies, or use in construction projects authorized by or funded in whole or in part by the Federal Government. The proposed rule describes the negotiated noncompetitive agreement process for qualifying projects and codifies new and existing procedures.
Submit comments by May 23, 2016. The Bureau of Ocean Energy Management (BOEM) may not fully consider comments received after this date. Submit comments to the Office of Management and Budget (OMB) on the information collection (IC) burden in this proposed rule by April 21, 2016. This does not affect the deadline for the public to comment to BOEM on the proposed regulation.
You may submit comments on the rulemaking by any of the following methods. Please use the Regulation Identifier Number (RIN) 1010-AD90 as an identifier in your comment. Please reference “Outer Continental Shelf Marine Sand, Gravel and Shell Resources, 1010-AD90” in your comments and include your name and return address.
•
• Mail or hand-carry comments to the U.S. Department of the Interior; Bureau of Ocean Energy Management; Attn: Office of Policy, Regulation and Analysis, 45600 Woodland Road, VAM-BOEM DIR, Sterling, Virginia 20166.
• Send comments on the IC in this proposed rule to: Interior Desk Officer 1010-AD90, Office of Management and Budget; 202-395-5806 (fax); email:
For comments or questions, contact Loren Thompson, Office of Policy, Regulation and Analysis, at
Congress amended the Outer Continental Shelf Lands Act, 43 U.S.C. 1331-1356 (OCSLA, or the Act), in 1994 to authorize the Secretary of the Interior to negotiate noncompetitive agreements with any person for the use of OCS sand, gravel and shell resources in a program of or project for shore protection, beach restoration, or coastal wetlands restoration undertaken by a Federal, State or local government agency, or in a construction project either authorized or funded in whole or in part by the Federal Government.
Generally, shore protection and beach and coastal wetlands restoration projects are initiated to rebuild eroding shoreline segments, such as beaches and dunes, barrier islands, and wetlands. In sensitive wetland areas, these projects are intended to forestall further erosion, restore habitat and/or to provide protection from hurricanes, storms, and coastal erosion. These projects are typically accomplished by placing sand directly on the beach, in open water areas that are the former location of an eroded beach, and/or within breaches in the shoreline that compromise integrity of the beach or barrier island system to form, and subsequently maintain, a beach. Material may also be placed updrift from the beach, allowing longshore processes to redistribute the sand, gravel and shell resources along the beach.
The Act authorizes BOEM to enter into a negotiated agreement when the use of OCS sand, gravel and shell resources is authorized for qualifying projects. This negotiated agreement will take the form of a lease or a Memorandum of Agreement (MOA), depending on the identity of the applicant(s) requesting use of OCS sand, gravel and shell resources. If a non-Federal entity requests the use of OCS sand, gravel and shell resources, the negotiated agreement required by the Act would generally take the form of a lease. If a Federal agency requests the use of OCS sand, gravel and shell resources, BOEM and the Federal agency, as well as their Federal, State or local government agency counterparts on the project, would enter into a MOA. For example, when a Federal agency partially or wholly funds a non-Federal entity to conduct a project that is otherwise eligible for OCS sand, gravel and shell resources, the negotiated agreement may take the form of a three-party MOA. As warranted, the Federal applicant(s) and BOEM would designate a lead agency and enter into a cooperating agency agreement for the environmental analysis and review. Likewise, if a non-Federal applicant is involved, BOEM would ensure that appropriate environmental analysis and review is completed. The negotiated agreement in each of these situations would describe the project and procedures that would be followed and identify environmental and administrative requirements that must be met.
BOEM and its predecessor agencies, the Minerals Management Service and the Bureau of Ocean Energy Management, Regulation and Enforcement, through the Marine Minerals Program, have been exercising statutory authority regarding OCS sand, gravel and shell resources under the Act pursuant to written guidelines, without the benefit of implementing regulations. Nearly fifty agreements have been negotiated, providing for the use of more than 100 million cubic yards of OCS sand, gravel and shell resources for shore protection, beach restoration, or coastal wetlands restoration undertaken by a Federal, State or local government agency, and for Federally authorized or funded construction projects. BOEM believes that the promulgation of regulations at this time is advisable in order to provide additional clarity and certainty and to help ensure continuity of the Marine Minerals Program.
This section would explain BOEM's authority for IC activities related to this proposed part 583. It would explain the reasons the information is being collected and establish the OMB approval of the collection.
This section would explain that the purpose of this proposed rule is to refine and formally adopt procedures for entering into negotiated noncompetitive agreements for the use of OCS sand, gravel and shell resources for shore protection, beach or wetlands restoration by a Federal, State or local government agency or for construction projects authorized or funded, in whole or in part, by the Federal Government. This section would explain that the rule would apply exclusively to negotiated noncompetitive use of sand, gravel and shell resources in the OCS and would not apply to competitive leasing of minerals, including oil, gas, sulphur, geopressured-geothermal and associated resources, and all other minerals which are authorized by an Act of Congress to be produced from “public lands” as defined in section 103 of the Federal Land Policy and Management Act of 1976, as amended (FLPMA). (43 U.S.C. 1701
This section would explain that in proposing these regulations, BOEM is operating under authority granted to the Secretary of the Interior by the Act.
This section would define many of the terms commonly used in the Marine Minerals Program and now used in the proposed regulation, including “borrow area,” “placement area,” and “project.” This section would also define new terms for purposes of this subpart, including “Act,” “agreement,” “amendment,” “BOEM,” “Director,” “Federal agency,” “local government,” “modification,” “outer continental shelf,” “program,” “Regional Director,” and “Secretary.”
This section would explain who is qualified to enter into an agreement with BOEM for the use of OCS sand, gravel, and shell resources, and would explain the requirements to comply with the relevant debarment regulations.
This section would set out the kinds of decisions that would be subject to reconsideration or appeal, and the process that would be utilized by an unsuccessful applicant or adversely affected party for resolution of such reconsideration or appeal.
This section would explain who would be allowed to use OCS sand, gravel and shell resources, and would explain that use authorizations would be in the form of agreements that are negotiated on a case-by-case basis. It would also explain that the agreements would identify the location, type and volume of OCS sand, gravel and shell resources allowed to be used under the agreement. In addition, it would explain that any authorizations to use sand, gravel and shell resources would not be exclusive.
This section would explain who may submit a request to BOEM to obtain an agreement for the use of OCS sand, gravel, and shell resources. It would list the information the request must include, such as a detailed description of the proposed project and how it qualifies as a project eligible under the Act to receive OCS sand, gravel and shell resources pursuant to a negotiated noncompetitive agreement; a description of borrow and placement areas; certain maps and data; a description of the environmental evaluations that have been completed or are being prepared that cover the project, including both onshore and offshore components; a target date or date range when the resources will be needed; a description of the Federal, State, or local agencies that are undertaking the project and points of contact; and a statement explaining who authorized the project and how the project will be funded.
This section would lay out the factors that BOEM would use to determine whether a project qualifies for use of sand, gravel and shell resources under a negotiated noncompetitive agreement. The section would enumerate the evaluation criteria, including: The project purpose; other uses of OCS sand, gravel and shell resources authorized from the same borrow area; the project funding source(s) and amounts; the proposed design and feasibility of the project; any potential environmental and safety risks associated with the project; other Federal interests located near or within the specified borrow area; comments received from potentially affected governments; the applicant's background and experience working on similar projects or activities; and whether the project is consistent with applicable statutes and their implementing regulations, which may include, but are not limited to, the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361
This section would explain the process that BOEM would follow to evaluate a project that qualifies for the use of OCS sand, gravel and shell resources to decide whether to enter into a negotiated noncompetitive agreement. It states that BOEM would coordinate with relevant Federal agencies, States, and local governments, and potentially affected Federally recognized Indian Tribes. It also describes how BOEM would evaluate the project and additional information provided under §§ 583.300 and 583.301 to determine if the information is sufficient to conduct necessary technical and environmental reviews to comply with the requirements of applicable statutes and regulations, which may include, but are but not limited to, the National Environmental Policy Act (NEPA) (42 U.S.C. 4321
This section would describe the steps BOEM would take once it has completed its technical, environmental and other evaluations. This section would provide further that, once BOEM has completed its review of an application, BOEM would decide whether to enter into an agreement. This section would provide further that BOEM would negotiate the terms of the agreement and prepare a draft agreement for the applicant's review and comment. The section would also provide that, after BOEM considers the applicant's comments and suggestions, it would finalize the agreement for signature. This section would provide that, once the applicant signs the agreement, BOEM would execute the agreement and distribute it to the parties
This section would describe the minimum information that an agreement would be required to include, such as an agreement number assigned by BOEM; the purpose of, and authorities for, the agreement; designated and delineated borrow area(s); the project description, including the timeframe within which the project is to be started and completed; the terms and conditions of the agreement, including any reporting requirements; all obligations of the parties; and the signatures of appropriate individuals authorized to bind the applicant and BOEM.
This section would describe what determines the effective date of the agreement.
This section would describe how BOEM would enforce the terms of an agreement and the consequences, including termination, for failure to comply with any applicable law or with the agreement terms. This section would also provide that the failure to comply in a timely and satisfactory manner with any provision, term or condition of the agreement may delay or prevent BOEM's approval of future requests for use of OCS sand, gravel and shell resources on the part of the parties to the agreement.
This section would explain when an agreement would terminate, either by a specified date, when parties to the agreement notify BOEM that sufficient resources have been removed to complete the project, or for other reasons specified in this section. This section would also explain that, absent extraordinary circumstances, no agreement would have an initial term that is longer than five years from its effective date. Examples of extraordinary circumstances where an initial term longer than five years may be appropriate would include a program of multiple individual projects to be carried out over multiple seasons or where the Congressional authorization for a project called for multiple phases. It would be within BOEM's sole discretion to determine when extraordinary circumstances warrant an initial term longer than five years. The parties would have the option to request an extension, modification or change to the terms of the agreement, as set forth in § 583.309.
This section would explain that the applicant has the obligation to ensure that all contracts and transactions related to an agreement issued under this part comply with the suspension and debarment regulations at 2 CFR part 180 and 2 CFR part 1400.
This section would explain how an applicant may seek to extend, modify or change an agreement and would spell out the time frames when this might be accomplished. It would provide that BOEM is under no obligation to extend, modify or change an agreement and cannot be held liable for the consequences of the expiration of an agreement. If BOEM approves a modification, BOEM would prepare an amendment to the agreement and provide it for review by the parties to the agreement prior to execution of the amendment. Should BOEM deny the request, BOEM would notify the parties to the agreement and reconsideration could be requested of the Director.
This section would explain under what circumstances the Director could terminate an agreement. The termination factors include fraud; noncompliance with the agreement; national security or defense reasons; situations in which continuing with the agreement would cause serious harm or damage to natural resources, property, the environment or historical structures; and other reasons described in this section. This section would also explain the process for terminations and suspensions.
E.O. 12866 provides that the Office of Information and Regulatory Affairs (OIRA), a part of the OMB, will review all significant rules. OIRA has determined that this rule is not significant.
(1) This proposed rule contains virtually the same reporting and recordkeeping requirements as those in the current uncodified guidelines and procedures. A regulatory impact analysis is not required. This proposed rule formalizes existing policies and procedures that govern the use of OCS sand, gravel and shell resources. The existing policies, procedures, consultations and monitoring requirements for the noncompetitive use of OCS sand, gravel and shell resources are longstanding and have remained relatively consistent for two decades. This proposed rule does not materially change the existing requirements for the use of OCS sand, gravel and shell resources through leases or MOAs for shore protection, beach or wetlands restoration by a Federal, State or local government agency, or for construction projects authorized or funded, in whole or in part, by the Federal Government. The regulatory baseline is essentially the same as the proposed rule. BOEM believes that any changes between the current BOEM process and this proposed rule are immaterial and would not impose additional compliance obligations or costs upon the regulated entities.
Formalizing the existing conveyance process will provide certainty to the public entities requesting noncompetitive leases or MOAs for OCS sand, gravel and shell resources. BOEM believes there is a benefit to the regulated entities in the form of regulatory certainty when Federal, State and local government agencies desire to use OCS sand, gravel and shell resources for qualifying projects. Entities affected by this rulemaking have the opportunity to comment through the rulemaking process on the proposed provisions, which are consistent with current practices for the conveyance of sand, gravel and shell resources.
(2) This proposed rule does not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. It reflects the existing process developed over the life of the program in cooperation with other Federal agencies, including the U.S. Fish and Wildlife Service (FWS), National Marine Fisheries Service (NMFS) and U.S. Army Corps of Engineers, and State and local governments.
(3) This proposed rule does not have an annual effect on the economy of $100 million or more. It will not adversely affect in a material way the economy, productivity, competition, jobs, the
(4) This rule does not alter the budgetary effects of existing entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients.
(5) This rule does not raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in E.O. 12866.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, reduce uncertainty, and use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. BOEM has developed this rule in a manner consistent with these requirements.
BOEM certifies this proposed rule would not have a significant economic effect on a substantial number of small entities under the RFA (5 U.S.C. 601
The Small Business and Agriculture Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were established to receive comments from small businesses about Federal agency enforcement actions. The Ombudsman will annually evaluate the enforcement activities and rate each agency's responsiveness to small business. If you wish to comment on the actions of BOEM enforcement activities, you may call 1-888-734-3247. You may comment to the Small Business Administration without fear of retaliation. Allegations of discrimination/retaliation filed with the Small Business Administration will be investigated for appropriate action.
This proposed rule is not a major rule under the SBREFA (5 U.S.C. 804(2)). This proposed rule:
(a) Would not have an annual effect on the economy of $100 million or more;
(b) Would not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and,
(c) Would 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 proposed rule would not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. A statement containing the information required by Unfunded Mandates Reform Act (2 U.S.C. 1501
Under the criteria in E.O. 12630, this proposed rule would not have significant takings implications. The proposed rule is not a governmental action capable of interference with constitutionally protected property rights. A Takings Implication Assessment is not required.
Under the criteria in E.O. 13132, this proposed rule would not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. This proposed rule would not substantially and directly affect the relationship between the Federal and State and local governments. To the extent that State and local governments have a role in OCS activities, this proposed rule would not affect that role. A Federalism Assessment is not required.
This rule would comply with the requirements of E.O. 12988. Specifically, this rule would:
(a) Meet the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and,
(b) Meet the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
The U.S. Department of the Interior (DOI) strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian tribes and recognition of their right to self governance and tribal sovereignty. BOEM's Tribal Liaison Officer has certified that this regulation does not have tribal implications as defined in section 1(a) of E.O. 13175 and has determined that the regulation does not have substantial and direct effects on Federally recognized tribes or any Alaska Native Corporation established pursuant to the Alaska Native Claims Settlement Act (ANCSA), 43 U.S.C. 1601
As it relates to any Federally recognized Indian tribe, this proposed rule merely formalizes existing policies and procedures that govern the use of OCS sand, gravel and shell resources. The existing policies, procedures, consultations and monitoring requirements for the noncompetitive use of sand, gravel and shell resources are longstanding and have remained relatively consistent for two decades. If BOEM determines an individual project authorized under this part may have effects on Federally recognized tribes or any Alaska Native Corporation, BOEM will initiate consultation as soon as possible consistent with E.O. 13175 and DOI tribal consultation policies. A tribe may also request BOEM initiate consultation pursuant to E.O. 13175.
This proposed rule contains a new collection of information request that is being submitted to OMB for review and approval under 44 U.S.C. 3501
Respondents that would be required to submit information under this part are other Federal, State, and local government agencies; corporations; and individual entities. Responses would primarily be required in order to obtain or retain a benefit. The frequency of response would vary depending on the requirement. BOEM would protect proprietary information according to the Freedom of Information Act (5 U.S.C. 552) and its implementing regulations (43 CFR part 2). BOEM proposes to collect the information under this part to evaluate applications for leases/agreements to access sand, gravel or shell resources on the OCS; to balance multiple uses of the OCS; and to monitor activities for environmental protection and safety.
The following table provides a breakdown of the IC requirements and burdens in this proposed part.
As part of our continuing effort to reduce paperwork and response burdens, we invite the public and other Federal agencies to comment on any aspect of the reporting and recordkeeping burden. We specifically solicit comments on the following questions:
(1) Is the proposed collection of information necessary for BOEM to properly perform its functions, and will it be useful?
(2) Are the estimates of the burden hours of the proposed collection reasonable?
(3) Do you have any suggestions that would enhance the quality, clarity, or usefulness of the information to be collected?
(4) Is there a way to minimize the IC burden on those who must respond, including the use of appropriate automated electronic, mechanical, or other forms of information technology?
In addition, the PRA requires agencies to estimate the total annual reporting and recordkeeping non-hour cost burden resulting from the collection of information, and we solicit your comments on this item. For reporting and recordkeeping only, your response should split the cost estimate into two components: (1) Total capital and startup cost component; and (2) annual operation, maintenance, and purchase of services component. Your estimates should consider the costs to generate, maintain, and disclose or provide the information. You should describe the methods you use to estimate major cost factors, including system and technology acquisition, expected useful life of capital equipment, discount rate(s), and the period over which you expect to incur costs. Generally, your estimates should not include equipment or services purchased (1) before October 1, 1995; (2) to comply with requirements not associated with the IC; (3) for reasons other than to provide information or keep records for the Government; or (4) as part of customary and usual business or private practices.
OMB is required to make a decision concerning the collection of information contained in these proposed regulations between 30 to 60 days after publication of this document in the
This rule does not constitute a major Federal action significantly affecting the quality of the human environment. BOEM has analyzed this rule under the criteria of the NEPA and DOI's NEPA implementing regulations at 43 CFR 46. This rule meets the criteria set forth in 43 CFR 46.210(i) for a Departmental “categorical exclusion” in that this rule is “ . . . of an administrative, financial, legal, technical, or procedural nature.
In accordance with the IQA, DOI has issued guidance regarding the quality of information that it relies upon for regulatory decisions. This guidance is available at DOI's Web site at
Send your comments to the U.S. Department of the Interior, Bureau of Ocean Energy Management, Office of Policy, Regulation and Analysis, Attn: IQA Comments, 45600 Woodland Road, VAM-BOEM DIR, Sterling, Virginia 20166.
This rule is not a significant energy action under the definition in E.O. 13211. A Statement of Energy Effects is not required.
We are required by E.O. 12866, E.O. 12988, and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever helpful.
If you feel that we have not met these requirements, send us comments by one of the methods listed in the
Administrative practice and procedure, Beach restoration, Coastal wetlands restoration, Gravel, Government contracts, Intergovernmental relations, Marine minerals, Marine minerals program, Noncompetitive agreements, Negotiated agreements, Outer Continental Shelf, Sand, Shell resources and Shore protection.
Dated: March 10, 2016.
For the reasons stated in the preamble, BOEM proposes to amend 30 CFR to add part 583 to read as follows:
43 U.S.C. 1334.
The information collection requirements contained in the new part 583 have been approved by the OMB under 44 U.S.C. 3501 and assigned clearance number 1010-XXXX. The information is being collected to determine if the applicant for a negotiated noncompetitive agreement (agreement) for the use of sand, gravel and shell resources on the Outer Continental Shelf (OCS) is qualified to enter into such an agreement and to determine if the requested action is warranted. Applicants and parties to the agreement are required to respond to requests related to information collection activities.
The regulations in this part provide procedures for a negotiated noncompetitive program for utilization of OCS sand, gravel and shell resources. The rules of this part apply exclusively to negotiated noncompetitive use of OCS sand, gravel and shell resources and do not apply to competitive leasing of minerals, including oil, gas, sulphur, geopressured-geothermal and associated resources, and all other minerals which are authorized by an Act of Congress to be produced from “public lands” as defined in section 103 of the Federal Land Policy and Management Act of 1976, as amended (43 U.S.C. 1701
(a) Pursuant to authority granted by the Outer Continental Shelf Lands Act (OSCLA, or the Act), as amended (43 U.S.C. 1331
(1) For use in a program of, or project for, shore protection, beach restoration, or coastal wetlands restoration undertaken by a Federal, State, or local government agency; or
(2) For use in a construction project, other than a project described in paragraph (1), that is funded in whole or in part by or authorized by the Federal Government.
(b) The Secretary has authorized BOEM to administer the negotiated noncompetitive agreement provisions of the Act and prescribe the rules and regulations necessary to carry out those provisions.
When used in this part, the following terms will have the meaning given below:
(a) BOEM may enter into an agreement with any person proposing to use OCS sand, gravel and shell resources for a program of or project for shore protection, beach restoration, or coastal wetlands restoration undertaken by a Federal, State, or local government agency or in a construction project that is funded in whole or in part by or authorized by the Federal government.
(b) To qualify for an agreement under this part, the applicant must be:
(1) A Federal, State, or local government agency;
(2) A citizen or national of the United States;
(3) An alien lawfully admitted for permanent residence in the United States, as defined in the Immigration and Nationality Act, as amended (8 U.S.C. 1101 (a)(20));
(4) A private or public corporation organized under the laws of the United States or of any State or territory thereof; or
(5) An association of such citizens, nationals, resident aliens or private or public corporations.
(c) When entering into an agreement under this part, all applicants are subject to the requirements of 2 CFR part 180 and 2 CFR part 1400.
(a) After being notified of disqualification, or disapproval of an agreement or modification, an unsuccessful applicant, or adversely affected party to an agreement, may apply for reconsideration by the Director.
(1) All applications for reconsideration by the Director must be submitted within 15 days of being notified of disqualification, or disapproval of an agreement or modification, accompanied by a statement of reasons for the requested reconsideration, with one copy to the program office whose decision is the subject of the reconsideration.
(2) The Director will respond in writing within 30 days.
(b) No additional appeal rights are available under 30 CFR part 590 and 43 CFR part 4, subpart E.
Any use of OCS sand, gravel and shell resources in an agreement will be negotiated on a case-by-case basis. The agreement will specify, at a minimum, who may use the OCS sand, gravel and shell resources; the nature of the rights granted; and the location, type, and volume of OCS sand, gravel and shell resources. Any authorization to use OCS sand, gravel and shell resources identified in an agreement is not exclusive; BOEM may allow other entities to use OCS sand, gravel and shell resource from the same borrow area.
Any person may submit a written request to BOEM to obtain an agreement for the use of OCS sand, gravel and shell resources for use in a program of or project for shore protection, beach restoration, or coastal wetlands restoration undertaken by a Federal, State, or local government agency, or in a construction project that is funded in whole or in part by or authorized by the Federal Government. The written request must include:
(a) A detailed description of the proposed project for which the OCS sand, gravel and shell resources will be used and how it qualifies as a program or project eligible under the Act to use OCS sand, gravel or shell resources;
(b) A description of the proposed borrow area(s) and placement area(s), along with maps with geographic coordinates depicting the location of the desired borrow area(s), the OCS block number(s), OCS Planning Area(s), OCS Protraction Diagram Designation(s), and the placement area(s). These should include:
(1) A detailed set of hardcopy maps with coordinates and navigation features of the desired OCS project area (including borrow area and other project features); and
(2) Digital geo-referenced spatial and tabular data depicting the borrow area with features, such as geological sampling locations and any hard or live-bottom benthic habitat present;
(c) Any available geological and geophysical data used to select, design, and delineate the borrow area(s) and potential borrow areas considered but not selected for final design in digital format, geo-referenced where relevant. These may include:
(1) Sediment sampling (sediment cores and grab samples) data such as physical description sheets,
(2) Geophysical data such as subbottom profiler, marine magnetometer, and side-scan sonar data, and bathymetry including geo-referenced navigation survey tracklines, shotpoints, and/or timestamps;
(d) Any other uses of the OCS in the borrow area that are known to the applicant at the time of application submittal;
(e) A description of the environmental evaluations and corresponding documents that have been completed or are being prepared, that cover all offshore and onshore components of the project, as applicable;
(f) A target date or date range when the OCS sand, gravel and shell resources will be needed;
(g) A description of the person or government entities undertaking the project;
(h) A list of any permits, licenses or authorizations required for the project and their current status;
(i) A description of any potential inconsistencies with state coastal zone management plans and/or any other applicable state and local statutes, regulations or ordinances;
(j) The name, title, telephone number, mailing address and email address of any points of contact for any Federal agencies, State or local governments, and contractor(s) with whom the applicant has contracted or intends to contract;
(k) A statement explaining who authorized the project and how the project is to be funded, indicating whether the project is Federally funded, in whole or in part, and whether the project is authorized by the Federal government; and
(l) For any other Federal, State or local government agency identified in the application, the name, title, mailing address, telephone number, and email address of both a primary and a secondary point of contact for the agency.
BOEM will make a determination as to whether the project, as described in section 583.300, qualifies for use of OCS sand, gravel and shell resources under the Act. Within 15 business days of receipt of the application, BOEM will determine if the application is complete or will request additional information. After it has determined the application is complete, BOEM will begin the application review process and notify the applicant in writing whether the project qualifies for an agreement. In determining whether a project qualifies for an agreement, BOEM will consider, among other criteria, the following:
(a) The project purpose;
(b) Other uses of OCS sand, gravel and shell resources from the same borrow area that are currently or were previously authorized by BOEM for other projects or programs, including the location, type and volume of such resources;
(c) The project funding source(s) and amounts;
(d) The proposed design and feasibility of the project;
(e) Any potential environmental and safety risks;
(f) Other Federal interests located near or within the specified borrow area;
(g) Comments received from potentially affected State or local governments, if any;
(h) The applicant's background and experience working on similar projects or activities;
(i) Whether the project operations can be conducted in a manner that protects the environment and promotes orderly development of OCS mineral resources;
(j) Whether activities can be conducted in a manner that does not pose a threat of serious harm or damage to, or waste of, any natural resource, any life (including fish and other aquatic life), property, or the marine, coastal, or human environment; and
(k) Whether the project is consistent with the requirements of applicable statutes and their implementing regulations, which may include, but are not limited to, the Endangered Species Act (ESA) (16 U.S.C. 1531
(a) Once BOEM has determined a project qualifies for an agreement, BOEM will begin the project evaluation process to decide whether to enter into a negotiated noncompetitive agreement.
(b) BOEM will coordinate with relevant Federal agencies, State, and local governments and any potentially affected federally recognized Indian Tribes in the project evaluation.
(c) BOEM will evaluate the project and additional information provided pursuant to sections 30 CFR 583.300 and 583.301, to determine if the information is sufficient to conduct necessary technical and environmental reviews to comply with the requirements of applicable statutes and regulations, which may include, but are not limited to: OCSLA (43 U.S.C. 1331
(d) BOEM will not enter into a negotiated noncompetitive agreement with the applicant until information requested for the evaluation has been provided and evaluated.
(a) Upon completion of the technical, environmental and other evaluations established in 30 CFR 583.301 and 30 CFR 583.302, BOEM will decide whether to enter into a negotiated noncompetitive agreement with the applicant for use of OCS sand, gravel or shell resources for its proposed project.
(b) If BOEM decides not to enter into such an agreement, BOEM will inform the applicant of its reasons for not doing so. An applicant may ask the BOEM Director for reconsideration in accordance with 30 CFR 583.105(a).
(c) If BOEM has decided to enter into a negotiated noncompetitive agreement with the applicant, BOEM will negotiate the terms and conditions of the agreement with the applicant and prepare a draft agreement for the applicant's review.
(d) After considering comments and suggestions from the applicant, BOEM, at its discretion, may finalize the agreement and distribute it to the applicant for signature.
(e) Upon receipt of the agreement with the applicant's signature, BOEM will execute the agreement. A copy of the executed agreement will be mailed to the parties.
Every agreement is negotiated on a case-by-case basis, but at a minimum, must include:
(a) An agreement number, as assigned by BOEM;
(b) The purpose of and authorities for the agreement;
(c) Designated and delineated borrow area(s);
(d) A project description, including the timeframe within which the project is to be started and completed;
(e) The terms and conditions of the agreement, including any reporting requirements;
(f) All obligations of the parties; and
(g) The signatures of appropriate individuals authorized to bind the applicant and BOEM.
The agreement will become effective on the date when all parties to the agreement have signed it.
(a) Failure to comply with any applicable law or any provision, term, or condition of the agreement may result in the termination of the agreement and/or a referral to an appropriate Federal and/or State agency/agencies for enforcement. Termination of the agreement for noncompliance will be in the sole discretion of the Director.
(b) The failure to comply in a timely and satisfactory manner with any provision, term or condition of the agreement may delay or prevent BOEM's approval of future requests for use of OCS sand, gravel and shell resources on the part of the parties to the agreement.
(a) An agreement will terminate upon the following, whichever occurs first:
(1) The agreement expires by its own terms, unless the term is extended prior to expiration under § 583.309;
(2) The project is terminated, as set forth in § 583.310; or
(3) A party to the agreement notifies BOEM, in writing, that sufficient OCS sand, gravel and shell resources, up to the amount authorized in the agreement, have been obtained to complete the project.
(b) Absent extraordinary circumstances, no agreement will be for a term longer than 5 years from its effective date.
The parties to an agreement must ensure that all contracts and transactions related to an agreement issued under this part comply with 2 CFR part 180 and 2 CFR part 1400.
(a) Unless otherwise provided for in the agreement, the parties to the agreement may submit to BOEM a written request to extend, modify, or change an agreement. BOEM is under no obligation to extend an agreement and cannot be held liable for the consequences of the expiration of an agreement. With the exception of paragraph (b) of this section, any such requests must be made at least 180 days before the term of the agreement expires. BOEM will respond to the request for modification within 30 days of receipt and request any necessary information and evaluations to comply with 30 CFR 583.301. BOEM may approve the request, disapprove it, or approve it with modifications subject to the requirements of 30 CFR 583.301.
(1) If BOEM approves a request to extend, modify or change an agreement, BOEM will draft an agreement modification for review by the parties to the agreement in the form of an amendment to the original agreement. The amendment will include:
(i) The agreement number, as assigned by BOEM;
(ii) The modification(s) agreed to;
(iii) Any additional mitigation required; and
(iv) The signatures of the parties to the agreement and BOEM.
(2) If BOEM disapproves a request to extend, modify, or change an agreement, BOEM will inform the parties to the agreement of the reasons in writing. Parties to the agreement may ask the BOEM Director for reconsideration in accordance with 30 CFR 583.105.
(b) By written request, for strictly minor modifications that do not change the substance of the project or the analyzed environmental effects of the project, including but not limited to, the change of a business address, the substitution of a different Federal, State or local government agency contact, or an extension of less than 30 days, parties to the agreement may memorialize the minor modification in a letter from BOEM to the parties indicating the request has been granted.
(a) The Director will terminate any agreement issued under this part upon proof that it was obtained by fraud or misrepresentation, after notice and an opportunity to be heard has been afforded to the parties of the agreement.
(b) The Director may immediately suspend and subsequently terminate any agreement issued under this part when:
(1) There is noncompliance with the agreement, pursuant to 30 CFR 583.306(a); or
(2) It is necessary for reasons of national security or defense; or
(3) The Director determines that:
(i) Continued activity under the agreement would cause serious harm or damage to natural resources; life (including human and wildlife); property; the marine, coastal, or human environment; or sites, structures, or objects of historical or archaeological significance;
(ii) The threat of harm or damage will not disappear or decrease to an acceptable extent within a reasonable period of time; and
(iii) The advantages of termination outweigh the advantages of continuing the agreement.
(c) The Director will immediately notify the parties to the agreement of the suspension or termination. The Director will also mail a letter to the parties to the agreement at their record post office address with notice of any suspension or termination and the cause for such action.
(d) In the event that BOEM terminates an agreement under this section, none of the parties to the agreement will be entitled to compensation as a result of expenses or lost revenues that may result from the termination.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to partially approve and partially disapprove a State Implementation Plan (SIP) revision submitted by the Arizona Department of Environmental Quality on December 27, 2012, and supplemented on December 3, 2015, to address the interstate transport requirements of Clean Air Act (CAA or Act) section 110(a)(2)(D) with respect to the 2008 ozone (O
Written comments must be received on or before April 21, 2016.
Submit your comments, identified by Docket ID No. EPA-R09-OAR-2015-0793 at
Maeve Clancy, EPA Region IX, (415) 947-4105,
Throughout this document, the terms “we,” “us,” and “our” refer to EPA.
CAA sections 110(a)(1) and (2) require states to address basic SIP requirements to implement, maintain and enforce the NAAQS no later than three years after the promulgation of a new or revised standard. Section 110(a)(2) outlines the specific requirements that each state is required to address in this SIP submission that collectively constitute the “infrastructure” of a state's air quality management program. SIP submittals that address these requirements are referred to as “infrastructure SIPs” (I-SIP). In particular, CAA section 110(a)(2)(D)(i)(I) requires that each SIP for a new or revised NAAQS contain adequate provisions to prohibit any source or other type of emissions activity within the state from emitting air pollutants that will “contribute significantly to nonattainment” (prong 1) or “interfere with maintenance” (prong 2) of the applicable air quality standard in any other state. CAA section 110(a)(2)(D)(i)(II) requires SIP provisions that prevent interference with measures required to be included in the applicable implementation plan for any other State under part C to prevent significant deterioration of air quality (prong 3) or to protect visibility (prong 4). This action addresses the section 110(a)(2)(D)(i) requirements of prongs 1, 2 and 4 with respect to Arizona's I-SIP submissions.
On March 27, 2008, EPA issued a revised NAAQS for ozone.
On September 13, 2013, EPA issued “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),” which provides “advice on the development of infrastructure SIPs for the 2008 ozone NAAQS . . . as well as infrastructure SIPs for new or revised NAAQS promulgated in the future.”
On August 4, 2015, EPA published a
EPA is obligated, pursuant to a judgement issued by the Northern District of California in
On December 27, 2012, the Arizona Department of Environmental Quality (ADEQ) submitted its 2008 ozone NAAQS I-SIP (2012 submittal). This submittal briefly summarized the CAA requirements of sections 110(a)(2)(D)(i), 110(a)(2)(D)(ii), and EPA's I-SIP action for the previous 1997 ozone NAAQS, but as to prongs 1, 2, and 4 did not identify or address any potential interstate transport impacts between Arizona and other states or interstate transport visibility requirements for the 2008 ozone NAAQS. On December 3, 2015, ADEQ submitted a supplement to the 2012 submittal addressing 110(a)(2)(D)(i) prongs 1, 2, and 4.
In the 2015 submittal, ADEQ summarizes the state's impact on downwind states. While Arizona's impact on the El Centro and Los Angeles monitors is in each case above 1%, Arizona impacts only one of the seven projected nonattainment or maintenance receptors in the Los Angeles area, and contributes less than 1% to all other maintenance and nonattainment receptors. ADEQ further states that, “In eastern states, the EPA has chosen a 1% of the standard threshold as a significant contribution. However, Arizona considers the southwest to be different.” The state goes on to say that, “It is unclear at this point what threshold is significant for southwestern states.” EPA's assessment of these statements is described in the next section. The submittal also summarizes sources of VOCs and NO
EPA proposes to approve Arizona's SIP submissions pertaining to CAA section 110(a)(2)(D)(i)(I), prongs 1 and 2, with respect to the 2008 ozone NAAQS. As explained below, EPA's proposal is based on the state's submission and EPA's analysis of several factors and available data.
To determine whether the CAA section 110(a)(2)(D)(i)(I), prongs 1 and 2 requirement is satisfied, EPA first must determine whether a state's emissions will contribute significantly to nonattainment or interfere with maintenance of a NAAQS in other states. If a state is determined not to make such contribution or interfere with maintenance of the NAAQS, then EPA can conclude that the state's SIP complies with the requirements of section 110(a)(2)(D)(i)(I). In several prior federal rulemakings interpreting section 110(a)(2)(D)(i)(I), EPA has evaluated whether a state will significantly contribute to nonattainment or interfere with maintenance of a NAAQS by first identifying downwind receptors that are expected to have problems attaining or maintaining the NAAQS.
EPA notes that it disagrees with ADEQ's contention that it is unclear what screening threshold is significant for southwestern states when addressing interstate transport contributions. EPA believes contribution from an individual state equal to or above 1% of the NAAQS could be considered significant where the collective contribution of emissions from one or more upwind states is responsible for a considerable portion of the downwind air quality problem regardless of where the receptor is geographically located.
Accordingly, although EPA's modeling indicates that emissions from
One such factor that EPA considers relevant to determining the nature of a projected receptor's interstate transport problem is the magnitude of ozone attributable to transport from all upwind states collectively contributing to the air quality problem. In CSAPR and the CSAPR Update Rule, EPA used the 1% air quality threshold to identify linkages between upwind states and downwind maintenance receptors. States whose contributions to a specific receptor meet or exceed the threshold were considered to be linked to that receptor. The linked states' emissions (and available emission reductions) were then analyzed further as a second step to EPA's contribution analysis. States whose contributions to all receptors were below the 1% threshold did not require further evaluation to address interstate transport and we therefore found those states were determined to make insignificant contributions to downwind air quality. Therefore, the states below the threshold do not significantly contribute to nonattainment or interfere with maintenance of the NAAQS in other states. EPA used the 1% threshold in the East because prior analysis showed that, in general, nonattainment problems result from a combined impact of relatively small individual contributions from upwind states, along with contributions from in-state sources. EPA has observed that a relatively large portion of the air quality problem at most ozone nonattainment and maintenance receptors in the East is the result of the collective contribution from a number of upwind states.
Specifically, EPA found the total upwind states' contribution to ozone concentration (from linked and unlinked states) based on modeling for 2017 ranges from 17% to 67% to identified downwind air quality problems in the East, with between 4 and 12 states each contributing above 1% to the downwind air quality problem.
Arizona is the only state that contributes greater than the 1% threshold to the projected 2017 levels of the 2008 ozone NAAQS at the El Centro receptor. The total contribution from all states to the El Centro receptor is 4.4% of the total ozone concentration at this receptor. Arizona is also the only state that contributes greater than 1% to the projected 2017 levels of the 2008 ozone NAAQS at the Los Angeles receptor, and the total contribution from all states is 2.5% of the ozone concentration at this receptor. EPA believes that a 4.4% and 2.5% cumulative ozone contribution from all upwind states is negligible, particularly when compared to the relatively large contributions from upwind states in the East or in certain other areas of the West. For these reasons, EPA believes the emissions that result in transported ozone from upwind states have limited impacts on the projected air quality problems in El Centro, California and Los Angeles, California, and therefore should not be treated as receptors for purposes of determining the interstate transport obligations of upwind states under section 110(a)(2)(D)(i)(I).
Additionally, EPA has evaluated the Arizona VOC and NO
The modeling data show that Arizona contributes either less than 1% of the NAAQS to projected air quality problems in other states, or where it contributes above 1% of the NAAQS to a projected downwind air quality problem in California, EPA proposes to find, based on the overall weight of evidence, that these particular receptors are not significantly impacted by transported ozone from upwind states. Emissions reductions from Arizona are not necessary to address interstate transport because the total collective upwind state ozone contribution to these receptors is relatively low compared to the air quality problems typically addressed by the good neighbor provision. Additionally, Arizona has demonstrated that both VOC and NO
EPA believes that ozone precursor emissions of NO
Because Arizona's 2012 and 2015 submittals rely in part on FIPs to address interstate transport visibility requirements, they do not meet the requirements of prong 4 for the 2008 ozone NAAQS. However, because FIPs are already in place, no additional FIP obligation would be triggered by a final disapproval of this portion of Arizona's infrastructure SIP. EPA will continue to work with Arizona to incorporate emission limits to address the requirements of the Regional Haze Rule into the Arizona SIP. For further discussion of our analysis of prong 4, please see the TSD associated with this proposal and in the docket for today's rulemaking.
EPA is proposing to approve Arizona's SIP as meeting the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) prongs 1 and 2 for the 2008 ozone NAAQS. EPA is proposing this approval based on the overall weight of evidence from information and analysis provided by Arizona, as well as the recent air quality modeling released in EPA's August 4, 2015 NODA, and other data analysis that confirms that emissions from Arizona will not contribute significantly to nonattainment or interfere with maintenance of the 2008 ozone NAAQS in California or any other state.
EPA is proposing to disapprove Arizona's SIP with respect to the interstate transport requirements of CAA section 110(a)(2)(D)(i)(II) prong 4 for the 2008 ozone NAAQS. Because Arizona's 2012 and 2015 submittals rely, in part, on FIPs to address interstate transport visibility requirements, they do not meet the requirements of this portion of CAA § 110(a)(2)(D) for the 2008 ozone NAAQS. However, because FIPs are already in place, no additional FIP obligation would be triggered by a final disapproval of this portion of Arizona's infrastructure SIP. EPA will continue to work with Arizona to incorporate emission limits to address the requirements of the Regional Haze Rule into the Arizona SIP.
Additional information about these statutes and Executive Orders can be found at
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.
This action does not impose an information collection burden under the PRA because this action does not impose additional requirements beyond those imposed by state law.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities beyond those imposed by state law.
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, will result from this action.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications, as specified in Executive Order 13175, because the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, and will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not impose additional requirements beyond those imposed by state law.
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the NTTAA directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. The EPA believes that this action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with the CAA.
The EPA lacks the discretionary authority to address environmental justice in this rulemaking.
Air pollution control, Approval and promulgation of implementation plans, Environmental protection, Incorporation by reference, Oxides of nitrogen, Ozone, and Volatile organic compounds.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to disapprove the visibility transport (prong 4) portions of revisions to the Mississippi State Implementation Plan (SIP), submitted by the Mississippi Department of Environmental Quality (MDEQ), addressing the Clean Air Act (CAA or Act) infrastructure SIP requirements for the 2008 8-hour Ozone, 2010 1-hour Nitrogen Dioxide (NO
Comments must be received on or before April 21, 2016.
Submit your comments, identified by Docket ID No. EPA-R04-OAR-2015-0798 at
Sean Lakeman of the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Mr. Lakeman can be reached by telephone at (404) 562-9043 or via electronic mail at
By statute, SIPs meeting the requirements of sections 110(a)(1) and (2) of the CAA are to be submitted by states within three years after promulgation of a new or revised NAAQS to provide for the implementation, maintenance, and enforcement of the new or revised NAAQS. EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Sections 110(a)(1) and (2) require states to address basic SIP elements such as for monitoring, basic program requirements, and legal authority that are designed to assure attainment and maintenance of the newly established or revised NAAQS. More specifically, section 110(a)(1) provides the procedural and timing requirements for infrastructure SIPs. Section 110(a)(2) lists specific elements that states must meet for the infrastructure SIP requirements related to a newly established or revised NAAQS. The contents of an infrastructure SIP submission may vary depending upon the data and analytical tools available to the state, as well as the provisions already contained in the state's implementation plan at the time in which the state develops and submits the submission for a new or revised NAAQS.
Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct components, commonly referred to as “prongs,” that must be addressed in infrastructure SIP submissions. The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (prong 1) and from interfering with maintenance of the NAAQS in another state (prong 2). The third and fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality in another state (prong 3) or from interfering with measures to protect visibility in another state (prong 4). Section 110(a)(2)(D)(ii) requires SIPs to include provisions insuring compliance with sections 115 and 126 of the Act, relating to interstate and international pollution abatement.
Through this action, EPA is proposing to disapprove the prong 4 portions of Mississippi's infrastructure SIP submissions for the 2008 8-hour Ozone, 2010 1-hour NO
On March 12, 2008, EPA revised the 8-hour Ozone NAAQS to 0.075 parts per million.
On January 22, 2010, EPA established a new 1-hour primary NAAQS for NO
On June 2, 2010, EPA revised the primary SO
On December 14, 2012, EPA revised the primary annual PM
The requirement for states to make a SIP submission of this type arises out of section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “each such plan” submission must address.
EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of section 110(a)(1) and (2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of Title I of the CAA, “regional haze SIP” submissions required by EPA rule to address the visibility protection requirements of section 169A of the CAA, and nonattainment new source review permit program submissions to address the permit requirements of CAA, Title I, part D.
Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.
The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that “each” SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of Title I of the CAA, which specifically address nonattainment SIP requirements.
Another example of ambiguity within section 110(a)(1) and (2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action.
Ambiguities within section 110(a)(1) and (2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants, because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS.
EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) requires attainment plan SIP submissions required by part D to meet the “applicable requirements” of section 110(a)(2); thus, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the PSD program required in part C of Title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others.
Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way. Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS.
Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements.
As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submissions. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or
As another example, EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in section 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and NSR pollutants, including Greenhouse Gases (GHGs). By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the PM
For other section 110(a)(2) elements, however, EPA's review of a state's infrastructure SIP submission focuses on assuring that the state's SIP meets basic structural requirements. For example, section 110(a)(2)(C) includes,
With respect to certain other issues, EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction (SSM) that may be contrary to the CAA and EPA's policies addressing such excess emissions;
EPA's approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in section 110(a)(2) as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP submission. EPA believes that a better approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors.
For example, EPA's 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II).
Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of section 110(a)(1) and (2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.
Section 110(a)(2)(D)(i)(II) requires a state's SIP to contain provisions prohibiting sources in that state from emitting pollutants in amounts that interfere with any other state's efforts to protect visibility under part C of the CAA (which includes sections 169A and 169B). The 2013 Guidance states that these prong 4 requirements can be satisfied by approved SIP provisions that EPA has found to adequately address any contribution of that state's sources to impacts on visibility program requirements in other states. The 2013 Guidance also states that EPA interprets this prong to be pollutant-specific, such that the infrastructure SIP submission need only address the potential for interference with protection of visibility caused by the pollutant (including precursors) to which the new or revised NAAQS applies.
The 2013 Guidance lays out two ways in which a state's infrastructure SIP may satisfy prong 4. The first way is through an air agency's confirmation in its infrastructure SIP submission that it has an EPA-approved regional haze SIP that fully meets the requirements of 40 CFR 51.308 or 51.309. 40 CFR 51.308 and 51.309 specifically require that a state participating in a regional planning process include all measures needed to achieve its apportionment of emission reduction obligations agreed upon through that process. A fully approved regional haze SIP will ensure that emissions from sources under an air agency's jurisdiction are not interfering with measures required to be included in other air agencies' plans to protect visibility.
Alternatively, in the absence of a fully approved regional haze SIP, a state may meet the requirements of prong 4 through a demonstration in its infrastructure SIP submission that emissions within its jurisdiction do not interfere with other air agencies' plans to protect visibility. Such an infrastructure SIP submission would need to include measures to limit visibility-impairing pollutants and ensure that the reductions conform with any mutually agreed regional haze reasonable progress goals for mandatory Class I areas in other states.
Mississippi's May 29, 2012, 2008 8-hour Ozone submission; July 26, 2012, 2008 8-hour Ozone resubmission; February 28, 2013, 2010, NO
In its regional haze SIP, Mississippi relied on CAIR to satisfy the best available retrofit technology (BART) requirements for its CAIR-subject electricity generating units (EGUs).
Mississippi's reference to EPA's February 20, 2013, NPRM to approve the prong 4 element of the State's infrastructure SIP submissions for the 1997 and 2006 PM
As mentioned above, a state may meet the requirements of prong 4 without a fully approved regional haze SIP by showing that its SIP contains adequate provisions to prevent emissions from within the state from interfering with other states' measures to protect visibility. Mississippi did not, however, provide a demonstration in any of the infrastructure SIP submissions subject to today's proposed action that emissions within its jurisdiction do not interfere with other states' plans to protect visibility.
As discussed above, Mississippi does not have a fully approved regional haze SIP that meets the requirements of 40 CFR 51.308 and has not otherwise shown that its SIP contains adequate provisions to prevent emissions from within the state from interfering with other states' measures to protect visibility. Therefore, EPA is proposing to disapprove the prong 4 portions of Mississippi's May 29, 2012, 2008 8-hour Ozone infrastructure SIP submission; July 26, 2012, 2008 8-hour Ozone infrastructure SIP resubmission; February 28, 2013, 2010 1-hour NO
As described above, EPA is proposing to disapprove the prong 4 portions of Mississippi's May 29, 2012, 2008 Ozone infrastructure SIP submission; July 26, 2012, 2008 Ozone infrastructure SIP resubmission; February 28, 2013, 2010 NO
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations.
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Federal Communications Commission.
Proposed rule.
In this document, the Federal Communications Commission (Commission) proposes to amend its rules to improve the quality of the geographic location and other data submitted for fixed white space devices
Comments must be filed on or before May 6, 2016, and reply comments must be filed on or before June 6, 2016.
You may submit comments, identified by ET Docket No. 16-56, by any of the following methods:
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For detailed instructions for submitting comments and additional information on the rulemaking process, see the
Hugh L. Van Tuyl, Office of Engineering and Technology, (202) 418-7506, email:
This is a summary of the Commission's
1. In this NPRM, the Commission proposes and seek comment on revisions to the geo-location and registration requirements for fixed white space devices. It proposes to adopt many of the recommendations outlined in the plan submitted by the National Association of Broadcasters and certain white space device manufacturers (“NAB and Manufacturers' Plan”) and believes that this approach will improve the integrity of the white space database system and better ensure efficient and beneficial use of white spaces while protecting licensees and other authorized users.
2.
3. The Commission proposes that when a fixed white space device is moved to another location or its coordinates become altered, its geographic coordinates and antenna height above ground must be re-established and the device re-registered with a database. With regard to the geographic coordinates, it proposes that they be re-established using an incorporated geo-location capability. The Commission seeks comment on these proposals and on whether a re-registration requirement should apply to any change in location or only those changes where the coordinates differ by more than the accuracy requirement (±50 meters) from the last registered location. With respect to the antenna height above ground, the Commission seeks comment on whether it should require that this height be determined automatically using the fixed device's incorporated geo-location capability, such as GPS. Because the vertical height accuracy of GPS is typically less than the horizontal location accuracy, the Commission seeks comment on whether it should allow users, including professional installers and operators, to override an automatically determined height if it proves to be inaccurate, or whether it should simply allow users to manually enter the antenna height above ground in all cases.
4. The Commission proposes to modify the current rule that requires a fixed white space device to contact the database at least once a day to verify that its operating channels continue to be available for its use. It proposes to require a fixed white space device to check its coordinates once each day, except when not in operation, and to report its geographic location to the database when its makes its daily request for a list of available channels. The Commission seeks comment on implementing this proposal. Should the geographic coordinates reported each day be treated by the white space database as a modification of the registration record? Should the registration record be updated only if the difference in location exceeds 50 meters? What would be the impact on device manufacturers and database administrators?
5. The Commission recognizes that there will be many important applications for fixed white space devices in which the device needs to be installed where an incorporated geo-location capability will not function (
6. The NAB and Manufacturers' Plan makes specific suggestions for how fixed devices should rely on an external geo-location source for determining the geographic coordinates of a fixed white
7. As an alternative to using any type of external geo-location source, the Commission seeks comment on whether a fixed white space device could be connected by a long cable to a separate antenna and continue to rely on its internal geo-location capability. What requirements would be necessary to ensure that the coordinates and location uncertainty reported to the white space database are accurate? Would the suggestions in the NAB and Manufacturers' plan be appropriate for this situation?
8. The NAB and Manufacturers' Plan also suggests another approach for low power (40 mW EIRP) fixed white space devices with an internal geo-location capability that operate indoors where their geo-location capability does not function. Under this provision, the rules would allow a fixed white space device operating with 40 mW or less EIRP to establish its location using its incorporated geo-location capability at a point immediately outside the indoor or other enclosure where the device's geo-location capability does not function, and then to register with its database after the device is installed at its fixed location using the location established at the outdoor point. In such applications, the device would store internally the coordinates of an outdoor position as close as possible to the location where it will be installed and also record the time that it obtained those coordinates. The device would then be installed at its fixed location and register with its database within 30 minutes using the coordinates of the outdoor location. If the device does not complete its registration within the 30 minute period, it would need to start over, re-establish its coordinates at a location where its geo-location capability functions, and initiate a new 30 minute time period. The Commission seeks comment on these suggestions and asks whether this is a workable approach that would provide additional flexibility in the methods for determining geo-location for fixed devices located indoors without increasing the potential for inaccurate locations to be recorded in the databases and/or increase the potential for interference.
9. The Commission seeks comment on alternative parameters and approaches. Is 40 mW the appropriate power level at which to define a low power fixed white space device or would 100 mW be more appropriate? Is 30 minutes sufficient time for the installer to re-locate the device to a nearby operating location, activate the device, register the device with a database, and complete any other steps necessary for the installation? Is 30 minutes the appropriate amount of time to balance the need for properly completing the installation and registration of a device while limiting the opportunity for relocating the device to a faraway place where it could cause interference?
10. The Commission also seeks comment on where the responsibility would lie in verifying that the fixed white space device registration occurs within the allowable 30 minute time period. Should the capability reside in the fixed white space device whereby after 30 minutes the data would automatically be erased if the device is not successfully registered with a database, or should an associated time stamp for the geo-location data be transmitted to the database which would not permit the registration to proceed if outside the 30 minute window? Should the Commission allow other methods of transferring location data to fixed white space devices—for example, could an outdoor location sensor, such as a GPS receiver, write an encrypted file to an SD Card or USB memory stick that could then be plugged into a fixed white space device? How would such a connection ensure that a fixed device would be located no more than 100 meters from its geo-location source? Under such a scheme, what methods could be used to ensure registration within 30 minutes of determining the fixed white space device's location?
11. Low power fixed white space devices operating indoors where their incorporated geo-location capability does not function would not be able to re-check their coordinates daily and transmit them to the database when verifying their available channel list, unless each day the device was uninstalled and moved to the outdoor location to repeat the entire initial location-determining procedure. The Commission seeks comment on whether in such situations, it should allow these devices to use the coordinates previously obtained at an outdoor position and stored in the device until such time as the device is moved or disconnected from its power supply, at which point the device would again re-establish its coordinates using its incorporated geo-location capability. If using previously obtained coordinates in this manner would not serve the public interest, does the impracticality of obtaining updated coordinates on a daily basis warrant a rejection of this proposal? Are there other methods for updating the location information of these devices, short of using a wired external geo-location source, which could be employed successfully?
12. Because the Commission adopted rules in the
13. NAB and the Manufacturers request an increase in protection
14. The Commission proposes that effective six months after the effective date of the new rules, new applications for certification of fixed white space devices must comply with any rules it adopts in this proceeding requiring incorporated geo-location capability. Further, it proposes that within one year after the effective date of any new rules, manufacturers would no longer be able to manufacture and import fixed white space devices that do not comply with the new requirements. In order to allow manufacturers to deplete any inventory of devices that do not comply with the new requirements, the Commission proposes to permit the marketing of these devices for up to eighteen months after the effective date of the new rules, but seeks comment on whether it should specify only certification and marketing cutoff dates (
15. The Commission proposes to treat equipment changes that simply add an incorporated geo-location capability to an existing certificated device as a permissive change under its equipment authorization rules. It seeks comment on the proposed timeframes for implementing any new requirements for incorporating a geo-location capability into all fixed white space devices and whether they are appropriate to provide for a smooth transition to new devices.
16. Finally, the Commission invites comment on the expected costs and benefits of the proposed rule changes in this section and whether the benefits will outweigh the costs. Parties who make specific suggestions for implementing the proposals also should address the costs and benefits associated with their suggestions.
17.
18. The Commission proposes to require the white space database that originates a registration request for a fixed device to confirm the email address and telephone number entered for the contact person. It also proposes that the database not provide service to the device nor share the registration information with other approved white space databases until it receives a confirming response from the party responsible for the device registration. The Commission further proposes that the white space database confirm the contact person's information if any of the identifying information is modified. Under these proposals, a white space database administrator would be allowed to implement the confirmation requirement using a method of its choosing as long as that method obtains a confirming response that (1) the party addressed in the message is responsible for the operation of the subject fixed device, and (2) the email address and telephone number for that party are correct and appropriate to reach that party in a timely manner.
19. Finally, the Commission invites comment on the expected costs and benefits of the proposed rule changes in this section and whether the benefits will outweigh the costs. Parties who make specific suggestions for implementing the proposals also should address the costs and benefits associated with their suggestions.
20.
1. 21. As required by the Regulatory Flexibility Act of 1980, as amended (RFA),
22. The
23. The
24. The proposed action is taken pursuant to sections 1, 4(i), 7(a), 302(a), 303(f), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 157(a), 302(a), 303(f), and 303(r).
25. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted.
26.
27. White space devices are unlicensed devices that operate in the TV bands, and in the future, the 600 MHz band, at locations where frequencies are not in use by licensed services. The rules provide for three types of white space devices: Fixed, and Mode I and Mode II personal/portable devices. To prevent harmful interference to protected services, the rules generally require that white space devices provide their geographic coordinates to a white space database and operate only on location specific channels provided by that database. The location for fixed white space devices may be determined either through an internal geo-location capability or by a professional installer.
28. Most RF transmitting equipment, including white space devices, must be authorized through the certification procedure. Certification is an equipment authorization issued by the Commission or by a designated TCB based on an application and test data submitted by the responsible party (
29.
30. The
31.
32.
33. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”
34. The proposed requirement for all fixed white space devices to incorporate a geo-location capability would require changes to previously approved devices, because most approved fixed devices rely on the use of a professional installer and do not have a geo-location capability. As discussed above, the
35. None.
36.
37. Pursuant to sections 1, 4(i), 7(a), 302(a), 303(f), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 157(a), 302a(a), 303(f), and 303(r), this Notice of Proposed Rule Making
38. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center,
Communications equipment, Radio, Reporting and recordkeeping requirements.
Federal Communications Commission.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 15 as follows:
47 U.S.C. 154, 302a, 303, 304, 307, 336, 544a, and 549.
(b) * * *
(1)
(c) * * *
(1) The geographic coordinates of a fixed white space device shall be determined automatically by an incorporated geo-location capability prior to its initial service transmission at a given location and each time the device is activated from a power-off condition to determine the available channels and the corresponding maximum permitted power for each available channel at its geographic coordinates, taking into consideration the device's geo-location uncertainty.
(2) If the fixed white space device is located where the incorporated geo-location capability does not function, the fixed device may obtain its geographic coordinates from an external geo-location source that is connected to the fixed device using a secure method that ensures that the external geo-location source has been approved for that function by the Commission's equipment certification program.
(3) The fixed white space device shall transmit electronically its geographic coordinates and antenna height above ground to the white space database from which it obtains its list of available channels for operation at the time it registers. The fixed white space device shall electronically transmit this information to the white space database on a daily basis when the device requests a list of the available channels for operation.
(4) If a fixed white space device is moved to another location or its stored geographic coordinates become altered, the device shall re-establish its:
(i) Geographic coordinates; and
(ii) Registration with the white space database based on the device's new coordinates and antenna height above ground level.
(5)(i) * * *
(ii) Operation is permitted only on channels and at power levels that are indicated in the white space database as being available for each white space device. Operation on a channel must cease immediately or power must be reduced to a permissible level if the database indicates that the channel is no longer available at the current operating level.
(iv) Fixed white space devices without a direct connection to the Internet: A fixed white space device may not operate on channels provided by a white space database for another fixed device. A fixed white space device that has not yet been initialized and registered with a white space database consistent with § 15.713 of this part, but can receive the transmissions of another fixed white space device, may transmit to that other fixed white space device on either a channel that the other white space device has transmitted on or on a channel which the other white space device indicates is available for use to access the database to register its location and receive a list of channels that are available for it to use. Subsequently, the newly registered fixed white space device must only use the channels that the database indicates are available for it to use.
(g) * * *
(3) * * *
(iii) Device's geographic coordinates (latitude and longitude (NAD 83)) including the location uncertainty, in meters;
(4) The white space database that receives a fixed white space device registration shall confirm the email address and telephone number of the contact person responsible for the operation of the fixed device. The database shall not provide service to the fixed device nor share the registration information with other approved white space databases until it receives a confirming response from the contact person verifying their information. If the registration record is modified to identify a new contact person or to provide a new email address or telephone number, the white space database shall verify the new information before continuing to provide service to the fixed white space device.
Federal Communications Commission.
Proposed rule.
This document proposes to amend the FM Table of Allotments by allotting Channel 285C3 at Maryville, Missouri, as the community's fourth local service. A staff engineering analysis indicates that Channel 285C3 can be allotted to Maryville consistent with the minimum distance separation requirements of the Commission's rules without a site restriction. The reference coordinates are 40-22-33 NL and 94-51-25 WL.
Comments must be filed on or before May 2, 2016, and reply comments on or before May 17, 2016.
Federal Communications Commission, 445 12th Street SW., Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve the rule making petitioner and the counter proponent as follows: Michael Myers, 111 SW. Cross Creek Dr., Grain Valley, Missouri 64029.
Rolanda F. Smith, Media Bureau, (202) 418-2700.
This is a synopsis of the Commission's
Provisions of the Regulatory Flexibility Act of l980 do not apply to this proceeding.
Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all
For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.
Radio, Radio broadcasting.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:
47 U.S.C. 154, 303, 334, 336 and 339.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of application for exemptions; request for comments.
FMCSA announces that it has received an application from ArcelorMittal Indiana Harbor, LLC (ArcelorMittal) requesting exemptions for our regulations. The first exemption request is for ArcelorMittal's employee-drivers with commercial driver's licenses (CDLs) who transport steel coils between their production and shipping locations on public roads. ArcelorMittal requests this exemption to allow its employee-drivers to work up to 16 hours per day and be allowed to return to work with less than the mandatory 10 consecutive hours off duty. ArcelorMittal also requests exemptions in parts of our regulations for its coil carriers that do not meet all of the vehicle requirements in sections of our regulations. FMCSA requests public comment on ArcelorMittal's application for exemptions.
Comments must be received on or before April 21, 2016.
You may submit comments identified by Federal Docket Management System Number FMCSA-2016-0050 by any of the following methods:
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Ms. Pearlie Robinson, FMCSA Driver and Carrier Operations Division; Office of Carrier, Driver and Vehicle Safety Standards; Telephone: 202-366-4325. Email:
FMCSA encourages you to participate by submitting comments and related materials.
If you submit a comment, please include the docket number for this notice (FMCSA-2016-0050), indicate the specific section of this document to which the comment applies, and provide a reason for suggestions or recommendations. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so the Agency can contact you if it has questions regarding your submission.
To submit your comment online, go to
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant exemptions from certain parts of the Federal Motor Carrier Safety Regulations. FMCSA must publish a notice of each exemption request in the
The Agency reviews safety analyses and public comments submitted, and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the
Under 49 CFR 395.3(a)(2), a property-carrying commercial motor vehicle (CMV) driver is prohibited from operating a CMV after having been on duty for 14 consecutive hours following 10 or more consecutive hours off duty. Once an individual has reached the end of this 14 consecutive-hour period, he or she cannot drive a CMV again without taking a minimum of 10 consecutive hours off duty.
ArcelorMittal (USDOT 1098829) operates a steel plant that is located in East Chicago, Indiana, its principal place of business. The plant currently encompasses an area which has several public roadways that run through its present location. Steel coils produced in one portion of the plant require driver-employees to travel on public roadways at two points to move the coils to another portion of the plant for further processing or for shipment to customers. Both points are controlled intersections, having either traffic lights or a combination of traffic lights and signs in the area, where the vehicles cross. The first public road the CMVs cross is Riley Road. The crossing is controlled by a traffic signal in both directions. The distance traveled at this crossing is 80 feet in length. The average number of crossings at this intersection is 24 per day. The second crossing is at Dickey Road and 129th Street. The distance traveled at this crossing is .2 miles. The trucks cross 129th Street 24 times per day.
All employee-drivers are required to hold CDLs and adhere to the regulations that apply to CMV drivers. Specialized equipment and trailers are used to move steel coils due to the size of the coils. The tractors maximum speed is 30-35 miles per hour, but when moving a fully loaded trailer the maximum speed is 15 miles per hour.
Trailer beds are configured in such a way as create a cradle to hold the steel coils in place on the bed of the trailer. The trailers have a bed height of 68 inches, and bed width of 114 inches. The trailers maximum height is 14 feet.
The tractors and trailer in combination unloaded have a gross combination weight of 77,000 pounds. When fully loaded the gross combination vehicle weight is 263,171 pounds. Additionally, the trailers have off-road tires. These types of tires are necessary to operate both inside and outside the plant safely, given the type of roadway surface inside the plant area and the weight of the loads. These vehicles have many of the same features of a typical tractor and trailer, but do not meet all of the parts and accessories requirements in 49 CFR part 393.
When employee-drivers move these vehicles, they are fully marked as an “oversize load” and have flags on the front of the tractor. The driving of these vehicles amounts to 10 percent of the employee-drivers total work day. ArcelorMittal contends that none of these employee-drivers work more than 16 hours per day and advises that a 16-hour work day is the exception, not the rule.
According to ArcelorMittal, the current hours-of-service (HOS) regulations create problems for employee-drivers as these employees typically work an 8-hour shift plus overtime while employees in the production and shipping areas work 12-hour shifts. Employee-drivers must go home under the current arrangement leaving a 4-hour gap between production and the driver's schedule, creating a possible shortage of coils for shipping or processing. ArcelorMittal asserts that the limited amount of employees used to drive the CMVs make it difficult to schedule when the vehicles move. ArcelorMittal anticipates only 3 of the 24 crossings at each noted intersection would occur after the 14th hour on-duty.
ArcelorMittal requests an exemption from 49 CFR part 395 for its employee-drivers. Under a waiver of the HOS regulations, employee-drivers would be able to follow the same schedule as the employees in the production and shipping areas. ArcelorMittal could then minimize the chances of possible shortages of coils for shipping or processing. ArcelorMittal advises that it would ensure all employee-drivers would not work more than 16 hours per shift, would receive 8 hours off duty between shifts, and would not be allowed to drive more than 10 percent of their total work day.
ArcelorMittal also requests exemptions for its coil carriers from certain sections in 49 CFR part 393 as follows: The heavy hauler trailer definition in § 393.5; the height of rear side marker lights in § 393.11 Table 1—Footnote 4; the tire loading restrictions in § 393.75(f); and the coil securement requirements in § 393.120. As previously noted, the vehicles used to transport steel coils have many of the same features of a typical tractor and trailer, but do not meet all of the parts and accessories requirements in 49 CFR part 393.
According to ArcelorMittal, its equipment was designed for in-facility use and very limited road use. Public roadways are crossed due to operational necessity. ArcelorMittal advises that they have never had an issue at the crossings mentioned with their equipment or drivers. The coils are well-secured in the vehicles with the cradle design of their trailers. The time it would take to secure the coils per the regulations would be longer than the transit time it takes to move the coils from part of the plant to another.
ArcelorMittal asserts that it has taken additional precautions to make sure the public roadway crossings are at the shortest points and only at controlled intersections. ArcelorMittal ensures all lights are properly working on both the tractor and trailer. They also flag and mark the vehicles as “oversize” loads. Trailers have conspicuity tape down the entire side to make them more visible to other traffic. ArcelorMittal believes that the additional precautions ensure a level of safety that is equivalent to or exceeds the level of safety achieved by following the regulations.
ArcelorMittal acknowledges in its application that these drivers would still be subject to all of the other applicable Federal regulations. This includes qualification of drivers, controlled substance and alcohol testing and inspection, and maintenance and repair of vehicles.
Included in ArcelorMittal's application are illustrations of the plant's location, public roads crossed, and pictures of the tractors and trailers used to transport the steel coils. A copy of ArcelorMittal's application for the exemptions is available for review in the docket for this notice.
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
With the Lower McCloud Fuels Management Project (project), the Shasta-Trinity National Forest (Forest) is proposing to create fuel management zones (FMZs), burn using prescribed fire, and remove designated hazard trees. The project area covers 12,071 acres on National Forest System lands. A combination of treatments would be used across the project area, resulting in some acres being treated with multiple prescriptions to achieve stated objectives.
Comments concerning this scope of the analysis must be received by April 21, 2016. The draft environmental impact statement is expected in December 2016 and the final environmental impact statement is expected in June 2017.
Send written comments to Carolyn Napper, District Ranger, Shasta-McCloud Management Unit, 204 W. Alma St., Mt. Shasta, California 96067, Attn: Heather McRae. Comments may also be sent via email to:
Heather McRae, Fuels Specialist, at (530) 964-3770 or
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.
The Lower McCloud Fuels Management Project is located within the McCloud River basin, an area that is considered to contain outstandingly remarkable fisheries, geology, scenery, wildlife, and cultural and historic values. All lands within the project area are National Forest System Lands managed by the U.S. Forest Service, however, there are private properties located within the Lower McCloud watershed. Private ownership activities and designations include a nature preserve, a fishing club, a utility company, timber companies, and a ranching operation. The project area is located partly within the West Girard inventoried roadless area (IRA), and almost completely within the Iron Canyon Late-Successional Reserve (LSR).
The Iron Canyon LSR, is centrally located within the network of LSRs in the Shasta-McCloud subprovince, and contains some of the largest blocks of contiguous habitat in the network. This places a high level of importance on the protection and enhancement of the current and future habitat within the area. The Iron Canyon LSR was identified within a Forest-wide Late Successional Reserve Assessment as an area of elevated risk to large-scale disturbance due to changes in the characteristics and distribution of the mixed-conifer forests resulting from past fire suppression. High severity, high intensity wildfire was identified as the greatest threat to further loss and degradation of habitat for late-successional associated species within the network of LSRs.
Fire is the most widespread and dynamic disturbance regime affecting the project area. The historic fire regime in the Lower McCloud project area was characterized by frequent fires of low to mixed severity. However, the Lower McCloud project area has not experienced a large scale fire in over 100 years and has departed from historic fire return intervals. As a result, there is a significant departure in the current vegetative conditions from historic conditions in the project area. Past forest practices, including active fire suppression, have changed the composition and structure of the vegetation in the project area.
Current conditions include high fire hazard and risk. The absence of wildfire has resulted in uncharacteristically dense vegetation and high fuel loading, a decline in wildlife forage and habitat diversity, and an elevated risk of high-severity, stand-replacing fires within the LSR. These conditions have created a concern over potential fire behavior on public and private lands, threats to forest resources, and potential impacts to air quality.
Without the influence of fire under well-defined conditions to restore and maintain vegetation diversity, many stands are likely to continue to accumulate abundant fuels and vegetation, and are subsequently more likely to succumb to stand replacing fire that will reduce or eliminate late-successional conditions. Other stands are likely to continue to lose their structural and compositional diversity, important attributes of late-successional stands. As fire hazard and fire behavior potential increase, periods of poor air quality during wildfires are more likely to occur, soil erosion processes may accelerate, soil productivity may decrease, water quality may be degraded, habitat for terrestrial and aquatic wildlife species will diminish, and recreation opportunities will be negatively impacted.
Many of these concerns have been validated by relatively recent wildfires (
The purpose of this project is to reduce the risk of a stand-replacing fire in the LSR, improve firefighter and public safety by providing safe access in and out of the project area, and to restore fire in its natural role in the ecosystem. In order to meet the purpose of this project, there is a need to reduce fuels, improve safety of individuals, and improve forest ecosystem function and health within the project boundary. The following specific needs have been identified by the interdisciplinary team:
• There is a need to reduce fuel accumulations in the project area to minimize current fuel loading and lessen the threat of habitat loss from future wildland fires.
• There is a need to protect existing late successional habitat from threats of habitat loss that occur inside and outside of the LSR.
• There is a need to reduce the likelihood of stand replacing disturbances that would result in the loss of key late-successional structure or existing and future late-successional forest.
• There is a need for the natural role of fire to be restored to the ecosystem at historic fire return intervals to facilitate fire-related processes on this landscape.
• There is a need to provide areas and access to areas where firefighters can safely employ suppression tactics to reduce the spread and severity of uncharacteristic wildland fire.
• There is a need to remove hazard trees in FMZs, along roads, and in developed recreation sites to reduce safety risk to humans working in and visiting the area.
• There is a need to provide for the safety of individuals along access routes and within developed recreation sites.
• There is a need to increase habitat quality within the project area to provide for a range of species, including rare and sensitive species and those that are associated with late successional stages.
• There is a need to maintain and promote the connectivity of late successional habitat.
• There is a need to promote long term sustainability of late-successional habitat by mitigating undesirable fire effects.
• There is a need to promote the development and long term sustainability of late successional habitat characteristics within the LSR.
• There is a need to enhance riparian habitat by reducing risk of loss from fire.
• There is a need to reduce stand densities in the project area to improve the resiliency of stands to a disturbance such as a wildfire.
• There is a need to create a vegetation profile with high spatial complexity to mimic historically characteristic fire patterns.
• There is a need for the natural role of fire to be restored to the ecosystem to facilitate fire-related processes in the landscape.
• There is a need to maintain the characteristics of ecosystem composition and structure within the IRA, by reducing the risk of uncharacteristic wildfire effects within the range of variability that would be expected to occur under natural disturbance regimes of the current climatic period.
The project area is approximately 12,071 acres in total, and the proposed action involves a total of 13,153 acres of treatments, with areas of overlapping treatment. There would be no treatments occurring outside of the project area. The treatments would occur over approximately 7-10 years. The proposed action would utilize the existing road system and does not propose new road construction.
Approximately 1,630 acres are proposed for treatment as fuel management zones (FMZ). Fuel Management Zones would reduce overstory, midstory, and understory fuels, including live vegetation, and are intended to create shaded fuel breaks designed to reduce potential fire behavior in the treated area. Fuel management zones would be constructed along roads and ridge tops in order to improve those locations' functionality as evacuation routes and fuel breaks. Fuel Management Zones will range from 300 feet to 600 feet wide depending upon treatment location, and would be treated with a variety of methods, based on site specific conditions. These methods would include thinning by hand and machine, mastication by machine, machine piling, hand piling, and pile burning.
After treatment, the fuel management zones (FMZs) in the project area would reduce the current risk of large, stand-replacing fires and enhance the usability of roads and ridges in the project area for wildland fire management. Overstory trees would be thinned to reduce crown-to-crown overlap. The average height from the ground to the canopy would increase. Understory trees, shrubs, and heavy ground fuels would be reduced, increasing the potential of fire being contained at the FMZ. The density of the stand would be less that the current condition, with fewer trees per acre and the larger, more fire-resistant trees retained in the stand.
Commercial products may be removed from the fuelbreaks, primarily to reduce residual fuels and to meet the intent of applicable management direction and desired future condition. The cutting, sale, or removal of timber from the fuelbreaks may be needed to reduce the risk of uncharacteristic wildfire effects and to maintain the ecosystem's composition and structure within the range of variability that would be expected to occur under natural disturbance regimes of the current climatic period, which is allowed under the 2001 Roadless Rule. Commercial products may include biomass, firewood, or timber. The amount of residual fuel generated in the treatment of the FMZ will determine if the removal of fuel from the site would occur. If treated areas have high levels of activity generated, residual fuel that would render the fuelbreak ineffective, the fuel would be removed from the site by whichever method is most practicable. Hazard trees identified within the FMZs, roads, and developed recreation sites that pose a threat to employees and the public would be felled where determined necessary. Hazard tree felling would follow Hazard Tree Guidelines for Forest Service Facilities and Roads within the Pacific Southwest Region.
Approximately 11,523 acres are proposed for treatment with prescribed fire. Low to moderate intensity prescribed fire would be applied using and underburn to consume surface and ladder fuels in proposed areas. Multiple prescribed fire entries may be required to meet desired future conditions and could be implemented at any time of the year within designated operating periods. Prescribed fire lighting techniques would consist of aerial ignition (
• Desired flame lengths in these treatment areas vary from 0-6 feet according to resource objectives.
• Large diameter dead/down material would be retained to historical levels—where appropriate—to support soil, fungal, plant, and animal functionality.
• Up to 70% of the fuels less than 3 inches in diameter would be consumed while retaining a minimum of 50% soil cover.
• Ladder fuels would be reduced in an effort to increase canopy base height to 10 feet or greater.
• In shrub dominated areas, a mosaic of age classes and diversity of species composition would be created.
Forest Supervisor, Shasta-Trinity National Forest.
The Forest Supervisor will decide whether to implement the proposed action/preferred alternative, take an alternative action that meets the purpose and need, or take no action.
Potentitial issues could be related to threatened and endangered species habitat, treatments within LSR and IRA, and the private property surrounding the project area. Access to the project site and proposed treatments may be an issue due to the amount of private property located within and surrounding the project area. Potential issues will be addressed within the project design.
This notice of intent initiates the scoping process, which guides the development of the environmental impact statement. The scoping information and Notice for Public comment will be published in the Mt. Shasta Herald and the Redding Record Searchlight.
It is important that reviewers provide their comments at such times and in such manner that they are useful to the agency's preparation of the environmental impact statement. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions.
Comments received in response to this solicitation, including names and addresses of those who comment, will be part of the public record for this proposed action. Comments submitted anonymously will be accepted and considered, however.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the “Department”) preliminarily determines that certain hot-rolled steel flat products (“hot-rolled steel”) from Japan are being, or are likely to be, sold in the United States at less than fair value (“LTFV”), as provided in section 733(b) of the Tariff Act of 1930, as amended (“the Act”). The period of investigation (“POI”) is July 1, 2014, through June 30, 2015. The estimated weighted-average dumping margins of sales at LTFV are shown in the “Preliminary Determination” section of this notice. Interested parties are invited to comment on this preliminary determination.
Jun Jack Zhao or Myrna Lobo, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1396 or (202) 482-2371, respectively.
The Department published the notice of initiation of this investigation on September 9, 2015.
The product covered by this investigation is certain hot-rolled steel flat products from Japan. For a full description of the scope of this investigation,
In accordance with the preamble to the Department's regulations,
The Department published the notice of postponement of preliminary determination of this investigation on November 25, 2015.
The Department is conducting this investigation in accordance with section 731 of the Act. Export prices (EP) have been calculated in accordance with section 772(a) of the Act. Constructed export prices (CEP) have been calculated in accordance with section 772(b) of the Act. Normal value (NV) is calculated in accordance with section 773 of the Act. For a full description of the methodology underlying our preliminary conclusions,
For the reasons set forth in the Preliminary Decision Memorandum and in accordance with 19 CFR 351.401(f) and the Department's practice, we are treating Nippon Steel & Sumitomo Metal Corporation and Nippon Steel & Sumikin Bussan Corporation (Nippon Group) as a single entity for the purposes of this preliminary determination. Additionally, we are treating JFE Steel Corporation and JFE Shoji Trade Corporation (JFE Group) as a single entity for the purposes of this preliminary determination.
Consistent with sections 733(d)(1)(A)(ii) and 735(c)(5) of the Act, the Department also calculated an estimated all-others rate. Section 735(c)(5)(A) of the Act provides that the estimated all-others rate shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and
In this investigation, we calculated weighted-average dumping margins for the JFE Group and the Nippon Group, that are above
The Department preliminarily determines that the following weighted-average
In accordance with section 733(d)(2) of the Act, we are directing U.S. Customs and Border Protection (“CBP”) to suspend liquidation of all entries of hot-rolled steel from Japan, as described in the Scope of the Investigation in Appendix I, entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
In accordance with 19 CFR 351.205(d), the Department will instruct CBP to require a cash deposit equal to the preliminary weighted-average amount by which normal value exceeds U.S. price, as indicated in the chart above.
We will disclose the calculations performed to interested parties in this proceeding within five days of the date of announcement of this preliminary determination in accordance with 19 CFR 351.224(b).
As provided in section 782(i) of the Act, we intend to verify information relied upon in making our final determination.
Interested parties are invited to comment on this preliminary determination. Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the final verification report is issued in this proceeding, and rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce. All documents must be filed electronically using ACCESS. An electronically-filed request must be received successfully in its entirety by ACCESS by 5:00 p.m. Eastern Time, within 30 days after the date of publication of this notice.
Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by Petitioners. 19 CFR 351.210(e)(2) requires that requests by respondents for postponement of a final antidumping determination be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration.
On March 10, 2016, pursuant to 19 CFR 351.210(b)(2)(ii) and 19 CFR 351.210(e)(2), the JFE Group requested that, contingent upon an affirmative preliminary determination of sales at LTFV, the Department postpone the final determination and that provisional measures be extended to a period not to exceed six months.
In accordance with section 735(a)(2)(A) of the Act and 19 CFR 351.210(b)(2)(ii), because (1) our preliminary determination is affirmative; (2) the exporter accounts for a significant proportion of exports of the subject merchandise; and (3) no compelling reasons for denial exist, we are postponing the final determination and extending the provisional measures from a four-month period to a period not greater than six months. Accordingly, we will make our final determination no later than 135 days after the date of publication of this preliminary determination, pursuant to section 735(a)(2) of the Act.
In accordance with section 733(f) of the Act, we are notifying the ITC of our affirmative preliminary determination of sales at LTFV. If our final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after our final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).
The products covered by this investigation are certain hot-rolled, flat-rolled steel products, with or without patterns in relief, and whether or not annealed, painted, varnished, or coated with plastics or other non-metallic substances. The products covered do not include those that are clad, plated, or coated with metal. The products covered include coils that have a width or other lateral measurement (“width”) of 12.7 mm or greater, regardless of thickness, and regardless of form of coil (
(1) where the nominal and actual measurements vary, a product is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set forth above unless the resulting measurement makes the product covered by the existing antidumping
(2) where the width and thickness vary for a specific product (
Steel products included in the scope of this investigation are products in which: (1) iron predominates, by weight, over each of the other contained elements; (2) the carbon content is 2 percent or less, by weight; and
• 2.50 percent of manganese, or
• 3.30 percent of silicon, or
• 1.50 percent of copper, or
• 1.50 percent of aluminum, or
• 1.25 percent of chromium, or
• 0.30 percent of cobalt, or
• 0.40 percent of lead, or
• 2.00 percent of nickel, or
• 0.30 percent of tungsten, or
• 0.80 percent of molybdenum, or
• 0.10 percent of niobium, or
• 0.30 percent of vanadium, or
• 0.30 percent of zirconium.
Unless specifically excluded, products are included in this scope regardless of levels of boron and titanium.
For example, specifically included in this scope are vacuum degassed, fully stabilized (commonly referred to as interstitial-free (IF)) steels, high strength low alloy (HSLA) steels, the substrate for motor lamination steels, Advanced High Strength Steels (AHSS), and Ultra High Strength Steels (UHSS). IF steels are recognized as low carbon steels with micro-alloying levels of elements such as titanium and/or niobium added to stabilize carbon and nitrogen elements. HSLA steels are recognized as steels with micro-alloying levels of elements such as chromium, copper, niobium, titanium, vanadium, and molybdenum. The substrate for motor lamination steels contains micro-alloying levels of elements such as silicon and aluminum. AHSS and UHSS are considered high tensile strength and high elongation steels, although AHSS and UHSS are covered whether or not they are high tensile strength or high elongation steels.
Subject merchandise includes hot-rolled steel that has been further processed in a third country, including but not limited to pickling, oiling, levelling, annealing, tempering, temper rolling, skin passing, painting, varnishing, trimming, cutting, punching, and/or slitting, or any other processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the hot-rolled steel.
All products that meet the written physical description, and in which the chemistry quantities do not exceed any one of the noted element levels listed above, are within the scope of this investigation unless specifically excluded. The following products are outside of and/or specifically excluded from the scope of this investigation:
• Universal mill plates (
• Products that have been cold-rolled (cold-reduced) after hot-rolling;
• Ball bearing steels;
• Tool steels;
• Silico-manganese steels;
The products subject to this investigation are currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers: 7208.10.1500, 7208.10.3000, 7208.10.6000, 7208.25.3000, 7208.25.6000, 7208.26.0030, 7208.26.0060, 7208.27.0030, 7208.27.0060, 7208.36.0030, 7208.36.0060, 7208.37.0030, 7208.37.0060, 7208.38.0015, 7208.38.0030, 7208.38.0090, 7208.39.0015, 7208.39.0030, 7208.39.0090, 7208.40.6030, 7208.40.6060, 7208.53.0000, 7208.54.0000, 7208.90.0000, 7210.70.3000, 7211.14.0030, 7211.14.0090, 7211.19.1500, 7211.19.2000, 7211.19.3000, 7211.19.4500, 7211.19.6000, 7211.19.7530, 7211.19.7560, 7211.19.7590, 7225.11.0000, 7225.19.0000, 7225.30.3050, 7225.30.7000, 7225.40.7000, 7225.99.0090, 7226.11.1000, 7226.11.9030, 7226.11.9060, 7226.19.1000, 7226.19.9000, 7226.91.5000, 7226.91.7000, and 7226.91.8000. The products subject to the investigation may also enter under the following HTSUS numbers: 7210.90.9000, 7211.90.0000, 7212.40.1000, 7212.40.5000, 7212.50.0000, 7214.91.0015, 7214.91.0060, 7214.91.0090, 7214.99.0060, 7214.99.0075, 7214.99.0090, 7215.90.5000, 7226.99.0180, and 7228.60.6000.
The HTSUS subheadings above are provided for convenience and U.S. Customs purposes only. The written description of the scope of the investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) preliminarily determines that certain hot-rolled steel flat products (hot-rolled steel) from the Netherlands are being, or are likely to be, sold in the United States at less than fair value (LTFV), as provided in section 733(b) of the Tariff Act of 1930, as amended (the Act). The period of investigation (POI) is July 1, 2014, through June 30, 2015. The estimated weighted-average dumping margins of sales are shown in the “Preliminary Determination” section of this notice. Interested parties are invited to comment on this preliminary determination.
Effective: March 22, 2016.
Dmitry Vladimirov, 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) 482-0665.
The Department published the notice of initiation of this investigation on September 9, 2015.
The products covered by this investigation are hot-rolled steel from the Netherlands. For a full description of the scope of this investigation,
Certain interested parties commented on the scope of the investigation as it appeared in the
The Department published the notice of postponement of preliminary determination of this investigation on November 25, 2015.
The Department is conducting this investigation in accordance with section 731 of the Act. Export prices have been calculated in accordance with section 772(a) of the Act. Constructed export prices have been calculated in accordance with section 772(b) of the Act. Normal value (NV) is calculated in accordance with section 773 of the Act. In addition, the Department has relied on partial adverse facts available under sections 776(a) and (b) of the Act. For a full description of the methodology underlying our preliminary conclusions,
Sections 733(d)(1)(A)(ii) and 735(c)(5)(A) of the Act provide that in the preliminary determination the Department shall determine an estimated all-others rate for all exporters and producers not individually investigated, which shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and
The Department preliminarily determines that the following weighted-average dumping margins exist:
In accordance with section 733(d)(2) of the Act, we will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of all entries of hot-rolled steel from the Netherlands as described in the “Scope of the Investigation” section entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
Pursuant to section 733(d)(1)(B) of the Act and 19 CFR 351.205(d), the Department will instruct CBP to require a cash deposit equal to the weighted-average amount by which the NV exceeds U.S. price as indicated in the chart above. These suspension of liquidation instructions will remain in effect until further notice.
We intend to disclose the calculations performed to interested parties in this proceeding within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Interested parties are invited to comment on this preliminary determination.
As provided in section 782(i) of the Act, we intend to verify information relied upon in making our final determination.
Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the final verification report is issued in this proceeding, and rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce. All documents must be filed electronically using ACCESS. An electronically-filed request must be received successfully in its entirety by ACCESS by 5:00 p.m. Eastern Time, within 30 days after the date of publication of this notice.
Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioners. 19 CFR 351.210(e)(2) requires that requests by respondents for postponement of a final antidumping determination be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration.
On February 22, 2016, pursuant to 19 CFR 351.210(b) and (e), Tata Steel IJmuiden B.V. requested that, contingent upon an affirmative preliminary determination of sales at LTFV, the Department postpone the final determination and that provisional measures be extended to a period not to exceed six months.
In accordance with section 735(a)(2)(A) of the Act and 19 CFR 351.210(b)(2)(ii), because (1) our preliminary determination is affirmative; (2) the requesting exporters account for a significant proportion of exports of the subject merchandise;
In accordance with section 733(f) of the Act, we are notifying the ITC of our affirmative preliminary determination of sales at LTFV. If our final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after our final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).
The products covered by this investigation are certain hot-rolled, flat-rolled steel products, with or without patterns in relief, and whether or not annealed, painted, varnished, or coated with plastics or other non-metallic substances. The products covered do not include those that are clad, plated, or coated with metal. The products covered include coils that have a width or other lateral measurement (“width”) of 12.7 mm or greater, regardless of thickness, and regardless of form of coil (
(1) Where the nominal and actual measurements vary, a product is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set forth above unless the resulting measurement makes the product covered by the existing antidumping
(2) where the width and thickness vary for a specific product (
Steel products included in the scope of this investigation are products in which: (1) Iron predominates, by weight, over each of the other contained elements; (2) the carbon content is 2 percent or less, by weight; and (3) none of the elements listed below exceeds the quantity, by weight, respectively indicated:
• 2.50 percent of manganese, or
• 3.30 percent of silicon, or
• 1.50 percent of copper, or
• 1.50 percent of aluminum, or
• 1.25 percent of chromium, or
• 0.30 percent of cobalt, or
• 0.40 percent of lead, or
• 2.00 percent of nickel, or
• 0.30 percent of tungsten, or
• 0.80 percent of molybdenum, or
• 0.10 percent of niobium, or
• 0.30 percent of vanadium, or
• 0.30 percent of zirconium.
Unless specifically excluded, products are included in this scope regardless of levels of boron and titanium.
For example, specifically included in this scope are vacuum degassed, fully stabilized (commonly referred to as interstitial-free (IF)) steels, high strength low alloy (HSLA) steels, the substrate for motor lamination steels, Advanced High Strength Steels (AHSS), and Ultra High Strength Steels (UHSS). IF steels are recognized as low carbon steels with micro-alloying levels of elements such as titanium and/or niobium added to stabilize carbon and nitrogen elements. HSLA steels are recognized as steels with micro-alloying levels of elements such as chromium, copper, niobium, titanium, vanadium, and molybdenum. The substrate for motor lamination steels contains micro-alloying
Subject merchandise includes hot-rolled steel that has been further processed in a third country, including but not limited to pickling, oiling, levelling, annealing, tempering, temper rolling, skin passing, painting, varnishing, trimming, cutting, punching, and/or slitting, or any other processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the hot-rolled steel.
All products that meet the written physical description, and in which the chemistry quantities do not exceed any one of the noted element levels listed above, are within the scope of this investigation unless specifically excluded. The following products are outside of and/or specifically excluded from the scope of this investigation:
• Universal mill plates (
• Products that have been cold-rolled (cold-reduced) after hot-rolling;
• Ball bearing steels;
• Tool steels;
• Silico-manganese steels;
The products subject to this investigation are currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers: 7208.10.1500, 7208.10.3000, 7208.10.6000, 7208.25.3000, 7208.25.6000, 7208.26.0030, 7208.26.0060, 7208.27.0030, 7208.27.0060, 7208.36.0030, 7208.36.0060, 7208.37.0030, 7208.37.0060, 7208.38.0015, 7208.38.0030, 7208.38.0090, 7208.39.0015, 7208.39.0030, 7208.39.0090, 7208.40.6030, 7208.40.6060, 7208.53.0000, 7208.54.0000, 7208.90.0000, 7210.70.3000, 7211.14.0030, 7211.14.0090, 7211.19.1500, 7211.19.2000, 7211.19.3000, 7211.19.4500, 7211.19.6000, 7211.19.7530, 7211.19.7560, 7211.19.7590, 7225.11.0000, 7225.19.0000, 7225.30.3050, 7225.30.7000, 7225.40.7000, 7225.99.0090, 7226.11.1000, 7226.11.9030, 7226.11.9060, 7226.19.1000, 7226.19.9000, 7226.91.5000, 7226.91.7000, and 7226.91.8000. The products subject to the investigation may also enter under the following HTSUS numbers: 7210.90.9000, 7211.90.0000, 7212.40.1000, 7212.40.5000, 7212.50.0000, 7214.91.0015, 7214.91.0060, 7214.91.0090, 7214.99.0060, 7214.99.0075, 7214.99.0090, 7215.90.5000, 7226.99.0180, and 7228.60.6000.
The HTSUS subheadings above are provided for convenience and U.S. Customs purposes only. The written description of the scope of the investigation is dispositive.
List of Topics Discussed in the Preliminary Decision Memorandum:
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Department) preliminarily determines that certain hot-rolled steel flat products (hot-rolled steel) from the Republic of Korea (Korea) are being, or are likely to be, sold in the United States at less than fair value (LTFV), as provided in section 733(b) of the Tariff Act of 1930, as amended (Act). The period of investigation (POI) is July 1, 2014, through June 30, 2015. The estimated weighted-average dumping margins are shown in the “Preliminary Determination” section of this notice. Interested parties are invited to comment on this preliminary determination.
Effective: March 22, 2016.
Javier Barrientos or Matthew Renkey, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-2243 or (202) 482-2312, respectively.
The Department published the notice of initiation of this investigation on September 9, 2015.
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 preliminary determination of this investigation is now March 14, 2016.
The product covered by this investigation is hot-rolled steel from Korea. For a full description of the scope of this investigation, see the “Scope of the Investigation,” in Appendix I.
In accordance with the preamble to the Department's regulations,
The Department is conducting this investigation in accordance with section 731 of the Act. Export prices have been calculated in accordance with section 772(a) of the Act. Constructed export prices have been calculated in accordance with section 772(b) of the Act. Normal value (NV) is calculated in accordance with section 773 of the Act. For a full description of the methodology underlying our preliminary conclusions, see the Preliminary Decision Memorandum.
Section 735(c)(5)(A) of the Act provides that the estimated all-others rate shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and
In this investigation, we calculated weighted-average dumping margins for Hyundai Steel Company and POSCO
The Department preliminarily determines that the following weighted-average dumping margins exist:
In accordance with section 733(d)(2) of the Act, we are directing U.S. Customs and Border Protection (CBP) to suspend liquidation of all entries of hot-rolled steel from Korea, as described in the scope of the investigation section entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
Pursuant to section 733 (d)(1)(B) of the Act and 19 CFR 351.205(d), the Department will instruct CBP to require a cash deposit equal to the weighted-average amount by which the NV exceeds U.S. price as indicated in the chart above,
We will disclose the calculations performed to interested parties in this proceeding within five days of the date of public announcement of this
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce. All documents must be filed electronically using ACCESS. An electronically-filed request must be received successfully in its entirety by ACCESS by 5:00 p.m. Eastern Time, within 30 days after the date of publication of this notice.
As provided in section 782(i) of the Act, we intend to verify information relied upon in making our final determination.
Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by Petitioners. 19 CFR 351.210(e)(2) requires that requests by respondents for postponement of a final antidumping determination be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration.
On March 2, 2016, and March 3, 2016, pursuant to 19 CFR 351.210(b) and (e), POSCO and Hyundai Steel Company, respectively, requested that, contingent upon an affirmative preliminary determination of sales at LTFV for the respondents, the Department postpone the final determination and that provisional measures be extended to a period not to exceed six months.
In accordance with section 735(a)(2)(A) of the Act and 19 CFR 351.210(b)(2)(ii), because (1) our preliminary determination is affirmative, in part; (2) the requesting exporters account for a significant proportion of exports of the subject merchandise; and (3) no compelling reasons for denial exist, we are postponing the final determination and extending the provisional measures from a four-month period to a period not greater than six months. Accordingly, we will make our final determination no later than 135 days after the date of publication of this preliminary determination, pursuant to section 735(a)(2) of the Act.
In accordance with section 733(f) of the Act, we are notifying the ITC of our affirmative preliminary determination of sales at LTFV. If our final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after our final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).
The products covered by this investigation are certain hot-rolled, flat-rolled steel products, with or without patterns in relief, and whether or not annealed, painted, varnished, or coated with plastics or other non-metallic substances. The products covered do not include those that are clad, plated, or coated with metal. The products covered include coils that have a width or other lateral measurement (“width”) of 12.7 mm or greater, regardless of thickness, and regardless of form of coil (
(1) Where the nominal and actual measurements vary, a product is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set forth above unless the resulting measurement makes the product covered by the existing antidumping
(2) where the width and thickness vary for a specific product (
Steel products included in the scope of this investigation are products in which: (1) Iron predominates, by weight, over each of the other contained elements; (2) the carbon content is 2 percent or less, by weight; and (3) none of the elements listed below exceeds the quantity, by weight, respectively indicated:
Unless specifically excluded, products are included in this scope regardless of levels of boron and titanium.
For example, specifically included in this scope are vacuum degassed, fully stabilized (commonly referred to as interstitial-free (IF)) steels, high strength low alloy (HSLA) steels, the substrate for motor lamination steels, Advanced High Strength Steels (AHSS), and Ultra High Strength Steels (UHSS). IF steels are recognized as low carbon steels with micro-alloying levels of elements such as titanium and/or niobium added to stabilize carbon and nitrogen elements. HSLA steels are recognized as steels with micro-alloying levels of elements such as chromium, copper, niobium, titanium, vanadium, and molybdenum. The substrate for motor lamination steels contains micro-alloying levels of elements such as silicon and aluminum. AHSS and UHSS are considered high tensile strength and high elongation steels, although AHSS and UHSS are covered whether or not they are high tensile strength or high elongation steels.
Subject merchandise includes hot-rolled steel that has been further processed in a third country, including but not limited to pickling, oiling, levelling, annealing, tempering, temper rolling, skin passing, painting, varnishing, trimming, cutting, punching, and/or slitting, or any other processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the hot-rolled steel.
All products that meet the written physical description, and in which the chemistry quantities do not exceed any one of the noted element levels listed above, are within the scope of this investigation unless specifically excluded. The following products are outside of and/or specifically excluded from the scope of this investigation:
• Universal mill plates (
• Products that have been cold-rolled (cold-reduced) after hot-rolling;
• Ball bearing steels;
• Tool steels;
• Silico-manganese steels;
The products subject to this investigation are currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers: 7208.10.1500, 7208.10.3000, 7208.10.6000, 7208.25.3000, 7208.25.6000, 7208.26.0030, 7208.26.0060, 7208.27.0030, 7208.27.0060, 7208.36.0030, 7208.36.0060, 7208.37.0030, 7208.37.0060, 7208.38.0015, 7208.38.0030, 7208.38.0090, 7208.39.0015, 7208.39.0030, 7208.39.0090, 7208.40.6030, 7208.40.6060, 7208.53.0000, 7208.54.0000, 7208.90.0000, 7210.70.3000, 7211.14.0030, 7211.14.0090, 7211.19.1500, 7211.19.2000, 7211.19.3000, 7211.19.4500, 7211.19.6000, 7211.19.7530, 7211.19.7560, 7211.19.7590, 7225.11.0000, 7225.19.0000, 7225.30.3050, 7225.30.7000, 7225.40.7000, 7225.99.0090, 7226.11.1000, 7226.11.9030, 7226.11.9060, 7226.19.1000, 7226.19.9000, 7226.91.5000, 7226.91.7000, and 7226.91.8000. The products subject to the investigation may also enter under the following HTSUS numbers: 7210.90.9000, 7211.90.0000, 7212.40.1000, 7212.40.5000, 7212.50.0000, 7214.91.0015, 7214.91.0060, 7214.91.0090, 7214.99.0060, 7214.99.0075, 7214.99.0090, 7215.90.5000, 7226.99.0180, and 7228.60.6000.
The HTSUS subheadings above are provided for convenience and U.S. Customs purposes only. The written description of the scope of the investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) preliminarily determines that certain hot-rolled steel flat products (hot-rolled steel) from the Republic of Turkey (Turkey) are being, or are likely to be, sold in the United States at less than fair value (LTFV), as provided in section 733(b) of the Tariff Act of 1930, as amended (the Act). The period of investigation (POI) is July 1, 2014, through June 30, 2015. The estimated weighted-average dumping margins are shown in the “Preliminary Determination” section of this notice. Interested parties are invited to comment on this preliminary determination.
Effective: March 22, 2016.
Alexander Cipolla or Toni Page, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-4956 or (202) 482-1398, respectively.
The Department published the notice of initiation of this investigation on September 9, 2015.
The product covered by this investigation is hot-rolled steel from Turkey. For a full description of the scope of this investigation,
Certain interested parties commented on the scope of the investigation as it appeared in the
The Department published the notice of postponement of preliminary determination of this investigation on November 25, 2015.
The Department is conducting this investigation in accordance with section 731 of the Act. Export prices (EP) have been calculated in accordance with section 772(a) of the Act. Constructed export prices (CEP) have been calculated in accordance with section 772(b) of the Act. Normal value (NV) is calculated in accordance with section 773 of the Act. For a full description of the methodology underlying our preliminary conclusions,
For the reasons set forth in the Preliminary Decision Memorandum and in accordance with 19 CFR 351.401(f) and the Department's practice, we are treating Colakoglu Metalurji A.S. (Colakoglu) and Colakoglu Dis Ticaret A.S. (COTAS) (collectively, Colakoglu), as well as Eregli Demir ve Celik Fabrikalari T.A.S. (Erdemir) and Iskenderun Demir Ve Celik (Iskenderun) (collectively, Erdemir), as single entities, for the purposes of this preliminary determination.
Consistent with sections 733(d)(1)(A)(ii) and 735(c)(5) of the Act, the Department also calculated an estimated all-others rate. Section 735(c)(5)(B) of the Act provides that the estimated all-others rate shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and
In this investigation, we calculated weighted-average dumping margins for Colakoglu and Erdemir that are above
The Department preliminarily determines that the following estimated weighted-average dumping margins exist:
In accordance
Pursuant to section 733(d)(1)(B) of the Act and 19 CFR 351.205(d), the Department will instruct CBP to require a cash deposit equal to the weighted-average amount by which the NV exceeds U.S. price as indicated in the chart above,
We will disclose the calculations performed to interested parties in this proceeding within five days of the date of announcement of this preliminary determination in accordance with 19 CFR 351.224(b).
As provided in section 782(i) of the Act, we intend to verify information relied upon in making our final determination.
Interested parties are invited to comment on this preliminary determination. Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the final verification report is issued in this proceeding, and rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce. All documents must be filed electronically using ACCESS. An electronically-filed request must be received successfully in its entirety by ACCESS by 5:00 p.m. Eastern Time, within 30 days after the date of publication of this notice.
Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by Petitioners. 19 CFR 351.210(e)(2) requires that requests by respondents for postponement of a final antidumping determination be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration.
On March 8, 2016, pursuant to 19 CFR 351.210(b) and (e), Colakoglu and Erdemir requested that, contingent upon an affirmative preliminary determination of sales at LTFV for the respondents, the Department postpone the final determination and that provisional measures be extended to a period not to exceed six months.
In accordance with section 735(a)(2)(A) of the Act and 19 CFR 351.210(b)(2)(ii), because (1) our preliminary determination is affirmative; (2) the requesting exporters account for a significant proportion of exports of the subject merchandise; and (3) no compelling reasons for denial exist, we are postponing the final determination and extending the provisional measures from a four-month period to a period not greater than six months. Accordingly, we will make our final determination no later than 135 days after the date of publication of this preliminary determination, pursuant to section 735(a)(2) of the Act.
In accordance with section 733(f) of the Act, we are notifying the ITC of our affirmative preliminary determination of sales at LTFV. If our final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after our final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).
The products covered by this investigation are certain hot-rolled, flat-rolled steel products, with or without patterns in relief, and whether or not annealed, painted, varnished, or coated with plastics or other non-metallic substances. The products covered do not include those that are clad, plated, or coated with metal. The products covered include coils that have a width or other lateral measurement (“width”) of 12.7 mm or greater, regardless of thickness, and regardless of form of coil (
(1) Where the nominal and actual measurements vary, a product is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set forth above unless the resulting measurement makes the product covered by the existing antidumping
(2) where the width and thickness vary for a specific product (
Steel products included in the scope of this investigation are products in which: (1) Iron predominates, by weight, over each of the other contained elements; (2) the carbon content is 2 percent or less, by weight; and (3) none of the elements listed below exceeds the quantity, by weight, respectively indicated:
• 2.50 percent of manganese, or
• 3.30 percent of silicon, or
• 1.50 percent of copper, or
• 1.50 percent of aluminum, or
• 1.25 percent of chromium, or
• 0.30 percent of cobalt, or
• 0.40 percent of lead, or
• 2.00 percent of nickel, or
• 0.30 percent of tungsten, or
• 0.80 percent of molybdenum, or
• 0.10 percent of niobium, or
• 0.30 percent of vanadium, or
• 0.30 percent of zirconium.
Unless specifically excluded, products are included in this scope regardless of levels of boron and titanium.
For example, specifically included in this scope are vacuum degassed, fully stabilized (commonly referred to as interstitial-free (IF)) steels, high strength low alloy (HSLA) steels, the substrate for motor lamination steels, Advanced High Strength Steels (AHSS), and Ultra High Strength Steels (UHSS). IF steels are recognized as low carbon steels with micro-alloying levels of elements such as titanium and/or niobium added to stabilize carbon and nitrogen elements. HSLA steels are recognized as steels with micro-alloying levels of elements such as chromium, copper, niobium, titanium, vanadium, and molybdenum. The substrate for motor lamination steels contains micro-alloying levels of elements such as silicon and aluminum. AHSS and UHSS are considered high tensile strength and high elongation steels, although AHSS and UHSS are covered whether or not they are high tensile strength or high elongation steels.
Subject merchandise includes hot-rolled steel that has been further processed in a third country, including but not limited to pickling, oiling, levelling, annealing, tempering, temper rolling, skin passing, painting, varnishing, trimming, cutting, punching, and/or slitting, or any other processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the hot-rolled steel.
All products that meet the written physical description, and in which the chemistry quantities do not exceed any one of the noted element levels listed above, are within the scope of this investigation unless specifically excluded. The following products are outside of and/or specifically excluded from the scope of this investigation:
• Universal mill plates (
• Products that have been cold-rolled (cold-reduced) after hot-rolling;
• Ball bearing steels;
• Tool steels;
• Silico-manganese steels;
The products subject to this investigation are currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers: 7208.10.1500, 7208.10.3000, 7208.10.6000, 7208.25.3000, 7208.25.6000, 7208.26.0030, 7208.26.0060, 7208.27.0030, 7208.27.0060, 7208.36.0030, 7208.36.0060, 7208.37.0030, 7208.37.0060, 7208.38.0015, 7208.38.0030, 7208.38.0090, 7208.39.0015, 7208.39.0030, 7208.39.0090, 7208.40.6030, 7208.40.6060, 7208.53.0000, 7208.54.0000, 7208.90.0000, 7210.70.3000, 7211.14.0030, 7211.14.0090, 7211.19.1500, 7211.19.2000, 7211.19.3000, 7211.19.4500, 7211.19.6000, 7211.19.7530, 7211.19.7560, 7211.19.7590, 7225.11.0000, 7225.19.0000, 7225.30.3050, 7225.30.7000, 7225.40.7000, 7225.99.0090, 7226.11.1000, 7226.11.9030, 7226.11.9060, 7226.19.1000, 7226.19.9000, 7226.91.5000, 7226.91.7000, and 7226.91.8000. The products subject to the investigation may also enter under the following HTSUS numbers: 7210.90.9000, 7211.90.0000, 7212.40.1000, 7212.40.5000, 7212.50.0000, 7214.91.0015, 7214.91.0060, 7214.91.0090, 7214.99.0060, 7214.99.0075, 7214.99.0090, 7215.90.5000, 7226.99.0180, and 7228.60.6000.
The HTSUS subheadings above are provided for convenience and U.S. Customs and Border Protection purposes only. The written description of the scope of the investigation is dispositive.
List of Topics Discussed in the Preliminary Decision Memorandum
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) preliminarily determines that certain hot-rolled steel flat products (hot-rolled steel) from Brazil are being, or are likely to be, sold in the United States at less than fair value (LTFV), as provided in section 733(b) of the Tariff Act of 1930, as amended (the Act). The period of investigation (POI) is July 1, 2014, through June 30, 2015. The estimated weighted-average dumping margins of sales at LTFV are shown in the “Preliminary Determination” section of this notice. Interested parties are invited to comment on this preliminary determination.
Peter Zukowski or 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) 482-0189 or (202) 482-5760, respectively.
The Department published the notice of initiation of this investigation on September 9, 2015.
The products covered by this investigation are hot-rolled steel from Brazil. For a full description of the scope of this investigation,
Certain interested parties commented on the scope of the investigation as it appeared in the
The Department published the notice of postponement of preliminary determination of this investigation on November 25, 2015.
The Department is conducting this investigation in accordance with section 731 of the Act. Export prices have been calculated in accordance with section 772(a) of the Act. Constructed export prices have been calculated in accordance with section 772(b) of the Act. Normal value (NV) is calculated in accordance with section 773 of the Act. For a full description of the methodology underlying our preliminary conclusions,
Consistent with sections 733(d)(1)(A)(ii) and 735(c)(5) of the Act, the Department also calculated an estimated all-others rate. Section 735(c)(5)(A) of the Act provides that the estimated all-others rate shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and
The Department preliminarily determines that the following weighted-average dumping margins exist:
In accordance with section 733(d)(2) of the Act, we will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of all entries of hot-rolled steel from Brazil as described in the Scope of the Investigation in Appendix I entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
Pursuant to section 733 (d)(1)(B) of the Act and 19 CFR 351.205(d), the Department will instruct CBP to require a cash deposit equal to the weighted-average amount by which the NV exceeds U.S. price, adjusted where appropriate for export subsidies, as follows: (1) The rates for CSN and Usiminas, when adjusted for export subsidies, are 29.78 and 30.46 percent, respectively; (2) if the exporter is not a firm identified in this investigation, but the producer is, the rate will be the rate established for the producer of the subject merchandise, less export subsidies; (3) the rate for all other producers or exporters when adjusted for export subsidies is 29.93 percent.
We intend to disclose the calculations performed to interested parties in this proceeding within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
As provided in section 782(i) of the Act, we intend to verify information relied upon in making our final determination.
Interested parties are invited to comment on this preliminary determination. Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the final verification report is issued in this proceeding, and rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce. All documents must be filed electronically using ACCESS. An electronically-filed request must be received successfully in its entirety by ACCESS by 5:00 p.m. Eastern Time, within 30 days after the date of publication of this notice.
Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioners. Respondents' requests for postponement of a final antidumping determination must be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration.
On February 22, and February 25, 2016, respectively, pursuant to 19 CFR 351.210(e), CSN and Usiminas requested that the Department postpone the final determination and extend provisional measures to a period not to exceed six months.
In accordance with section 735(a)(2)(A) of the Act and 19 CFR 351.210(b)(2)(ii), because (1) our preliminary determination is affirmative; (2) the requesting exporter accounts for a significant proportion of exports of the subject merchandise; and (3) no compelling reasons for denial exist, we are postponing the final determination and extending the provisional measures from a four-month period to a period not greater than six months. Accordingly, we will make our final determination no later than 135 days after the date of publication of this preliminary determination, pursuant to section 735(a)(2) of the Act.
In accordance with section 733(f) of the Act, we are notifying the ITC of our affirmative preliminary determination of sales at LTFV. If our final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after our final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).
The products covered by this investigation are certain hot-rolled, flat-rolled steel products, with or without patterns in relief, and whether or not annealed, painted, varnished, or coated with plastics or other non-metallic substances. The products covered do not include those that are clad, plated, or coated with metal. The products covered include coils that have a width or other lateral measurement (“width”) of 12.7 mm or greater, regardless of thickness, and regardless of form of coil (
(1) Where the nominal and actual measurements vary, a product is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set forth above unless the resulting measurement makes the product covered by the existing antidumping
(2) where the width and thickness vary for a specific product (
Steel products included in the scope of this investigation are products in which: (1) Iron predominates, by weight, over each of the other contained elements; (2) the carbon content is 2 percent or less, by weight; and (3) none of the elements listed below exceeds the quantity, by weight, respectively indicated:
• 2.50 percent of manganese, or
• 3.30 percent of silicon, or
• 1.50 percent of copper, or
• 1.50 percent of aluminum, or
• 1.25 percent of chromium, or
• 0.30 percent of cobalt, or
• 0.40 percent of lead, or
• 2.00 percent of nickel, or
• 0.30 percent of tungsten, or
• 0.80 percent of molybdenum, or
• 0.10 percent of niobium, or
• 0.30 percent of vanadium, or
• 0.30 percent of zirconium.
Unless specifically excluded, products are included in this scope regardless of levels of boron and titanium.
For example, specifically included in this scope are vacuum degassed, fully stabilized (commonly referred to as interstitial-free (IF)) steels, high strength low alloy (HSLA) steels, the substrate for motor lamination steels, Advanced High Strength Steels (AHSS), and Ultra High Strength Steels (UHSS). IF steels are recognized as low carbon steels with micro-alloying levels of elements such as titanium and/or niobium added to stabilize carbon and nitrogen elements. HSLA steels are recognized as steels with micro-alloying levels of elements such as chromium, copper, niobium, titanium, vanadium, and molybdenum. The substrate for motor lamination steels contains micro-alloying levels of elements such as silicon and aluminum. AHSS and UHSS are considered high tensile strength and high elongation steels, although AHSS and UHSS are covered whether or not they are high tensile strength or high elongation steels.
Subject merchandise includes hot-rolled steel that has been further processed in a third country, including but not limited to pickling, oiling, levelling, annealing, tempering, temper rolling, skin passing, painting, varnishing, trimming, cutting, punching, and/or slitting, or any other processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the hot-rolled steel.
All products that meet the written physical description, and in which the chemistry quantities do not exceed any one of the noted element levels listed above, are within the scope of this investigation unless specifically excluded. The following products are outside of and/or specifically excluded from the scope of this investigation:
• Universal mill plates (
• Products that have been cold-rolled (cold-reduced) after hot-rolling;
• Ball bearing steels;
• Tool steels;
• Silico-manganese steels;
The products subject to this investigation are currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers: 7208.10.1500, 7208.10.3000, 7208.10.6000, 7208.25.3000, 7208.25.6000, 7208.26.0030, 7208.26.0060, 7208.27.0030, 7208.27.0060, 7208.36.0030, 7208.36.0060, 7208.37.0030, 7208.37.0060, 7208.38.0015, 7208.38.0030, 7208.38.0090, 7208.39.0015, 7208.39.0030, 7208.39.0090, 7208.40.6030, 7208.40.6060, 7208.53.0000, 7208.54.0000, 7208.90.0000, 7210.70.3000, 7211.14.0030, 7211.14.0090, 7211.19.1500, 7211.19.2000, 7211.19.3000, 7211.19.4500, 7211.19.6000, 7211.19.7530, 7211.19.7560, 7211.19.7590, 7225.11.0000, 7225.19.0000, 7225.30.3050, 7225.30.7000, 7225.40.7000, 7225.99.0090, 7226.11.1000, 7226.11.9030, 7226.11.9060, 7226.19.1000, 7226.19.9000, 7226.91.5000, 7226.91.7000, and 7226.91.8000. The products subject to the investigation may also enter under the following HTSUS numbers: 7210.90.9000, 7211.90.0000, 7212.40.1000, 7212.40.5000, 7212.50.0000, 7214.91.0015, 7214.91.0060, 7214.91.0090, 7214.99.0060, 7214.99.0075, 7214.99.0090, 7215.90.5000, 7226.99.0180, and 7228.60.6000.
The HTSUS subheadings above are provided for convenience and U.S. Customs purposes only. The written description of the scope of the investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On December 14, 2015, the Department of Commerce (the Department) published the
Effective Date: March 22, 2016.
Davina Friedmann, Tyler Weinhold or Robert James, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-0698, (202) 482-1121 or (202) 482-0649, respectively.
On December 14, 2015, the Department published the Final Results.
Before the Department could take action on the alleged ministerial errors, both Taizhou United Imp & Exp Co Ltd. and the Jangho Companies filed a summons and complaint with the U.S. Court of International Trade (“CIT”) challenging the Final Results, which vested the CIT with jurisdiction over the administrative proceeding.
The merchandise covered by the
Imports of the subject merchandise are provided for under the following categories of the Harmonized Tariff Schedule of the United States (HTSUS): 9031.90.90.95, 7610.10.00, 7610.90.00, 7615.10.30, 7615.10.71, 7615.10.91, 7615.19.10, 7615.19.30, 7615.19.50, 7615.19.70, 7615.19.90, 7615.20.00, 7616.99.10, 7616.99.50, 8479.89.98, 8479.90.94, 8513.90.20, 9403.10.00, 9403.20.00, 7604.21.00.00, 7604.29.10.00, 7604.29.30.10, 7604.29.30.50, 7604.29.50.30, 7604.29.50.60, 7608.20.00.30, 7608.20.00.90, 8302.10.30.00, 8302.10.60.30, 8302.10.60.60, 8302.10.60.90, 8302.20.00.00, 8302.30.30.10, 8302.30.30.60, 8302.41.30.00, 8302.41.60.15, 8302.41.60.45, 8302.41.60.50, 8302.41.60.80, 8302.42.30.10, 8302.42.30.15, 8302.42.30.65, 8302.49.60.35, 8302.49.60.45, 8302.49.60.55, 8302.49.60.85, 8302.50.00.00, 8302.60.90.00, 8305.10.00.50, 8306.30.00.00, 8418.99.80.05, 8418.99.80.50, 8418.99.80.60, 8419.90.10.00, 8422.90.06.40, 8479.90.85.00, 8486.90.00.00, 8487.90.00.80, 8503.00.95.20, 8515.90.20.00, 8516.90.50.00, 8516.90.80.50, 8708.80.65.90, 9401.90.50.81, 9403.90.10.40, 9403.90.10.50, 9403.90.10.85, 9403.90.25.40, 9403.90.25.80, 9403.90.40.05, 9403.90.40.10, 9403.90.40.60, 9403.90.50.05, 9403.90.50.10, 9403.90.50.80, 9403.90.60.05, 9403.90.60.10, 9403.90.60.80, 9403.90.70.05, 9403.90.70.10, 9403.90.70.80, 9403.90.80.10, 9403.90.80.15, 9403.90.80.20, 9403.90.80.30, 9403.90.80.41, 9403.90.80.51, 9403.90.80.61,
The subject merchandise entered as parts of other aluminum products may be classifiable under the following additional Chapter 76 subheadings: 7610.10, 7610.90, 7615.19, 7615.20, and 7616.99 as well as under other HTSUS chapters. In addition, fin evaporator coils may be classifiable under HTSUS numbers: 8418.99.80.50 and 8418.99.80.60. While HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this
As discussed in the memoranda accompanying this notice, and which are hereby adopted by this notice, we determine that the
In light of the above corrections, for the 38 companies for which a review was requested and not rescinded, but were not selected as mandatory respondents, we have recalculated the net subsidy rate which is based on the overall subsidy rates calculated for the mandatory respondents of this review.
We have also recalculated the net subsidy rate assigned to those companies for which we applied AFA in the
In accordance with 19 CFR 351.224(e) we determine the following amended final net subsidy rates for the 2013 administrative review:
The Department intends to issue appropriate assessment instructions directly to CBP 15 days after publication of these amended final results of review, to liquidate appropriate shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after January 1, 2013, through December 31, 2013, at the
The Department also intends to instruct CBP to collect cash deposits of estimated countervailing duties in the amounts indicated above for each company listed above on shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after December 14, 2015, the date of publication of the
We are issuing and publishing these results in accordance with sections 751(a)(1), 751(h), and 777(i)(1) of the Act; and 19 CFR 351.224(e) and (h).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (“the Department”) is conducting a new shipper review (“NSR”) of the antidumping duty order on xanthan gum from the People's Republic of China (“PRC”). The NSR covers one exporter and producer of subject merchandise, Inner Mongolia Jianlong Biochemical Co., Ltd. (“IMJ”). The period of review (“POR”) is July 1, 2014 through June 30, 2015. The Department preliminarily determines that IMJ did not satisfy the regulatory requirements to request an NSR and did not make a
Effective: March 22, 2016.
Cara Lofaro or Brandon Farlander, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-5720 and (202) 482-0182, respectively.
On August 27, 2015, the Department published a notice of initiation of a new shipper review of the antidumping duty order on xanthan gum from the PRC.
The Department has exercised its discretion to toll all administrative deadlines due to the recent closure of the Federal Government because of Snowstorm “Jonas.” Thus, all of the deadlines in this segment of the proceeding have been extended by four business days. The revised deadline for the preliminary results of this review, after the four business-day extension, was February 23, 2016.
The scope of the order covers dry xanthan gum, whether or not coated or blended with other products. Further, xanthan gum is included in this order regardless of physical form, including, but not limited to, solutions, slurries, dry powders of any particle size, or unground fiber. Merchandise covered by the scope of this order is classified in the Harmonized Tariff Schedule (“HTS”) of the United States at subheading 3913.90.20. This tariff classification is provided for convenience and customs purposes; however, the written description of the scope is dispositive.
The Department is conducting this review in accordance with section 751(a)(2)(B) of the Tariff Act of 1930, as amended (the “Act”) and 19 CFR 351.214. For a full description of the methodology underlying our conclusions,
As discussed in the
Interested parties may submit case briefs no later than 30 days after the date of publication of the preliminary results of review.
Interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement & Compliance, U.S. Department of Commerce, within 30 days after the date of publication of this notice.
All submissions, with limited exceptions, must be filed electronically using ACCESS. An electronically filed document must be received successfully in its entirety by the Department's electronic records system, ACCESS, by 5 p.m. Eastern Time (“ET”) on the due date. Documents excepted from the electronic submission requirements must be filed manually (
The Department intends to issue the final results of this NSR, which will include the results of its analysis of issues raised in any briefs received, no later than 90 days after the date these preliminary results of review are issued pursuant to section 751(a)(2)(B) of the Act.
If the Department proceeds to a final rescission of IMJ's NSR, the assessment rate to which IMJ's shipments will be subject will not be affected by this review. However, the Department initiated an administrative review of the antidumping duty order on xanthan gum from the PRC covering numerous exporters, including IMJ, for the period of July 1, 2014 through June 30, 2015, which is the period covered by this NSR.
If the Department does not proceed to a final rescission of this new shipper review, pursuant to 19 CFR 351.212(b)(1), we will calculate importer-specific (or customer-specific) assessment rates based on the final results of this review. However, pursuant to the Department's refinement to its assessment practice in NME cases,
Effective upon publication of the final rescission or the final results of this NSR, the Department will instruct CBP to discontinue the option of posting a bond or security in lieu of a cash deposit for entries of IMJ's subject merchandise. If the Department proceeds to a final rescission of this NSR, the cash deposit rate will continue to be the PRC-wide rate for IMJ because the Department will not have determined an individual margin of dumping for IMJ. If the Department issues final results for this NSR, the Department will instruct CBP to collect cash deposits, effective upon the publication of the final results, at the rates established therein.
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these results in accordance with sections 751(a)(2)(B) and 777(i)(1) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the “Department”) preliminarily determines that certain hot-rolled steel flat products (“hot-rolled steel”) from Australia are being, or are likely to be, sold in the United States at less than fair value (“LTFV”), as provided in section 733(b) of the Tariff Act of 1930, as amended (“the Act”). The period of investigation (“POI”) is July 1, 2014, through June 30, 2015. The estimated weighted-average dumping margins of sales at LTFV are shown in the “Preliminary Determination” section of this notice. Interested parties are invited to comment on this preliminary determination.
Frances Veith, AD/CVD Operations,
The Department published the notice of initiation of this investigation on September 9, 2015.
The products covered by this investigation are hot-rolled steel from Australia. For a full description of the scope of this investigation,
Certain interested parties commented on the scope of the investigation as it appeared in the
The Department published the notice of postponement of preliminary determination of this investigation on November 25, 2015.
The Department is conducting this investigation in accordance with section 731 of the Act. There is one mandatory respondent participating in this investigation, the collapsed entity BlueScope Steel Ltd., BlueScope Steel (AIS) Pty Ltd., and BlueScope Steel Distribution Pty Ltd. (collectively, “BlueScope”). Export price and constructed export price for this company is calculated in accordance with section 772 of the Act. Normal value (“NV”) is calculated in accordance with section 773 of the Act. For a full description of the methodology underlying our preliminary conclusions,
For the reasons set forth in the Preliminary Decision Memorandum and in accordance with 19 CFR 351.401(f) and the Department's practice, we are treating BlueScope Steel Ltd., BlueScope Steel (AIS) Pty Ltd., and BlueScope Steel Distribution Pty Ltd. as a single entity, BlueScope, for the purposes of this preliminary determination.
Consistent with sections 733(d)(1)(A)(ii) and 735(c)(5) of the Act, the Department also calculated an estimated all-others rate. Section 735(c)(5)(A) of the Act provides that the estimated all-others rate shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and
BlueScope is the only respondent for which the Department calculated a company-specific rate. Therefore, for purposes of determining the “all others” rate and pursuant to section 735(d)(5)(A) of the Act, we are using the dumping margin calculated for BlueScope, as referenced in the “Preliminary Determination” section below.
The Department preliminarily determines that the following weighted-average dumping margins exist:
In
In accordance with 19 CFR 351.205(d), the Department will instruct CBP to require a cash deposit equal to the preliminary weighted-average amount by which normal value exceeds U.S. price, as indicated in the chart above.
We will disclose the calculations performed to interested parties in this proceeding within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
As provided in section 782(i) of the Act, we intend to verify information relied upon in making our final determination.
Interested parties are invited to comment on this preliminary determination. Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the final verification report is issued in this proceeding, and rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce. All documents must be filed electronically using ACCESS. An electronically-filed request must be received successfully in its entirety by ACCESS by 5:00 p.m. Eastern Standard Time, within 30 days after the date of publication of this notice.
Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by Petitioners. 19 CFR 351.210(e)(2) requires that requests by respondents for postponement of a final antidumping determination be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration.
On February 24, 2016, pursuant to 19 CFR 351.210(b) and (e), BlueScope requested that, contingent upon an affirmative preliminary determination of sales at LTFV for BlueScope, the Department postpone the final determination and that provisional measures be extended to a period not to exceed six months.
In accordance with section 735(a)(2)(A) of the Act and 19 CFR 351.210(b)(2)(ii), because (1) our preliminary determination is affirmative; (2) the exporter accounts for a significant proportion of exports of the subject merchandise; and (3) no compelling reasons for denial exist, we are postponing the final determination and extending the provisional measures from a four-month period to a period not greater than six months. Accordingly, we will make our final determination no later than 135 days after the date of publication of this preliminary determination, pursuant to section 735(a)(2) of the Act.
In accordance with section 733(f) of the Act, we are notifying the ITC of our affirmative preliminary determination of sales at LTFV. If our final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after our final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).
The products covered by this investigation are certain hot-rolled, flat-rolled steel products, with or without patterns in relief, and whether or not annealed, painted, varnished, or coated with plastics or other non-metallic substances. The products covered do not include those that are clad, plated, or coated with metal. The products covered include coils that have a width or other lateral measurement (“width”) of 12.7 mm or greater, regardless of thickness, and regardless of form of coil (
(1) Where the nominal and actual measurements vary, a product is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set forth above unless the resulting measurement makes the product covered by the existing antidumping
(2) where the width and thickness vary for a specific product (
Steel products included in the scope of this investigation are products in which: (1) Iron predominates, by weight, over each of the other contained elements; (2) the carbon content is 2 percent or less, by weight; and (3) none of the elements listed below exceeds the quantity, by weight, respectively indicated:
Unless specifically excluded, products are included in this scope regardless of levels of boron and titanium.
For example, specifically included in this scope are vacuum degassed, fully stabilized (commonly referred to as interstitial-free (IF)) steels, high strength low alloy (HSLA) steels, the substrate for motor lamination steels, Advanced High Strength Steels (AHSS), and Ultra High Strength Steels (UHSS). IF steels are recognized as low carbon steels with micro-alloying levels of elements such as titanium and/or niobium added to stabilize carbon and nitrogen elements. HSLA steels are recognized as steels with micro-alloying levels of elements such as chromium, copper, niobium, titanium, vanadium, and molybdenum. The substrate for motor lamination steels contains micro-alloying levels of elements such as silicon and aluminum. AHSS and UHSS are considered high tensile strength and high elongation steels, although AHSS and UHSS are covered whether or not they are high tensile strength or high elongation steels.
Subject merchandise includes hot-rolled steel that has been further processed in a third country, including but not limited to pickling, oiling, levelling, annealing, tempering, temper rolling, skin passing, painting, varnishing, trimming, cutting, punching, and/or slitting, or any other processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the hot-rolled steel.
All products that meet the written physical description, and in which the chemistry quantities do not exceed any one of the noted element levels listed above, are within the scope of this investigation unless specifically excluded. The following products are outside of and/or specifically excluded from the scope of this investigation:
• Universal mill plates (
• Products that have been cold-rolled (cold-reduced) after hot-rolling;
• Ball bearing steels;
• Tool steels;
• Silico-manganese steels;
The products subject to this investigation are currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers: 7208.10.1500, 7208.10.3000, 7208.10.6000, 7208.25.3000, 7208.25.6000, 7208.26.0030, 7208.26.0060, 7208.27.0030, 7208.27.0060, 7208.36.0030, 7208.36.0060, 7208.37.0030, 7208.37.0060, 7208.38.0015, 7208.38.0030, 7208.38.0090, 7208.39.0015, 7208.39.0030, 7208.39.0090, 7208.40.6030, 7208.40.6060, 7208.53.0000, 7208.54.0000, 7208.90.0000, 7210.70.3000, 7211.14.0030, 7211.14.0090, 7211.19.1500, 7211.19.2000, 7211.19.3000, 7211.19.4500, 7211.19.6000, 7211.19.7530, 7211.19.7560, 7211.19.7590, 7225.11.0000, 7225.19.0000, 7225.30.3050, 7225.30.7000, 7225.40.7000, 7225.99.0090, 7226.11.1000, 7226.11.9030, 7226.11.9060, 7226.19.1000, 7226.19.9000, 7226.91.5000, 7226.91.7000, and 7226.91.8000. The products subject to the investigation may also enter under the following HTSUS numbers: 7210.90.9000, 7211.90.0000, 7212.40.1000, 7212.40.5000, 7212.50.0000, 7214.91.0015, 7214.91.0060, 7214.91.0090, 7214.99.0060, 7214.99.0075, 7214.99.0090, 7215.90.5000, 7226.99.0180, and 7228.60.6000.
The HTSUS subheadings above are provided for convenience and U.S. Customs purposes only. The written description of the scope of the investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) preliminarily determines that certain hot-rolled steel flat products (hot-rolled steel) from the United Kingdom are being, or are likely to be, sold in the United States at less than fair value (LTFV), as provided in section 733(b) of the Tariff Act of 1930, as amended (the Act). The period of investigation (POI) is July 1, 2014, through June 30, 2015. The estimated weighted-average dumping margins of sales at LTFV are shown in the “Preliminary Determination” section of this notice. Interested parties are invited to comment on this preliminary determination.
Catherine Cartsos, 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) 482-1757.
The Department published the notice of initiation of this investigation on September 9, 2015.
The products covered by this investigation are hot-rolled steel from the United Kingdom. For a full description of the scope of this investigation,
Certain interested parties commented on the scope of the investigation as it appeared in the
The Department published the notice of postponement of preliminary determination of this investigation on November 25, 2015.
The Department is conducting this investigation in accordance with section 731 of the Act. Export prices have been calculated in accordance with section 772(a) of the Act. Constructed export prices have been calculated in accordance with section 772(b) of the Act. Normal value (NV) is calculated in accordance with section 773 of the Act. For a full description of the methodology underlying our preliminary conclusions,
Sections 733(d)(1)(A)(ii) and 735(c)(5)(A) of the Act provide that in the preliminary determination the Department shall determine an estimated all-others rate for all exporters and producers not individually investigated, which shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and
The Department preliminarily determines that the following weighted-average dumping margins exist:
In accordance with section 733(d)(2) of the Act, we will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of all entries of hot-rolled steel from the United Kingdom as described in the scope of the investigation section entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
Pursuant to section 733(d)(1)(B) of the Act and 19 CFR 351.205(d), the Department will instruct CBP to require a cash deposit equal to the weighted-average amount by which the NV exceeds U.S. price as indicated in the chart above. These suspension of liquidation instructions will remain in effect until further notice.
We intend to disclose the calculations performed to interested parties in this proceeding within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Interested parties are invited to comment on this preliminary determination.
As provided in section 782(i) of the Act, we intend to verify information relied upon in making our final determination.
Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the final verification report is issued in this proceeding, and rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the
Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by petitioners. 19 CFR 351.210(e)(2) requires that requests by respondents for postponement of a final antidumping determination be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration.
On February 22, 2016, pursuant to 19 CFR 351.210(b) and (e), Tata Steel UK Ltd. requested that, contingent upon an affirmative preliminary determination of sales at LTFV for the respondents, the Department postpone the final determination and that provisional measures be extended to a period not to exceed six months.
In accordance with section 735(a)(2)(A) of the Act and 19 CFR 351.210(b)(2)(ii), because (1) our preliminary determination is affirmative; (2) the requesting exporter accounts for a significant proportion of exports of the subject merchandise;
In accordance with section 733(f) of the Act, we are notifying the ITC of our affirmative preliminary determination of sales at LTFV. If our final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after our final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).
The products covered by this investigation are certain hot-rolled, flat-rolled steel products, with or without patterns in relief, and whether or not annealed, painted, varnished, or coated with plastics or other non-metallic substances. The products covered do not include those that are clad, plated, or coated with metal. The products covered include coils that have a width or other lateral measurement (“width”) of 12.7 mm or greater, regardless of thickness, and regardless of form of coil (
(1) Where the nominal and actual measurements vary, a product is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set forth above unless the resulting measurement makes the product covered by the existing antidumping
(2) where the width and thickness vary for a specific product (
Steel products included in the scope of this investigation are products in which: (1) Iron predominates, by weight, over each of the other contained elements; (2) the carbon content is 2 percent or less, by weight; and (3) none of the elements listed below exceeds the quantity, by weight, respectively indicated:
Unless specifically excluded, products are included in this scope regardless of levels of boron and titanium.
For example, specifically included in this scope are vacuum degassed, fully stabilized (commonly referred to as interstitial-free (IF)) steels, high strength low alloy (HSLA) steels, the substrate for motor lamination steels, Advanced High Strength Steels (AHSS), and Ultra High Strength Steels (UHSS). IF steels are recognized as low carbon steels with micro-alloying levels of elements such as titanium and/or niobium added to stabilize carbon and nitrogen elements. HSLA steels are recognized as steels with micro-alloying levels of elements such as chromium, copper, niobium, titanium, vanadium, and molybdenum. The substrate for motor lamination steels contains micro-alloying levels of elements such as silicon and
Subject merchandise includes hot-rolled steel that has been further processed in a third country, including but not limited to pickling, oiling, levelling, annealing, tempering, temper rolling, skin passing, painting, varnishing, trimming, cutting, punching, and/or slitting, or any other processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the hot-rolled steel.
All products that meet the written physical description, and in which the chemistry quantities do not exceed any one of the noted element levels listed above, are within the scope of this investigation unless specifically excluded. The following products are outside of and/or specifically excluded from the scope of this investigation:
The products subject to this investigation are currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers: 7208.10.1500, 7208.10.3000, 7208.10.6000, 7208.25.3000, 7208.25.6000, 7208.26.0030, 7208.26.0060, 7208.27.0030, 7208.27.0060, 7208.36.0030, 7208.36.0060, 7208.37.0030, 7208.37.0060, 7208.38.0015, 7208.38.0030, 7208.38.0090, 7208.39.0015, 7208.39.0030, 7208.39.0090, 7208.40.6030, 7208.40.6060, 7208.53.0000, 7208.54.0000, 7208.90.0000, 7210.70.3000, 7211.14.0030, 7211.14.0090, 7211.19.1500, 7211.19.2000, 7211.19.3000, 7211.19.4500, 7211.19.6000, 7211.19.7530, 7211.19.7560, 7211.19.7590, 7225.11.0000, 7225.19.0000, 7225.30.3050, 7225.30.7000, 7225.40.7000, 7225.99.0090, 7226.11.1000, 7226.11.9030, 7226.11.9060, 7226.19.1000, 7226.19.9000, 7226.91.5000, 7226.91.7000, and 7226.91.8000. The products subject to the investigation may also enter under the following HTSUS numbers: 7210.90.9000, 7211.90.0000, 7212.40.1000, 7212.40.5000, 7212.50.0000, 7214.91.0015, 7214.91.0060, 7214.91.0090, 7214.99.0060, 7214.99.0075, 7214.99.0090, 7215.90.5000, 7226.99.0180, and 7228.60.6000.
The HTSUS subheadings above are provided for convenience and U.S. Customs purposes only. The written description of the scope of the investigation is dispositive.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The Mid-Atlantic Fishery Management Council's (Council) Tilefish Advisory Panel will hold a public meeting.
The meeting will be held Tuesday, April 5, 2016, from 1 p.m. until 4 p.m.
The meeting will be held via webinar with a telephone-only connection option.
Christopher M. Moore, Ph.D. Executive Director, Mid-Atlantic Fishery Management Council; telephone: (302) 526-5255. The Council's Web site,
This meeting will gather input on the Council's Blueline Tilefish Management Amendment. See
Although non-emergency issues not contained in this agenda may come before this group for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), those issues may not be the subject of formal action during these meetings.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526-5251, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Mid-Atlantic Fishery Management Council (Council) will hold a public information meeting to gather input on the likely impacts of alternative spiny dogfish trip limits.
The meeting will be held Thursday, April 7, 2016, from 7 p.m. to 8:30 p.m.
The meeting will be held via webinar with a telephone-only connection option.
Christopher M. Moore, Ph.D. Executive Director, Mid-Atlantic Fishery Management Council; telephone: (302) 526-5255. The Council's Web site,
For 2016-18 specifications, the Mid-Atlantic and New England Fishery Management Councils took no action on the spiny dogfish trip limit, which would maintain the current 5,000 pound trip limit. The Atlantic States Marine Fisheries Commission (ASMFC) has requested that the trip limit be increased to 6,000 pounds (
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526-5251, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that the California State University, Bakersfield [Responsible Party: Antje Lauer, Ph.D.], 9001 Stockdale Highway, Bakersfield, CA 93311-1022, has applied in due form for a permit to conduct research on pinnipeds for scientific research, and receive, import, and export specimens from these species.
Written, telefaxed, or email comments must be received on or before April 21, 2016.
The application and related documents are available for review by selecting “Records Open for Public Comment” from the “Features” box on the Applications and Permits for Protected Species (APPS) home page,
These documents are also available upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376.
Written comments on this application should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may also be submitted by facsimile to (301) 713-0376, or by email to
Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.
Rosa L. González or Jennifer Skidmore; phone: (301) 427-8401.
The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
The applicant proposes to receive, import, and export blood sera from up to 500 California sea lions (
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Concurrent with the publication of this notice in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The National Marine Fisheries Service will host a public meeting, consisting of representatives from the Regional Fishery Management Councils, the National Marine Fisheries Service, and interested members of the public. The purpose of the meeting is to identify and share opportunities,
The meeting will begin Tuesday, May 17, 2016, at 8:30 a.m. and will end on Thursday, May 19, 2016, at 3 p.m.
The meeting will be held at the Westin Annapolis, 100 Westgate Circle, Annapolis, MD 21401, telephone: 410-972-4300.
Terra Lederhouse at (301) 427-8639 or
The Essential Fish Habitat (EFH) Summit is a collaborative effort between the National Marine Fisheries Service, the Regional Fishery Management Councils, and the Fisheries Leadership and Sustainability Forum. The final agenda will be responsive to the interests, questions, and areas of expertise among participating National Marine Fisheries Service and Regional Fishery Management Council representatives, and may include discussions on EFH conservation roles, responsibilities, and process, the use of habitat science for management decisions, EFH and the changing marine environment, and the future of EFH conservation. A copy of the final agenda will be available at
The meeting location is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Terra Lederhouse at (301) 427-8639 at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; proposed incidental harassment authorization; request for comments.
NMFS (hereinafter, “we” or “our”) received an application from Point Blue Conservation Science (Point Blue) requesting an Incidental Harassment Authorization (Authorization) to take marine mammals, by harassment, incidental to conducting proposed seabird research activities on Southeast Farallon Island, Año Nuevo Island, and Point Reyes National Seashore in central California from May 2016 through May 2017. Per the Marine Mammal Protection Act, we request comments on our proposal to issue an Authorization to Point Blue to incidentally take, by Level B harassment only, five species [
NMFS must receive comments and information no later than April 21, 2016.
Address comments on the application to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. The mailbox address for providing email comments is
To obtain an electronic copy of the 2016 renewal request, the 2015 application, our draft Environmental Assessment (EA), or a list of the references, write to the previously mentioned address, telephone the contact listed here (see
Information in Point Blue's application, our draft EA and this notice collectively provide the environmental information related to the proposed issuance of the Authorization for public review and comment.
Robt Pauline, Office of Protected Resources, NMFS (301) 427-8401.
Sections 101(a)(5)(A) and (D) of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
An Authorization for incidental takings for marine mammals shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring, and reporting of such taking are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
On September 29, 2015, NMFS received an application from Point Blue
On December 24, 2015 (80 FR 80321), we published a
For the 2016-2017 research seasons, Point Blue again proposes to monitor and census seabird colonies; observe seabird nesting habitat; restore nesting burrows; and resupply a field station. The proposed activities would occur over the course of one year between May 2016 and May 2017.
The following aspects of the proposed seabird research activities have the potential to take marine mammals: (1) Acoustic stimuli from noise generated by motorboat approaches and departures; (2) noise generated during the resupplying of the field station; and (3) visual stimuli from human presence during seabird research activities. California sea lions, Pacific harbor seals, northern elephant seals, northern fur seals, and Steller sea lions hauled out in areas on Southeast Farallon Island, Año Nuevo Island, or within Point Reyes National Seashore may flush into the water or exhibit temporary modification in behavior and/or low-level physiological effects (Level B harassment). Thus, Point Blue has requested an Authorization to take 44,871 California sea lions, 343 harbor seals, 196 northern elephant seals, and 106 Steller sea lions by Level B harassment only. Point Blue did not request take for northern fur seals in their application. However, as explained later in this document, we have considered the potential for Point Blue's activities to take a small number of this species.
To date, we have issued seven, one-year Authorizations (and one revised Authorization) to Point Blue for the conduct of the same activities from 2007 to 2016 (72 FR 71121, December 14, 2007; 73 FR 77011, December 18, 2008; 75 FR 8677, February 19, 2010; 77 FR 73989, December 7, 2012; 78 FR 66686, November 6, 2013; and 80 FR 10066, February 25, 2015, 80 FR 80321, December 24, 2015). This is Point Blue's eighth request for an Authorization. Their current Authorization expired on January 30, 2016 and the monitoring report associated with the 2015-2016 Authorization is available at
Point Blue proposes to conduct: (1) daily observations of seabird colonies at a maximum frequency of three 15-minute visits per day; and (2) conduct daily observations of breeding common murres (
The potential for incidental take related to the mark/recapture studies is very low as these activities are conducted within the interior of the island away from the intertidal areas where the pinnipeds haul out. Most potential for incidental take would occur when the researchers approach or depart the intertidal area by motorboat or when the researchers walk within 50 ft (15.2 m) of the haul-out areas to enter the observation blinds to observe shorebirds.
Point Blue proposes to resupply the field station once every two weeks at a maximum frequency of 26 visits. Resupply activities involve personnel approaching either the North Landing or East Landing by motorboat. At East Landing—the primary landing site—all personnel assisting with the landing would stay on the loading platform approximately 30 ft (9.1 m) above the water. At North Landing, loading operations would occur at the water level in the intertidal areas. Most potential for incidental take would occur when the researchers approach the area by motorboat or when the researchers load or unload supplies onshore.
Point Blue and its partners propose to monitor seabird burrow nesting habitat quality and to conduct habitat restoration at a maximum frequency of 20 visits per year. This activity involves two to three researchers accessing the north side of the island by a 12 ft (3.7 m) Zodiac boat. Once onshore, the researchers will check subterranean nest boxes and restore any nesting habitat for approximately 15 minutes.
Most potential for incidental take would occur at the landing beach on the north side of the island when the researchers arrive and depart to check the boxes. Non-breeding pinnipeds may occasionally be present, including California sea lions that may be hauled out near a small group of subterranean seabird nest boxes on the island terrace. In both locations researchers will be more than 50 ft (15.2 m) away from any potentially hauled out pinnipeds.
The National Park Service in collaboration with Point Blue monitors seabird breeding and roosting colonies; conducts habitat restoration; removes non-native plants; monitors intertidal areas; and maintains coastal dune habitat. Seabird monitoring usually involves one or two observers conducting the survey by small boats (12 to 22 ft; 3.6 to 6.7 m) along the Point Reyes National Seashore shoreline. Researchers would visit the site at a maximum frequency of 20 times per year, with an emphasis on increasing monitoring during the nesting season. Researchers would conduct occasional, intermittent visits during the rest of the
Point Blue proposes to conduct the seabird research activities over the course of one year. The proposed Authorization, if issued, would be effective from May 1, 2016, through April 30, 2017.
The proposed activities would occur in the vicinity of pinniped haul-out sites located on Southeast Farallon Island (37°41′54.32″ N.; 123°0′8.33″ W.), Año Nuevo Island (37°6′29.25″ N.; 122°20′12.20″ W.), or within Point Reyes National Seashore (37°59′38.61″ N.; 122°58′24.90″ W.) in central California. The proposed action area consists of the following three locations in the northeast Pacific Ocean:
The South Farallon Islands consist of Southeast Farallon Island located at 37°41′54.32″ N.; 123°0′8.33″ W. and West End Island. These two islands are directly adjacent to each other and separated by only a 30-foot (ft) (9.1 meter (m)) channel. The South Farallon Islands have a land area of approximately 120 acres (0.49 square kilometers (km)) and are part of the Farallon National Wildlife Refuge. The islands are located near the edge of the continental shelf 28 miles (mi) (45.1 km) west of San Francisco, CA, and lie within the waters of the Gulf of the Farallones National Marine Sanctuary.
Año Nuevo Island located at 37°6′29.25″ N.; 122°20′12.20″ W. is one-quarter mile (402 m) offshore of Año Nuevo Point in San Mateo County, CA. This small 25-acre (0.1 square km) island is part of the Año Nuevo State Reserve, all of which is owned and operated by California State Parks. The Island lies within the Monterey Bay National Marine Sanctuary and the Año Nuevo State Marine Conservation Area.
Point Reyes National Seashore located is approximately 40 miles (64.3 km) north of San Francisco Bay and also lies within the Gulf of the Farallones National Marine Sanctuary. The proposed research areas (Life Boat Station, Drakes Beach, and Point Bonita) are within the headland coastal areas of the National Park.
The marine mammals most likely to be harassed incidental to conducting seabird research at the proposed research areas on Southeast Farallon Island, Año Nuevo Island, and Point Reyes National Seashore are primarily California sea lions, northern elephant seals, Pacific harbor seals, and to a lesser extent the eastern distinct population segment (DPS) of the Steller sea lion. NMFS presents general information on these species in the next section. NMFS refers the public to Carretta
Northern elephant seals are not listed as threatened or endangered under the Endangered Species Act, nor are they categorized as depleted under the MMPA. The estimated population of the California Breeding Stock is approximately 179,000 animals and the current population trend is increasing at 3.8 percent annually (Carretta
Northern elephant seals range in the eastern and central North Pacific Ocean, from as far north as Alaska and as far south as Mexico. Northern elephant seals spend much of the year, generally about nine months, in the ocean. They are usually underwater, diving to depths of about 1,000 to 2,500 ft (330-800 m) for 20- to 30-minute intervals with only short breaks at the surface. They are rarely seen out at sea for this reason. While on land, they prefer sandy beaches.
Northern elephant seals breed and give birth in California (U.S.) and Baja California (Mexico), primarily on offshore islands (Stewart
At Point Reyes, the population ranges from 1,500 and 2,000 animals (NPS, 2013a). Adult northern elephant seals visit Point Reyes twice a year (NPS, 2013a). They arrive in early winter from their feeding grounds off Alaska and the largest congregations occur in the winter, when the females arrive to deliver their pups and nurse them, and in spring when immature seals and adult females return to molt. During the time they are onshore they are fasting (NPS, 2013b).
At Southeast Farallon, the population consists of approximately 500 animals (FNMS, 2013). Northern elephant seals began recolonizing the South Farallon Islands in the early 1970s (Stewart
Northern elephant seals are present on the islands and in the waters surrounding the South Farallones year-round for either breeding or molting; however, they are more abundant during breeding and peak molting seasons (Le Boeuf and Laws, 1994; Sydeman and Allen, 1997). They live and feed in deep, offshore waters the remainder of the year.
In mid-December, adult males begin arriving on the South Farallones, closely followed by pregnant females on the verge of giving birth. Females give birth to a single pup, generally in late December or January (Le Boeuf and Laws, 1994) and nurse their pups for approximately four weeks (Reiter
The lowest numbers of elephant seals present on the rookery occurs during June, July, and August, when sub-adult and adult males molt. Another peak of young seals return to the rookery for a haul-out period in October, and at that time some individuals undergo partial molt (Le Boeuf and Laws, 1994). At Año Nuevo Island the population ranges from 900 to 1,000 adults.
Observers first sighted elephant seals on Año Nuevo Island in 1955 and today the population ranges from 900 to 1,000 adults (M. Lowry, unpubl. data). Males began to haul out on the mainland in 1965. California State Park reports that by 1988/1989, approximately 2,000 elephant seals came ashore to Año Nuevo (CSP, 2012).
The estimated population of the U.S. stock of California sea lion is approximately 296,750 animals and the current maximum population growth rate is 12 percent (Carretta
California sea lion breeding areas are on islands located in southern California, in western Baja California, Mexico, and the Gulf of California. During the breeding season, most California sea lions inhabit southern California and Mexico. Rookery sites in southern California are limited to the San Miguel Islands and the southerly Channel Islands of San Nicolas, Santa Barbara, and San Clemente (Carretta
Adult and juvenile males will migrate as far north as British Columbia, Canada while females and pups remain in southern California waters in the non-breeding season. In warm water (El Niño) years, some females are found as far north as Washington and Oregon, presumably following prey.
The U.S. stock of California sea lion is the only stock present in the proposed research area and in recent years, California sea lions have begun to breed annually in small numbers at Southeast Farallon and Año Nuevo Islands.
On the Farallon Islands, California sea lions haul out in many intertidal areas year round, fluctuating from several hundred to several thousand animals.
Pacific harbor seals are not listed as threatened or endangered under the Endangered Species Act, nor are they categorized as depleted under the MMPA. The estimated population of the California stock of harbor seals is 30,196 animals (Carretta
The animals inhabit near-shore coastal and estuarine areas from Baja California, Mexico, to the Pribilof Islands in Alaska. Pacific harbor seals are divided into two subspecies:
In California, over 500 harbor seal haul-out sites are widely distributed along the mainland and offshore islands, and include rocky shores, beaches and intertidal sandbars (Lowry
In California, over 500 harbor seal haul-out sites are widely distributed along the mainland and offshore islands, and include rocky shores, beaches and intertidal sandbars (Lowry
Northern fur seals occur from southern California north to the Bering Sea and west to the Sea of Okhotsk and Honshu Island of Japan. NMFS recognizes two separate stocks of northern fur seals within U.S. waters: An Eastern Pacific stock distributed among sites in Alaska, British Columbia; and a California stock distributed along the west coast of the continental U.S. The estimated population of the California stock is 14,050 animals with a maximum population growth rate of 12 percent (Carretta
Northern fur seals may temporarily haul out on land at other sites in Alaska, British Columbia, and on islets along the west coast of the continental United States, but generally this occurs outside of the breeding season (Fiscus, 1983).
Northern fur seals breed in Alaska and migrate along the west coast during fall and winter. Due to their pelagic habitat, they are rarely seen from shore in the continental U.S., but individuals occasionally come ashore on islands well offshore (
Steller sea lions consist of two distinct population segments: The western and eastern distinct population segments (DPS) divided at 144 °West longitude (Cape Suckling, Alaska). The western segment of Steller sea lions inhabit central and western Gulf of Alaska, Aleutian Islands, as well as coastal waters and breed in Asia (
Steller sea lions range along the North Pacific Rim from northern Japan to California (Loughlin
The eastern distinct population segment of Steller sea lions breeds on rookeries located in southeast Alaska, British Columbia, Oregon, and California. There are no rookeries located in Washington. Steller sea lions give birth in May through July and breeding commences a couple of weeks after birth. Pups are weaned during the winter and spring of the following year.
Despite the wide-ranging movements of juveniles and adult males in particular, exchange between rookeries by breeding adult females and males (other than between adjoining rookeries) appears low, although males have a higher tendency to disperse than females (NMFS, 1995; Trujillo
The current population of Steller sea lions in the proposed research area is estimated to number between 50 and 750 animals. Overall, counts of non-pups at trend sites in California and Oregon have been relatively stable or increasing slowly since the 1980s (Muto and Angliss, 2015).
Point Blue estimates that between 50 and 150 Steller sea lions live on the Farallon Islands. On Southeast Farallon Island, the abundance of females declined an average of 3.6 percent per year from 1974 to 1997 (Sydeman and Allen, 1999).
The National Marine Fisheries Service's Southwest Fisheries Science Center estimates between 400 and 600 live on Año Nuevo Island (Point Blue unpublished data, 2008; Southwest Fisheries Science Center unpublished data, 2008). At Año Nuevo Island off central California, a steady decline in ground counts started around 1970, and there was an 85 percent reduction in the breeding population by 1987 (LeBoeuf
California (southern) sea otters (
This section includes a summary and discussion of the ways that components of the specified activity (
In the following discussion, we provide general background information on sound and marine mammal hearing. Acoustic and visual stimuli generated by: (1) Motorboat operations; and (2) the appearance of researchers may have the potential to cause Level B harassment of any pinnipeds hauled out on Southeast Farallon Island, Año Nuevo Island, or Point Reyes National Seashore. The effects of sounds from motorboat operations and the appearance of researchers might include hearing impairment or behavioral disturbance (Southall,
Marine mammals produce sounds in various important contexts—social interactions, foraging, navigating, and responding to predators. The best available science suggests that pinnipeds have a functional aerial hearing sensitivity between 75 hertz (Hz) and 75 kilohertz (kHz) and can produce a diversity of sounds, though generally from 100 Hz to several tens of kHz (Southall,
Exposure to high intensity sound for a sufficient duration may result in auditory effects such as a noise-induced threshold shift—an increase in the auditory threshold after exposure to noise (Finneran, Carder, Schlundt, and Ridgway, 2005). Factors that influence the amount of threshold shift include the amplitude, duration, frequency content, temporal pattern, and energy distribution of noise exposure. The magnitude of hearing threshold shift normally decreases over time following cessation of the noise exposure. The amount of threshold shift just after exposure is called the initial threshold shift. If the threshold shift eventually returns to zero (
Pinnipeds have the potential to be disturbed by airborne and underwater noise generated by the small boats equipped with outboard engines (Richardson, Greene, Malme, and Thomson, 1995). However, there is a dearth of information on acoustic effects of motorboats on pinniped hearing and communication and to our knowledge there has been no specific documentation of hearing impairment in free-ranging pinnipeds exposed to small motorboats during realistic field conditions.
Disturbances resulting from human activity can impact short- and long-term pinniped haul out behavior (Renouf
Numerous studies have shown that human activity can flush pinnipeds off haul-out sites and beaches (Kenyon, 1972; Allen
In 1997, Henry and Hammil (2001) conducted a study to measure the impacts of small boats (
In 2004, Johnson and Acevedo-Gutierrez (2007) evaluated the efficacy of buffer zones for watercraft around harbor seal haul-out sites on Yellow Island, Washington state. The authors estimated the minimum distance between the vessels and the haul-out sites; categorized the vessel types; and evaluated seal responses to the disturbances. During the course of the seven-weekend study, the authors recorded 14 human-related disturbances which were associated with stopped powerboats and kayaks. During these events, hauled out seals became noticeably active and moved into the water. The flushing occurred when stopped kayaks and powerboats were at distances as far as 453 and 1,217 ft (138 and 371 m) respectively. The authors note that the seals were unaffected by passing powerboats, even those approaching as close as 128 ft (39 m), possibly indicating that the animals had become tolerant of the brief presence of the vessels and ignored them. The authors reported that on average, the seals quickly recovered from the
As a general statement from the available information, pinnipeds exposed to intense (approximately 110 to 120 decibels re: 20 μPa) non-pulse sounds often leave haul-out areas and seek refuge temporarily (minutes to a few hours) in the water (Southall
No research activities would occur on pinniped rookeries. Breeding animals are concentrated in areas where researchers would not visit. Therefore, NMFS does not expect mother and pup separation or crushing of pups during flushing. In summary, NMFS does not anticipate that the proposed activities would result in the injury, serious injury, or mortality of pinnipeds because the timing of research visits would preclude separation of mothers and pups, as activities occur outside of the pupping/breeding areas. The potential effects to marine mammals described in this section of the document do not take into consideration the proposed monitoring and mitigation measures described later in this document (see the “Proposed Mitigation” and “Proposed Monitoring and Reporting” sections).
NMFS does not expect the proposed research activities to have any habitat-related effects, including to marine mammal prey species, which could cause significant or long-term consequences for individual marine mammals or their populations. NMFS anticipates that the specified activity may result in marine mammals avoiding certain areas due to noise generated by: (1) Motorboat approaches and departures; (2) human presence during restoration activities and loading operations while resupplying the field station; and (3) human presence during seabird and pinniped research activities. NMFS considers this impact to habitat as temporary and reversible and considered this aspect in more detail earlier in this document, as behavioral modification. The main impact associated with the proposed activity will be temporarily elevated noise levels and the associated direct effects on marine mammals, previously discussed in this notice.
In order to issue an incidental take authorization under section 101(a)(5)(D) of the Marine Mammal Protection Act, we must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and the availability of such species or stock for taking for certain subsistence uses.
Point Blue has based the mitigation measures which they will implement during the proposed research, on the following: (1) Protocols used during previous Point Blue seabird research activities as required by our previous authorizations for these activities; and (2) recommended best practices in Richardson
To reduce the potential for disturbance from acoustic and visual stimuli associated with the activities Point Blue and/or its designees has proposed to implement the following mitigation measures for marine mammals:
(1) Postpone beach landings on Año Nuevo Island until pinnipeds that may be present on the beach have slowly entered the water.
(2) Select a pathway of approach to research sites that minimizes the number of marine mammals harassed.
(3) Avoid visits to sites used by pinnipeds for pupping.
(4) Monitor for offshore predators and do not approach hauled-out pinnipeds if great white sharks (
(5) Keep voices hushed and bodies low to the ground in the visual presence of pinnipeds.
(6) Conduct seabird observations at North Landing on Southeast Farallon Island in an observation blind, shielded from the view of hauled-out pinnipeds.
(7) Crawl slowly to access seabird nest boxes on Año Nuevo Island if pinnipeds are within view.
(8) Coordinate research visits to intertidal areas of Southeast Farallon Island (to reduce potential take) and coordinate research goals for Año Nuevo Island to minimize the number of trips to the island.
(9) Coordinate monitoring schedules on Año Nuevo Island, so that areas near any pinnipeds would be accessed only once per visit.
(10) Have the lead biologist serve as an observer to evaluate incidental take.
We have carefully evaluated Point Blue's proposed mitigation measures in the context of ensuring that we prescribe the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:
• The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;
• The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and
• The practicability of the measure for applicant implementation.
Any mitigation measure(s) prescribed by us should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed here:
1. Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).
2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to
3. A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to stimuli that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to training exercises that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing the severity of harassment takes only).
5. Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time.
6. For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.
Based on our evaluation of Point Blue's proposed measures, as well as other measures that may be relevant to the specified activity, we have preliminarily determined that the mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an incidental take authorization for an activity, section 101(a)(5)(D) of the Marine Mammal Protection Act states that we must set forth “requirements pertaining to the monitoring and reporting of such taking.” The Act's implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for an incidental take authorization must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and our expectations of the level of taking or impacts on populations of marine mammals present in the action area.
Point Blue submitted a marine mammal monitoring plan in their Authorization application. We may modify or supplement the plan based on comments or new information received from the public during the public comment period. Any monitoring requirement we prescribe should improve our understanding of one or more of the following:
• Occurrence of marine mammal species in action area (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
• Individual responses to acute stressors, or impacts of chronic exposures (behavioral or physiological).
• How anticipated responses to stressors impact either: (1) Long-term fitness and survival of an individual; or (2) Population, species, or stock.
• Effects on marine mammal habitat and resultant impacts to marine mammals.
• Mitigation and monitoring effectiveness.
As part of its 2016-2017 application, Point Blue proposes to sponsor marine mammal monitoring during the present project, in order to implement the mitigation measures that require real-time monitoring, and to satisfy the monitoring requirements of the incidental harassment authorization. The Point Blue researchers will monitor the area for pinnipeds during all research activities. Monitoring activities will consist of conducting and recording observations on pinnipeds within the vicinity of the proposed research areas. The monitoring notes would provide dates, location, species, the researcher's activity, behavioral state, numbers of animals that were alert or moved greater than one meter, and numbers of pinnipeds that flushed into the water.
Point Blue has complied with the monitoring requirements under the previous authorizations for the 2007 through 2016 seasons. The results from previous Point Blue's monitoring reports support our findings that the proposed mitigation measures, which we also required under the 2007-2016 Authorizations provide the means of effecting the least practicable adverse impact on the species or stock.
Point Blue has submitted a draft monitoring report on the 2015-2016 research periods on February 17, 2016. Upon final review, we will post this annual report on our Web site at
Point Blue must submit a draft final report to NMFS' Office of Protected Resources within 60 days after the conclusion of the 2016-2017 field seasons. The report will include a summary of the information gathered pursuant to the monitoring requirements set forth in the Authorization.
Point Blue will submit a final report to the Chief, Permits and Conservation Division, Office of Protected Resources, within 30 days after receiving comments from NMFS on the draft final report. If Point Blue does not receive any comments from NMFS on the draft report, NMFS and Point Blue will consider the draft final report to be the final report.
Except with respect to certain activities not pertinent here, the Marine Mammal Protection Act defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
NMFS proposes to authorize take by Level B harassment only for the proposed seabird research activities on Southeast Farallon Island, Año Nuevo Island, and Point Reyes National Seashore. Acoustic (
Based on Point Blue's previous research experiences, with the same activities conducted in the proposed research area, and on marine mammal research activities in these areas, we estimate that approximately 53,538 California sea lions, 485 harbor seals, 221 northern elephant seals, five northern fur seals, and 38 Steller sea lions could be affected by Level B behavioral harassment over the course of the effective period of the proposed Authorization.
The authorized take differs from Point Blue's original request for California sea lions (44,871), harbor seals (343), northern elephant seals (196), and
Although Point Blue has not reported encountering northern fur seals during the course of their previously authorized activities, NMFS has included take (5) for northern fur seals based on recent stranding information in the area for that species.
There is no evidence that Point Blue's planned activities could result in injury, serious injury, or mortality within the action area. Moreover, the required mitigation and monitoring measures will minimize further any potential risk for injury, serious injury, or mortality. Thus, we do not propose to authorize any injury, serious injury or mortality. We expect all potential takes to fall under the category of Level B harassment only.
Point Blue will continue to coordinate monitoring of pinnipeds during the research activities occurring on Southeast Farallon Island, Año Nuevo Island, and Point Reyes National Seashore. Point Blue conducts bone fide research on marine mammals, the results of which may contribute to the basic knowledge of marine mammal biology or ecology, or are likely to identify, evaluate, or resolve conservation problems.
NMFS has defined “negligible impact” in 50 CFR 216.103 as “ . . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
To avoid repetition, the discussion below applies to all five species discussed earlier in this notice. In making a negligible impact determination, we consider:
• The number of anticipated injuries, serious injuries, or mortalities;
• The number, nature, and intensity, and duration of Level B harassment;
• The context in which the takes occur (
• The status of stock or species of marine mammals (
• Impacts on habitat affecting rates of recruitment/survival; and
• The effectiveness of monitoring and mitigation measures to reduce the number or severity of incidental take.
For reasons stated previously in this document and based on the following factors, NMFS does not expect Point Blue's specified activities to cause long-term behavioral disturbance, abandonment of the haul-out area, injury, serious injury, or mortality:
(1) The takes from Level B harassment would be due to potential behavioral disturbance. The effects of the seabird research activities would be limited to short-term startle responses and localized behavioral changes due to the short and sporadic duration of the research activities. Minor and brief responses, such as short-duration startle or alert reactions, are not likely to constitute disruption of behavioral patterns, such as migration, nursing, breeding, feeding, or sheltering.
(2) The availability of alternate areas for pinnipeds to avoid the resultant acoustic and visual disturbances from the research operations. Results from previous monitoring reports also show that the pinnipeds returned to the various sites and did not permanently abandon haul-out sites after Point Blue conducted their pinniped and research activities.
(3) There is no potential for large-scale movements leading to injury, serious injury, or mortality because the researchers must delay ingress into the landing areas until after the pinnipeds present have slowly entered the water.
(4) The limited access of Point Blue's researchers to Southeast Farallon Island, Año Nuevo Island, and Point Reyes National Seashore during the pupping season.
We do not anticipate that any injuries, serious injuries, or mortalities would occur as a result of Point Blue's proposed activities, and we do not propose to authorize injury, serious injury or mortality. These species may exhibit behavioral modifications, including temporarily vacating the area during the proposed seabird and pinniped research activities to avoid the resultant acoustic and visual disturbances. Further, these proposed activities would not take place in areas of significance for marine mammal feeding, resting, breeding, or calving and would not adversely impact marine mammal habitat. Due to the nature, degree, and context of the behavioral harassment anticipated, the activities are not expected to impact annual rates of recruitment or survival.
NMFS does not expect pinnipeds to permanently abandon any area that is surveyed by researchers, as is evidenced by continued presence of pinnipeds at the sites during annual monitoring counts. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed mitigation and monitoring measures, NMFS preliminarily finds that the total marine mammal take from Point Blue's seabird research activities will not adversely affect annual rates of recruitment or survival and therefore will have a negligible impact on the affected species or stocks.
As mentioned previously, NMFS estimates that four species of marine mammals could be potentially affected by Level B harassment over the course of the proposed Authorization. For each species, these numbers are small relative to the population size. These incidental harassment numbers represent approximately 18.04 percent of the U.S. stock of California sea lion, 1.61 percent of the California stock of Pacific harbor seal, 0.12 percent of the California breeding stock of northern elephant seal, 0.04 percent of the California stock of northern fur seals, and 0.06 percent of the eastern distinct population segment of Steller sea lion.
Because these are maximum estimates, actual take numbers are likely to be lower, as some animals may select other haul-out sites the day the researchers are present.
Section 101(a)(5)(D) of the MMPA also requires us to determine that the taking will not have an unmitigable adverse effect on the availability of marine mammal species or stocks for subsistence use. There are no relevant subsistence uses of marine mammals implicated by this action. Thus, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
No marine mammal species listed under the ESA are anticipated to occur in the action area. Therefore, NMFS has determined that a section 7 consultation under the ESA is not required.
We have prepared a draft Environmental Assessment (EA) analyzing the potential effects to the human environment from our proposed issuance of an Authorization to Point Blue for their seabird research activities. The draft EA titled,
As a result of these preliminary determinations, NMFS proposes to authorize the take of marine mammals incidental to Point Blue's seabird research activities, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. The next section provides the proposed IHA language and contains a draft of the Authorization. The wording within this section is proposed for inclusion in the Authorization (if issued).
1. This Authorization is valid from May 2016 through April 2017.
2. This Authorization is valid only for specified activities associated with seabird research activities in the vicinity of pinniped haul-out sites located on Southeast Farallon Island (37°41′54.32″ N., 123°0′8.33″ W.), Año Nuevo Island (37°6′29.25″ N., 122°20′12.20″ W.), within Point Reyes National Seashore (37°59′38.61″ N., 122°58′24.90″ W.), San Francisco Bay, or the Russian River in Sonoma County.
a. The taking, by Level B harassment only, is limited to the following species: 53,538 California sea lions (
b. The taking by injury (Level A harassment), serious injury or death of any of the species listed in Condition 3(a) or the taking of any kind of any other species of marine mammal is prohibited and may result in the modification, suspension or revocation of this Authorization.
c. The taking of any marine mammal in a manner prohibited under this Authorization must be reported immediately to the West Coast Regional Administrator, National Marine Fisheries Service (NMFS) and to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS.
a. A copy of this Authorization must be in the possession of Point Blue, its designees, and field crew personnel (including research collaborators from Point Reyes National Seashore and Oikonos—Ecosystem Knowledge) operating under the authority of this Authorization.
b. The holder must notify the Assistant Regional Administrator for Protected Resources, West Coast Region at least 24 hours prior to starting seabird research activities (unless constrained by the date of issuance of this Authorization).
In order to ensure the least practicable impact on the species listed in condition 3(a), the holder of this Authorization is required to:
a. Minimize the potential for disturbance (to the lowest level practicable near known pinniped haul-outs by boat travel and pedestrian approach during seabird research operations). Point Blue and its designees must:
• Postpone beach landings until pinnipeds that may be present in the access areas have entered the water.
• Select a pathway of approach to research sites that minimizes the number of marine mammals harassed.
• Avoid visits to sites used by pinnipeds for pupping.
• Monitor for offshore predators and not approach hauled-out pinnipeds if great white sharks (
• Keep voices hushed and bodies low to the ground in the visual presence of pinnipeds.
• Conduct seabird observations at North Landing on Southeast Farallon Island in an observation blind, shielded from the view of hauled-out pinnipeds.
• Crawl slowly to access seabird nest boxes on Año Nuevo Island if pinnipeds are within view.
• Coordinate research visits to intertidal areas of Southeast Farallon Island (to reduce potential take) and coordinate research goals for Año Nuevo Island to minimize the number of trips to the island.
• Coordinate monitoring schedules on Año Nuevo Island, so that areas near any pinnipeds would be accessed only once per visit.
• Have the lead biologist serve as an observer to evaluate incidental take.
The holder of this Authorization is required to:
a. Record the date, time, and location (or closest point of ingress) of each visit to the research site.
b. Collect the following information for each visit: Composition of the marine mammals sighted, such as species, gender and life history.
The holder of this Authorization is required to:
a. Report observations of unusual behaviors of pinnipeds to West Coast Region fishery biologist so that the appropriate personnel in the Regional Office may conduct any potential follow-up observations.
b. Draft Report: Submit a draft final report to the Chief, Permits and Conservation Division, Office of Protected Resources, Headquarters, NMFS within 60 days after the expiration of the Authorization. The report will include the information gathered pursuant to the monitoring requirements listed in item 6, along with an executive summary.
c. The Draft Report shall be subject to review and comment by NMFS. Any recommendations made by NMFS must be addressed in the Final Report prior to submission to NMFS. If we decide that the draft final report needs no comments, the draft final report will be considered to be the final report.
d. Final Report: Submit a final report to the Chief, Permits and Conservation Division, Office of Protected Resources, Headquarters, NMFS within 30 days after receiving comments from us on the draft final report.
In the unanticipated event that Point Blue's activities cause any taking of a marine mammal in a manner prohibited by the Authorization, such as an injury (Level A harassment), serious injury or mortality (
Time, date, and location (latitude/longitude) of the incident; the name and type of vessel involved; the vessel's speed during and leading up to the incident; description of the incident; water depth; environmental conditions (
Point Blue shall not resume its activities until NMFS is able to review the circumstances of the prohibited take. NMFS will work with Point Blue to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Point Blue may not resume their activities until notified by NMFS in writing via a letter or email or via the telephone.
In the event that Point Blue discovers an injured or dead marine mammal, and the lead researcher determines that the cause of the injury or death is unknown and the death is relatively recent (
In the event that Point Blue discovers an injured or dead marine mammal, and the lead researcher determines that the injury or death is not associated with or related to the activities authorized in the Authorization (
11. A copy of this Authorization must be in the possession of Point Blue and its designees (including contractors and marine mammal monitors) operating under the authority of this Incidental Harassment Authorization at all times.
NMFS requests comment on the analyses, the draft Authorization, and any other aspect of the Notice of Proposed Incidental Harassment Authorization for Point Blue's seabird research activities. Please include any supporting data or literature citations with your comments to help inform our final decision on Point Blue's request for an Authorization.
Commodity Futures Trading Commission.
Notice of Comparability Determination for Certain Requirements Under the European Market Infrastructure Regulation.
The Commodity Futures Trading Commission (the “Commission” or “CFTC”) has determined that certain laws and regulations applicable in the European Union (“EU”) provide a sufficient basis for an affirmative finding of comparability with respect to certain regulatory obligations applicable to derivatives clearing organizations (“DCOs”) that are registered with the Commission and are authorized to operate as central counterparties (“CCPs”) in the EU. The Commission's determination provides for substituted compliance with respect to requirements for financial resources, risk management, settlement procedures, and default rules and procedures.
This determination will become effective upon publication in the
Jeffrey M. Bandman, Acting Director, 202-418-5044,
On February 10, 2016 Commission Chairman Timothy Massad issued a joint statement with Commissioner Jonathan Hill of the European Commission setting forth a common approach regarding the regulation of CCPs. Under the common approach, the European Commission (“EC”) will propose a third-country equivalence decision (“Equivalence Decision”) regarding the Commission's regulatory regime for DCOs, which is a prerequisite for the European Securities and Markets Authority (“ESMA”) to recognize U.S. DCOs as equivalent third-country CCPs. Once recognized by ESMA, U.S. DCOs may continue to operate and provide clearing services in the EU.
This Notice is being issued in connection with the resolution of equivalence for U.S. DCOs. For an Equivalence Decision under Article 25 of the European Market Infrastructure Regulation (“EMIR”), one of the conditions requires that the legal and supervisory regime of the United States must include an “effective equivalent system” for the recognition of CCPs authorized in the EU under EMIR.
Under this Notice, EU-based CCPs that register with or are currently registered with the Commission as DCOs and that are authorized to operate in the EU may comply with certain Commission requirements for financial resources, risk management, settlement procedures, and default rules and procedures (as set forth in this Notice) by complying with the terms of corresponding requirements under the EMIR Framework, as defined below.
The Commodity Exchange Act (“CEA”) does not impose geographic limitations on the registration of DCOs. Nor does it mandate that clearing of futures traded on U.S. exchanges must take place in the United States.
Thus, under this regulatory framework, a number of foreign-based CCPs have been registered with the Commission for some time. LCH.Clearnet Ltd., which is based in London, for example, has been registered with the Commission since 2001, and thus has been subject to dual supervision by UK authorities and the Commission since long before the EU adopted its current regulatory scheme—EMIR.
For purposes of the granting of exemptions to foreign-based CCPs that are not clearing futures traded on U.S. DCMs nor clearing swaps for U.S. customers, the Commission has determined that a supervisory and regulatory framework that is consistent with the Principles for Financial Market Infrastructures (“PFMIs”) can be considered to be comparable to and as comprehensive as the supervisory and regulatory framework established by the CEA and part 39 of the Commission's regulations.
To clear U.S. customer transactions, the Commission requires that a CCP register with the Commission as a DCO and such a DCO becomes subject to Section 4d of the CEA, which establishes a customer protection regime for futures, options, and swaps customers.
Additionally, in all instances in which the Commission has granted registration to a foreign-based CCP, it also has entered into a memorandum of understanding or similar arrangement (“MOU”) with the CCP's home country regulator(s). Such MOUs establish a framework pursuant to which the Commission and the CCP's home country regulator(s) intend to cooperate with each other in fulfilling their respective regulatory responsibilities with respect to covered cross-border entities, including CCPs licensed by the home country regulator(s) and registered with the Commission. Specifically, such an MOU sets forth procedures for, among other things, information sharing between the CFTC and the home country regulator(s), notification of certain material information, conduct of on-site visits, and the use and treatment of non-public information.
EU-based CCPs are subject to the regulations laid down in EMIR and the Regulatory Technical Standards (“RTS”) (collectively, the “EMIR Framework”).
The European Parliament and the European Council passed EMIR on July 4, 2012, which entered into force on August 16, 2012. The relevant technical standards for CCPs, including the RTS for capital requirements (“RTS-CR”) and the RTS for central counterparties (“RTS-CCP”), generally entered into force on March 15, 2013.
Pursuant to EMIR, each EU member state is responsible for implementing the EMIR Framework by designating a national competent authority(s) (“NCA”) to authorize and supervise the day-to-day operations of CCPs established in its territory. The NCAs are required to regularly review how the CCP complies with EMIR by examining the CCP's rules, arrangements, procedures, and mechanisms, and to evaluate the risks to which such CCPs are, or might be, exposed. At a minimum, these reviews and examinations must occur at least annually. As part of such reviews and evaluations, the CCP is subject to on-site inspections.
Additionally, for each authorized CCP, a college of supervisors is established that comprises members of the NCA, ESMA, other EU national authorities that may supervise entities on which the operations of that CCP might have an impact (
While NCAs remain in charge of supervising CCPs, ESMA, as an independent European supervisory authority, validates changes to the risk models of authorized CCPs and is responsible for harmonizing and coordinating the implementation of EMIR across the EU member states. ESMA is managed by a Board of Supervisors, which is composed of the heads of 28 national authorities (where there is more than one national authority in a Member State those authorities agree which of their heads will represent them), with observers from Norway, Iceland, and Liechtenstein. The Board makes decisions on the compliance by NCAs with community legislation, interpretation of community legislation, decisions in crisis situations, the approval of draft technical standards, guidelines, peer reviews, and any reports that are developed.
Consistent with CEA Section 2(i) and principles of international comity, in the case of foreign-based DCOs, the Commission will make a comparability determination on a requirement-by-requirement basis, rather than on the
In evaluating whether a particular category of foreign regulatory requirement(s) is comparable and comprehensive to the corollary requirement(s) under the CEA and Commission regulations, the Commission will take into consideration all relevant factors, including, but not limited to: The comprehensiveness of the requirement(s); the scope and objectives of the relevant requirement(s); the comprehensiveness of the foreign regulator's supervisory compliance program; and the foreign jurisdiction's authority to support and enforce its oversight of the registrant.
In making this comparability determination, the Commission is relying on the provisions of the EMIR Framework. The Commission assumes that the provisions of the EMIR Framework discussed herein are in full force and effect and that the description of the EMIR Framework that is contained within this Notice is accurate and complete.
The following section presents the requirements imposed by specific sections of the CEA and Commission regulations applicable to DCOs that are the subject of this comparability determination. Following the discussion of each Commission requirement, the Commission provides the corresponding provision of the EMIR Framework.
The Commission's determinations in this regard are intended to inform the public of the Commission's views regarding whether the specific provisions of the EMIR Framework may be comparable to, and as comprehensive as, specific requirements in the CEA and CFTC regulations and, therefore, may form the basis for substituted compliance. The descriptions provided herein of CEA and CFTC requirements, as well as the provisions of the EMIR Framework, are summaries of the actual provisions and are qualified by reference to them. Statements of regulatory objectives are general in nature and provided only for the purpose of this Notice. Likewise, the Commission's summary of what is comparable as between specific CEA and CFTC requirements on the one hand and corresponding provisions of the EMIR Framework on the other is only a summary. In particular, there may be aspects that are not cited, including particular features that may not be comparable, but that do not affect the overall determination with respect to that provision or set of provisions.
CEA Section 7a-1(c)(2)(B) (“Core Principle B”) establishes general requirements for DCOs to have adequate financial resources. To implement Core Principle B the Commission adopted regulation 39.11, which requires a DCO to maintain financial resources sufficient to cover its exposures with a high degree of confidence and to enable it to perform its functions in compliance with the core principles set out in Section 5b of the CEA.
Regulation 39.11 provides that a DCO's financial resources will be considered sufficient if their value, at a minimum, exceeds the total amount that would enable the DCO to meet its financial obligations to its clearing members notwithstanding a default by the clearing member creating the largest financial exposure for the DCO in extreme but plausible market conditions (“Cover 1”).
On a monthly basis, a DCO must perform stress testing that will allow it to make a reasonable calculation of the financial resources needed to meet its Cover 1 requirement. A DCO has reasonable discretion to determine the methodology it uses to compute its Cover 1 requirement; however, the Commission may review the methodology and require changes as appropriate.
If a DCO's rules provide for assessments for additional guaranty fund contributions, then the DCO must: Have rules requiring that its clearing members have the ability to meet an assessment within the time frame of a normal end-of-day variation settlement cycle; monitor the financial and operational capacity of its clearing members to meet potential assessment(s); apply a 30% haircut to the value of potential assessments; and only count the value of assessments after the haircut, to meet up to 20% of those obligations.
In addition, CFTC regulation 39.11 provides that a DCO must effectively measure, monitor, and manage its liquidity risks, maintaining sufficient liquid resources such that it can, at a minimum, fulfill its cash obligations when due.
• Calculate the average daily settlement pay for each clearing member over the last fiscal quarter;
• Calculate the sum of those average daily settlement pays; and
• Using that sum, calculate the average of its clearing members' average pays.
A DCO may take into account a committed line of credit or similar facility for the purposes of meeting the remainder of this liquidity requirement.
CFTC regulation 39.11 further provides that the assets a DCO holds in a guaranty fund must have minimal credit, market, and liquidity risks and must be readily accessible on a same-day basis.
Finally, CFTC regulation 39.11 provides that a DCO's cash balances must be invested or placed in safekeeping in a manner that bears little or no principal risk.
As highlighted by the events of 2007-2008 in global financial markets, maintaining sufficient financial resources is a critical aspect of any financial entity's risk management system, and ultimately contributes to the goal of stability in the broader financial markets. By setting specific standards with respect to how DCOs must access and monitor the adequacy of their financial resources, Core Principle B and the Commission's implementing regulations contribute to a DCO's maintenance of sound risk management practices and further the goal of minimizing systemic risk.
Accordingly, the Commission finds that the provisions of the EMIR Framework with respect to financial resources discussed above and identified below in Table 1(a) are comparable to and as comprehensive as the financial resource requirements of CFTC regulation 39.11, with the exception of 39.11(f), which requires DCOs to submit to the Commission quarterly financial resource reports that include a quarterly financial statement. The Commission recognizes that European CCPs would not have financial statements prepared in accordance with U.S. Generally Accepted Accounting Principles (“GAAP”) absent Commission registration. Thus, the Commission will permit CCPs to submit financial statements prepared in accordance with International Financial Reporting Standards (“IFRS”), with periodic reconciliation to assist staff in reviewing the financial statements.
CEA Section 7a-1(c)(2)(D) (“Core Principle D”) establishes general requirements for DCOs to have the ability to manage the risks associated with discharging the responsibilities of the DCO through the appropriate tools and procedures. To implement Core Principle D, the Commission adopted regulation 39.13, which requires a DCO to maintain appropriate tools and procedures to manage the risks associated with discharging the responsibilities of a DCO in compliance with the core principles set out in Section 5b of the CEA.
CFTC regulation 39.13 requires a DCO to establish, maintain, and regularly update a written risk management framework (approved by its board of directors) that, at a minimum, clearly identifies and documents the range of risks to which the DCO is exposed, addresses monitoring and managing those risks, and provides a mechanism for internal audit.
CFTC regulation 39.13 also requires a DCO to appoint a chief risk officer (“CRO”), who must be responsible for implementing the DCO's written risk management framework and for making appropriate recommendations to the DCO's risk management committee or board of directors.
Pursuant to CFTC regulation 39.13, through margin requirements and other risk control mechanisms, a DCO must
CFTC regulation 39.13 also provides that a DCO must establish initial margin requirements that are commensurate with the risk of each product and portfolio, including any unusual characteristics of, or risks associated with, particular products or portfolios, including but not limited to jump-to-default risk or other similar risk.
The actual coverage of a DCO's initial margin requirements must meet an established confidence level of at least 99%, based on data from an appropriate historical time period, for each product for which the DCO uses a product-based margin methodology; for each spread within or between products for which there is a defined spread margin rate; for each account held by a clearing member at the DCO, by house origin and by each customer origin; and for each swap portfolio, including any portfolio containing futures and/or options and held in a commingled account pursuant to CFTC regulation 39.15(b)(2), by beneficial owner.
In addition, CFTC regulation 39.13 provides that on a regular basis, a qualified and independent party must review and validate a DCO's systems for generating initial margin requirements, including its theoretical models, and that this party must not be the person responsible for development or operation of the systems and models being tested.
A DCO may reduce initial margin requirements for related positions if the price risks with respect to such positions are significantly and reliably correlated—
Additionally, CFTC regulation 39.13 provides that a DCO must back test its initial margin requirements by comparing its initial margin requirements with historical price changes to determine the extent of actual margin coverage using an appropriate time period but not less than the previous 30 days, as follows: On a daily basis, the DCO must back test products or swaps portfolios that are experiencing significant market volatility; and on at least a monthly basis, the DCO must back test the adequacy of all of its initial margin requirements.
On a daily basis, a DCO must use prudent valuation practices to value assets posted as initial margin.
Both regimes include a broad, general requirement for a DCO/CCP to manage the risk to which it is exposed and both regimes require the appointment of a CRO to perform similar functions. Both regimes require a DCO/CCP to use risk control mechanisms, such as margin requirements, to limit exposure to potential clearing member defaults. Similarly, both regimes require that margin models and parameters be risk-based and regularly reviewed and both regimes require that the calculation of initial margin include factoring the risk characteristics of each cleared product. Both regimes require at least a 99% confidence level in determining the adequacy of initial margin and both regimes have similar proscriptions for back testing initial margin models. Finally, both regimes require that cash balances must be either invested or appropriately safeguarded in a manner that bears little or no principal risk.
Accordingly, the Commission finds that the provisions of the EMIR Framework with respect to risk management standards discussed above and identified below in Table 1(b) are comparable to and as comprehensive as the risk management requirements of CFTC regulation 39.13, with the exception of 39.13(g)(8)(i) and (ii), which respectively require FCMs to calculate initial margin for cleared customer accounts on a gross (as opposed to net) basis and require DCOs to collect additional initial margin for non-hedge positions of FCM customers. Despite the importance of gross margining of customer accounts and the collection of this additional initial margin, in an effort to promote comity, the Commission would not require DCO/CCPs to apply either of these regulations to non-FCM clearing member intermediaries or to the customers of non-FCM clearing member intermediaries. Additionally, the Commission makes this finding notwithstanding that the EMIR Framework's treatment of affiliates does not shield customers from potential losses by affiliates of the clearing member in the same manner as the CFTC's approach and in fact potentially exposes customers to proprietary trading losses.
CEA Section 7a-1(c)(2)(E) (“Core Principle E”) establishes general requirements for DCOs to have sufficient settlement procedures. To implement Core Principle E the Commission adopted regulation 39.14, which requires a DCO to complete money settlements on a timely basis, but not less frequently than once each business day; employ money settlement arrangements to eliminate or strictly limit exposure to settlement bank risks; maintain an accurate record of the flow of funds associated with money settlements; possess the ability to comply with the terms and conditions of any permitted netting or offset arrangement with another DCO; establish rules that clearly state the obligation of a DCO with respect to physical deliveries; and ensure that a DCO identifies and manages each risk arising from any of its obligation with respect to physical deliveries.
CFTC regulation 39.14 provides that a DCO must employ settlement arrangements that eliminate or strictly limit its exposure to settlement bank risk, by among other things, having documented criteria with respect to those banks that are acceptable settlement banks for the DCO and its clearing members, including criteria addressing the capitalization, creditworthiness, access to liquidity, operational reliability, and regulation or supervision of such banks.
A DCO must monitor the full range of and concentration of its exposure to its own and its clearing members' settlement bank(s) and assess its own and its clearing members' potential losses and liquidity in the event that the settlement bank with the largest share of settlement activity were to fail. A DCO must take any one or more of the following actions, as needed, to eliminate or strictly limit such exposures: maintain accounts at one or more additional settlement banks; approve one or more additional settlement banks that its clearing members could choose to use; impose concentration limits with respect to one or more of its own or its clearing members' settlement banks; and/or take any other appropriate actions.
A DCO must maintain an accurate record of the flow of funds associated with each settlement.
A DCO must possess the ability to comply with each term and condition of any permitted netting or offset arrangement with any other clearing organization.
For products that are settled by physical transfer of the underlying instruments or commodities, a DCO must establish rules that clearly state each obligation that the DCO has assumed with respect to such physical deliveries, including whether it has an obligation to make or receive delivery of a physical instrument or commodity, or whether it indemnifies clearing members for losses incurred in the delivery process, and ensure that the risks of each such obligation are identified and properly managed.
EMIR, Art. 41(1) and (3): A CCP shall impose, call, and collect margins to limit its exposures from its clearing members, and where relevant, from CCPs with which it has interoperability arrangements. Such margins shall be sufficient to cover potential exposures that the CCP estimates will occur until the liquidation of the relevant positions. Such margins also shall be sufficient to cover losses that result from at least 99% of the exposures' movements over an appropriate time horizon and they shall ensure that a CCP fully collateralizes its exposures with all its clearing members, and, where relevant, with CCPs with which it has interoperability arrangements, at least on a daily basis. A CCP shall regularly monitor and, if necessary, revise its margins to reflect current market conditions, taking into account any potential procyclical effects of such revisions. A CCP shall call and collect margins on an intraday basis, at a minimum when predefined thresholds are exceeded.
Accordingly, the Commission finds that the provisions of the EMIR Framework with respect to settlement procedures discussed above and identified below in Table 1(c) are comparable to and as comprehensive as the default rules and procedures of CFTC regulation 39.14.
For the avoidance of doubt, the Commission notes that the foregoing comparability determination only applies with regard to certain provisions of regulation 39.14 (
CEA Section 7a-1(c)(2)(G) (“Core Principle G”) establishes general requirements for DCOs to have adequate default rules and procedures. To implement Core Principle G the Commission adopted regulation 39.16, which requires a DCO to have rules and procedures designed to allow for the efficient, fair, and safe management of events during which members or participants become insolvent or otherwise default on the obligations of the members or participants to the DCO.
Pursuant to CFTC regulation 39.16, a DCO must adopt procedures that would permit the DCO to timely take action to contain losses and liquidity pressures and to continue meeting its obligations in the event of a default on the obligations of a clearing member to the DCO.
Accordingly, the Commission finds that the EMIR Framework with respect to default rules and procedures discussed above and identified below in Table 1(d) are comparable to and as comprehensive as the default rules and procedures of CFTC regulation 39.16.
For the avoidance of doubt, the Commission notes that the foregoing comparability determination only applies with regard to the above mentioned provisions of CFTC regulation 39.16 (
Section 5b(a) of the CEA and Commission Regulations 39.1 and 39.3 require a DCO to register with the Commission in the format and manner specified by the Commission. In particular, Regulation 39.3 specifies that a DCO seeking registration from the Commission must file a Form DCO and various supporting exhibits.
In the interest of comity, the Commission generally will tailor its registration process both in terms of administration and substantive review to reflect the availability of substituted compliance for EU CCPs. Accordingly, consistent with Regulation 39.3, EU CCPs seeking registration must complete Form DCO. However, with respect to questions and information requirements in areas where compliance with the EMIR Framework is substituted for compliance with part 39, the EU CCP may evidence its compliance with the EMIR Framework in lieu of its compliance with part 39. DCO/CCPs that are already dually registered need not take any further action to take advantage of the substituted compliance determinations made under this Notice. These determinations will be applied automatically to all current DCO/CCPs registrants.
Moreover, to streamline the registration process, an EU CCP applicant may, instead of submitting the exhibits required under the CFTC Form DCO regulation, use existing materials that it has submitted to its NCA for its EMIR authorization or other relevant documents produced by its NCA that demonstrate compliance with EMIR provisions for which substituted compliance is available (
In addition, for the Form DCO documents listed below, the Commission will accept a copy of the original document filed by the EU CCP with its NCA with an attestation by that authority that they are acceptable to that authority:
• Exhibit A-8: articles of incorporation or similar corporate documents;
• Exhibit A-10: outside service provider agreements;
• Exhibit E-1(4): settlement bank agreements;
• Exhibit F(a)(2): depository agreements; and
• Exhibit M(a): information-sharing agreements.
If these documents are not in English, and an English translation is available, the EU CCP applying for registration should provide the English translation. If an English translation is not available, the EU CCP applying for registration should inform the Commission in writing but need not provide a translated version unless requested by the CFTC.
The Commission will review the documentation received to determine if it is complete and comprehensive. In the case that information evidencing compliance with the EMIR Framework is incomplete, the Commission will seek to obtain further evidence from the relevant NCA evidencing its assessment of compliance. If the documentation is still not sufficient for the Commission to review compliance with the terms of the
The Commission will seek to obtain any other missing information from the relevant EU CCP. The Commission also will provide the relevant NCA with the opportunity to be consulted with respect to any questions if so requested at the outset by that authority.
As a general matter, the Commission acknowledges that CCPs registered in foreign jurisdictions operate under different regulatory regimes, and that the differences between these various regimes may lead to regulatory arbitrage. The Commission also understands that the CFTC staff intends to provide limited no-action relief for DCO/CCPs from the application of Commission regulations to discrete aspects of a DCO/CCP's non-U.S. clearing activities as set forth below when this Notice becomes effective.
(1) CFTC Regulation 39.12(b)(6)'s requirement that, upon a DCO's acceptance of a swap for clearing, the original swap is extinguished and it is replaced by an equal and opposite swap between the DCO and each clearing member acting as a principal for a house trade or an agent for a customer trade will not apply where neither party is a U.S. clearing member or an FCM clearing member;
(2) Part 22 of CFTC Regulations and its “legally segregated but operationally commingled” (“LSOC”) account model for cleared swaps customer accounts will not apply to clearing members that are not FCMs;
(3) CFTC Regulation 39.13(g)(8)(i)'s requirement that initial margin for customer accounts cleared by an FCM be calculated and collected on a gross basis would not apply to non-FCM clearing member intermediaries;
(4) CFTC Regulation 39.13(g)(8)(ii)'s requirement that a DCO collect initial margin at a level that is greater than 100% of the DCO's initial margin requirements for the non-hedge positions of FCM customers will not apply to non-FCM clearing member intermediaries;
(5) CFTC Regulation 39.12(a)(2)(iii)'s prohibition that a DCO not set a minimum capital requirement of more than $50 million for any person that seeks to become a clearing member to clear swaps will not apply to non-U.S. clearing members or non-FCM clearing members;
(6) CFTC Regulation 39.12(b)(7)'s requirement that DCOs utilize “straight-through-processing” of swaps submitted for clearing will not apply to trades that are not executed on or subject to the rules of a DCM or a swap execution facility and for which neither clearing member is an FCM, a swap dealer, or a major swap participant;
(7) Regulation 39.13(h)(5)'s requirement that DCOs must require their clearing members to maintain written risk management policies and procedures and that DCOs must have the authority to obtain information and documents from clearing members regarding their risk will still apply; however, DCO/CCPs may implement different oversight programs for U.S./FCM clearing members and non-U.S. clearing members; and
(8) Regulation 39.11(f)'s and Regulation 39.19(c)(3)(ii)'s implicit requirements that DCOs submit to the CFTC quarterly financial resource reports and an audited year-end financial statement that are prepared in accordance with GAAP will not apply; rather, the DCO/CCPs may submit financial statements prepared in accordance with IFRS, with periodic reconciliation to assist staff in reviewing the financial statements.
As noted above, with respect to dually-registered DCO/CCPs, the Commission retains its examination authority with respect to DCO/CCPs and requires that home country regulator(s) enter into an MOU that addresses how the regulator(s) will cooperate and share information with respect to supervision of the DCO/CCP. Thus, the Commission has entered into a supervisory MOU with the home country regulator(s) of a DCO/CCP.
While certain principles of supervision are universal, based on its experience supervising DCO/CCPs, the Commission recognizes the benefits of tailoring a joint supervisory regime to (1) the unique legal and regulatory framework in which each regulator operates and (2) the unique financial, operational, and organizational characteristics of each DCO/CCP. With respect to CFTC regulations for which there would be substituted compliance, the Commission generally believes that there should be joint examinations. By way of example, Commission staff already has participated in joint examinations with the Bank of England, and the Commission believes that joint examinations can be an efficient means for effective, in-depth review of a DCO/CCP's regulatory compliance.
However, depending on the individual circumstances, it may be appropriate for the home country regulator(s) to assume greater responsibility for conducting the examinations. The Commission expects that its staff would be flexible in determining their approach to a given examination based on the nature and scope of the examination. Therefore, with the overall goal of applying uniform principles in a consistent yet flexible way, the Commission intends to address supervisory matters, including examinations, on a case-by-case basis for each individual DCO/CCP in close consultation with the relevant home country regulator(s).
As noted above, the Commission finds that each provision of the EMIR Framework discussed above, is comparable to and comprehensive as the Commission requirements identified above and thus a CCP's compliance with the identified provisions of the EMIR Framework will satisfy compliance with the corresponding Commission requirements.
On this matter, Chairman Massad and Commissioners Bowen and Giancarlo voted in the affirmative. No Commissioner voted in the negative.
Today, the CFTC has taken action to implement our agreement with the European Commission regarding requirements for central clearing counterparties (CCPs). Our unanimous action today means that European CCPs registered with the CFTC can comply with many of our rules by meeting
The equivalence agreement announced by European Commissioner Jonathan Hill and myself is an important step in achieving cross-border harmonization of derivatives regulation. It provides a foundation for cooperation among regulators in the oversight of the global clearinghouses that are so important in our financial system today. It resolves the issues that were standing in the way of Europe recognizing U.S. CCPs. And it helps make sure that the U.S. and European derivatives markets can continue to be dynamic, with robust competition and liquidity across borders.
The action we have taken today is an important component of that agreement. The notice identifies the rules for which the CFTC will grant substituted compliance. These include rules related to CCP financial resources, risk management, settlement procedures, and default management. We have also streamlined the process for registration, which will further harmonize our regimes.
Finally, CFTC staff today are also providing no-action relief from the application of Commission regulations to discrete aspects of a clearinghouse's non-U.S. clearing activities.
The Commission is working with U.S. clearinghouses seeking recognition by the European Securities and Market Authority (ESMA) to ensure ESMA has all necessary information to review their applications in a timely manner. I look forward to ESMA completing the recognition process in a manner that ensures the global derivatives markets can continue to function efficiently and without disruption.
I support the comparability determinations issued by the Commodity Futures Trading Commission (“CFTC”).
Today's action furthers the commitment to a common approach for transatlantic central clearing counterparties (CCPs) announced on February 10, 2016 by my colleague, CFTC Chairman Timothy Massad, and Commissioner Jonathan Hill of the European Commission (EC). Under the comparability determinations, CCPs that are authorized in the European Union (EU) under the European Market Infrastructure Regulation (EMIR) and registered with the CFTC may comply with certain CFTC requirements for financial resources, risk management, settlement procedures, and default rules and procedures by complying with corresponding requirements under the EMIR framework. Today's notice also provides for a streamlined approach for EU CCPs that may wish to register with the CFTC in the future.
As I said when it was announced, the agreement reached between the EC and the CFTC avoids unacceptable changes to four decades of U.S. clearinghouse margin policy and higher costs of hedging risk for America's farmers, ranchers, financial institutions, energy firms and manufacturers.
Yet, as I have observed, the protracted process for reaching this compromise was made needlessly complex because both the EC and the CFTC insisted on a line-by-line rule analysis contrary to the flexible, outcomes-based approach advocated by the OTC Derivatives Regulators Group. While the end result is a good one, the approach taken to get here was needlessly circuitous and uncertain.
The CFTC and its global counterparts must now recommit themselves to work together to implement an equivalence and substituted compliance process, particularly for swaps execution and the cross-border activities of swap dealers and major swaps participants, based on common principles in order to increase regulatory harmonization and reduce market balkanization.
Joint Service Committee on Military Justice (JSC), Department of Defense.
Notice of response to public comments on proposed amendments to the Manual for Courts-Martial, United States (2012 ed.) (MCM).
The JSC is publishing final proposed amendments to the MCM. The proposed changes concern the Rules for Courts-Martial, the Military Rules of Evidence, and the punitive articles applicable in trials by courts-martial. These proposed changes have not been coordinated within the Department of Defense under DoD Directive 5500.1, “Preparation, Processing and Coordinating Legislation, Executive Orders, Proclamations, Views Letters and Testimony,” June 15, 2007, and do not constitute the official position of the Department of Defense, the Military Departments, or any other Government agency.
Major Harlye Carlton, USMC, JSC Executive Secretary, at
Public Comments: Comments and materials received from the public are available under Docket ID Number DOD-2015-OS-0099,
On October 19, 2015 (80 FR 63204-63212), the JSC published a Notice of Proposed Amendments concerning the rules of procedure and evidence and the punitive articles applicable in trials by courts-martial and a Notice of Public Meeting to receive comments on these proposals. The public meeting was held on November 5, 2015. No comments were received at the public meeting. The 60-day public comment period for the notice closed on December 18, 2015. One public comment was received.
The JSC considered the public comments and after conducting deliberations, made no modifications to the proposed amendments to the MCM as a result of the public comments. The JSC conducted additional internal deliberations and made some modifications to the proposed amendments to the MCM accordingly. Comments that were submitted that are outside the scope of the originally-proposed changes will be considered as part of the JSC 2016 annual review of the MCM.
The proposed recommended amendments to the MCM that have been forwarded through the DoD for action by Executive Order of the President of the United States are as follows:
(a) The title of R.C.M. 104(b)(1) is amended to read as follows:
“(1)
(b) R.C.M. 104(b)(1)(B) is amended to read as follows:
“(B) Give a less favorable rating or evaluation of any defense counsel or special victims' counsel because of the zeal with which such counsel represented any client. As used in this rule, “special victims' counsel” are judge advocates who, in accordance with 10 U.S.C. 1044e, are designated as Special Victims' Counsel by the Judge Advocate General of the armed force in which the judge advocates are members, and within the Marine Corps, by the Staff Judge Advocate to the Commandant of the Marine Corps.”
(c) R.C.M. 305(h)(2)(B)(iii)(a) is amended to read as follows:
“(a) The prisoner will not appear at trial, pretrial hearing, preliminary hearing, or investigation, or”
(d) R.C.M. 305(i)(2)(A)(iv) is amended to read as follows:
“(iv)
(e) A new R.C.M. 306(e) is inserted and reads as follows:
“(e)
(1) For purposes of this subsection, a “sex-related offense” means any allegation of a violation of Article 120, 120a, 120b, 120c, or 125 or any attempt thereof under Article 80, UCMJ.
(2) Under such regulations as the Secretary concerned may prescribe, for alleged sex-related offenses committed in the United States, the victim of the sex-related offense shall be provided an opportunity to express views as to whether the offense should be prosecuted by court-martial or in a civilian court with jurisdiction over the offense. The commander, and if charges are preferred, the convening authority, shall consider such views as to the victim's preference for jurisdiction, if available, prior to making an initial disposition decision. For purposes of this rule, “victim” is defined as an individual who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an alleged sex-related offense as defined in subparagraph (A) of this rule.
(3) Under such regulations as the Secretary concerned may prescribe, if the victim of an alleged sex-related offense expresses a preference for prosecution of the offense in a civilian court, the commander, and if charges are preferred, the convening authority, shall ensure that the civilian authority with jurisdiction over the offense is notified of the victim's preference for civilian prosecution. If the commander, and if charges are preferred, the convening authority learns of any decision by the civilian authority to prosecute or not prosecute the offense in civilian court, the convening authority shall ensure the victim is notified.”
(f) R.C.M. 403(b)(5) is amended to read as follows:
“(5) Unless otherwise prescribed by the Secretary concerned, direct a preliminary hearing under R.C.M. 405, and, if appropriate, forward the report of preliminary hearing with the charges to a superior commander for disposition.”
(g) R.C.M. 405(i)(2)(A) is amended to read as follows:
“(2)
(A) The victim(s) of an offense under the UCMJ has the right to reasonable, accurate, and timely notice of a preliminary hearing relating to the alleged offense, the right to be reasonably protected from the accused, and the reasonable right to confer with counsel for the government during the preliminary hearing. For the purposes of this rule, a “victim” is a person who is alleged to have suffered a direct physical, emotional, or pecuniary harm as a result of the matters set forth in a charge or specification under consideration and is named in one of the specifications under consideration.”
(h) R.C.M. 407(a)(5) is amended to read as follows:
“(5) Unless otherwise prescribed by the Secretary concerned, direct a preliminary hearing under R.C.M. 405, after which additional action under this rule may be taken;”
(i) R.C.M. 502(d)(4)(B) is amended to read as follows:
“(B) An investigating or preliminary hearing officer;”
(j) RCM 502(e)(2)(C) is amended to read as follows:
“(C) An investigating or preliminary hearing officer;”
(k) R.C.M. 506(b)(2) is amended by replacing “investigation” with “preliminary hearing.”
(l) R.C.M 601(d)(2)(A) is amended to read as follows:
“(A) There has been substantial compliance with the preliminary hearing requirements of R.C.M. 405; and”
(m) R.C.M. 705(c)(2)(A) is amended to read as follows:
“(A) A promise to enter into a stipulation of fact concerning offenses to which a plea of guilty or a confessional stipulation will be entered;”
(n) R.C.M. 705(d)(3) is amended to read as follows:
“(3)
(A)
(B)
(o) A new R.C.M. 806(b)(2) is inserted and reads as follows:
“(2)
(p) R.C.M. 806(b)(2) is renumbered as R.C.M. 806(b)(3).
(q) R.C.M. 806(b)(3) is renumbered as R.C.M. 806(b)(4).
(r) R.C.M. 806(b)(4) is renumbered as R.C.M. 806(b)(5).
(s) A new R.C.M. 806(b)(6) is inserted and reads as follows:
“(6)
(t) R.C.M. 902(b)(2) is amended to read as follows:
“(2) Where the military judge has acted as counsel, preliminary hearing officer, investigating officer, legal officer, staff judge advocate, or convening authority as to any offense charged or in the same case generally.”
(u) R.C.M. 905(b)(1) is amended to read as follows:
“(1) Defenses or objections based on defects (other than jurisdictional defects) in the preferral, forwarding, or referral of charges, or in the preliminary hearing;”
(v) R.C.M. 907(b)(1) is amended to read as follows:
“(1)
(w) R.C.M. 907(b)(1)(A)-(B) is deleted.
(x) A new R.C.M. 907(b)(2)(E) is inserted and reads as follows:
“(E) The specification fails to state an offense.”
(y) R.C.M. 912(a)(1)(K) is amended to read as follows:
“(K) Whether the member has acted as accuser, counsel, preliminary hearing officer, investigating officer, convening authority, or legal officer or staff judge advocate for the convening authority in the case, or has forwarded the charges with a recommendation as to disposition.”
(z) R.C.M. 912(f)(1)(F) is amended to read as follows:
“(F) Has been an investigating or preliminary hearing officer as to any offense charged;”
(aa) R.C.M. 1002 is amended to read as follows:
“(a)
(b)
(bb) R.C.M. 1103(b)(2)(B)(i) is amended to read as follows:
“(i) The sentence adjudged includes confinement for twelve months or more or any punishment that may not be adjudged by a special court-martial; or”
(cc) The Note currently located immediately following the title of R.C.M. 1107 and prior to R.C.M. 1107(a) is amended to read as follows:
“[Note: R.C.M. 1107(b)-(f) apply to offenses committed on or after 24 June 2014; however, if at least one offense resulting in a finding of guilty in a case occurred prior to 24 June 2014, or includes a date range where the earliest date in the range for that offense is before 24 June 2014, then the prior version of R.C.M. 1107 applies to all offenses in the case, except that mandatory minimum sentences under Article 56(b) and applicable rules under R.C.M. 1107(d)(1)(D)-(E) still apply.]”
(dd) R.C.M. 1107(b)(5) is amended to delete the sentence, “Nothing in this subsection shall prohibit the convening authority from disapproving the findings of guilty and sentence.”
(ee) R.C.M. 1107(c) is amended to read as follows:
“(c)
(1) Where a court-martial includes a finding of guilty for an offense listed in subparagraph (c)(1)(A) of this rule, the convening authority may not take the actions listed in subparagraph (c)(1)(B) of this rule:
(A)
(i) Article 120(a) or (b), Article 120b, or Article 125;
(ii) Offenses for which the maximum sentence of confinement that may be adjudged exceeds two years without regard to the jurisdictional limits of the court; or
(iii) Offenses where the adjudged sentence for the case includes dismissal, dishonorable discharge, bad-conduct discharge, or confinement for more than six months.
(B)
(i) Dismiss a charge or specification by setting aside a finding of guilty thereto; or
(ii) Change a finding of guilty to a charge or specification to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge or specification.
(2) The convening authority may direct a rehearing in accordance with subsection (e) of this rule.
(3) For offenses other than those listed in subparagraph (c)(1)(A) of this rule:
(A) The convening authority may change a finding of guilty to a charge or specification to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge or specification; or
(B) Set aside any finding of guilty and:
(i) Dismiss the specification and, if appropriate, the charge; or
(ii) Direct a rehearing in accordance with subsection (e) of this rule.
(4) If the convening authority acts to dismiss or change any charge or specification for an offense, the convening authority shall provide, at the same time, a written explanation of the reasons for such action. The written explanation shall be made a part of the record of trial and action thereon.”
(ff) R.C.M. 1107(d) is amended to read as follows:
“(d)
(1) The convening authority shall take action on the sentence subject to the following:
(A) The convening authority may disapprove, commute, or suspend, in whole or in part, any portion of an adjudged sentence not explicitly prohibited by this rule, to include reduction in pay grade, forfeitures of pay and allowances, fines, reprimands, restrictions, and hard labor without confinement.
(B) Except as provided in subparagraph (d)(1)(C) of this rule, the convening authority may not disapprove, commute, or suspend, in whole or in part, that portion of an adjudged sentence that includes:
(i) confinement for more than six months; or
(ii) dismissal, dishonorable discharge, or bad-conduct discharge.
(C)
(i)
(ii)
(D) If the convening authority acts to disapprove, commute, or suspend, in whole or in part, the sentence of the court-martial for an offense listed in subparagraph (c)(1)(A) of this rule, the convening authority shall provide, at the same time, a written explanation of the reasons for such action. The written explanation shall be made a part of the record of trial and action thereon.”
(gg) R.C.M. 1107(e) is amended to read as follows:
“(e)
(1)
(2)
(A)
(B)
(i)
(ii)
(iii)
(C)
(i)
(ii)
(iii)
(D)
(E)
(3)
(hh) The Note currently located immediately following the title of R.C.M. 1108(b) and prior to the first line, “The convening authority may . . .”, is amended to read as follows:
“[Note: R.C.M. 1108(b) applies to offenses committed on or after 24 June 2014; however, if at least one offense in a case occurred prior to 24 June 2014, then the prior version of R.C.M. 1108(b) applies to all offenses in the case.]”
(ii) R.C.M. 1109(a) is amended to read as follows:
“(a)
(jj) R.C.M. 1109(c)(4)(A) is amended to read as follows:
“(A)
(kk) R.C.M. 1109(c)(4)(C) is amended to read as follows:
“(C)
(ll) A new sentence is added to the end of R.C.M. 1109(d)(1)(A) and reads as follows:
“The purpose of the hearing is for the hearing officer to determine whether there is probable cause to believe that the probationer violated a condition of the probationer's suspension.”
(mm) R.C.M. 1109(d)(1)(C) is amended to read as follows:
“(C)
(nn) A new sentence is added to the end of R.C.M. 1109(d)(1)(D) and reads as follows:
“This record shall include the recommendation, the evidence relied upon, and reasons for making the decision.”
(oo) R.C.M. 1109(d)(2)(A) is amended to read as follows:
“(A)
(pp) A new sentence is added to the end of R.C.M. 1109(e)(1) and reads as follows:
“The purpose of the hearing is for the hearing officer to determine whether there is probable cause to believe that the probationer violated the conditions of the probationer's suspension.”
(qq) R.C.M. 1109(e)(3) is amended to read as follows:
“(3)
(rr) A new sentence is added to the end of R.C.M. 1109(e)(5) and reads as follows:
“This record shall include the recommendation, the evidence relied upon, and reasons for making the decision.”
(ss) R.C.M. 1109(e)(6) is amended to read as follows:
“(6)
(tt) A new sentence is added to the end of R.C.M. 1109(g)(1) and reads as follows:
“The purpose of the hearing is for the hearing officer to determine whether there is probable cause to believe that the probationer violated the conditions of the probationer's suspension.”
(uu) R.C.M. 1109(g)(3) is amended to read as follows:
“(3)
(vv) A new sentence is added to the end of R.C.M. 1109(g)(5) and reads as follows:
“This record shall include the recommendation, the evidence relied upon, and reasons for making the decision.”
(ww) R.C.M. 1109(g)(6) is amended to read as follows:
“(6)
(xx) A new R.C.M. 1109(h) is inserted and reads as follows:
“(h)
(1)
(2)
(3)
(4)
(5)
(6)
(A) After being notified of the time and place of the proceeding is voluntarily absent; or
(B) After being warned by the hearing officer that disruptive conduct will cause removal from the proceeding, persists in conduct that is such as to justify exclusion from the proceeding.
(7)
(8)
(9)
(yy) A new R.C.M. 1203(g) is inserted and reads as follows:
“(g)
(a) Mil. R. Evid. 304(c) is amended to read as follows:
“(c)
(1) An admission or a confession of the accused may be considered as evidence against the accused on the question of guilt or innocence only if independent evidence, either direct or circumstantial, has been admitted into evidence that would tend to establish the trustworthiness of the admission or confession.
(2) Other uncorroborated confessions or admissions of the accused that would themselves require corroboration may not be used to supply this independent evidence. If the independent evidence raises an inference of the truth of the admission or confession, then it may be considered as evidence against the accused. Not every element or fact contained in the confession or admission must be independently proven for the confession or admission to be admitted into evidence in its entirety.
(3) Corroboration is not required for a statement made by the accused before the court by which the accused is being tried, for statements made prior to or contemporaneously with the act, or for statements offered under a rule of evidence other than that pertaining to the admissibility of admissions or confessions.
(4)
(5)
(b) Mil. R. Evid. 311(a) is amended to read as follows:
“(a)
(1) the accused makes a timely motion to suppress or an objection to the evidence under this rule;
(2) the accused had a reasonable expectation of privacy in the person, place or property searched; the accused had a legitimate interest in the property or evidence seized when challenging a seizure; or the accused would otherwise have grounds to object to the search or seizure under the Constitution of the United States as applied to members of the Armed Forces; and
(3) exclusion of the evidence results in appreciable deterrence of future unlawful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system.”
(c) A new Mil. R. Evid. 311(c)(4) is inserted and reads as follows:
“(4)
(d) Mil. R. Evid. 311(d)(5)(A) is amended to read as follows:
“(A)
(e) Mil. R. Evid. 414(d)(2)(A) is amended to read as follows:
“(A) any conduct prohibited by Article 120 and committed with a child, or prohibited by Article 120b.”
(f) Mil. R. Evid. 504 is amended to read as follows:
“Rule 504. Marital privilege
(a)
(b)
(1)
(2)
(c)
(1)
(2)
(A) In proceedings in which one spouse is charged with a crime against the person or property of the other spouse or a child of either, or with a crime against the person or property of a third person committed in the course of committing a crime against the other spouse;
(B) When the marital relationship was entered into with no intention of the parties to live together as spouses, but only for the purpose of using the purported marital relationship as a sham, and with respect to the privilege in subdivision (a), the relationship remains a sham at the time the testimony or statement of one of the parties is to be introduced against the other; or with respect to the privilege in subdivision (b), the relationship was a sham at the time of the communication; or
(C) In proceedings in which a spouse is charged, in accordance with Article 133 or 134, with importing the other spouse as an alien for prostitution or other immoral purpose in violation of 8 U.S.C. 1328; with transporting the other spouse in interstate commerce for prostitution, immoral purposes, or another offense in violation of 18 U.S.C. 2421-2424; or with violation of such other similar statutes under which such privilege may not be claimed in the trial of criminal cases in the United States district courts.
(d)
(1) “A child of either” means a biological child, adopted child, or ward of one of the spouses and includes a child who is under the permanent or temporary physical custody of one of the spouses, regardless of the existence of a legal parent-child relationship. For purposes of this rule only, a child is:
(A) An individual under the age of 18; or
(B) an individual with a mental handicap who functions under the age of 18.
(2) “Temporary physical custody” means a parent has entrusted his or her child with another. There is no minimum amount of time necessary to establish temporary physical custody, nor is a written agreement required. Rather, the focus is on the parent's agreement with another for assuming parental responsibility for the child. For example, temporary physical custody may include instances where a parent entrusts another with the care of his or her child for recurring care or during absences due to temporary duty or deployments.
(3) As used in this rule, a communication is “confidential” if made privately by any person to the spouse of the person and is not intended to be disclosed to third persons other than those reasonably necessary for transmission of the communication.”
(g) Mil. R. Evid. 505(e)(2) is amended by replacing “investigating officer” with “preliminary hearing officer.”
(h) Mil. R. Evid. 801(d)(1)(B) is amended to read as follows:
“(B) is consistent with the declarant's testimony and is offered:
(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or
(ii) to rehabilitate the declarant's credibility as a witness when attacked on another ground; or”
(i) The first sentence of Mil. R. Evid. 803(6)(E) is amended to read as follows:
“(E) the opponent does not show that the source of information or the method or circumstance of preparation indicate a lack of trustworthiness.”
(j) Mil. R. Evid. 803(7)(C) is amended to read as follows:
“(C) the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.”
(k) The first sentence of Mil. R. Evid. 803(8)(B) is amended to read as follows:
“(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.”
(l) Mil. R. Evid. 803(10)(B) is amended to read as follows:
“(B) a counsel for the government who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the accused does not object in writing within 7 days of receiving the notice—unless the military judge sets a different time for the notice or the objection.”
(m) Mil. R. Evid. 804(b)(1)(B) is amended by replacing “pretrial investigation” with “preliminary hearing.”
(n) Mil. R. Evid. 1101(d)(2) is amended by replacing “pretrial investigations” with “preliminary hearings.”
(a) Paragraph 4, Article 80—Attempts, subparagraph e. is amended to read as follows:
“e.
(b) Paragraph 57, Article 131—Perjury, subparagraph c.(1) is amended by replacing “an investigation” with “a preliminary hearing.”
(c) Paragraph 57, Article 131—Perjury, subparagraph c.(3) is amended by replacing “investigation” with “preliminary hearing.”
(d) Paragraph 96, Article 134—Obstructing justice, subparagraph f. is amended to read as follows:
“f.
(e) Paragraph 108, Testify: Wrongful refusal, subparagraph f. is amended by replacing “officer conducting an investigation under Article 32, Uniform Code of Military Justice” with “officer conducting a preliminary hearing under Article 32, Uniform Code of Military Justice.”
(f) Paragraph 110, Article 134—Threat, communicating, subparagraph c. is amended to read as follows:
“c.
Joint Service Committee on Military Justice (JSC), Department of Defense.
Publication of Discussion and Analysis (Supplementary Materials) accompanying the Manual for Courts-Martial, United States (2012 ed.) (MCM).
The JSC hereby publishes Supplementary Materials accompanying the MCM as amended by Executive Orders 13643, 13669, and 13696. These changes have not been coordinated within the Department of Defense under DoD Directive 5500.1, “Preparation,
The Supplementary Materials are effective as of March 22, 2016.
Major Harlye S.M. Carlton, USMC, (703) 963-9299 or
Section 1: The Discussion to Part IV of the Manual for Courts-Martial, United States, is amended as follows:
(a) A new Discussion is inserted immediately after Paragraph 40.c.1. and reads as follows:
“Bona fide suicide attempts should not be charged as criminal offenses. When making a determination whether the injury by the service member was a bona fide suicide attempt, the convening authority should consider factors including, but not limited to, health conditions, personal stressors, and DoD policy related to suicide prevention.”
(b) A new Discussion is inserted immediately after Paragraph 103a.c.1. and reads as follows:
“Bona fide suicide attempts should not be charged as criminal offenses. When making a determination whether the injury by the service member was a bona fide suicide attempt, the convening authority should consider factors including, but not limited to, health conditions, personal stressors, and DoD policy related to suicide prevention.”
Sec. 2: Appendix 22 of the Manual for Courts-Martial, United States, is amended as follows:
(a) The Note at the beginning of the first paragraph, Section I, General Provisions, is deleted.
(b) Section I, General Provisions, is amended by adding the following after the final paragraph:
“
In light of the amendments to the Federal Rules of Evidence, significant changes to the Military Rules of Evidence (Mil. R. Evid.) were implemented by Executive Order 13643, dated May 15, 2013. In addition to stylistic changes that harmonize the Mil. R. Evid. with the Federal Rules, the changes also ensure that the rules address the admissibility of evidence, rather than the conduct of the individual actors. Like the Federal Rules of Evidence, these rules ultimately dictate whether evidence is admissible and, therefore, it is appropriate to phrase the rules with admissibility as the focus, rather than a focus on the actor (
The rules were also reformatted, and the new format achieves a clearer presentation. This was accomplished by indenting paragraphs with headings and hanging indents to allow the practitioner to distinguish between different subsections of the rules. The restyled rules also reduce the use of inconsistent terms that are intended to mean the same thing but may, because of the inconsistent use, be misconstrued by the practitioner to mean something different.
While most of the changes avoid any style improvement that might result in a substantive change in the application of the rule, some of those changes to the rules were proposed with the express purpose of changing the substantive content of the rule in order to affect the application of the rule in practice. The analysis of each rule clearly indicates whether the drafters intended the changes to be substantive or merely stylistic. The reader is encouraged to consult the analysis of each rule if he or she has questions as to whether the drafters intended a change to the rule to have an effect on a ruling of admissibility.”
(c) The analysis following Mil. R. Evid. 101 is amended by adding the following language after the final paragraph:
“
The discussion sections do not have the force of law and may be changed without an Executive Order, as warranted by changes in applicable case law. The discussion sections should be considered treatise material and are non-binding on the practitioner.
This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility.”
(d) The analysis following Mil. R. Evid. 103 is amended by adding the following language after the final paragraph:
“
(e) The analysis following Mil. R. Evid. 104 is amended by adding the following language after the final paragraph:
“
(f) The title of the analysis section of Mil. R. Evid. 105 is changed to “Limiting evidence that is not admissible against other parties or for other purposes.”
(g) The analysis following Mil. R. Evid. 105 is amended by adding the following language after the final paragraph:
“
(h) The analysis following Mil. R. Evid. 106 is amended by adding the following language after the final paragraph:
“
(i) The analysis following Mil. R. Evid. 201 is amended by adding the following language after the final paragraph:
“
(j) The numbering and title of the analysis section of Mil. R. Evid. 201A is
(k) The analysis following Mil. R. Evid. 202 is amended by adding the following language after the final paragraph:
“
This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility.”
(l) The analysis following Mil. R. Evid. 301 is amended by adding the following language after the final paragraph:
“
Former subsections (d) and (f)(2) were combined; this change makes the rule easier to use. The issues typically arise chronologically in the course of a trial, because a witness often testifies on direct without asserting the privilege and then, during the ensuing cross-examination, asserts the privilege.
Former subsection (b)(2) was moved to a discussion section; the drafters recommended this change because subsection (b)(2) addresses conduct rather than the admissibility of evidence.
In subsection (e), the phrase “concerning the issue of guilt or innocence” was removed; the drafters recommended this change because this subsection applies to the presentencing phase of the trial as well as the merits phase. The use of the term “concerning the issue of guilt or innocence” incorrectly implied that the subsection only referred to the merits phase. The rule was renamed “Limited Waiver,” changed from “Waiver by the accused”; the drafters recommended this change to indicate that when an accused who is on trial for two or more offenses testifies on direct as to only one of the offenses, he or she has only waived his or her rights with respect to that offense and no other. This subsection was moved earlier in the rule and renumbered; the drafters recommended this change to address the issue of limited waivers earlier because of the importance of preserving the accused's right against self-incrimination.
The remaining subsections were renumbered as appropriate. This revision is stylistic and aligns this rule with the Federal Rules of Evidence. The drafters did not intend to change any result in any ruling on evidence admissibility.”
(m) The analysis following Mil. R. Evid. 302 is amended by adding the following language after the final paragraph:
“
(n) The analysis following Mil. R. Evid. 303 is amended by adding the following language after the final paragraph:
“
(o) The analysis following Mil. R. Evid. 304 is amended by adding the following language after the final paragraph:
“
In subsection (b), the term “allegedly” was added. The term references derivative evidence and clarifies that evidence is not derivative unless a military judge finds, by a preponderance of the evidence, that it is derivative.
In subsections (c)(5), (d), (f)(3)(A), and (f)(7), the word “shall” was replaced with “will” or “must.” The drafters agree with the approach of the Advisory Committee on Evidence Rules to minimize the use of words such as “shall” because of the potential disparity in application and interpretation of whether the word is precatory or prescriptive.
This revision is stylistic and addresses admissibility rather than conduct.
(p) The analysis following Mil. R. Evid. 305 is amended by adding the following language after the final paragraph:
“
The definition of “custodial interrogation” was moved to subsection (b) from subsection (d) and the definitions are now co-located. The definition is derived from
“Accused” is defined as “[a] person against whom legal proceedings have been initiated.”
Although not specifically outlined in subsection (c), interrogators and investigators should fully comply with the requirements of
The titles of subsections (c)(2) and (c)(3) were changed to “Fifth Amendment Right to Counsel” and “Sixth Amendment Right to Counsel” respectively; the drafters recommended this change because practitioners are more familiar with those terms. In previous editions, the subsections did not expressly state which right was implicated. Although the rights were clear from the text of the former rules, the new titles will allow practitioners to quickly find the desired rule.
Subsection (c)(3) is entitled “Sixth Amendment Right to Counsel” even though the protections of subsection (c)(3) exceed the constitutional minimal standard established by the Sixth Amendment as interpreted by the Supreme Court in
The words “after such request” were added to subsection (c)(2) and elucidate that any statements made prior to a request for counsel are admissible, assuming, of course, that Article 31(b) rights were given. Without that phrase, the rule could be read to indicate that all statements made during the interview, even those made prior to the request, were inadmissible. The drafters did not intend such a meaning, leading to this recommended change.
The drafters recommended changing the word “shall” to “will” in subsections (a), (d), and (f). The drafters agree with the approach of the Advisory Committee on Evidence Rules to minimize the use of “shall” because of the potential disparity in application and interpretation of whether the word is precatory or prescriptive.
In subsection (e)(1), the requirement that the accused's waiver of the privilege against self-incrimination and the waiver of the right to counsel must be affirmative was retained. This rule exceeds the minimal constitutional requirement. In
In subsection (f)(2), the word “abroad” was replaced with “outside of a state, district, commonwealth, territory, or possession of the United States.” This change clearly defines where the rule regarding foreign interrogations applies.
This revision is stylistic and addresses admissibility rather than conduct.
(q) The analysis following Mil. R. Evid. 311 is amended by adding the following language after the final paragraph:
“
This revision is stylistic and addresses admissibility rather than conduct.
(r) The analysis following Mil. R. Evid. 312 is amended by adding the following language after the final paragraph:
“
In subsection (c)(2)(a), the words “clear indication” were replaced with “probable cause.” “Clear indication” was not well-understood by practitioners nor properly defined in case law, whereas “probable cause” is a recognized Fourth Amendment term. The use of the phrase “clear indication” likely came from the Supreme Court's
In subsection (d), the term “involuntary” was replaced with “nonconsensual” for the sake of consistency and uniformity throughout the subsection; the drafters did not intend to change the rule in any practical way by using “nonconsensual” in the place of “involuntary.”
A discussion paragraph was added following subsection (e) to address a situation in which a person is compelled to ingest a substance in order to locate property within that person's body. This paragraph was previously found in subsection (e); the drafters recommended removing it from the rule itself because it addresses conduct rather than the admissibility of evidence.
The last line of subsection (f) was added; this change conforms the rule with CAAF's holding in
This revision is stylistic and addresses admissibility rather than conduct.
(s) The analysis following Mil. R. Evid. 313 is amended by adding the following language after the final paragraph:
“
(t) The analysis following Mil. R. Evid. 314 is amended by adding the following language after subparagraph (k):
“
Subsection (c) limits the ability of a commander to search persons or property upon entry to or exit from the installation alone, rather than anywhere on the installation, despite the indication of some courts in dicta that security personnel can search a personally owned vehicle anywhere on a military installation based on no suspicion at all.
A Discussion section was added below subsection (c) to address searches conducted contrary to a treaty or agreement. That material was previously located in subsection (c). The drafters recommended moving it to the Discussion because it addresses conduct rather than the admissibility of evidence.
Although not explicitly stated in subsection (e)(2), the Supreme Court's holding in
In subsection (f)(2), the phrase “reasonably believed” was changed to “reasonably suspected.” This change aligns the rule with recent case law and alleviates any confusion that “reasonably believed” established a higher level of suspicion required to conduct a stop-and-frisk than required by the Supreme Court in
In subsection (f)(3), the drafters recommended changing the phrase “reasonable belief” to “reasonable suspicion” for the same reasons discussed above. The discussion section was added to provide more guidance on the nature and scope of the search, based on case law.
The language from former subsection (g)(2), describing the search of an automobile incident to a lawful arrest of an occupant, was moved to the discussion paragraph immediately following subsection (f)(3). The drafters recommended this change because it addresses conduct rather than the admissibility of evidence.
This revision is stylistic and addresses admissibility rather than conduct.
(t) The analysis following Mil. R. Evid. 315 is amended by adding the following language after the final paragraph:
“
In subsection (b), the term “authorization to search” was changed to “search authorization.” This amendment aligns the rule with the term more commonly used by practitioners and law enforcement. The drafters recommended moving former subsection (c)(4) to a discussion paragraph immediately following subsection (c) because it addresses conduct rather than the admissibility of evidence.
The second sentence in former subsection (d)(2) was moved to subsection (d). This change elucidates that its content applies to both commanders under subsection (d)(1) and military judges or magistrates under subsection (d)(2). The drafters made this recommendation in reliance on CAAF's decision in
Former subsection (h)(4), entitled, “Search warrants,” was moved to subsection (e), now entitled “Who May Search.” This change co-locates it with the subsection discussing the execution of search authorizations.
In subsection (f)(2), the word “shall” was changed to “will.” This change brings the rule in conformance with the approach of the Advisory Committee on Evidence Rules to minimize the use of words such as “shall” and “should” because of the potential disparity in application and interpretation of whether the word is precatory or prescriptive. In recommending this amendment, the drafters did not intend to change any result in any ruling on evidence admissibility.
Subsection (g) was revised. The drafters' intent behind this revision was to include a definition of exigency rather than to provide examples that may not encompass the wide range of situations where exigency might apply. The definition is derived from Supreme Court jurisprudence.
This revision is stylistic and addresses admissibility rather than conduct.
(u) The analysis following Mil. R. Evid. 316 is amended by adding the following language after the final paragraph:
“
In subsection (c)(5)(C), the drafters intended the term “reasonable fashion” to include all action by law enforcement that the Supreme Court has established as lawful in its plain view doctrine.
This revision is stylistic and addresses admissibility rather than conduct.
(v) The analysis following Mil. R. Evid. 317 is amended by adding the following language after the final paragraph:
“
This revision is stylistic. The drafters had no intent to change any result in any ruling on evidence admissibility.”
(w) The analysis following Mil. R. Evid. 321 is amended by adding the following language after the final paragraph:
“
(x) The title of the analysis section of Mil. R. Evid. 401 is changed to “Test for relevant evidence.”
(y) The analysis following Mil. R. Evid. 401 is amended by adding the following language in a new paragraph following the current paragraph:
“
(z) The title of the analysis section of Mil. R. Evid. 402 is changed to “General admissibility of relevant evidence.”
(aa) The analysis following Mil. R. Evid. 402 is amended by adding the following language after the final paragraph:
“
(bb) The analysis following Mil. R. Evid. 403 is amended by adding the following language after the final paragraph:
“
(cc) The title of the analysis section of Mil. R. Evid. 404 is changed to “Character evidence; crime or other acts.”
(dd) The analysis following Mil. R. Evid. 404 is amended by adding the following language after the final paragraph:
“
(ee) The analysis following Mil. R. Evid. 405 is amended by adding the following language after the final paragraph:
“
(ff) The analysis following Mil. R. Evid. 406 is amended by adding the following language in a new paragraph following the current paragraph:
“
(gg) The analysis following Mil. R. Evid. 407 is amended by adding the following language in a new paragraph following the current paragraph:
“
(hh) The title of the analysis section of Mil. R. Evid. 408 is changed to “Compromise offers and negotiations.”
(ii) The analysis following Mil. R. Evid. 408 is amended by adding the following language in a new paragraph following the current paragraph:
“
(jj) The title of the analysis section of Mil. R. Evid. 409 is changed to “Offers to pay medical and similar expenses.”
(kk) The analysis following Mil. R. Evid. 409 is amended by adding the following language in a new paragraph following the current paragraph:
“
(ll) The title of the analysis section of Mil. R. Evid. 410 is changed to “Pleas, plea discussions, and related statements.”
(mm) The analysis following Mil. R. Evid. 410 is amended by adding the following language after the last paragraph:
“
(nn) The analysis following Mil. R. Evid. 411 is amended by adding the following language in a new paragraph following the current paragraph:
“
(oo) The title of the analysis section of Mil. R. Evid. 413 is changed to “Similar crimes in sexual offense cases.”
(pp) The analysis following Mil. R. Evid. 413 is amended by adding the following language after the final paragraph:
“
This revision is stylistic. The drafters had no intent to change any result in any ruling on evidence admissibility.”
(qq) The title of the analysis section of Mil. R. Evid. 414 is changed to “Similar crimes in child-molestation cases.”
(rr) The analysis following Mil. R. Evid. 414 is amended by adding the following language after the final paragraph:
“
This revision is stylistic. The drafters had no intent to change any result in any ruling on evidence admissibility.”
(ss) The title of the analysis section of Mil. R. Evid. 501 is changed to “Privilege in general.”
(tt) The analysis following Mil. R. Evid. 501 is amended by adding the following language after the final paragraph:
“
(uu) The analysis following Mil. R. Evid. 502 is amended by adding the following language after the final paragraph:
“
(vv) The analysis following Mil. R. Evid. 503 is amended by adding the following language after the final paragraph:
“
(ww) The analysis following Mil. R. Evid. 504 is amended by adding the following language after the final paragraph:
“
(xx) The analysis following Mil. R. Evid. 505 is amended by adding the following language after the final paragraph:
“
(yy) The analysis following Mil. R. Evid. 506 is amended by adding the following language after the final paragraph:
“
(zz) The title of the analysis section of Mil. R. Evid. 507 is changed to “Identity of informants.”
(aaa) The analysis following Mil. R. Evid. 507 is amended by adding the following language after the final paragraph:
“
(bbb) The analysis following Mil. R. Evid. 509 is amended by adding the following language in a new paragraph following the current paragraph:
“
(ccc) The analysis following Mil. R. Evid. 511 is amended by adding the following language after the final paragraph:
“
(ddd) The analysis following Mil. R. Evid. 513 is amended by adding the following language after the final paragraph:
“
(eee) The analysis following Mil. R. Evid. 514 is amended by adding the following language after the final paragraph:
“
Under subsection (a) of Mil. R. Evid. 514, the words “under the Uniform Code of Military Justice” mean that the privilege only applies to alleged misconduct that could result in UCMJ proceedings. It does not apply in situations in which the alleged offender is not subject to UCMJ jurisdiction. The drafters did not intend Mil. R. Evid. 514 to apply in any proceeding other than those authorized under the UCMJ. However, service regulations dictate how the privilege is applied to non-UCMJ proceedings. Furthermore, this rule only applies to communications between a victim advocate and the victim of an alleged sexual or violent offense.
Under subsection (b), the definition of “victim advocate” includes, but is not limited to, personnel performing victim advocate duties within the DoD Sexual Assault Prevention and Response Office (such as a Sexual Assault Response Coordinator), and the DoD Family Advocacy Program (such as a domestic abuse victim advocate). To determine whether an official's duties encompass victim advocate responsibilities, DoD and military service regulations should be consulted. A victim liaison
Under subsection (d), the exceptions to Mil. R. Evid. 514 are similar to the exceptions found in Mil. R. Evid. 513, and the drafters intended them to be applied in the same manner. Mil. R. Evid. 514 does not include comparable exceptions found within Mil. R. Evid. 513(d)(2) and 513(d)(7). Under the “constitutionally required” exception, communications covered by the privilege would be released only in the narrow circumstances where the accused could show harm of constitutional magnitude if such communication was not disclosed. The drafters intended this relatively high standard of release to preclude fishing expeditions for possible statements made by the victim; the drafters did not intend it to be an exception that effectively renders the privilege meaningless. If a military judge finds that an exception to this privilege applies, special care should be taken to narrowly tailor the release of privileged communications to only those statements that are relevant and whose probative value outweighs unfair prejudice. The fact that otherwise privileged communications are admissible pursuant to an exception of Mil. R. Evid. 514 does not prohibit a military judge from imposing reasonable limitations on cross-examination.
(fff) The title of the analysis section of Mil. R. Evid. 601 is changed to “Competency to testify in general.”
(ggg) The analysis following Mil. R. Evid. 601 is amended by adding the following language after the final paragraph:
“
(hhh) The title of the analysis section of Mil. R. Evid. 602 is changed to “Need for personal knowledge.”
(iii) The analysis following Mil. R. Evid. 602 is amended by adding the following language after the final paragraph:
“
(jjj) The title of the analysis section of Mil. R. Evid. 603 is changed to “Oath or affirmation to testify truthfully.”
(kkk) The analysis following Mil. R. Evid. 603 is amended by adding the following language in a new paragraph following the current paragraph:
“
(lll) The title of the analysis section of Mil. R. Evid. 604 is changed to “Interpreter.”
(mmm) The analysis following Mil. R. Evid. 604 is amended by adding the following language in a new paragraph following the current paragraph:
“
(nnn) The title of the analysis section of Mil. R. Evid. 605 is changed to “Military judge's competency as a witness.”
(ooo) The analysis following Mil. R. Evid. 605 is amended by adding the following language after the final paragraph:
“
(ppp) The title of the analysis section of Mil. R. Evid. 606 is changed to “Member's competency as a witness.”
(qqq) The analysis following Mil. R. Evid. 606 is amended by adding the following language:
“
(rrr) The title of the analysis section of Mil. R. Evid. 607 is changed to “Who may impeach a witness.”
(sss) The analysis following Mil. R. Evid. 607 is amended by adding the following language after the final paragraph:
“
(ttt) The title of the analysis section of Mil. R. Evid. 608 is changed to “A witness's character for truthfulness or untruthfulness.”
(uuu) The analysis following Mil. R. Evid. 608 is amended by adding the following language after the final paragraph:
“
(vvv) The title of the analysis section of Mil. R. Evid. 609 is changed to “Impeachment by evidence of a criminal conviction.”
(www) The analysis following Mil. R. Evid. 609 is amended by adding the following language after the final paragraph:
“
(xxx) The analysis following Mil. R. Evid. 610 is amended by adding the following language in a new paragraph following the current paragraph:
“
(yyy) The title of the analysis section of Mil. R. Evid. 611 is changed to “Mode and order of examining witnesses and presenting evidence.”
(zzz) The analysis following Mil. R. Evid. 611 is amended by adding the following language after the final paragraph:
“
The drafters took the language for the change to subsection (5) from 18 U.S.C. 3509(b)(1)(C), which covers child victims' and child witnesses' rights. There is no comparable Federal Rule of Evidence but a military judge may find that an Article 39(a) session outside the presence of the accused is necessary to make a decision regarding remote testimony. The drafters of the change intended to limit the number of people present at the Article 39(a) session in order to make the child feel more at ease, which is why they recommended adding language limiting those present to “a representative” of the defense and prosecution, rather than multiple representatives.
This revision is stylistic. The drafters had no intent to change any result in any ruling on evidence admissibility.”
(aaaa) The title of the analysis section of Mil. R. Evid. 612 is changed to “Writing used to refresh a witness's memory.”
(bbbb) The analysis following Mil. R. Evid. 612 is amended by adding the following language after the final paragraph:
“
(cccc) The title of the analysis section of Mil. R. Evid. 613 is changed to “Witness's prior statement.”
(dddd) The analysis following Mil. R. Evid. 613 is amended by adding the following language after the final paragraph:
“
(eeee) The title of the analysis section of Mil. R. Evid. 614 is changed to “Court-martial's calling or examining a witness.”
(ffff) The analysis following Mil. R. Evid. 614 is amended by adding the following language after the final paragraph:
“
(gggg) The title of the analysis section of Mil. R. Evid. 615 is changed to “Excluding witnesses.”
(hhhh) The analysis following Mil. R. Evid. 615 is amended by adding the following language after the final paragraph:
“
(iiii) The analysis following Mil. R. Evid. 701 is amended by adding the following language after the final paragraph:
“
(jjjj) The title of the analysis section of Mil. R. Evid. 702 is changed to “Testimony by expert witnesses.”
(kkkk) The analysis following Mil. R. Evid. 702 is amended by adding the following language after the final paragraph:
“
(llll) The title of the analysis section of Mil. R. Evid. 703 is changed to “Bases of an expert's opinion testimony.”
(mmmm) The analysis following Mil. R. Evid. 703 is amended by adding the following language:
“
(nnnn) The analysis following Mil. R. Evid. 704 is amended by adding the following language after the final paragraph:
“
(oooo) The title of the analysis section of Mil. R. Evid. 705 is changed to “Disclosing the facts or data underlying an expert's opinion.”
(pppp) The analysis following Mil. R. Evid. 705 is amended by adding the following language in a new paragraph following the current paragraph:
“
(qqqq) The title of the analysis section of Mil. R. Evid. 706 is changed to “Court-appointed expert witnesses.”
(rrrr) The analysis following Mil. R. Evid. 706 is amended by adding the following language after the final paragraph:
“
(ssss) The analysis following Mil. R. Evid. 707 is amended by adding the following language after the final paragraph:
“
(tttt) The title of the analysis section to Mil. R. Evid. 801 is changed to
(uuuu) The analysis following Mil. R. Evid. 801 is amended by adding the following language after the final paragraph:
“
(vvvv) The title of the analysis section of Mil. R. Evid. 802 is changed to “The rule against hearsay.”
(wwww) The analysis following Mil. R. Evid. 802 is amended by adding the following language after the final paragraph:
“
(xxxx) The title of the analysis section of Mil. R. Evid. 803 is changed to “Exceptions to the rule against hearsay—regardless of whether the declarant is available as a witness.”
(yyyy) The analysis following Mil. R. Evid. 803 is amended by adding the following language after the final paragraph:
“
(zzzz) The title of the analysis section of Mil. R. Evid. 804 is changed to “Exceptions to the rule against hearsay—when the declarant is unavailable as a witness.”
(aaaaa) The analysis following Mil. R. Evid. 804 is amended by adding the following language after the final paragraph:
“
(bbbbb) The analysis following Mil. R. Evid. 805 is amended by adding the following language in a new paragraph following the current paragraph:
“
(ccccc) The title of the analysis section of Mil. R. Evid. 806 is changed to “Attacking and supporting the declarant's credibility.”
(ddddd) The analysis following Mil. R. Evid. 806 is amended by adding the following language in a new paragraph following the current paragraph:
“
(eeeee) The analysis following Mil. R. Evid. 807 is amended by adding the following language after the final paragraph:
“
(fffff) The title of the analysis section of Mil. R. Evid. 901 is changed to “Authenticating or identifying evidence.”
(ggggg) The analysis following Mil. R. Evid. 901 is amended by adding the following language after the final paragraph:
“
(hhhhh) The title of the analysis section of Mil. R. Evid. 902 is changed to “Evidence that is self-authenticating.”
(iiiii) The analysis following Mil. R. Evid. 902 is amended by adding the following language after the final paragraph:
“
(jjjjj) The title of the analysis section of Mil. R. Evid. 903 is changed to “Subscribing witness's testimony.”
(kkkkk) The analysis following Mil. R. Evid. 903 is amended by adding the following language in a new paragraph following the current paragraph:
“
(lllll) The title of the analysis section of Mil. R. Evid. 1001 is changed to “Definitions that apply to this section.”
(mmmmm) The analysis following Mil. R. Evid. 1001 is amended by adding the following language after the final paragraph:
“
(nnnnn) The analysis following Mil. R. Evid. 1002 is amended by adding the following language after the final paragraph:
“
(ooooo) The analysis following Mil. R. Evid. 1003 is amended by adding the following language in a new paragraph following the current paragraph:
“
(ppppp) The title of the analysis section of Mil. R. Evid. 1004 is changed to “Admissibility of other evidence of content.”
(qqqqq) The analysis following Mil. R. Evid. 1004 is amended by adding the following language after the final paragraph:
“
(rrrrr) The title of the analysis section of Mil. R. Evid. 1005 is changed to “Copies of public records to prove content.”
(sssss) The analysis following Mil. R. Evid. 1005 is amended by adding the
“
(ttttt) The title of the analysis section of Mil. R. Evid. 1006 is changed to “Summaries to prove content.”
(uuuuu) The analysis following Mil. R. Evid. 1006 is amended by adding the following language after the final paragraph:
“
(vvvvv) The title of the analysis section of Mil. R. Evid. 1007 is changed to “Testimony or statement of a party to prove content.”
(wwwww) The analysis following Mil. R. Evid. 1007 is amended by adding the following language in a new paragraph following the current paragraph:
“
(xxxxx) The title of the analysis section of Mil. R. Evid. 1008 is changed to “Functions of the military judge and the members.”
(yyyyy) The analysis following Mil. R. Evid. 1008 is amended by adding the following language in a new paragraph following the current paragraph:
“
(zzzzz) The title of the analysis section of Mil. R. Evid. 1101 is changed to “Applicability of these rules.”
(aaaaaa) The analysis following Mil. R. Evid. 1101 is amended by adding the following language after the final paragraph:
“
(bbbbbb) The analysis following Mil. R. Evid. 1102 is amended by adding the following language after the final paragraph:
“
(cccccc) The analysis following Mil. R. Evid. 1103 is amended by adding the following language in a new paragraph following the current paragraph:
“
Institute of Education Sciences (IES), 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 21, 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 Yumiko Sekino, 202-219-2046.
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.
• To what extent do youth with disabilities who receive special education services under IDEA make progress through high school compared with other youth, including those identified for services under Section 504 of the Rehabilitation Act? For students with disabilities, has high school course taking and completion rates changed over the past few decades?
• Are youth with disabilities achieving the post-high school outcomes envisioned by IDEA, and how do their college, training, and employment rates compare with those of other youth?
• How do these high school and postsecondary experiences and outcomes vary by student characteristics, including their disability category, age, sex, race/ethnicity, English Learner status, income status, and type of high school attended (including regular public school, charter school, career/technical school, special education school, or other State or Federally-operated institution)?
The NLTS 2012 sample includes 21,959 students ranging in age from 13 to 21 in December 2011. The sample was selected to include sufficient number of students in each of the 12 federally defined disability categories, and adequate number of students without disabilities, including both students with a Section 504 plan and students with neither an IEP nor a Section 504 plan. To meet the study's objective, data will be collected from the following sources: (1) School district administrative records, including transcripts, from districts that participated in NLTS 2012; (2) postsecondary enrollment information through the National Student Clearinghouse, (3) employment and earnings data from the Social Security Administration (SSA); and (4) information about vocational rehabilitative services and supports youth received from the Department's Rehabilitative Services Administration (RSA). Data collection activities expected to result in public burden are the collection of administrative data from school districts and requests for consent from sample members and their parents.
Office of Postsecondary Education, Department of Education.
Notice.
Fulbright-Hays Doctoral Dissertation Research Abroad (DDRA) Fellowship Program.
Notice inviting applications for new awards for fiscal year (FY) 2016.
Catalog of Federal Domestic Assistance (CFDA) Number: 84.022A.
This priority is:
A research project that focuses on one or more of the following geographic areas: Africa, East Asia, Southeast Asia and the Pacific Islands, South Asia, the Near East, Central and Eastern Europe and Eurasia, and the Western Hemisphere (excluding the United States and its territories). Please note that applications that propose projects focused on the following countries are not eligible: Andorra, Austria, Belgium, Cyprus, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Malta, Monaco, Netherlands, Norway, Portugal, San Marino, Spain, Sweden, Switzerland, United Kingdom, or Vatican City.
Under 34 CFR 75.105(c)(2)(i), for FY 2016, we award an additional three points to an application that meets Competitive Preference Priority 1 and two points for an application that meets Competitive Preference Priority 2 (up to 5 additional points possible).
These priorities are:
A research project that makes use of any of the 78 priority languages selected from the U.S. Department of Education's list of Less Commonly Taught Languages (LCTLs), as follows:
Akan (Twi-Fante), Albanian, Amharic, Arabic (all dialects), Armenian, Azeri (Azerbaijani), Balochi, Bamanakan (Bamana, Bambara, Mandikan, Mandingo, Maninka, Dyula), Belarusian, Bengali (Bangla), Berber (all languages), Bosnian, Bulgarian, Burmese, Cebuano (Visayan), Chechen, Chinese (Cantonese), Chinese (Gan), Chinese (Mandarin), Chinese (Min), Chinese (Wu), Croatian, Dari, Dinka, Georgian, Gujarati, Hausa, Hebrew (Modern), Hindi, Igbo, Indonesian, Japanese, Javanese, Kannada, Kashmiri, Kazakh, Khmer (Cambodian), Kirghiz, Korean, Kurdish (Kurmanji), Kurdish (Sorani), Lao, Malay (Bahasa Melayu or Malaysian), Malayalam, Marathi, Mongolian, Nepali, Oromo, Panjabi, Pashto, Persian (Farsi), Polish, Portuguese (all varieties), Quechua, Romanian, Russian, Serbian, Sinhala (Sinhalese), Somali, Swahili, Tagalog, Tajik, Tamil, Telugu, Thai, Tibetan, Tigrigna, Turkish, Turkmen, Ukrainian, Urdu, Uyghur/Uigur, Uzbek, Vietnamese, Wolof, Xhosa, Yoruba, and Zulu.
A research project conducted in the field of economics, engineering, international development, mathematics, political science, public health, science, comparative or international education, or technology.
This priority is:
The regulations in 34 CFR part 86 apply to institutions of higher education (IHEs) only.
The Department is not bound by any estimates in this notice.
1.
As part of its FY 2016 budget request, the Administration proposed to continue to allow funds to be used to support the applications of individuals who plan both to utilize their language skills in world areas vital to United States national security and to apply their language skills and knowledge of these countries in the fields of government, international development, and the professions. Therefore, students planning to apply their language skills in such fields and those planning teaching careers are eligible to apply to IHEs for funds from this program.
2.
1.
You can contact ED Pubs at its Web site, also:
If you request an application package from ED Pubs, be sure to identify this program as follows: CFDA number 84.022A.
Individuals with disabilities can obtain a copy of the application package in an accessible format (
2.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, both sides, and portrait orientation.
• Double space (no more than three lines per vertical inch) all text in the application narrative. However, student applicants may single space all text in charts, tables, figures, graphs, titles, headings, footnotes, endnotes, quotations, bibliography, and captions.
• Use a font that is either 12 point or larger, or no smaller than 10 pitch (characters per inch). Student applicants may use a 10-point font in charts, tables, figures, graphs, footnotes, and endnotes. However, these items are considered part of the narrative and counted within the 10-page limit.
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial. An application submitted in any other font (including Times Roman or Arial Narrow) will not be accepted.
The page limits only apply to the application narrative and bibliography. The page limits do not apply to the Application for Federal Assistance face sheet (SF 424), the supplemental information form required by the Department of Education, or the assurances and certification. However, student applicants must include their complete responses to the selection criteria in the application narrative.
We will reject a student applicant's application if the application exceeds the page limits.
3.
Applications for grants under this program must be submitted electronically using G5, the Department's grant management system, accessible through the Department's G5 site. For information (including dates and times) about how to submit an IHE's application electronically, or in paper format by mail or hand delivery if an IHE qualifies for an exception to the electronic submission requirement, please refer to
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
6.
To do business with the Department of Education, you must—
a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the System for Award Management (SAM) (formerly the Central Contractor Registry), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active SAM registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet at the following Web site:
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow two to five weeks for your TIN to become active.
The SAM registration process can take approximately seven business days, but may take upwards of several weeks, depending on the completeness and accuracy of the data you enter into the SAM database. Thus, if you think you might want to apply for Federal financial assistance under a program administered by the Department, please allow sufficient time to obtain and register your DUNS number and TIN. We strongly recommend that you register early.
Once your SAM registration is active, it may be 24 to 48 hours before you can submit an application through G5.
If you are currently registered with SAM, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your registration annually. This may take three or more business days.
Information about SAM is available at
7.
a.
Applications for grants under the Fulbright-Hays DDRA Fellowship Program, CFDA number 84.022A, must be submitted electronically using the G5 system, accessible through the Department's G5 site at:
We will reject an application if an IHE submits it in paper format unless, as described elsewhere in this section, the IHE qualifies for one of the exceptions to the electronic submission requirement
Please note the following:
• The process for submitting applications electronically under the Fulbright-Hays DDRA Fellowship Program has several parts. The following is a brief summary of the process; however, all applicants should review and follow the detailed description of the application process that is contained in the application package. In summary, the major steps are:
(1) IHEs must email the following information to
(2) Students must complete their individual applications and submit them to their IHE's project director using G5;
(3) Persons providing references for individual students must complete and submit reference forms for the students and submit them to the IHE's project director using G5; and
(4) The IHE's project director must officially submit the IHE's application, which must include all eligible individual student applications, reference forms, and other required forms, using G5.
• The IHE must complete the electronic submission of the grant application by 4:30:00 p.m., Washington, DC time, on the application deadline date. G5 will not accept an application for this competition after 4:30:00 p.m., Washington, DC time, on the application deadline date. Therefore, we strongly recommend that both the IHE and the student applicant not wait until the application deadline date to begin the application process.
• The hours of operation of the G5 Web site are 6:00 a.m. Monday until 7:00 p.m., Wednesday; and 6:00 a.m. Thursday until 8:00 p.m., Sunday, Washington, DC time. Please note that, because of maintenance, the system is unavailable between 8:00 p.m. on Sundays and 6:00 a.m. on Mondays, and between 7:00 p.m. on Wednesdays and 6:00 a.m. on Thursdays, Washington, DC time. Any modifications to these hours are posted on the G5 Web site.
• Student applicants will not receive additional point value because the student submits his or her application in electronic format, nor will we penalize the IHE or student applicant if the applicant qualifies for an exception to the electronic submission requirement, as described elsewhere in this section, and submits an application in paper format.
• IHEs must submit all documents electronically, including all information typically provided on the following forms: The Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• If the application is submitted electronically, both IHEs and student applicants must upload any narrative sections and all other attachments to their application as files in a read-only, non-modifiable Portable Document Format (PDF). Do not upload an interactive or fillable PDF file. If you upload a file type other than a read-only, non-modifiable PDF (
• Student transcripts must be submitted electronically through the G5 system.
• Both the IHE's and the student applicant's electronic applications must comply with any page limit requirements described in this notice.
• Prior to submitting your electronic application, you may wish to print a copy of it for your records.
• After the individual student applicant electronically submits his or her application to the student's IHE, the student will receive an automatic acknowledgment. After a person submits a reference electronically, he or she will receive an online confirmation. After the applicant IHE submits its application, including all eligible individual student applications, to the Department, the applicant IHE will receive an automatic acknowledgment that will include a unique PR/Award number for the IHE's application.
• Within three working days after submitting its electronic application—
(1) Print SF 424 from G5;
(2) The applicant IHE's Authorizing Representative must sign this form;
(3) Place the PR/Award number in the upper right hand corner of the hard-copy signature page of the SF 424; and
(4) Fax the signed SF 424 to the Application Control Center at (202) 245-6272.
• We may request that you provide us original signatures on other forms at a later date.
(1) The IHE is a registered user of the G5 system and the IHE has initiated an electronic application for this competition; and
(2) (a) The G5 system is unavailable for 60 minutes or more between the hours of 8:30 a.m. and 3:30 p.m., Washington, DC time, on the application deadline date; or
(b) G5 is unavailable for any period of time between 3:30 p.m. and 4:30:00 p.m., Washington, DC time, on the application deadline date.
We must acknowledge and confirm these periods of unavailability before granting the IHE an extension. To request this extension or to confirm our acknowledgment of any system unavailability, an IHE may contact either (1) the person listed under
• The IHE or a student applicant does not have access to the Internet; or
• The IHE or a student applicant does not have the capacity to upload large documents to G5; and
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), the IHE mails or faxes a written statement to the Department, explaining which of the two grounds for an exception prevents the IHE from using the Internet to submit its application. If an IHE mails a written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If an IHE faxes its written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax this statement to: Pamela J. Maimer, Ph.D., U.S. Department of Education, 400 Maryland Ave. SW., Room 3E207, Washington, DC 20202. Telephone: (202) 502-7675 or by email:
The IHE's paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
If an IHE qualifies for an exception to the electronic submission requirement, the IHE may mail (through the U.S. Postal Service or a commercial carrier) its application to the Department. The IHE must mail the original and two copies of the application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.022A), LBJ Basement Level 1, 400 Maryland Avenue SW., Washington, DC 20202-4260.
The IHE must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If the IHE mails its application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, the IHE should check with its local post office.
We will not consider applications postmarked after the application deadline date.
c.
If an IHE qualifies for an exception to the electronic submission requirement, the IHE (or a courier service) may deliver its paper application to the Department by hand. The IHE must deliver the original and two copies of the application, by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.022A), 550 12th Street SW., Room 7039, Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8:00:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
(1) The IHE must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which the IHE is submitting its application; and
(2) The Application Control Center will mail a notification of receipt of the IHE's grant application. If the IHE does
1.
2.
3.
In addition, in making a competitive grant award, the Secretary requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
Under 34 CFR 662.22(b), no applicant may receive grants from the Fulbright US Student Program (FUSP) and the Fulbright-Hays DDRA Fellowship Program concurrently. Once a candidate has accepted an award from FUSP and FUSP has expended funds on the student, the student is then ineligible for a grant under the Fulbright-Hays DDRA Fellowship Program. A student applying for a grant under the Fulbright-Hays DDRA Fellowship Program must indicate on the application if the student has currently applied for a FUSP grant. If, at any point, the candidate accepts a FUSP award prior to being notified of the candidate's status with the Fulbright-Hays DDRA Fellowship Program, the candidate should immediately notify the program contact person listed under
4.
1.
If a student application is not evaluated or not selected for funding, we notify the IHE.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. Grantees are required to use the electronic data instrument
4.
The Department will use the following measures to evaluate its success in meeting this objective:
DDRA GPRA Measure 1: The percentage of DDRA fellows who increased their foreign language scores in speaking, reading, and/or writing by at least one proficiency level.
DDRA GPRA Measure 2: The percentage of DDRA fellows who complete their degree in their program of study within four years of receipt of the fellowship.
DDRA GPRA Measure 3: The percentage of DDRA fellows who found employment that utilized their language and area studies skills within eight years of receiving their award.
DDRA GPRA Measure 4: Efficiency Measure—The cost per DDRA fellow who found employment that utilized their language and area studies skills within eight years.
The information provided by grantees in their performance report submitted via IRIS will be the source of data for this measure. Reporting screens for institutions and fellows may be viewed at:
Pamela J. Maimer, Ph.D., International and Foreign Language Education, U.S. Department of Education, 400 Maryland
If you use a TDD or a TTY, call the FRS, toll free, at 1-800-877-8339.
If you request an application from ED Pubs, be sure to identify this program as follows: CFDA number 84.022A.
You may also access documents of the Department published in the
Office of Electricity Delivery and Energy Reliability, DOE.
Notice of application.
Tenaska Energía de Mexico, S. de R.L. de C.V. (Applicant or TEM) has applied for authority to transmit electric energy from the United States to Mexico pursuant to section 202(e) of the Federal Power Act.
Comments, protests, or motions to intervene must be submitted on or before April 21, 2016.
Comments, protests, motions to intervene, or requests for more information should be addressed to: Office of Electricity Delivery and Energy Reliability, Mail Code: OE-20, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585-0350. Because of delays in handling conventional mail, it is recommended that documents be transmitted by overnight mail, by electronic mail to
Exports of electricity from the United States to a foreign country are regulated by the Department of Energy (DOE) pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b), 7172(f)) and require authorization under section 202(e) of the Federal Power Act (16 U.S.C. 824a(e)).
On March 10, 2016, DOE received an application from TEM for authority to transmit electric energy from the United States to Mexico as a power marketer for a five-year term using existing international transmission facilities. TEM will be submitting an application requesting the Federal Energy Regulatory Commission (FERC) authorization to make wholesale power sales at market-based rates. TEM will also register with the Public Utility Commission of Texas (the PUCT).
In its application, TEM states that it does not own or control any electric generation or transmission facilities, and it does not have a franchised service area. The electric energy that TEM proposes to export to Mexico would be surplus energy purchased from third parties such as electric utilities and Federal power marketing agencies pursuant to voluntary agreements. The existing international transmission facilities to be utilized by the Applicant have previously been authorized by Presidential permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.
Procedural Matters: Any person desiring to be heard in this proceeding should file a comment or protest to the application at the address provided above. Protests should be filed in accordance with Rule 211 of the Federal Energy Regulatory Commission's (FERC) Rules of Practice and Procedures (18 CFR 385.211). Any person desiring to become a party to these proceedings should file a motion to intervene at the above address in accordance with FERC Rule 214 (18 CFR 385.214). Five copies of such comments, protests, or motions to intervene should be sent to the address provided above on or before the date listed above.
Comments and other filings concerning TEM's application to export electric energy to Mexico should be clearly marked with OE Docket No. EA-417. An additional copy is to be provided to Norma Iacovo, Tenaska Power Services Co., 1701 E. Lamar Blvd., Suite 100, Arlington, TX 76006 and Neil Levy, 1700 Pennsylvania Ave. NW., Washington, DC 20006.
A final decision will be made on this application after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after a determination is made by DOE that the proposed action will not have an adverse impact on the sufficiency of supply or reliability of the U.S. electric power supply system.
Copies of this application will be made available, upon request, for public inspection and copying at the address provided above, by accessing the program Web site at
Fuel Cycle Technologies, Office of Nuclear Energy, Department of Energy.
Notice of extension of comment period.
The U.S Department of Energy (DOE) is extending the comment period provided in the notice entitled “Invitation for Public Comment to Inform the Design of a Consent-Based Siting Process for Nuclear Waste Storage and Disposal Facilities” that appeared in the
DOE is extending the comment period for the “Invitation for Public Comment to Inform the Design of a Consent-Based Siting Process for Nuclear Waste Storage and Disposal Facilities” to July 31, 2016.
You may submit questions or comments by any of the following methods:
Requests for further information should be sent to
State, tribal, community, organization, public or individual name;
State, tribal, community, organization, public or individual point of contact; and
Point of contact's address, phone number, and email address.
If an email or phone number is included, it will allow the DOE to contact the commenter if questions or clarifications arise. No responses will be provided to commenters in regards to the disposition of their comments. All comments will be officially recorded without change or edit, including any personal information provided. Personal information (other than name) will be protected from public disclosure upon request.
Please identify your comments as responding to a specific question posed in the Invitation for Public Comment, if possible. Respondents may answer as many or as few questions as they wish. Any additional comments that do not address a particular question should be included at the end of your response to this IPC as “Additional Comments.”
DOE would appreciate early input in order to identify initial interest and concerns, as well as any early opportunities. Amended or revised inputs from commenters are also welcome throughout the comment period to help DOE develop this process. Comments received after the closing date will be considered as the planning process progresses; however, the DOE is only able to ensure consideration of comments received on or before the closing date as the initial phase of the consent based siting process is developed. Subsequent comments and input will also be welcome as DOE views this as a core component of a phased and adaptive consent-based siting process.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j. Deadline for filing comments, motions to intervene, and protests is 15 days from the issuance date of this notice by the Commission. The Commission strongly encourages electronic filing. Please file comments using the Commission's eFiling system at
k.
This notice solicits comments, motions to intervene, and protests on GRDA's request to reduce the comment period from 60 to 30 days as discussed above. Comments on the draft application and temporary variance request contained in the draft application should be filed directly with
l.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n.
o.
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:
Applicants: Michigan Electric Transmission Company, LLC.
Description: § 205(d) Rate Filing: Filing of Third Amended and Restated Service Agreement to be effective 6/1/2016.
Description: § 205(d) Rate Filing: Attachment K Version Correction to be effective 1/1/2016.
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 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 reliability filings.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Federal Energy Regulatory Commission, Energy.
Comment request.
In compliance with the requirements of the Paperwork Reduction Act of 1995, 44 U.S.C. 3506(c)(2)(A), the Federal Energy Regulatory Commission (Commission or FERC) is submitting two information collections (FERC-500, Application for License/Relicense and Exemption for Water Projects with More than 5 Megawatt Capacity, and FERC-542, Gas Pipeline Rates: Rate Tracking) to the Office of Management and Budget (OMB) for review of the information collection requirements. Any interested person may file comments directly with OMB and should address a copy of those comments to the Commission as explained below. The Commission previously issued a Notice in the
Comments on the collections of information are due April 21, 2016.
Comments filed with OMB, identified by the OMB Control Nos. 1902-0058 (FERC-500) and 1902-0070 (FERC-542), should be sent via email to the Office of Information and Regulatory Affairs:
A copy of the comments should also be sent to the Commission, in Docket No. IC16-4-000, by either of the following methods:
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Ellen Brown may be reached by email at
FERC-500 includes an application (for water projects with more than 5 megawatt capacity) for a hydropower license/re-license or exemption, annual conveyance report,
After an application is filed, the Federal agencies with responsibilities under the Federal Power Act (FPA) and other statutes,
Submittal of the FERC-500 application is necessary to fulfill the requirements of the FPA in order for the Commission to make the required finding that the proposal is economically, technically, and environmentally sound, and is best adapted to a comprehensive plan for improving/developing a waterway or waterways.
In the 60-day Notice, we inadvertently included under FERC-500 only the responses and burden associated with major license/re-license applications or modifications for projects over 5 MW. In this Notice, we are including the annual conveyance reports (filed by industry) and comprehensive plans (filed by federal and state agencies which have comprehensive plan status pursuant to 18 CFR 2.19).
The average burden cost per application over the period FY 2012 through FY 2015 was approximately $2,570,797.
The average annual burden and cost (including estimates for annual conveyance reports and comprehensive plans) follow.
The FERC-542 contains the following information collection requirements: (1) Research, development, and deployment (RD&D) expenditures [18 CFR 154.401]; (2) annual charge adjustments (ACA) [18 CFR 154.402]; and (3) periodic rate adjustments [18 CFR 154.403]. The general requirements for tariff filings that are specified in the following regulations apply to all FERC-542 filings: 18 CFR 154.4, 18 CFR 154.7, 18 CFR 154.107, and 18 CFR 154.201.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than April 15, 2016.
A. Federal Reserve Bank of Chicago (Colette A. Fried, Assistant Vice President) 230 South LaSalle Street, Chicago, Illinois 60690-1414:
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B. Federal Reserve Bank of Minneapolis (Jacquelyn K. Brunmeier, Assistant Vice President) 90 Hennepin Avenue, Minneapolis, Minnesota 55480-0291:
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C. Federal Reserve Bank of San Francisco (Gerald C. Tsai, Director, Applications and Enforcement) 101 Market Street, San Francisco, California 94105-1579:
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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 April 6, 2016.
A. Federal Reserve Bank of Chicago (Colette A. Fried, Assistant Vice President) 230 South LaSalle Street, Chicago, Illinois 60690-1414:
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Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public comments regarding an extension of an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat Division will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a previously approved information collection requirement concerning drug-free workplace. A notice was published in the
Submit comments on or before April 21, 2016.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: Office of Information and Regulatory Affairs of OMB, Attention: Desk Officer for GSA, Room 10236, NEOB, Washington, DC 20503. Additionally submit a copy to GSA by any of the following methods:
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Mr. Charles Gray, Procurement Analyst, Office of Acquisition Policy, GSA 703-795-6328 or email
FAR clause 52.223-6, Drug-Free Workplace, requires (1) contractor employees to notify their employer of any criminal drug statute conviction for a violation occurring in the workplace; and (2) Government contractors, after receiving notice of such conviction, to notify the contracting officer. The clause is not applicable to commercial items, contracts at or below simplified acquisition threshold (unless awarded to an individual), and contracts performed outside the United States or by law enforcement agencies. The clause implements the Drug-Free Workplace Act of 1988 (Pub. L. 100-690).
The information provided to the Government is used to determine contractor compliance with the statutory requirements to maintain a drug-free workplace.
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the Federal Acquisition Regulations (FAR), and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Please cite OMB Control No. 9000-0101, Drug-Free Workplace, in all correspondence.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for comments regarding an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat Division will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a previously approved information collection requirement concerning Contractors Performing Private Security Functions Outside the United States. A notice was published in the
Submit comments on or before April 21, 2016.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: Office of Information and Regulatory Affairs of OMB, Attention: Desk Officer for GSA, Room 10236, NEOB, Washington, DC 20503. Additionally submit a copy to GSA by any of the following methods:
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Mr. Michael O. Jackson, Procurement Analyst, Governmentwide Acquisition Policy, at 202-208-4949 or email
Section 862 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2008, as amended by section 853 of the NDAA for FY 2009 and sections 831 and 832 of the NDAA for FY 2011, together with the required Governmentwide implementing regulations (32 CFR part 159, published at 76 FR 49650 on August 11, 2011), as amended, adds requirements and limitations for contractors performing private security functions in areas of combat operations, or other military operations as designated by the Secretary of Defense, upon agreement of the Secretaries of Defense and State.
These requirements, implemented in FAR clause 52.225-26 entitled “Contractors Performing Private Security Functions Outside the United States,” are that contractors performing in areas such as Iraq and Afghanistan ensure that their personnel performing private security functions comply with 32 CFR part 159, including (1) accounting for Government-acquired and contractor-furnished property and (2) reporting incidents in which a weapon is discharged, personnel are attacked or killed or property is destroyed, or active, lethal countermeasures are employed.
Please cite OMB Control No. 9000-0184, Contractors Performing Private Security Functions Outside the United States, in all correspondence.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for an extension of an information collection requirement regarding an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat Division will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a previously approved information collection requirement concerning bid guarantees, performance and payment bonds, and alternative payment protections.
Submit comments on or before May 23, 2016.
Submit comments identified by Information Collection 9000-0045, Bid Guarantees, Performance, and Payment Bonds, and Alternative Payment Protections by any of the following methods:
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Ms. Kathlyn Hopkins, Procurement Analyst,
FAR Subparts 28.1 and 28.2; FAR clauses at 52.228-1, 52.228-2, 52.228-13, 52.228-15, 52.228-16; and associated FAR standard forms implement the statutory requirements of the Miller Act (40 U.S.C. 3131
Although not required by statute, under certain circumstances the FAR permits the Government to require bonds on other than construction contracts. In addition to the contract clauses at FAR 52.228-1, 52.228-2, 52.228-13, 52.228-15, 52.228-16, this information collection covers the following FAR standard forms (SF) as prescribed at FAR Subparts 28.1 and 28.2: SF 25, Performance Bond; SF 25A, Payment Bond; SF 273, Reinsurance Agreement for a Miller Act Performance Bond; SF 274, Reinsurance Agreement for a Bonds Statute Payment Bond; SF 24, Bid Bond; SF 25B, Continuation Sheet (For Standard Forms 24, 25, and 25A); Standard Form 34, Annual Bid Bond; Standard Form 275, Reinsurance Agreement in Favor of the United States; Standard Form 1416, Payment Bond for Other Than Construction Contracts; Standard Form 1418, Performance Bond for Other Than Construction Contracts; and Standard Form 35, Annual Performance Bond. The information collected under this clearance provides the Government with a form of security that the contractor will not withdraw a bid or assures that the contractor will perform its obligations under a contract.
Public Comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
In accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces a meeting for the initial review of applications in response to Special Interest Project (SIP) 16-004, State Quitline Reimbursement for Smoking Cessation Services Provided to Current Smokers Eligible for Lung Cancer Screening.
The Director, Management Analysis and Services Office, has been delegated the authority to sign Federal Register notices pertaining to announcements of meetings and other committee management activities, for both the Centers for Disease Control Prevention and the Agency for Toxic Substances and Disease Registry.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC), announces the following meeting of the aforementioned committee:
For Participants:
Agenda items are subject to change as priorities dictate.
The Director, Management Analysis and Services Office, has been delegated the authority to sign Federal Register notices pertaining to announcements of meetings and other committee management activities, for both the Centers for Disease Control and Prevention and the Agency for Toxic Substances and Disease Registry.
In accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces a meeting for the initial review of applications in response to Funding Opportunity Announcements (FOA) CK16-002, Spatially Scalable Integrated Tick Vector/Rodent Reservoir Management to Reduce Human Risk of Exposure to Ixodes Scapularis Ticks Infected with Lyme Disease Spirochetes and CK16-003, Pre-travel Health Preparation of International Travelers: Expanding and Improving Data Collection, Guidance, and Outreach.
The Director, Management Analysis and Services Office, has been delegated the authority to sign Federal Register notices pertaining to announcements of meetings and other committee management activities, for both the Centers for Disease Control and Prevention and the Agency for Toxic Substances and Disease Registry.
In accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces a meeting for the initial review of applications in response to Special Interest Project (SIP) 16-001, Evaluating the Adoption and Implementation of an Evidence-based Patient Navigation Intervention for Colonoscopy Screening, SIP 16-002, Formative Development of an Instrument to Predict Adherence to Active Surveillance (AS) for Localized Prostate Cancer, and SIP 16-003, Implementation of Community-based, Small Media Interventions to Promote Colorectal Cancer Screening Among Chinese Americans.
The Director, Management Analysis and Services Office, has been delegated the authority to sign Federal Register notices pertaining to announcements of meetings and other committee management activities, for both the Centers for Disease Control and Prevention and the Agency for Toxic Substances and Disease Registry.
In accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces a meeting for the initial
The Director, Management Analysis and Services Office, has been delegated the authority to sign Federal Register notices pertaining to announcements of meetings and other committee management activities, for both the Centers for Disease Control and Prevention and the Agency for Toxic Substances and Disease Registry.
In accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces a meeting for the initial review of applications in response to Funding Opportunity Announcement (FOA), RFA-CE-15-002, The CDC National Centers for Excellence in Youth Violence Prevention: Building the Evidence for Community- and Policy-Level Prevention.
The Director, Management Analysis and Services Office, has been delegated the authority to sign Federal Register notices pertaining to announcements of meetings and other committee management activities, for both the Centers for Disease Control and Prevention and the Agency for Toxic Substances and Disease Registry.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces a meeting for the initial review of applications in response to Funding Opportunity Announcement (FOA) GH16-005, Operations Research (Implementation Science) for Strengthening Program Implementation through the Presidents Emergency Plan for AIDS Relief (PEPFAR).
9:00 a.m.-2:00 p.m., EDT, Panel 1, April 20, 2016 (Closed).
9:00 a.m.-2:00 p.m., EDT, Panel 2, April 26, 2016 (Closed).
9:00 a.m.-2:00 p.m., EDT, Panel 3, April 27, 2016 (Closed).
The Director, Management Analysis and Services Office, has been delegated the authority to sign Federal Register notices pertaining to announcements of meetings and other committee management activities, for both the Centers for Disease Control and Prevention and the Agency for Toxic Substances and Disease Registry.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces a meeting for the initial review of applications in response to Funding Opportunity Announcement (FOA) DP 16-005, Study to Assess the Incidence of Type 1 Diabetes in Young Adults.
12:00 p.m.-3:00 p.m., EDT, April 14, 2016 (Closed).
The Director, Management Analysis and Services Office, has been delegated the authority to sign Federal Register notices pertaining to announcements of meetings and other committee management activities, for both the Centers for Disease Control and Prevention and the Agency for Toxic Substances and Disease Registry.
The Centers for Disease Control and Prevention (CDC) is soliciting nominations for membership on the BSC, NCEH/ATSDR.
The BSC, NCEH/ATSDR consists of 16 experts knowledgeable in the field of environmental public health or in related disciplines, who are selected by the Secretary of the U.S. Department of Health and Human Services (HHS). The BSC, NCEH/ATSDR provides advice and guidance to the Secretary, HHS; the Director, CDC; and the Director, NCEH/ATSDR, regarding program goals, objectives, strategies, and priorities in fulfillment of the agencies' mission to protect and promote people's health. The Board provides advice and guidance to help NCEH/ATSDR work more efficiently and effectively with its various constituents and to fulfill its mission in protecting America's health.
Nominations are being sought for individuals who have expertise and qualifications necessary to contribute to the accomplishments of the Board's objectives. Nominees will be selected from experts knowledgeable in the field of environmental public health or related disciplines (
The HHS policy stipulates that committee membership be balanced in terms of points of view represented and the board's function. Consideration is given to a broad representation of geographic areas within the U.S., as well as gender, all ethnic and racial groups, persons with disabilities, and several factors including: (1) The committee's mission; (2) the geographic, ethnic, social, economic, or scientific impact of the advisory committee's recommendations; (3) the types of specific perspectives required, for example, those of consumers, technical experts, the public at-large, academia, business, or other sectors; (4) the need to obtain divergent points of view on the issues before the advisory committee; and (5) the relevance of State, local, or tribal governments to the development of the advisory committee's recommendations. Nominees must be U.S. citizens.
The following information must be submitted for each candidate: Name, affiliation, address, telephone number, and current curriculum vitae and area(s) of expertise. Email addresses are requested if available. Nominations should be sent, in writing, and postmarked by April 29, 2016 to: Amanda Malasky and Sandra Malcom, Committee Management Specialists, NCEH/ATSDR, CDC, 4770 Buford Highway (MS-F45), Atlanta, Georgia 30341, Email addresses:
The Director, Management Analysis and Services Office, has been delegated the authority to sign Federal Register notices pertaining to announcements of meetings and other committee management activities, for both the Centers for Disease Control and Prevention, and the Agency for Toxic Substances and Disease Registry.
In accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces a meeting for the initial review of applications in response to Funding Opportunity Announcement, RFA-CE-16-002, Research to Advance Primary Care-Pharmacy Linkage for Medication Review to Reduce Older Adult Falls.
The Director, Management Analysis and Services Office, has been delegated the authority to sign Federal Register notices pertaining to announcements of meetings and other committee management activities, for both the Centers for Disease Control and
Administration for Community Living, HHS.
Notice.
The Administration for Community Living (ACL) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal agencies are required to publish notice in the
Submit written or electronic comments on the collection of information by: May 23, 2016.
Submit electronic comments on the collection of information to Stephanie Whittier Eliason at
Submit written comments on the collection of information to: Administration for Community Living, Attention: Stephanie Whittier Eliason, 330 C St SW., Washington, DC 20201.
Stephanie Whittier Eliason at 202.795.7467.
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency request or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
This data collection effort is in response to the Elder Justice Act of 2009, which amended title XX of the Social Security Act (42.U.S.C. 13976
From 2013-2015, ACL, in partnership with the U.S. Department of Health & Human Services' Office of the Assistant Secretary for Planning and Evaluation (ASPE), developed and pilot tested NAMRS. When implemented, NAMRS will be the first comprehensive, national reporting system for APS programs. NAMRS is intended to collect quantitative and qualitative data on the practices and policies of adult protective services (APS) agencies, as well as the outcomes of investigations into the maltreatment of older adults and adults with disabilities.
In developing NAMRS, ACL and ASPE convened key stakeholders to identify data elements that are the most critical for a national system. More than 40 state administrators, researchers, service providers, and other stakeholders provided input in focus group conference calls. Additionally, more than 30 state representatives from 25 different states met in three in-person working sessions to discuss the uses of collected data and the key functionalities.
A pilot version of NAMRS was tested in nine (9) diverse states, and refined based on feedback from the pilot and additional stakeholder engagement. A full discussion on the background of NAMRS, including the development of the system, the public engagement process, and the pilot testing can be found in the NAMRS section of the ACL Web site.
NAMRS has been developed as a voluntary system to collect annually both summary and de-identified case-level data on APS investigations. NAMRS consists of three components:
(1) ACL proposes to collect descriptive data on state agency policies and practices from all states through the “Agency Component,” and
(2) Case-level, non-identifiable data on persons who receive an investigation by APS in response to an allegation of abuse, neglect, or exploitation through the “Case Component.”
(3) For states that are unable to submit a case-level file through the “Case Component,” a “Key Indicators Component” will be available for them to submit data on a smaller set of core items.
ACL will provide technical assistance to states to assist in the preparation of their data submissions. Respondents will be state APS agencies and APS agencies in the District of Columbia, Puerto Rico, Guam, Northern Marianas Islands, Virgin Islands, and American Samoa. No personally identifiable information will be collected. ACL has calculated the following burden estimates (information on how the estimates were calculated is available in the NAMRS section of the ACL Web site):
(a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility;
(b) the accuracy of the agency's estimate of the burden of the proposed collection of information;
(c) the quality, utility, and clarity of the information to be collected; and
(d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of the guidance entitled “Assessment of Radiofrequency-Induced Heating in the Magnetic Resonance (MR) Environment for Multi-Configuration Passive Medical Devices.” FDA is confronted with an increasing number of premarket submissions that include an MR Conditional labeling claim for multiconfiguration passive medical devices. The assessment of radiofrequency (RF)-induced heating of such devices, typically comprised of many parts, strongly depends on the specific device geometry and can therefore lead to a prohibitively large number of test cases. This guidance provides an approach to reduce the number of possible device configurations to a manageable number, and it provides guidance on how to assess the RF-induced device heating for an individual configuration.
Submit either electronic or written comments on this guidance at any time. General comments on Agency guidance documents are welcome at any time.
You may submit comments as follows:
Submit electronic comments in the following way:
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• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
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• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
An electronic copy of the guidance document is available for download from the Internet. See the
Wolfgang Kainz, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 62, Rm. 1115, Silver Spring, MD 20993-0002, 301-661-7595.
FDA is announcing the availability of a guidance to provide an assessment paradigm for RF-induced heating on or near multicomponent or multiconfiguration passive medical devices in the MR environment. During MR scanning, applied RF excitation pulses induce currents that can cause heating of electrically conductive materials. RF-induced heating of medical devices made with conductive materials may lead to patient burns. To minimize the risk of patient burns during MR scanning, sponsors should comprehensively assess devices in all configurations and combinations. However, multicomponent passive devices, such as orthopedic fixation devices, may permit a very large number of possible device configurations and combinations of individual components. Testing all possibilities may be impractical and unnecessary. This guidance provides an approach to identify a manageable number of device configurations or combinations for the testing of RF-induced heating in the MR environment. Additionally, this guidance provides recommendations on how to assess the RF-induced device heating for multiconfiguration passive medical devices.
In the
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of FDA on the assessment of RF-induced heating of multicomponent, or multiconfiguration, passive medical devices in the MR environment. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
Persons interested in obtaining a copy of the guidance may do so by downloading an electronic copy from the Internet. A search capability for all Center for Devices and Radiological Health guidance documents is available at
This draft guidance refers to previously approved collections of information found in FDA regulations and guidance. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR part 814, subparts B and E, are approved under OMB control number 0910-0231; the collections of information in 21 CFR part 814, subpart H, are approved under OMB control number 0910-0332; the collections of information in 21 CFR part 807, subpart E, are approved under OMB control number 0910-0120; the collections of information in 21 CFR part 812 are approved under OMB control number 0910-0078; the collections of information in 21 CFR parts 801 and 809 are approved under OMB control number 0910-0485; and the collections of information in the guidance document entitled “Requests for Feedback on Medical Device Submissions: The Pre-Submission Program and Meetings with Food and Drug Administration Staff” are approved under OMB control number 0910-0756.
Food and Drug Administration, HHS.
Notice of public conference.
The Food and Drug Administration (FDA) is announcing a public conference, to be held in cosponsorship with the Parenteral Drug Association (PDA), entitled “Aligning Manufacturing Goals with Patient Needs through Successful Innovation and Compliance.” The conference will cover current issues affecting the industry as well as explore strategies to facilitate the development and continuous improvement of safe and effective medical products. The conference establishes a unique forum to discuss the foundations, emerging technologies, and innovations in regulatory science, as well as the current quality and compliance areas of concerns. Meeting participants will hear from FDA and industry speakers about the requirements and best practices to consider while implementing robust quality systems in order to deliver the best quality product.
The public conference will be held on September 12, 2016, from 7 a.m. to 7:30 p.m.; September 13, 2016, from
The public conference will be held at the Renaissance Washington, DC Downtown Hotel, 999 Ninth Street NW., Washington, DC 20001, 202-898-9000, FAX: 202-289-0947.
Wanda Neal, Parenteral Drug Association, PDA Global Headquarters, Bethesda Towers, 4350 East West Hwy., Suite 150, Bethesda, MD 20814, 301-656-5900, ext. 111, FAX: 301-986-1093, email:
The PDA/FDA Joint Regulatory Conference offers the unique opportunity for participants to join FDA representatives and industry experts in face-to-face dialogues. Each year, FDA speakers provide updates on current efforts affecting the development of global regulatory strategies, while industry professionals from pharmaceutical companies present case studies on how they employ global strategies in their daily processes.
Through a series of sessions and meetings, the conference will provide participants with the opportunity to hear directly from FDA experts and representatives of global regulatory authorities on best practices, including:
• Product Quality
• Data Integrity
• Breakthrough Therapies
• Regulatory Challenges and Opportunities
• Lifecycle Management
• Clinically Relevant Specifications
• Food and Drug Administration Safety and Innovation Act
• Quality Metrics/Quality Culture
• Manufacturing of the Future With Submissions
• Continuous Verification and Validation
• Continuous Manufacturing
• “Fishbowl” Role Play
• Quality Systems
• Contract Manufacturing Organizations
• Maturity of Quality Systems
• Investigations
• Case Studies for Quality
• Quality Submissions
• Prescription Drug User Fee Act
• Risk-Based Control Strategies
• Supply Chain
• Quality Risk Management Systems
• Drug Shortages
• Customer Complaint Reviews and Trending
• Human Factors
• Office of Pharmaceutical Quality and Program Alignment Group
• Patient Perspective
• Compliance Update
• Center Initiatives—Regulatory Submission Update
To help ensure the quality of FDA-regulated products, the workshop helps to achieve objectives set forth in section 406 of the FDA Modernization Act of 1997 (21 U.S.C. 393), which includes working closely with stakeholders and maximizing the availability and clarity of information to stakeholders and the public. The workshop also is consistent with the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), as outreach activities by government agencies to small businesses.
Attendees are encouraged to register at their earliest convenience. The PDA registration fees cover the cost of facilities, materials, and refreshments. Seats are limited; please submit your registration as soon as possible. Conference space will be filled in order of receipt of registration. Those accepted for the conference will receive confirmation. Registration will close after the conference is filled. Onsite registration will be available on a space available basis beginning at 1 p.m. on September 11, 2016, and at 7 a.m. from September 12 through 14, 2016. The cost of registration is as follows:
Please visit PDA's Web site:
If you need special accommodations due to a disability, please contact Wanda Neal (see
The registrar will also accept payment by major credit cards (VISA/American Express/MasterCard only). For more information on the meeting, or for questions on registration, contact PDA (see
Attendees are responsible for their own accommodations. To make reservations, contact the Renaissance Washington Hotel (see
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
National Institutes of Health, HHS.
Notice.
This notice, in accordance with 35 U.S.C. 209 and 37 CFR part 404, that the National Institutes of Health, Department of Health and Human Services, is contemplating the grant of an exclusive patent license to practice the inventions embodied in the following U.S. Patents and Patent Applications to Midissia Therapeutics (“MIDISSIA”) located in San Francisco, California, USA.
United States Provisional Patent Application No. 60/476,467, filed June 5, 2003, entitled “Immunogenic Peptides and Peptide Derivatives For The Treatment of Prostate And Breast Cancer Treatment” [HHS Reference No. E-116-2003/0-US-01]; International Patent Application No. PCT/US2004/17574 filed June 2, 2004 entitled “Immunogenic Peptides and Peptide Derivatives or The Treatment of Prostate And Breast Cancer Treatment” [HHS Reference No. E-116-2003/0-PCT-02]; United States Patent No.7,541,035, issued June 2, 2009, entitled “Immunogenic Peptides and Peptide Derivatives For The Treatment of Prostate And Breast Cancer Treatment” [HHS Reference No. E-116-2003/0-US-03]; United States Patent No. 8,043,623, issued 25 Oct 2011, entitled “Immunogenic Peptides and Peptide Derivatives For The Treatment of Prostate And Breast Cancer Treatment” [HHS Reference No. E-116-2003/0-US-04]; United States Provisional Patent Application No. 61/915,948, filed December 13, 2013, entitled “Multi-Epitope TARP Peptide Vaccine and Uses Thereof” [HHS Reference No. E-047-2014/0-US-01]; International Patent Application No. PCT/US2014/070144 filed December 12, 2014 entitled “Multi-Epitope TARP Peptide Vaccine and Uses Thereof” [HHS Reference No. E-047-2014/0-PCT-02]; and all continuation applications, divisional applications and foreign counterpart applications claiming priority to the US provisional application no. 61/915, 948 and U.S. Provisional Application No. 62/248,964 filed October 30, 2015 titled “Compositions and Methods for the Treatment of HER2-Expressing Solid Tumors” [HHS Reference No. E-187-2015/0-US-01] and continuation applications, divisional applications and foreign counterpart applications claiming priority to the US provisional application no. 62/248,964.
The patent rights in these inventions have been assigned to the government of the United States of America.
The prospective exclusive license territory may be worldwide and the field of use may be limited to the use of Licensed Patent Rights for the following:
(1) Development and commercialization of a therapeutic cancer vaccine specifically in combination with Licensee's proprietary or exclusively in-licensed vectors/adjuvants and ME-TARP;
(2) Development and commercialization of a combination product using Licensee's proprietary or
Only written comments and/or applications for a license which are received by the NIH Office of Technology Transfer on or before April 6, 2016 will be considered.
Requests for copies of the patent application, inquiries, and comments relating to the contemplated exclusive license should be directed to: Sabarni K. Chatterjee, Ph.D., M.B.A. Senior Licensing and Patenting Manager, NCI Technology Transfer Center, 9609 Medical Center Drive, RM 1E530 MSC 9702, Bethesda, MD 20892-9702 (for business mail), Rockville, MD 20850-9702 Telephone: (240)-276-5530; Facsimile: (240)-276-5504E-mail:
This invention concerns the identification of immunogenic peptides within TARP, and their use to create an anti-cancer immune response in patients. By introducing these peptides into a patient, an immune response against these cancer cells can be initiated by the peptides, resulting in treatment of the cancer. A phase I clinical trial in stage D0 prostate cancer patients is nearing completion. Initial results indicate a statistically significant decrease in the slope of PSA for 48 weeks after vaccination.
Additionally, a novel vaccine candidate using recombinant adenoviruses expressing the extracellular (EC) and transmembrane (TM) domains of human HER2 (HER2ECTM) are also being developed that is within the scope of the field of use licensed to Midissia. The recombinant adenovirus expresses a chimeric fiber protein having the adenovirus type 35 (Ad5) shaft and knob domains, which facilitates transduction of human dendritic cells by the recombinant HER2ECTM expressing adenovirus. The vaccine candidate, namely, AdHer2ECTM) can potentially to treat patients with Her2 expressing tumors. Clinical studies with this adenovirus based vaccine is currently being planned.
Both technologies have the potential of being developed into a vaccine for several cancer indications or for the treatment of any cancer associated with increased or preferential expression of TARP and Her 2/neu.
The prospective exclusive license will be royalty bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR part 404.7. The prospective exclusive license may be granted unless within fifteen (15) days from the date of this published notice, the NIH receives written evidence and argument that establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR part 404.7.
Applications for a license in the field of use filed in response to this notice will be treated as objections to the grant of the contemplated exclusive license. Comments and objections submitted to this notice will not be made available for public inspection and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the Board of Scientific Counselors, NIDDK.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public as indicated below in accordance with the provisions set forth in section 552b(c)(6), Title 5 U.S.C., as amended for the review, discussion, and evaluation of individual intramural programs and projects conducted by the NATIONAL INSTITUTE OF DIABETES AND DIGESTIVE AND KIDNEY DISEASES, including consideration of personnel qualifications and performance, and the competence of individual investigators, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Under the provisions of Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the National Cancer Institute (NCI), the National Institutes of Health, has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below. This proposed information collection was previously published in the
To obtain a copy of the data collection plans and instruments, or request more information on the proposed project, contact: Anthony Kerlavage, NCI CBIIT, Program Manager, 9609 Medical Center Drive, Room 1W-436, Rockville, MD 20850 or call non-toll-free number 240-276-5190 or email your request, including your address to:
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 375.
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the meeting of the President's Cancer Panel.
The meeting will be open to the public, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
Information is also available on the Institute's/Center's home page:
National Institutes of Health (NIH), HHS.
Notice of changes to the
This notice sets forth final changes to the
The changes set forth in this notice do not affect the responsibility of the Principal Investigator to submit documentation to his or her local oversight bodies and to the NIH, nor do they affect the requirement to submit appropriate documentation to the NIH when new clinical trial sites are registered. The changes also do not affect the responsibility of a Principal Investigator (or a delegated clinical trial sponsor) to submit appropriate and timely follow up information to the NIH as outlined in the
Changes outlined in this notice will be effective April 27, 2016, to coincide with the RAC review cycle and to allow institutions and investigators to establish processes for implementing the new review procedures.
If you have questions, or require additional background information about these changes, please contact the NIH by email at
The NIH Office of the Director requested that the IOM review whether gene transfer research raises issues of concern that warrant the current level of RAC oversight of individual clinical trials involving gene transfer techniques. The IOM noted that the RAC has served a valuable role, but concluded that the current level of oversight over individual clinical trials is no longer justifiable. In an effort to maximize the benefits of the RAC review process, the IOM recommended that the NIH maintain its protocol submission and safety reporting requirements, but restrict individual gene transfer protocol reviews to exceptional cases that meet specified criteria (full recommendations are listed in the IOM report
After careful consideration of the IOM's recommendations and public consultation, the NIH is amending the
A.
1. An oversight body (an Institutional Biosafety Committee (IBC) or an Institutional Review Board (IRB)) determines that a human gene transfer protocol submitted to it for approval would significantly benefit from RAC review; and
2. One or more of the criteria below are satisfied:
a. The protocol uses a new vector, genetic material, or delivery methodology that represents a first-in-human experience, thus presenting an unknown risk.
b. The protocol relies on preclinical safety data that were obtained using a new preclinical model system of unknown and unconfirmed value.
c. The proposed vector, gene construct, or method of delivery is associated with possible toxicities that are not widely known and that may render it difficult for oversight bodies to evaluate the protocol rigorously.
The chair of an oversight body or an authorized oversight body representative may submit a request for RAC review by sending the request to the NIH as part of the submission materials provided by the Principal Investigator. Requests for RAC review must originate from oversight bodies involved in the initial site(s) review. This request must include the rationale for why the protocol satisfies both items 1 and 2 of the NIH RAC review criteria. The NIH will review the request and notify the requestor of a decision within 10 working days.
1. If the NIH determines that the criteria listed in both 1 and 2 above are satisfied, the NIH Director will convene the RAC.
2. If the NIH receives a request for RAC review of a protocol that the NIH determines does not meet both of these criteria, the NIH will:
a. Inform the requestor that RAC review is not warranted, and
b. indicate that information regarding human gene transfer trials is available in the Genetic Modification Clinical Research Information System (GeMCRIS®), which may be found at
3. Even if the protocol does not meet the proposed criteria listed in both items 1 and 2 above, the NIH Director, in consultation (if necessary) with appropriate regulatory authorities (
B.
1. The Principal Investigator will continue to be responsible for submitting documentation regarding a proposed human gene transfer protocol to his or her local oversight bodies. The Principal Investigator will also continue to be responsible for submitting documentation as outlined in Appendix M-I-A to the NIH. As part of the submission to the NIH, documentation shall also include written assessments originating from all oversight bodies involved in the review at an initial site(s) as to whether or not RAC review is warranted.
2. Completion of the protocol registration process:
a. If no oversight body involved in the review at an initial site(s) requests public RAC review, the IBC(s) may proceed with its approval process upon receipt of documentation from the NIH indicating that the initial protocol registration process is complete. This documentation will be provided by the NIH to the Principal Investigator within 10 working days.
b. If one or more oversight bodies involved in the review at an initial site(s) requests public RAC review and
C.
The changes to the RAC review process, outlined above, will require amendment of multiple portions of the
In response to its October 16, 2015,
Throughout the document the following global changes will be made: (i) The NIH OSP will replace the NIH OBA, (ii) the term “RAC review” will be replaced with the term “NIH protocol registration process” as appropriate; (iii) the title for Appendix M-I-B will be changed; and (iv) the requirement for a CV/biosketch of key personnel will be
1. Recombinant nucleic acid molecules, or DNA or RNA derived from recombinant nucleic acid molecules, or
2. Synthetic nucleic acid molecules, or DNA or RNA derived from synthetic nucleic acid molecules that meet any one of the following criteria:
a. Contain more than 100 nucleotides; or
b. Possess biological properties that enable integration into the genome (
c. Have the potential to replicate in a cell; or
d. Can be translated or transcribed.
No research participant shall be enrolled (see definition of enrollment in Section I-E-7) until the NIH protocol registration process has been completed (see Appendix M-I-B, Selection of Individual Protocols for Public RAC Review and Discussion).
In its evaluation of human gene transfer protocols, the NIH will make a determination, following a request from one or more oversight bodies involved in the review at an initial site(s), whether a proposed human gene transfer experiment has one or more of the characteristics that warrant public RAC review and discussion (See Appendix M-1-B-1). The process of public RAC review and discussion is intended to foster the safe and ethical conduct of human gene transfer experiments. Public review and discussion of a human gene transfer experiment (and access to relevant information) also serves to inform the public about the technical aspects of the proposal, the meaning and significance of the research, and any significant safety, social, and ethical implications of the research.
Public RAC review and discussion of a human gene transfer experiment will be initiated in two exceptional circumstances: (1) Following a request for public RAC review from one or more oversight bodies involved in the review at an initial site(s), the NIH concurs that the submission meets one or more of the following NIH RAC review criteria: (i) The protocol uses a new vector, genetic material, or delivery methodology that represents a first-in-human experience, thus presenting an unknown risk; (ii) the protocol relies on preclinical safety data that were obtained using a new preclinical model system of unknown and unconfirmed value; or (iii) the proposed vector, gene construct, or method of delivery is associated with possible toxicities that are not widely known and that may render it difficult for oversight bodies involved in the review at an initial site(s) to evaluate the protocol rigorously. However, if one or more oversight bodies involved in the review at an initial site(s) requests public RAC review, but the NIH does not concur that the submission meets one or more of the RAC review criteria (listed in i, ii, or iii), then the NIH OSP will inform, within 10 working days, the requesting and other oversight bodies involved in the review at an initial site(s) that public RAC review is not warranted. (2) The NIH Director, in consultation (if needed) with appropriate regulatory authorities, determines that the submission: (a) Meets one or more of the NIH RAC review criteria (listed in i, ii, or iii) and that public RAC review and discussion would provide a clear and obvious benefit to the scientific community or the public; or (b) raises significant scientific, societal, or ethical concerns.
For a clinical trial site that is added after completion of the NIH protocol registration process, no research participant shall be enrolled (see definition of enrollment in Section I-E-7) at the clinical trial site until the following documentation has been submitted to the NIH OSP: (1) Institutional Biosafety Committee approval (from the clinical trial site); (2) Institutional Review Board approval; (3) Institutional Review Board-approved informed consent document; and (4) the NIH grant number(s) if applicable.
In order to maintain public access to information regarding human gene transfer (including protocols that are not publicly reviewed by the RAC), the NIH OSP will maintain the documentation described in Appendices M-I through M-II. The information provided in response to Appendix M should not contain any confidential commercial or financial information or trade secrets, enabling all aspects of RAC review to be open to the public.
For a clinical trial site that is added after completion of the NIH protocol registration process, no research participant shall be enrolled (see definition of enrollment in Section I-E-7) at the clinical trial site until the following documentation has been submitted to the NIH OSP: (1) IBC approval (from the clinical trial site); (2) IRB approval; (3) IRB-approved informed consent document; and (4) NIH grant number(s) if applicable.
To implement this new process, the NIH will amend Appendix M, Points to Consider in the Design and Submission of Protocols for the Transfer of Recombinant or Synthetic Nucleic Acid Molecules into One or More Human Research Participants (Points to Consider).
Appendix M applies to research conducted at or sponsored by an institution that receives any support for recombinant or synthetic nucleic acid molecule research from NIH. Researchers not covered by the
The acceptability of human somatic cell gene transfer has been addressed in several public documents as well as in numerous academic studies. In November 1982, the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research published a report,
The NIH will not at present entertain proposals for germ line alterations but will consider proposals involving somatic cell gene transfer. The purpose of somatic cell gene transfer is to treat an individual patient,
The NIH continues to explore the issues raised by the potential of
Research proposals involving the deliberate transfer of recombinant or synthetic nucleic acid molecules, or DNA or RNA derived from such nucleic acid molecules, into one or more human subjects (human gene transfer) will be considered through a registration process involving the NIH, oversight bodies involved in the review at an initial site(s), and regulatory authorities, when appropriate. Investigators shall submit the relevant information on the proposed human gene transfer experiment to the oversight bodies involved in the review at an initial site(s) and then to the NIH. The format of the submission is described in Appendix M-I-A, Requirements for Protocol Submission. Submission to the NIH OSP shall be for registration purposes and will ensure continued public access to relevant human gene transfer information conducted in compliance with the
Public RAC review and discussion of a human gene transfer experiment will be initiated in two exceptional circumstances: (1) Following a request for public RAC review from one or more oversight bodies involved in the review at an initial site(s), the NIH concurs that the submission meets one or more of the following NIH RAC review criteria: (i) The protocol uses a new vector, genetic material, or delivery methodology that represents a first-in-human experience, thus presenting an unknown risk; (ii) the protocol relies on preclinical safety data that were obtained using a new preclinical model system of unknown and unconfirmed value; or (iii) the proposed vector, gene construct, or method of delivery is associated with possible toxicities that are not widely known and that may render it difficult for oversight bodies involved in the review at an initial site(s) to evaluate the protocol rigorously. However, if one or more oversight bodies involved in the review at an initial site(s) requests public RAC review, but the NIH does not concur that the submission meets one or more of the RAC review criteria (listed in i, ii, or iii), then the NIH OSP will inform, within 10 working days, the requesting and other oversight bodies involved in the review at an initial site(s) that public RAC review is not warranted. (2) The NIH Director, in consultation (if needed) with appropriate regulatory authorities, determines that the submission: (a) Meets one or more of the NIH RAC review criteria (listed in i, ii, or iii) and that public RAC review and discussion would provide a clear and obvious benefit to the scientific community or the public; or (b) raises significant scientific, societal, or ethical concerns.
If it is determined that a human gene transfer trial will undergo public RAC review, the NIH will immediately notify the Principal Investigator. RAC recommendations following public review on a specific human gene transfer experiment shall be forwarded to the Principal Investigator, oversight bodies involved in the review at an initial site(s), and regulatory authorities, as appropriate. Relevant documentation will be included in the material for the RAC meeting at which the human gene transfer trial is scheduled to be discussed. RAC meetings will be open to the public except where trade secrets and proprietary information are reviewed (see Section IV-D-5,
Some but not all sections of Appendix M-I Requirements for Protocol Submission, Review, and Reporting—Human Gene Transfer Experiments will be amended to decrease the number and amount of supporting documentation that must be submitted upon protocol registration, and to modify the timing of the registration processes. Principal Investigators must submit the material as outlined below to oversight bodies at the proposed clinical trial sites; however, submission of responses to Appendices M-II through M-V or curriculum vitae will no longer be required.
The following documentation must be submitted according to institutional policy, to the appropriate oversight bodies involved in the review at an initial site(s) and subsequently in electronic form to the NIH OSP:
1. A scientific abstract.
2. The proposed clinical protocol, including tables, figures, and any relevant publications.
3. Summary of preclinical studies conducted in support of the proposed clinical trial or reference to the specific section of the protocol providing this information.
4. A description of the product:
a. Describe the derivation of the delivery vector system including the source (
b. Describe the genetic content of the transgene or nucleic acid delivered including the species source of the sequence and whether any modifications have been made (
c. Describe any other material to be used in preparation of the agent (vector and transgene) that will be administered to the human research subject (
d. Describe the methods for replication-competent virus testing, if applicable.
e. Describe the intended
f. Describe the gene transfer agent delivery method.
5. The proposed informed consent document.
6. Specifically for submission to the NIH OSP, the Principal Investigator shall provide additional documentation originating from oversight bodies involved in the review at an initial site(s) regarding their assessment of whether public RAC review is warranted. In the event that review is requested, a justification that the NIH RAC review criteria (see Section III-C-1) are met shall be included.
Appendix M-I-B, RAC Review Requirements will be amended to change the process and timing of public RAC review. Currently, investigators are informed within 15 working days whether or not the protocol requires public RAC review. Public discussion of selected protocols then occurs at the next quarterly RAC meeting, which occurs, at a minimum of, eight weeks after receipt of a complete protocol submission. Individual RAC members will no longer make a recommendation regarding whether a protocol should be selected for review at a public meeting.
As part of the NIH protocol registration process, documentation originating from all oversight bodies involved in the review at an initial site(s) regarding their assessment of whether public RAC review is warranted must accompany the Principal Investigator's submission to the NIH. If no oversight body involved in the review at an initial site(s) requests public RAC review, then the required documentation to register the protocol (see Appendix M-I-A) shall be submitted to the NIH OSP at any time, but not less than 10 working days prior to the anticipated date of enrollment of the first subject (see definition of enrollment in Section I-E-7). This information shall be provided in electronic form to the Office of Science Policy, National Institutes of Health, 6705 Rockledge Drive, Suite 750, Bethesda, MD 20892-7985 (20817 for non-USPS mail), 301-496-9838, 301-496-9839 (fax), Email:
If one or more oversight bodies involved in the review at an initial site(s) requests public RAC review, but the NIH does not concur that the submission meets one or more of the RAC review criteria, the NIH OSP will notify the Principal Investigator, oversight bodies involved in the review at an initial site(s), and regulatory authorities, as appropriate, that public RAC review is not warranted. An acknowledgement that the protocol registration process is complete will accompany this decision. Final IBC approval may then be granted.
If an oversight body involved in the review at an initial site(s) determines that: (1) A protocol submission would significantly benefit from public RAC review and discussion and (2) that one or more of the following NIH RAC review criteria are met: (i) The protocol uses a new vector, genetic material, or delivery methodology that represents a first-in-human experience, thus presenting an unknown risk; or (ii) the protocol relies on preclinical safety data that were obtained using a new preclinical model system of unknown and unconfirmed value; or (iii) the proposed vector, gene construct, or method of delivery is associated with possible toxicities that are not widely known and that may render it difficult for local and federal regulatory bodies to evaluate the protocol rigorously, and is therefore requesting RAC review and public discussion, the Principal Investigator shall submit the documentation as outlined in Appendix M-I-A at least 8 weeks prior to the next scheduled meeting in order to be reviewed at that RAC meeting. The submission shall include documentation originating from oversight bodies involved in the review at an initial site(s) regarding their assessment of whether public RAC review is warranted and that one or both have justified their request according the NIH RAC review criteria listed above. The submission shall be provided to the NIH in electronic form to the Office of Science Policy, National Institutes of Health, 6705 Rockledge Drive, Suite 750, Bethesda, MD 20892-7985 (20817 for non-USPS mail), 301-496-9838, 301-496-9839 (fax), Email:
Even if an oversight body involved in the review at an initial site(s) does not request public RAC review, the NIH Director, after consultation (if needed) with appropriate regulatory authorities, may initiate public RAC review if (a) the protocol has one or more of the characteristics listed above (i, ii, or iii) and public RAC review and discussion would provide a clear and obvious benefit to the scientific community or public; or (b) the protocol otherwise raises significant scientific, societal, or ethical concerns. If a protocol is to undergo RAC public discussion a complete human gene transfer protocol package must be submitted at least 8 weeks before a scheduled RAC meeting to be reviewed at that upcoming meeting.
After a human gene transfer experiment is publicly reviewed by the full RAC at a regularly scheduled meeting, the NIH OSP will send a letter summarizing the RAC's comments and recommendations (if any) regarding the protocol to the Principal Investigator(s), oversight bodies involved in the review at an initial site(s), and regulatory authorities as appropriate. Unless the NIH determines that there are exceptional circumstances, the NIH will send this letter to the Principal Investigator within 10 working days after the completion of the RAC meeting at which the experiment was reviewed. Receipt of this letter concludes the
RAC meetings will be open to the public except where trade secrets or confidential commercial information are reviewed. To enable all aspects of the protocol review process to be open to the public, information provided in response to Appendix M-I-A should not contain trade secrets or confidential commercial or financial information. Documentation submitted to the NIH OSP shall not be designated as `confidential' in its entirety. In the event that a determination has been made that a specific portion of a document submitted should be considered as proprietary or trade secret, each specific portion should be clearly identified as such. The cover letter (attached to the submitted material) shall: (1) Clearly indicate what select portions contain information considered as proprietary or a trade secret; and (2) provide justification as to why this information is considered to be proprietary or trade secret. This justification must be able to demonstrate
No research participant shall be enrolled (see definition of enrollment in Section I-E-7) at a clinical trial site until the following documentation has been submitted to NIH OBA: (1) Institutional Biosafety Committee approval (from the clinical trial site); (2) Institutional Review Board approval; (3) Institutional Review Board-approved informed consent document; (4) curriculum vitae of the Principal Investigator(s) (no more than two pages in biographical sketch format); and (5) NIH grant number(s) if applicable.
Within 30 days of enrollment (see definition of enrollment in Section I-E-7) at a clinical trial site, the following documentation shall be submitted to NIH OSP: (1) Institutional Biosafety Committee approval (from the clinical trial site); (2) Institutional Review Board approval; (3) Institutional Review Board-approved informed consent document; and (4) NIH grant number(s) if applicable.
To permit evaluation of long-term safety and efficacy of gene transfer, prospective subjects should be informed that they are expected to cooperate in long-term follow-up that extends beyond the active phase of the study. A list of persons who can be contacted in the event that questions arise during the follow-up period should be provided to the investigator. In addition, the investigator should request that subjects continue to provide a current address and telephone number.
The subjects should be informed of any significant findings resulting from the study will be made known in a timely manner to them and/or their parent or guardian including new information about the experimental procedure, the harms and benefits experienced by other individuals involved in the study, and any long-term effects that have been observed.
Additional guidance is available in the FDA Guidance for Industry: Gene Therapy Clinical Trials—Observing Subjects for Delayed Adverse Events (available at the following URL:
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 Advisory Committee to the Director, National Institutes of Health.
This meeting is open to the public but is being held by teleconference only. No physical meeting location is provided for any interested individuals to listen to and/or participate in the meeting. Any individual interested in listening to the meeting discussions must call 800-779-9040 and use Participant Passcode 5055308 for access to the meeting. Individuals needing special assistance should notify the Contact Person listed below in advance of the meeting.
Any interested person may file written comments with the committee by forwarding their statement electronically to the Contact Person at
Additional information for this meeting including both working group reports will be posted, when available, on the Advisory Committee to the Director, NIH, Web site (
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,
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.
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.
Coast Guard, DHS.
Sixty-Day Notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995, the U.S. Coast Guard intends to submit an Information Collection Request (ICR) to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), requesting approval of revisions to the following collection of information: 1625-0104, Barges Carrying Bulk Hazardous Materials. Our ICR describes the information we seek to collect from the public. Before submitting this ICR to OIRA, the Coast Guard is inviting comments as described below.
Comments must reach the Coast Guard on or before May 23, 2016.
You may submit comments identified by Coast Guard docket number [USCG-2016-0106] to the Coast Guard using the Federal eRulemaking Portal at
A copy of the ICR is available through the docket on the Internet at
Contact Mr. Anthony Smith, Office of Information Management, telephone 202-475-3532, or fax 202-372-8405, for questions on these documents.
This Notice relies on the authority of the Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended. An ICR is an application to OIRA seeking the approval, extension, or renewal of a Coast Guard collection of information (Collection). The ICR contains information describing the Collection's purpose, the Collection's likely burden on the affected public, an explanation of the necessity of the Collection, and other important information describing the Collection. There is one ICR for each Collection.
The Coast Guard invites comments on whether this ICR should be granted based on the Collection being necessary for the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the Collection; (2) the accuracy of the estimated burden of the Collection; (3) ways to enhance the quality, utility, and clarity of information subject to the Collection; and (4) ways to minimize the burden of the Collection on respondents, including the use of automated collection techniques or other forms of information technology. In response to your comments, we may revise this ICR or decide not to seek approval of revisions of the Collection. We will consider all comments and material received during the comment period.
We encourage you to respond to this request by submitting comments and related materials. Comments must contain the OMB Control Number of the ICR and the docket number of this request, [USCG-2016-0106], and must be received by May 23, 2016.
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
SUMMARY: This information is needed to ensure the safe shipment of bulk hazardous liquids in barges. The requirements are necessary to ensure that barges meet safety standards and to ensure that barge's crewmembers have the information necessary to operate barges safely.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended.
Coast Guard, DHS.
Notice of Federal Advisory Committee meeting.
The National Boating Safety Advisory Council and its Subcommittees will meet on April 21, 22, and 23, 2016, in Arlington, VA, to discuss issues relating to recreational boating safety. These meetings will be open to the public.
The National Boating Safety Advisory Council will meet on Thursday, April 21, 2016, from 8:30 a.m. to 12:00 p.m. and on Saturday, April 23, 2016 from 9:00 a.m. to 12:00 p.m. The Boats and Associated Equipment Subcommittee will meet on April 21, 2016, from 1:30 p.m. to 5:00 p.m. The Recreational Boating Safety Strategic Planning Subcommittee will meet on April 22, 2016, from 9:00 a.m. to 12:00 p.m. The Prevention through People Subcommittee will meet on April 22, 2016, from 1:30 p.m. to 5:00 p.m. Please note that these meetings may conclude early if the National Boating Safety Advisory Council has completed all business.
All meetings will be held in the Ballroom of the Holiday Inn Arlington (
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact Mr. Jeff Ludwig, Alternate Designated Federal Officer, telephone 202-372-1061, or at
To facilitate public participation, we are inviting public comment on the issues to be considered by the Council as listed in the “Agenda” section below. Written comments for distribution to Council members must be submitted no later than April 14, 2016, if Council review is desired prior to the meeting, and must be identified by docket number USCG 2010-0164. Written comments may be submitted using the Federal eRulemaking Portal at
Instructions: All submissions received must include the words “Department of Homeland Security” and the docket number of this action, USCG-2010-0164. Comments received will be posted without alteration at
Docket: For access to the docket to read documents or comments related to this notice, go to
Mr. Jeff Ludwig, Alternate Designated Federal Officer of the National Boating Safety Advisory Council, telephone (202) 372-1061, or at
Notice of this meeting is given under the
The agenda for the National Boating Safety Advisory Council meeting is as follows:
(1) Opening remarks and swearing-in of new members.
(2) Receipt and discussion of the following reports:
(a) Chief, Office of Auxiliary and Boating Safety, Update on the Coast Guard's implementation of National Boating Safety Advisory Council Resolutions and Recreational Boating Safety Program report.
(b) Alternate Designated Federal Officer's report concerning Council administrative and logistical matters.
(3) Subcommittee Session:
Issues to be discussed include alternatives to pyrotechnic visual distress signals; grant projects related to boats and associated equipment; and updates to 33 CFR 181 “Manufacturer Requirements” and 33 CFR 183 “Boats and Associated Equipment.”
(4) Public comment period.
(5) Meeting Recess.
The day will be dedicated to Subcommittee sessions:
(1)
(2)
Issues to be discussed include progress on implementation of the 2012-2016 Strategic Plan, and development of the 2017-2021 Strategic Plan.
The full Council will resume meeting.
(1) Receipt and discussion of the Boats and Associated Equipment, Prevention through People and The Recreational Boating Safety Strategic Planning Subcommittee reports.
(2) Discussion of any recommendations to be made to the Coast Guard.
(3) Public comment period.
(4) Voting on any recommendations to be made to the Coast Guard.
(5) Adjournment of meeting.
There will be a comment period for the National Boating Safety Advisory Council members and a comment period for the public after each report presentation, but before each is voted on by the Council. The Council members will review the information presented on each issue, deliberate on any recommendations presented in the Subcommittees' reports, and formulate recommendations for the Department's consideration.
The meeting agenda and all meeting documentation can be found at:
Public oral comment periods will be held during the meetings after each presentation and at the end of each day. Speakers are requested to limit their comments to 3 minutes. Please note that the public comment periods may end before the time indicated, following the last call for comments. Contact Mr. Jeff Ludwig as indicated above to register as a speaker.
Coast Guard, DHS.
Sixty-day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995, the U.S. Coast Guard intends to submit an Information Collection Request (ICR) to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), requesting approval of revisions to the following collection of information: 1625-0105, Regulated Navigation Area; Reporting Requirements for Barges Loaded with Certain Dangerous Cargoes, Inland Rivers, Eighth Coast Guard District and the Illinois Waterway, Ninth Coast Guard District. Our ICR describes the information we seek to collect from the public. Before submitting this ICR to OIRA, the Coast Guard is inviting comments as described below.
Comments must reach the Coast Guard on or before May 23, 2016.
You may submit comments identified by Coast Guard docket number [USCG-2016-0125] to the Coast Guard using the Federal eRulemaking Portal at
A copy of the ICR is available through the docket on the Internet at
Contact Mr. Anthony Smith, Office of Information Management, telephone 202-475-3532, or fax 202-372-8405, for questions on these documents.
This Notice relies on the authority of the Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended. An ICR is an application to OIRA seeking the approval, extension, or renewal of a Coast Guard collection of information (Collection). The ICR contains information describing the Collection's purpose, the Collection's likely burden on the affected public, an explanation of the necessity of the Collection, and other important information describing the Collection. There is one ICR for each Collection.
The Coast Guard invites comments on whether this ICR should be granted based on the Collection being necessary for the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the Collection; (2) the accuracy of the estimated burden of the Collection; (3) ways to enhance the quality, utility, and clarity of information subject to the Collection; and (4) ways to minimize the burden of the Collection on respondents, including the use of automated collection techniques or other forms of information technology. In response to your comments, we may revise this ICR or decide not to seek approval of revisions of the Collection. We will consider all comments and material received during the comment period.
We encourage you to respond to this request by submitting comments and related materials. Comments must contain the OMB Control Number of the ICR and the docket number of this request, [USCG-2016-0125], and must be received by May 23, 2016.
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
SUMMARY: The Coast Guard requires position and intended movement reporting, and fleeting operations reporting, from barges carrying certain dangerous cargoes (CDCs) in the inland rivers within the Eighth and Ninth Coast Guard Districts.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended.
Coast Guard, DHS.
Request for applications.
The Coast Guard seeks applications for membership on the National Boating Safety Advisory Council. This Council advises the Coast Guard on recreational boating safety regulations and other major boating safety matters.
Completed applications should reach the Coast Guard on or before May 23, 2016.
Applicants should send a cover letter expressing interest in an appointment to the National Boating Safety Advisory Council and specifying which membership category the applicant is applying under, along with a resume detailing the applicant's boating experience via one of the following methods:
•
•
Mr. Jeff Ludwig, Alternate Designated Federal Officer of the National Boating Safety Advisory Council; telephone 202-372-1061 or email at
The National Boating Safety Advisory Council is a Federal advisory committee which operates under the provisions of Federal Advisory Committee Act, (Title 5 U.S.C., Appendix). It was established under the authority of 46 United States Code 13110 and advises the Coast Guard on boating safety regulations and other major boating safety matters. The Council usually meets at least twice each year at a location selected by the Coast Guard. It may also meet for extraordinary purposes. Subcommittees or working groups may also meet to consider specific issues.
Each member serves for a term of three years. Members may be considered to serve a maximum of two consecutive full terms. All members serve at their own expense and receive no salary, or other compensation from the Federal Government. The exception to this policy is when attending National Boating Safety Advisory Council meetings; members may be reimbursed for travel expenses and provided per diem in accordance with Federal Travel Regulations.
We will consider applications for the following seven positions that will be vacant on December 31, 2016:
• Two representatives of State officials responsible for State boating safety programs;
• Three representatives of recreational boat and associated equipment manufacturers; and
• Two representatives of national recreational boating organizations or the general public.
Applications will also be considered for one vacancy in the national recreational boating organizations or the general public membership category that was caused by the inability of a person appointed in 2016 to accept their appointment. This position will serve a term that expires on December 31, 2018.
If you are selected as a member from the general public, you will be appointed and serve as a Special Government Employee as defined in section 202(a) of Title 18, United States Code. As a candidate for appointment as a Special Government Employee, applicants are required to complete a Confidential Financial Disclosure Report (OGE Form 450). Coast Guard may not release the reports or the information in them to the public except under an order issued by a Federal court or as otherwise provided under the Privacy Act (5 U.S.C. 552a). Only the Designated Coast Guard Ethics Official or his or her designee may release a Confidential Financial Disclosure Report. Applicants can obtain this form by going to the Web site of the Office of Government Ethics (
Applicants are considered for membership on the basis of their particular expertise, knowledge, and experience in recreational boating safety. The vacancies announced in this notice apply to membership positions that become vacant on January 1, 2017. Individuals who have applied for National Boating Safety Advisory Council membership in any prior years are asked to re-submit a complete application if the individual wishes to apply for any of the vacancies announced in this notice.
To be eligible, applicants should have experience in one of the categories listed above.
Registered lobbyists are not eligible to serve on federal advisory committees in an individual capacity. See “Revised Guidance on Appointment of Lobbyists to Federal Advisory Committees, Boards and Commissions” (79 FR 47482, August 13, 2014). Registered lobbyists are lobbyists required to comply with provisions contained in The Lobbying Disclosure Act of 1995 (2 U.S.C. 1605; Pub. L. 104-65 as amended by Title II of Pub. L. 110-81).
The Department of Homeland Security does not discriminate in selection of Council members on the basis of race, color, religion, sex, national origin, political affiliation, sexual orientation, gender identity, marital status, disability and genetic information, age, membership in an employee organization, or other non-merit factor. The Department of Homeland Security strives to achieve a widely diverse candidate pool for all of its recruitment actions.
If you are interested in applying to become a member of the Council, send your cover letter and resume to Mr. Jeff Ludwig, Alternate Designated Federal Officer of National Boating Safety Advisory Council via one of the transmittal methods in the
Coast Guard, DHS.
Notice.
The Coast Guard announces that it is removing the conditions of entry on vessels arriving from the country of the Republic of Cuba.
The policy announced in this notice is effective on March 22, 2016.
This notice is part of docket USCG-2016-0201 and is available online by going to
If you have questions on this notice, contact Mr. Michael Brown, Office of Domestic and International Port Security, United States Coast Guard, telephone 202-372-1081 and email
Section 70110 of title 46, United States Code, enacted as part of section 102(a) of the Maritime Transportation Security Act of 2002 (Pub. L. 107-295, Nov. 25, 2002) authorizes the Secretary of Homeland Security to impose conditions of entry on vessels requesting entry into the United States arriving from ports that are not maintaining effective anti-terrorism measures. It also requires public notice of the ineffective anti-terrorism measures. The Secretary has delegated to the Coast Guard authority to carry out the provisions of this section. Previous notices have imposed or removed conditions of entry on vessels arriving from certain countries, and those conditions of entry and the countries they pertain to remain in effect unless modified by this notice. On April 4, 2008 the Coast Guard published a Notice of Policy in the
Based on port assessments conducted in February 2016, the Coast Guard has determined that the Republic of Cuba is now maintaining effective anti-terrorism measures, and is accordingly removing the conditions of entry announced in the previously published Notice of Policy. With this notice, the current list of countries not maintaining effective anti-terrorism measures is as follows: Cambodia, Cameroon, Comoros, Cote d'Ivoire, Equatorial Guinea, The Gambia, Guinea-Bissau, Iran, Liberia, Libya, Madagascar, Nigeria, Sao Tome and Principe, Syria, Timor-Leste, Venezuela and Yemen. Notwithstanding this Notice, the “Unauthorized Entry into Cuban Territorial Waters” regulations located at 33 CFR part 107 remain in effect.
This notice is issued under authority of 46 U.S.C. 70110(d).
Coast Guard, DHS.
Notice of study; request for comments.
The Coast Guard is conducting a Port Access Route Study (PARS) to determine whether it should revise existing regulations to improve navigation safety in Nantucket Sound due to factors such as increased vessels traffic, changing vessel traffic patterns, weather conditions, or navigational difficulty.
Comments and related material must be received on or before June 20, 2016.
You may submit comments, or view documents noted to be available in the docket, and comments made in response to this notice using the Federal eRulemaking Portal (
If you have questions on this notice, email
We encourage you to participate in this study by submitting comments and related materials. All comments received will be posted without change to
A. Submitting Comments: You may submit your comments and material online via
B. Viewing Comments and Documents: To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
C. Public Meeting: The Coast Guard may hold public meeting(s) if there is sufficient public interest. You must submit a request for one on or before April 12, 2016. You may submit your request for a public meeting online via
D. Privacy Act: Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the
The following definitions (except “Regulated Navigation Area”) are from the International Maritime Organization's (IMO's) publication “
A. Section 310 of the 2015 Coast Guard Authorization Act, Public Law 114-120 signed by the President on February 8, 2016, directs the Commandant of the Coast Guard to complete and submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate a Port Access Route Study (PARS) of Nantucket Sound using the standards and methodology of the Atlantic Coast Port Access Route Study, to determine whether the Coast Guard should revise existing regulations to improve navigation safety in Nantucket Sound due to factors such as increased vessel traffic, changing vessel traffic patterns, weather conditions, or navigational difficulty. The Atlantic Coast Port Access Route Study contained in the “marine planning guidelines” of the Study are included in the docket for this notice.
B. The purpose of this notice is to announce commencement of this PARS and to solicit public comments. We encourage you to participate in the study process by submitting comments in response to this notice. Comments should address impacts to navigation in Nantucket Sound resulting from factors such as increased vessel traffic, changing vessel traffic patterns, weather conditions, or navigational difficulty.
The First Coast Guard District will conduct this PARS. The study will commence upon publication of this notice and may take 10 months to complete.
The study area is described as Nantucket Sound, an area bounded by a line connecting the following geographic positions, including the entrance and exit routes to the sound but not the individual harbors.
• 41°41′ N., 070°00′ W.;
• 41°20′ N., 070°00′ W.;
• 41°16′ N., 070°15′ W.
• 41°28′ N., 070°40′ W.; and
• 41°34′ N., 070°40′ W.;
An illustration showing the study area is available in the docket.
We will publish the results of the PARS in the
This notice is published under the authority of 5 U.S.C. 552(a).
U.S. Citizenship and Immigration Services, Department of Homeland Security.
Notice.
Through this Notice, the Department of Homeland Security (DHS) announces that the Secretary of Homeland Security (Secretary) is extending the designation of Liberia for Temporary Protected Status (TPS) for 6 months, from May 22, 2016, through November 21, 2016.
The extension allows currently eligible TPS beneficiaries to retain TPS through November 21, 2016, so long as they otherwise continue to meet the eligibility requirements for TPS. The Secretary has determined that an extension is warranted because, although there have been significant improvements, conditions in Liberia supporting its November 2014 designation for TPS continue to be met.
Through this Notice, DHS also sets forth procedures necessary for eligible nationals of Liberia (or aliens having no nationality who last habitually resided in Liberia) to re-register for TPS and to apply for renewal of their Employment Authorization Documents (EADs) with U.S. Citizenship and Immigration Services (USCIS). Re-registration is limited to persons who have previously registered for TPS under the designation of Liberia and whose applications have been granted. Certain nationals of Liberia (or aliens having no nationality who last habitually resided in Liberia) who have not previously applied for TPS may be eligible to apply under the late initial registration provisions if they meet (1) at least one of the late initial filing criteria, and (2) all TPS eligibility criteria (including continuous residence in the United States since November 20, 2014, and continuous physical presence in the United States since November 21, 2014).
For individuals who have already been granted TPS under Liberia's designation, the 60-day re-registration period runs from March 22, 2016 through May 23, 2016. USCIS will issue new EADs with a November 21, 2016, expiration date to eligible Liberia TPS
The 6-month extension of the TPS designation of Liberia is effective May 22, 2016, and will remain in effect through November 21, 2016. The 60-day re-registration period runs from March 22, 2016 through May 23, 2016. (
• For further information on TPS, including guidance on the application process and additional information on eligibility, please visit the USCIS TPS Web page at
• For questions concerning this FRN, you can also contact Jerry Rigdon, Chief of the Waivers and Temporary Services Branch, Service Center Operations Directorate, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529-2060; or by phone at (202) 272-1533 (this is not a toll-free number).
• Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS Web site at
• Further information will also be available at local USCIS offices upon publication of this Notice.
• TPS is a temporary immigration status granted to eligible nationals of a country designated for TPS under the Immigration and Nationality Act (INA), or to eligible persons without nationality who last habitually resided in the designated country.
• During the TPS designation period, TPS beneficiaries are eligible to remain in the United States, may not be removed, and are authorized to work and obtain EADs so long as they continue to meet the requirements of TPS.
• TPS beneficiaries may also be granted travel authorization as a matter of discretion.
• The granting of TPS does not result in or lead to permanent resident status.
• To qualify for TPS, beneficiaries must meet the eligibility requirements at INA section 244(c)(2), 8 U.S.C. 1254a(c)(2).
• When the Secretary terminates a country's TPS designation, although TPS benefits end, former TPS beneficiaries continue to hold any lawful immigration status that they maintained or obtained while holding TPS.
On November 21, 2014, the Secretary designated Liberia for TPS for a period of 18 months due to the extraordinary and temporary conditions caused by an epidemic of Ebola Virus Disease (EVD) in West Africa that prevented nationals of Liberia from returning to Liberia in safety. The extraordinary and temporary conditions included high EVD transmission rates in widespread geographic areas, overwhelmed health care systems unable to handle the large number of EVD patients or to provide treatment for normally preventable or treatable conditions, and containment measures that were causing significant disruptions to Liberia's economy and individuals' ability to access food and earn a livelihood.
Section 244(b)(1) of the INA, 8 U.S.C. 1254a(b)(1), authorizes the Secretary, after consultation with appropriate agencies of the U.S. Government (Government), to designate a foreign state (or part thereof) for TPS if the Secretary determines that certain country conditions exist.
At least 60 days before the expiration of a country's TPS designation or extension, the Secretary, after consultation with appropriate Government agencies, must review the conditions in a foreign state designated for TPS to determine whether the conditions for the TPS designation continue to be met.
DHS and the Department of State (DOS) have reviewed conditions in Liberia. Based on the reviews and after consulting with DOS, the Secretary has determined that a 6-month extension is warranted because, although there have been significant improvements, conditions in Liberia supporting its November 2014 designation for TPS persist.
Guinea, Liberia, and Sierra Leone were designated for TPS in the midst of the largest EVD outbreak in history.
Despite the absence of current widespread EVD transmission, Guinea, Liberia, and Sierra Leone still face containment and recovery challenges, and the risk of flare-ups of EVD remains, as demonstrated by the two cases reported in Sierra Leone in January 2016 after the country had previously been declared free of EVD transmission. All three countries continue to experience consequences of the epidemic, including the ongoing medical issues and mental trauma experienced by EVD survivors; challenges in rebuilding fragile healthcare systems; and lingering food insecurity due to the epidemic's impact on economic activity, productivity, and livelihoods. The World Health Organization continues to consider the EVD outbreak a Public Health Emergency of International Concern.
Although the countries continue to struggle with the effects of the epidemic, in light of the absence of widespread transmission of EVD, the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention has removed warnings for travel to Guinea, Liberia, and Sierra Leone. Accordingly, the restrictions placed on grants of advance parole for travel to Guinea, Liberia, and Sierra Leone in conjunction with these countries' designations for TPS in November 2014 are removed. Beneficiaries of TPS Liberia who wish to travel abroad must still comply with the requirements for obtaining advance parole stated in the Instructions to Form I-131, Application for Travel Document. They should also be aware that travel abroad may cause a break in their continuous residence and continuous physical presence in the United States, making them ineligible for TPS, unless the absence from the United States is considered by USCIS to be “brief, casual and innocent” under 8 CFR 244.1.
Based upon this review and after consultation with appropriate Government agencies, the Secretary has determined that:
• Conditions supporting the November 2014 designation of Liberia for TPS continue to be met.
• There continue to be extraordinary and temporary conditions in Liberia that prevent Liberian nationals (or aliens having no nationality who last habitually resided in Liberia) from returning to Liberia in safety.
• It is not contrary to the national interest of the United States to permit Liberian nationals (or aliens having no nationality who last habitually resided in Liberia) who meet the eligibility requirements of TPS to remain in the United States temporarily.
• The designation of Liberia for TPS should be extended for a 6-month period from May 22, 2016, through November 21, 2016.
• Requests for advance travel authorization (“advance parole”) for travel to Guinea, Liberia, or Sierra Leone no longer require demonstration of extraordinary circumstances in order to be approvable.
• There are approximately 2,085 current Liberia TPS beneficiaries who are expected to file for re-registration under the extension.
By the authority vested in me as Secretary under INA section 244, 8 U.S.C. 1254a, I have determined, after consultation with the appropriate Government agencies, that conditions supporting Liberia's November 2014 designation for TPS continue to be met.
To register or re-register for TPS based on the designation of Liberia, you must submit each of the following applications:
• If you are filing an application for late initial registration, you must pay the fee for the Application for Temporary Protected Status (Form I-821).
• If you are filing an application for re-registration, you do not need to pay the fee for the Application for Temporary Protected Status (Form I-821).
• If you are applying for late initial registration and want an EAD, you must pay the fee for the Application for Employment Authorization (Form I-765) only if you are age 14 through 65. You do not need to pay this fee if you are under the age of 14 or are 66 or older.
• If you are applying for re-registration, you must pay the fee for the Application for Employment Authorization (Form I-765), regardless of your age, if you want an EAD.
• You do not pay the fee for the Application for Employment Authorization (Form I-765) if you are not requesting an EAD, regardless of whether you are applying for late initial registration or re-registration.
You must submit both completed application forms together. If you are unable to pay the application fee and/or biometrics fee, you may complete a Request for Fee Waiver (Form I-912) or submit a personal letter requesting a fee waiver with satisfactory supporting documentation. For more information on the application forms and fees for TPS, please visit the USCIS TPS Web page at
Biometrics (such as fingerprints) are required for all applicants 14 years and older. Those applicants must submit a biometric services fee. As previously stated, if you are unable to pay for the biometric services fee, you may complete a Request for Fee Waiver (Form I-912) or submit a personal letter requesting a fee waiver with satisfactory supporting documentation. For more information on the biometric services fee, please visit the USCIS Web site at
You should file as soon as possible within the 60-day re-registration period so USCIS can process your application and issue any EAD promptly. Filing early will also allow you to have time to re-file your application before the deadline, should USCIS deny your fee waiver request. If, however, you receive a denial of your fee waiver request and are unable to re-file by the re-registration deadline, you may still re-file your application. This situation will be reviewed to determine whether you established good cause for late re-registration. However, you are urged to re-file within 45 days of the date on any USCIS fee waiver denial notice, if possible.
Mail your application for TPS to the proper address in Table 1.
If you were granted TPS by an Immigration Judge (IJ) or the Board of Immigration Appeals (BIA) and you wish to request an EAD or are re-registering for the first time following a grant of TPS by an IJ or the BIA, please mail your application to the appropriate mailing address in Table 1. After you submit your application and receive a USCIS receipt number, please send an email to the appropriate USCIS Service Center handling your application, providing the receipt number and stating that you submitted a re-registration and/or request for an EAD based on an IJ/BIA grant of TPS. This will aid in the verification of your grant of TPS and processing of your application, as USCIS may not have received records of your grant of TPS by either the IJ or the BIA. To get additional information, including the email address of the appropriate Service Center, you may go to the USCIS TPS Web page at
You cannot electronically file your application when re-registering or submitting an initial registration for Liberia TPS. Please mail your application to the mailing address listed in Table 1.
The filing instructions on the Application for Temporary Protected Status (Form I-821) list all the documents needed to establish basic eligibility for TPS. You must also submit two color passport-style photographs of yourself. You may also find information on the acceptable documentation and other requirements for applying or registering for TPS on the USCIS Web site at
If one or more of the questions listed in Part 4, Question 2 of the Application for Temporary Protected Status (Form I-821) applies to you, then you must submit an explanation on a separate sheet(s) of paper and/or additional documentation.
To get case status information about your TPS application, including the status of a request for an EAD, you can check Case Status Online at
Provided that you currently have TPS under the designation of Liberia, this Notice automatically extends your EAD by 6 months if you:
• Are a national of Liberia (or an alien having no nationality who last habitually resided in Liberia);
• Received an EAD under the November 2014 designation of Liberia for TPS; and
• Have an EAD with a marked expiration date of May 21, 2016, bearing the notation “A-12” or “C-19” on the face of the card under “Category.”
Although this Notice automatically extends your EAD through November 21, 2016, you must re-register timely for TPS in accordance with the procedures described in this Notice if you would like to maintain your TPS.
You can find a list of acceptable document choices on the “Lists of Acceptable Documents” for Employment Eligibility Verification (Form I-9). You can find additional detailed information on the USCIS I-9 Central Web page at
You may present any document from List A (reflecting both your identity and employment authorization) or one document from List B (reflecting identity) together with one document from List C (reflecting employment authorization). An EAD is an acceptable document under “List A.” You may present an acceptable receipt for a List A, List B, or List C document as described in the Employment Eligibility Verification (Form I-9) Instructions. An acceptable receipt is one that shows an employee has applied to replace a document that was lost, stolen or
If your EAD has an expiration date of May 21, 2016, and states “A-12” or “C-19” under “Category,” it has been extended automatically for 6 months by virtue of this
Even though EADs with an expiration date of May 21, 2016, that state “A-12” or “C-19” under “Category” have been automatically extended for 6 months by this
By November 21, 2016, the expiration date of the automatic extension, your employer must reverify your employment authorization. At that time, you must present any unexpired document from List A or any unexpired document from List C on Employment Eligibility Verification (Form I-9) to reverify employment authorization, or an acceptable List A or List C receipt described in the Employment Eligibility Verification (Form I-9) instructions. Your employer is required to reverify on Employment Eligibility Verification (Form I-9) the employment authorization of current employees upon the automatically extended expiration date of a TPS-related EAD, which is November 21, 2016, in this case. Your employer should use either Section 3 of the Employment Eligibility Verification (Form I-9) originally completed for the employee or, if this section has already been completed or if the version of Employment Eligibility Verification (Form I-9) is no longer valid, complete Section 3 of a new Employment Eligibility Verification (Form I-9) using the most current version. Note that your employer may not specify which List A or List C document employees must present, and cannot reject an acceptable receipt. An acceptable receipt is one that shows an employee has applied to replace a document that was lost, stolen or damaged.
No. When completing Employment Eligibility Verification (Form I-9), including reverifying employment authorization, employers must accept any documentation that appears on the “Lists of Acceptable Documents” for Employment Eligibility Verification (Form I-9) that reasonably appears to be genuine and that relates to you or an acceptable List A, List B, or List C receipt. Employers may not request documentation that does not appear on the “Lists of Acceptable Documents.” Therefore, employers may not request proof of Liberian citizenship or proof of re-registration for TPS when completing Employment Eligibility Verification (Form I-9) for new hires or reverifying the employment authorization of current employees. Refer to the “Note to Employees” section of this Notice for important information about your rights if your employer rejects lawful documentation, requires additional documentation, or otherwise discriminates against you based on your citizenship or immigration status, or your national origin. Note that although you are not required to provide your employer with a copy of this
After November 21, 2016, employers may no longer accept the EADs that this
When using an automatically extended EAD to complete Employment Eligibility Verification (Form I-9) for a new job before November 21, 2016, you and your employer should do the following:
1. For Section 1, you should:
a. Check “An alien authorized to work;”
b. Write the automatically extended EAD expiration date (November 21, 2016) in the first space; and
c. Write your alien number (USCIS number or A-number) in the second space (your EAD or other document from DHS will have your USCIS number or A-number printed on it; the USCIS number is the same as your A-number without the A prefix).
2. For Section 2, employers should record the:
a. Document title;
b. Issuing authority;
c. Document number; and
d. Automatically extended EAD expiration date (November 21, 2016).
By November 21, 2016, employers must reverify the employee's employment authorization in Section 3 of the Employment Eligibility Verification (Form I-9).
If you are an existing employee who presented a TPS-related EAD that was valid when you first started your job but that EAD has now been automatically extended, your employer may reinspect your automatically extended EAD if the employer does not have a photocopy of the EAD on file, and you and your employer should correct your previously completed Employment Eligibility Verification (Form I-9) as follows:
1. For Section 1, you should:
a. Draw a line through the expiration date in the first space;
b. Write “November 21, 2016” above the previous date;
c. Write “TPS Ext.” in the margin of Section 1; and
d. Initial and date the correction in the margin of Section 1.
2. For Section 2, employers should:
a. Draw a line through the expiration date written in Section 2;
b. Write “November 21, 2016” above the previous date;
c. Write “EAD Ext.” in the margin of Section 2; and
d. Initial and date the correction in the margin of Section 2.
By November 21, 2016, when the automatic extension of EADs expires, employers must reverify the employee's employment authorization in Section 3.
If you are an employer who participates in E-Verify and you have an employee who is a TPS beneficiary who provided a TPS-related EAD when he or she first started working for you, you will receive a “Work Authorization Documents Expiring” case alert when this EAD is about to expire. Usually, this message is an alert to complete Section 3 of the Employment Eligibility Verification (Form I-9) to reverify an employee's employment authorization. For existing employees with TPS-related EADs that have been automatically extended, employers should dismiss this alert by clicking the red “X” in the “dismiss alert” column and follow the instructions above explaining how to correct the Employment Eligibility Verification (Form I-9). By November 21, 2016, employment authorization must be reverified in Section 3. Employers should never use E-Verify for reverification.
Employers are reminded that the laws requiring proper employment eligibility verification and prohibiting unfair immigration-related employment practices remain in full force. This Notice does not supersede or in any way limit applicable employment verification rules and policy guidance, including those rules setting forth reverification requirements. For general questions about the employment eligibility verification process, employers may call USCIS at 888-464-4218 (TTY 877-875-6028) or email
For general questions about the employment eligibility verification process, you may call USCIS at 888-897-7781 (TTY 877-875-6028) or email
To comply with the law, employers must accept any document or combination of documents from the Lists of Acceptable Documents if the documentation reasonably appears to be genuine and to relate to the employee, or an acceptable List A, List B, or List C receipt described in the Employment Eligibility Verification (Form I-9) Instructions. Employers may not require extra or additional documentation beyond what is required for Employment Eligibility Verification (Form I-9) completion. Further, employers participating in E-Verify who receive an E-Verify case result of “Tentative Nonconfirmation” (TNC) must promptly inform employees of the TNC and give such employees an opportunity to contest the TNC. A TNC case result means that the information entered into E-Verify from Employment Eligibility Verification (Form I-9) differs from Federal or state government records.
Employers may not terminate, suspend, delay training, withhold pay, lower pay, or take any adverse action against you based on your decision to contest a TNC or because the case is still pending with E-Verify. A Final Nonconfirmation (FNC) case result is received when E-Verify cannot verify your employment eligibility. An employer may terminate employment based on a case result of FNC. Work-authorized employees who receive an FNC may call USCIS for assistance at 888-897-7781 (TTY 877-875-6028). If you believe you were discriminated against by an employer in the E-Verify process based on citizenship or immigration status or based on national origin, you may contact OSC's Worker Information Hotline at 800-255-7688 (TTY 800-237-2515). Additional information about proper nondiscriminatory Employment Eligibility Verification (Form I-9) and E-Verify procedures is available on the OSC Web site at
While Federal Government agencies must follow the guidelines laid out by the Federal Government, State and local government agencies establish their own rules and guidelines when granting certain benefits. Each State may have different laws, requirements, and determinations about what documents you need to provide to prove eligibility for certain benefits. Whether you are applying for a Federal, State, or local government benefit, you may need to provide the government agency with documents that show you are a TPS beneficiary and/or show you are authorized to work based on TPS. Examples are:
(1) Your unexpired EAD;
(2) A copy of this
(3) A copy of your Application for Temporary Protected Status Notice of Action (Form I-797) for this re-registration;
(4) A copy of your past or current Application for Temporary Protected Status Approval Notice (Form I-797), if you received one from USCIS; and/or
(5) If there is an automatic extension of work authorization, a copy of the fact sheet from the USCIS TPS Web site that
Check with the government agency regarding which document(s) the agency will accept. You may also provide the agency with a copy of this
Some benefit-granting agencies use the USCIS Systematic Alien Verification for Entitlements Program (SAVE) to verify the current immigration status of applicants for public benefits. If such an agency has denied your application based solely or in part on a SAVE response, the agency must offer you the opportunity to appeal the decision in accordance with the agency's procedures. If the agency has received and acted upon or will act upon a SAVE verification and you do not believe the response is correct, you may make an InfoPass appointment for an in-person interview at a local USCIS office. Detailed information on how to make corrections, make an appointment, or submit a written request to correct records under the Freedom of Information Act can be found at the SAVE Web site at
U.S. Citizenship and Immigration Services, Department of Homeland Security.
Notice.
Through this Notice, the Department of Homeland Security (DHS) announces that the Secretary of Homeland Security (Secretary) is extending the designation of Sierra Leone for Temporary Protected Status (TPS) for 6 months, from May 22, 2016, through November 21, 2016.
The extension allows currently eligible TPS beneficiaries to retain TPS through November 21, 2016, so long as they otherwise continue to meet the eligibility requirements for TPS. The Secretary has determined that an extension is warranted because, although there have been significant improvements, conditions in Sierra Leone supporting its November 2014 designation for TPS continue to be met.
Through this Notice, DHS also sets forth procedures necessary for eligible nationals of Sierra Leone (or aliens having no nationality who last habitually resided in Sierra Leone) to re-register for TPS and to apply for renewal of their Employment Authorization Documents (EADs) with U.S. Citizenship and Immigration Services (USCIS). Re-registration is limited to persons who have previously registered for TPS under the designation of Sierra Leone and whose applications have been granted. Certain nationals of Sierra Leone (or aliens having no nationality who last habitually resided in Sierra Leone) who have not previously applied for TPS may be eligible to apply under the late initial registration provisions if they meet (1) at least one of the late initial filing criteria, and (2) all TPS eligibility criteria (including continuous residence in the United States since November 20, 2014, and continuous physical presence in the United States since November 21, 2014).
For individuals who have already been granted TPS under Sierra Leone's designation, the 60-day re-registration period runs from March 22, 2016 through May 23, 2016. USCIS will issue new EADs with a November 21, 2016, expiration date to eligible Sierra Leone TPS beneficiaries who timely re-register and apply for EADs under this extension. Given the timeframes involved with processing TPS re-registration applications, DHS recognizes that not all re-registrants will receive new EADs before their current EADs expire on May 21, 2016. Accordingly, through this Notice, DHS automatically extends the validity of EADs issued under the TPS designation of Sierra Leone for 6 months, through November 21, 2016, and explains how TPS beneficiaries and their employers may determine which EADs are automatically extended and their impact on the Employment Eligibility Verification (Form I-9) and E-Verify processes.
The 6-month extension of the TPS designation of Sierra Leone is effective May 22, 2016, and will remain in effect through November 21, 2016. The 60-day re-registration period runs from March 22, 2016 through May 23, 2016. (
• For further information on TPS, including guidance on the application process and additional information on eligibility, please visit the USCIS TPS Web page at
• For questions concerning this FRN, you can also contact Jerry Rigdon, Chief of the Waivers and Temporary Services Branch, Service Center Operations Directorate, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529-2060; or by phone at (202) 272-1533 (this is not a toll-free number). Note: The phone number provided here is solely for questions regarding this TPS Notice. It is not for individual case status inquires.
• Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS Web site at
• Further information will also be available at local USCIS offices upon publication of this Notice.
• TPS is a temporary immigration status granted to eligible nationals of a country designated for TPS under the Immigration and Nationality Act (INA), or to eligible persons without nationality who last habitually resided in the designated country.
• During the TPS designation period, TPS beneficiaries are eligible to remain in the United States, may not be removed, and are authorized to work and obtain EADs so long as they
• TPS beneficiaries may also be granted travel authorization as a matter of discretion.
• The granting of TPS does not result in or lead to permanent resident status.
• To qualify for TPS, beneficiaries must meet the eligibility requirements at INA section 244(c)(2), 8 U.S.C. 1254a(c)(2).
• When the Secretary terminates a country's TPS designation, although TPS benefits end, former TPS beneficiaries continue to hold any lawful immigration status that they maintained or obtained while holding TPS.
On November 21, 2014, the Secretary designated Sierra Leone for TPS for a period of 18 months due to the extraordinary and temporary conditions caused by an epidemic of Ebola Virus Disease (EVD) in West Africa that prevented nationals of Sierra Leone from returning to Sierra Leone in safety. The extraordinary and temporary conditions included high EVD transmission rates in widespread geographic areas, overwhelmed health care systems unable to handle the large number of EVD patients or to provide treatment for normally preventable or treatable conditions, and containment measures that were causing significant disruptions to Sierra Leone's economy and individuals' ability to access food and earn a livelihood.
Section 244(b)(1) of the INA, 8 U.S.C. 1254a(b)(1), authorizes the Secretary, after consultation with appropriate agencies of the U.S. Government (Government), to designate a foreign state (or part thereof) for TPS if the Secretary determines that certain country conditions exist.
At least 60 days before the expiration of a country's TPS designation or extension, the Secretary, after consultation with appropriate Government agencies, must review the conditions in a foreign state designated for TPS to determine whether the conditions for the TPS designation continue to be met.
DHS and the Department of State (DOS) have reviewed conditions in Sierra Leone. Based on the reviews and after consulting with DOS, the Secretary has determined that a 6-month extension is warranted because, although there have been significant improvements, conditions in Sierra Leone supporting its November 2014 designation for TPS persist.
Guinea, Liberia, and Sierra Leone were designated for TPS in the midst of the largest EVD outbreak in history. From March 2014 through November 2015, these three countries suffered over 11,000 deaths among their more than 28,500 cases of EVD. At the height of the outbreak in late 2014, hundreds of new cases were being reported each week, the health care systems were overwhelmed, and containment measures were causing significant disruptions to individuals' ability to access food and earn a livelihood. A robust response by the international community and the governments of Guinea, Liberia, and Sierra Leone has now brought EVD transmission in West Africa substantially under control.
In Sierra Leone, the EVD epidemic started in May 2014 and peaked between October and December 2014. Sierra Leone's government and international partners mounted an effective response that dramatically decreased the number of new EVD cases from a high of 500 per week in late 2014 to between 8 to 12 cases in June 2015, to single digits in August 2015. The World Health Organization declared Sierra Leone free of EVD transmission as of November 7, 2015; however, two new cases were subsequently reported in January 2016. Since that time, no additional cases have been reported. If no further cases are detected, the World Health Organization will again declare Sierra Leone free of EVD transmission on March 17, 2016.
Despite the absence of current widespread EVD transmission, Guinea, Liberia, and Sierra Leone still face containment and recovery challenges, and the risk of flare-ups of EVD remains, as demonstrated by the two cases reported in Sierra Leone in January 2016 after the country had previously been declared free of EVD transmission. All three countries continue to experience consequences of the epidemic, including the ongoing medical issues and mental trauma experienced by EVD survivors; challenges in rebuilding fragile healthcare systems; and lingering food insecurity due to the epidemic's impact on economic activity, productivity, and livelihoods. The World Health Organization continues to consider the EVD outbreak a Public Health Emergency of International Concern.
Although the countries continue to struggle with the effects of the epidemic, in light of the absence of widespread transmission of EVD, the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention has removed warnings for travel to Guinea, Liberia, and Sierra Leone. Accordingly, the restrictions placed on grants of advance parole for travel to Guinea, Liberia, and Sierra Leone in conjunction with these countries' designations for TPS in November 2014 are removed. Beneficiaries of TPS Sierra Leone who wish to travel abroad must still comply with the requirements for obtaining advance parole stated in the Instructions to Form I-131, Application for Travel Document. They should also be aware that travel abroad may cause a break in their continuous residence and continuous physical presence in the United States, making them ineligible for TPS, unless the absence from the United States is considered by USCIS to be “brief, casual and innocent” under 8 CFR 244.1.
Based upon this review and after consultation with appropriate Government agencies, the Secretary has determined that:
• Conditions supporting the November 2014 designation of Sierra Leone for TPS continue to be met.
• There continue to be extraordinary and temporary conditions in Sierra Leone that prevent nationals of Sierra Leone (or aliens having no nationality who last habitually resided in Sierra Leone) from returning to Sierra Leone in safety.
• It is not contrary to the national interest of the United States to permit nationals of Sierra Leone (or aliens having no nationality who last habitually resided in Sierra Leone) who meet the eligibility requirements of TPS to remain in the United States temporarily.
• The designation of Sierra Leone for TPS should be extended for a 6-month period from May 22, 2016, through November 21, 2016.
• Requests for advance travel authorization (“advance parole”) for travel to Guinea, Liberia, or Sierra Leone no longer require demonstration of extraordinary circumstances in order to be approvable.
• There are approximately 1,145 current Sierra Leone TPS beneficiaries who are expected to file for re-registration under the extension.
By the authority vested in me as Secretary under INA section 244, 8 U.S.C. 1254a, I have determined, after consultation with the appropriate Government agencies, that conditions supporting Sierra Leone's November 2014 designation for TPS continue to be met.
To register or re-register for TPS based on the designation of Sierra Leone, you must submit each of the following applications:
• If you are filing an application for late initial registration, you must pay the fee for the Application for Temporary Protected Status (Form I-821).
• If you are filing an application for re-registration, you do not need to pay the fee for the Application for Temporary Protected Status (Form I-821).
• If you are applying for late initial registration and want an EAD, you must pay the fee for the Application for Employment Authorization (Form I-765) only if you are age 14 through 65. You do not need to pay this fee if you are under the age of 14 or are 66 or older.
• If you are applying for re-registration, you must pay the fee for the Application for Employment Authorization (Form I-765), regardless of your age, if you want an EAD.
• You do not pay the fee for the Application for Employment Authorization (Form I-765) if you are not requesting an EAD, regardless of whether you are applying for late initial registration or re-registration.
You must submit both completed application forms together. If you are unable to pay the application fee and/or biometrics fee, you may complete a Request for Fee Waiver (Form I-912) or submit a personal letter requesting a fee waiver with satisfactory supporting documentation. For more information on the application forms and fees for TPS, please visit the USCIS TPS Web page at
Biometrics (such as fingerprints) are required for all applicants 14 years and older. Those applicants must submit a biometric services fee. As previously stated, if you are unable to pay for the biometric services fee, you may complete a Request for Fee Waiver (Form I-912) or submit a personal letter requesting a fee waiver with satisfactory supporting documentation. For more information on the biometric services fee, please visit the USCIS Web site at
You should file as soon as possible within the 60-day re-registration period so USCIS can process your application and issue any EAD promptly. Filing early will also allow you to have time to re-file your application before the deadline, should USCIS deny your fee waiver request. If, however, you receive a denial of your fee waiver request and are unable to re-file by the re-registration deadline, you may still re-file your application. This situation will be reviewed to determine whether you established good cause for late re-registration. However, you are urged to re-file within 45 days of the date on any USCIS fee waiver denial notice, if possible.
Mail your application for TPS to the proper address in Table 1.
If you were granted TPS by an Immigration Judge (IJ) or the Board of Immigration Appeals (BIA) and you wish to request an EAD or are re-registering for the first time following a grant of TPS by an IJ or the BIA, please mail your application to the appropriate mailing address in Table 1. After you
You cannot electronically file your application when re-registering or submitting an initial registration for Sierra Leone TPS. Please mail your application to the mailing address listed in Table 1.
The filing instructions on the Application for Temporary Protected Status (Form I-821) list all the documents needed to establish basic eligibility for TPS. You must also submit two color passport-style photographs of yourself. You may also find information on the acceptable documentation and other requirements for applying or registering for TPS on the USCIS Web site at
If one or more of the questions listed in Part 4, Question 2 of the Application for Temporary Protected Status (Form I-821) applies to you, then you must submit an explanation on a separate sheet(s) of paper and/or additional documentation.
To get case status information about your TPS application, including the status of a request for an EAD, you can check Case Status Online at
Provided that you currently have TPS under the designation of Sierra Leone, this Notice automatically extends your EAD by 6 months if you:
• Are a national of Sierra Leone (or an alien having no nationality who last habitually resided in Sierra Leone);
• Received an EAD under the November 2014 designation of Sierra Leone for TPS; and
• Have an EAD with a marked expiration date of May 21, 2016, bearing the notation “A-12” or “C-19” on the face of the card under “Category.”
Although this Notice automatically extends your EAD through November 21, 2016, you must re-register timely for TPS in accordance with the procedures described in this Notice if you would like to maintain your TPS.
You can find a list of acceptable document choices on the “Lists of Acceptable Documents” for Employment Eligibility Verification (Form I-9). You can find additional detailed information on the USCIS I-9 Central Web page at
You may present any document from List A (reflecting both your identity and employment authorization) or one document from List B (reflecting identity) together with one document from List C (reflecting employment authorization). An EAD is an acceptable document under “List A.” You may present an acceptable receipt for a List A, List B, or List C document as described in the Employment Eligibility Verification (Form I-9) Instructions. An acceptable receipt is one that shows an employee has applied to replace a document that was lost, stolen or damaged. If you present an acceptable receipt, you must present your employer with the actual document within 90 days. Employers may not reject a document based on a future expiration date.
If your EAD has an expiration date of May 21, 2016, and states “A-12” or “C-19” under “Category,” it has been extended automatically for 6 months by virtue of this
Even though EADs with an expiration date of May 21, 2016, that state “A-12” or “C-19” under “Category” have been automatically extended for 6 months by this
By November 21, 2016, the expiration date of the automatic extension, your employer must reverify your employment authorization. At that time, you must present any unexpired document from List A or any unexpired document from List C on Employment Eligibility Verification (Form I-9) to reverify employment authorization, or an acceptable List A or List C receipt described in the Employment Eligibility Verification (Form I-9) instructions. Your employer is required to reverify on Employment Eligibility Verification (Form I-9) the employment authorization of current employees upon the automatically extended expiration date of a TPS-related EAD, which is November 21, 2016, in this case. Your employer should use either Section 3 of the Employment Eligibility Verification (Form I-9) originally completed for the employee or, if this section has already been completed or if the version of Employment Eligibility Verification (Form I-9) is no longer valid, complete Section 3 of a new Employment Eligibility Verification (Form I-9) using the most current version. Note that your employer may not specify which List A or List C document employees must present, and cannot reject an acceptable receipt. An acceptable receipt is one that shows an employee has applied to replace a document that was lost, stolen or damaged.
No. When completing Employment Eligibility Verification (Form I-9), including reverifying employment authorization, employers must accept any documentation that appears on the “Lists of Acceptable Documents” for Employment Eligibility Verification (Form I-9) that reasonably appears to be genuine and that relates to you or an acceptable List A, List B, or List C receipt. Employers may not request documentation that does not appear on the “Lists of Acceptable Documents.” Therefore, employers may not request proof of Sierra Leonean citizenship or proof of re-registration for TPS when completing Employment Eligibility Verification (Form I-9) for new hires or reverifying the employment authorization of current employees. Refer to the “Note to Employees” section of this Notice for important information about your rights if your employer rejects lawful documentation, requires additional documentation, or otherwise discriminates against you based on your citizenship or immigration status, or your national origin. Note that although you are not required to provide your employer with a copy of this
After November 21, 2016, employers may no longer accept the EADs that this
When using an automatically extended EAD to complete Employment Eligibility Verification (Form I-9) for a new job before November 21, 2016, you and your employer should do the following:
1. For Section 1, you should:
a. Check “An alien authorized to work;”
b. Write the automatically extended EAD expiration date (November 21, 2016) in the first space; and
c. Write your alien number (USCIS number or A-number) in the second space (your EAD or other document from DHS will have your USCIS number or A-number printed on it; the USCIS number is the same as your A-number without the A prefix).
2. For Section 2, employers should record the:
a. Document title;
b. Issuing authority;
c. Document number; and
d. Automatically extended EAD expiration date (November 21, 2016).
By November 21, 2016, employers must reverify the employee's employment authorization in Section 3 of the Employment Eligibility Verification (Form I-9).
If you are an existing employee who presented a TPS-related EAD that was valid when you first started your job but that EAD has now been automatically extended, your employer may reinspect your automatically extended EAD if the employer does not have a photocopy of the EAD on file, and you and your employer should correct your previously completed Employment Eligibility Verification (Form I-9) as follows:
1. For Section 1, you should:
a. Draw a line through the expiration date in the first space;
b. Write “November 21, 2016” above the previous date;
c. Write “TPS Ext.” in the margin of Section 1; and
d. Initial and date the correction in the margin of Section 1.
2. For Section 2, employers should:
a. Draw a line through the expiration date written in Section 2;
b. Write “November 21, 2016” above the previous date;
c. Write “EAD Ext.” in the margin of Section 2; and
d. Initial and date the correction in the margin of Section 2.
By November 21, 2016, when the automatic extension of EADs expires, employers must reverify the employee's employment authorization in Section 3.
If you are an employer who participates in E-Verify and you have an employee who is a TPS beneficiary who provided a TPS-related EAD when he or she first started working for you, you will receive a “Work Authorization Documents Expiring” case alert when this EAD is about to expire. Usually, this message is an alert to complete Section 3 of the Employment Eligibility Verification (Form I-9) to reverify an employee's employment authorization. For existing employees with TPS-related EADs that have been automatically extended, employers should dismiss this alert by clicking the red “X” in the “dismiss alert” column and follow the instructions above explaining how to correct the Employment Eligibility Verification (Form I-9). By November 21, 2016, employment authorization must be reverified in Section 3. Employers should never use E-Verify for reverification.
Employers are reminded that the laws requiring proper employment eligibility verification and prohibiting unfair immigration-related employment practices remain in full force. This Notice does not supersede or in any way limit applicable employment verification rules and policy guidance, including those rules setting forth reverification requirements. For general questions about the employment eligibility verification process, employers may call USCIS at 888-464-4218 (TTY 877-875-6028) or email
For general questions about the employment eligibility verification process, you may call USCIS at 888-897-7781 (TTY 877-875-6028) or email
To comply with the law, employers must accept any document or combination of documents from the Lists of Acceptable Documents if the documentation reasonably appears to be genuine and to relate to the employee, or an acceptable List A, List B, or List C receipt described in the Employment Eligibility Verification (Form I-9) Instructions. Employers may not require extra or additional documentation beyond what is required for Employment Eligibility Verification (Form I-9) completion. Further, employers participating in E-Verify who receive an E-Verify case result of “Tentative Nonconfirmation” (TNC) must promptly inform employees of the TNC and give such employees an opportunity to contest the TNC. A TNC case result means that the information entered into E-Verify from Employment Eligibility Verification (Form I-9) differs from Federal or state government records.
Employers may not terminate, suspend, delay training, withhold pay, lower pay, or take any adverse action against you based on your decision to contest a TNC or because the case is still pending with E-Verify. A Final Nonconfirmation (FNC) case result is received when E-Verify cannot verify your employment eligibility. An employer may terminate employment based on a case result of FNC. Work-authorized employees who receive an FNC may call USCIS for assistance at 888-897-7781 (TTY 877-875-6028). If you believe you were discriminated against by an employer in the E-Verify process based on citizenship or immigration status or based on national origin, you may contact OSC's Worker Information Hotline at 800-255-7688 (TTY 800-237-2515). Additional information about proper nondiscriminatory Employment Eligibility Verification (Form I-9) and E-Verify procedures is available on the OSC Web site at
While Federal Government agencies must follow the guidelines laid out by the Federal Government, State and local government agencies establish their own rules and guidelines when granting certain benefits. Each State may have different laws, requirements, and determinations about what documents you need to provide to prove eligibility for certain benefits. Whether you are applying for a Federal, State, or local government benefit, you may need to provide the government agency with documents that show you are a TPS beneficiary and/or show you are authorized to work based on TPS. Examples are:
(1) Your unexpired EAD;
(2) A copy of this
(3) A copy of your Application for Temporary Protected Status Notice of Action (Form I-797) for this re-registration;
(4) A copy of your past or current Application for Temporary Protected Status Approval Notice (Form I-797), if you received one from USCIS; and/or
(5) If there is an automatic extension of work authorization, a copy of the fact sheet from the USCIS TPS Web site that provides information on the automatic extension.
Check with the government agency regarding which document(s) the agency will accept. You may also provide the agency with a copy of this
Some benefit-granting agencies use the USCIS Systematic Alien Verification for Entitlements Program (SAVE) to verify the current immigration status of applicants for public benefits. If such an agency has denied your application based solely or in part on a SAVE response, the agency must offer you the opportunity to appeal the decision in accordance with the agency's procedures. If the agency has received and acted upon or will act upon a SAVE verification and you do not believe the response is correct, you may make an InfoPass appointment for an in-person interview at a local USCIS office. Detailed information on how to make corrections, make an appointment, or submit a written request to correct records under the Freedom of Information Act can be found at the SAVE Web site at
U.S. Citizenship and Immigration Services, Department of Homeland Security.
Notice.
Through this Notice, the Department of Homeland Security (DHS) announces that the Secretary of Homeland Security (Secretary) is extending the designation of Guinea for Temporary Protected Status (TPS) for 6 months, from May 22, 2016, through November 21, 2016.
The extension allows currently eligible TPS beneficiaries to retain TPS through November 21, 2016, so long as they otherwise continue to meet the eligibility requirements for TPS. The Secretary has determined that an extension is warranted because,
Through this Notice, DHS also sets forth procedures necessary for eligible nationals of Guinea (or aliens having no nationality who last habitually resided in Guinea) to re-register for TPS and to apply for renewal of their Employment Authorization Documents (EADs) with U.S. Citizenship and Immigration Services (USCIS). Re-registration is limited to persons who have previously registered for TPS under the designation of Guinea and whose applications have been granted. Certain nationals of Guinea (or aliens having no nationality who last habitually resided in Guinea) who have not previously applied for TPS may be eligible to apply under the late initial registration provisions if they meet (1) at least one of the late initial filing criteria, and (2) all TPS eligibility criteria (including continuous residence in the United States since November 20, 2014, and continuous physical presence in the United States since November 21, 2014).
For individuals who have already been granted TPS under Guinea's designation, the 60-day re-registration period runs from March 22, 2016 through May 23, 2016. USCIS will issue new EADs with a November 21, 2016, expiration date to eligible Guinea TPS beneficiaries who timely re-register and apply for EADs under this extension. Given the timeframes involved with processing TPS re-registration applications, DHS recognizes that not all re-registrants will receive new EADs before their current EADs expire on May 21, 2016. Accordingly, through this Notice, DHS automatically extends the validity of EADs issued under the TPS designation of Guinea for 6 months, through November 21, 2016, and explains how TPS beneficiaries and their employers may determine which EADs are automatically extended and their impact on the Employment Eligibility Verification (Form I-9) and E-Verify processes.
The 6-month extension of the TPS designation of Guinea is effective May 22, 2016, and will remain in effect through November 21, 2016. The 60-day re-registration period runs from March 22, 2016 through
• For further information on TPS, including guidance on the application process and additional information on eligibility, please visit the USCIS TPS Web page at
You can find specific information about Guinea's TPS extension by selecting “Guinea” from the menu on the left side of the TPS Web page.
• For questions concerning this FRN, you can also contact the Jerry Rigdon, Chief of the Waivers and Temporary Services Branch, Service Center Operations Directorate, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529-2060; or by phone at (202) 272-1533 (this is not a toll-free number). Note: The phone number provided here is solely for questions regarding this TPS Notice. It is not for individual case status inquires.
• Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS Web site at
• Further information will also be available at local USCIS offices upon publication of this Notice.
USCIS—U.S. Citizenship and Immigration Services
On November 21, 2014, the Secretary designated Guinea for TPS for a period of 18 months due to the extraordinary and temporary conditions caused by an epidemic of Ebola Virus Disease (EVD) in West Africa that prevented nationals of Guinea from returning to Guinea in safety. The extraordinary and temporary conditions included high EVD transmission rates in widespread geographic areas, overwhelmed health care systems unable to handle the large number of EVD patients or to provide treatment for normally preventable or treatable conditions, and containment measures that were causing significant disruptions to Guinea's economy and individuals' ability to access food and earn a livelihood.
Section 244(b)(1) of the INA, 8 U.S.C. 1254a(b)(1), authorizes the Secretary, after consultation with appropriate agencies of the U.S. Government (Government), to designate a foreign state (or part thereof) for TPS if the Secretary determines that certain country conditions exist.
At least 60 days before the expiration of a country's TPS designation or extension, the Secretary, after
DHS and the Department of State (DOS) have reviewed conditions in Guinea. Based on the reviews and after consulting with DOS, the Secretary has determined that a 6-month extension is warranted because, although there have been significant improvements, conditions in Guinea supporting its November 2014 designation for TPS persist.
Guinea, Liberia, and Sierra Leone were designated for TPS in the midst of the largest EVD outbreak in history. From March 2014 through November 2015, these three countries suffered over 11,000 deaths among their more than 28,500 cases of EVD. At the height of the outbreak in late 2014, hundreds of new cases were being reported each week, the health care systems were overwhelmed, and containment measures were causing significant disruptions to individuals' ability to access food and earn a livelihood. A robust response by the international community and the governments of Guinea, Liberia, and Sierra Leone has now brought EVD transmission in West Africa substantially under control. The World Health Organization declared Guinea free of EVD transmission on December 29, 2015.
Despite the absence of current widespread EVD transmission, Guinea, Liberia, and Sierra Leone still face containment and recovery challenges, and the risk of flare-ups of EVD remains, as demonstrated by the two cases reported in Sierra Leone in January 2016 after the country had previously been declared free of EVD transmission. All three countries continue to experience consequences of the epidemic, including the ongoing medical issues and mental trauma experienced by EVD survivors; challenges in rebuilding fragile healthcare systems; and lingering food insecurity due to the epidemic's impact on economic activity, productivity, and livelihoods. The World Health Organization continues to consider the EVD outbreak a Public Health Emergency of International Concern.
Although the countries continue to struggle with the effects of the epidemic, in light of the absence of widespread transmission of EVD, the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention has removed warnings for travel to Guinea, Liberia, and Sierra Leone. Accordingly, the restrictions placed on grants of advance parole for travel to Guinea, Liberia, and Sierra Leone in conjunction with these countries' designations for TPS in November 2014 are removed. Beneficiaries of TPS Guinea who wish to travel abroad must still comply with the requirements for obtaining advance parole stated in the Instructions to Form I-131, Application for Travel Document. They should also be aware that travel abroad may cause a break in their continuous residence and continuous physical presence in the United States, making them ineligible for TPS, unless the absence from the United States is considered by USCIS to be “brief, casual and innocent” under 8 CFR 244.1.
Based upon this review and after consultation with appropriate Government agencies, the Secretary has determined that:
• Conditions supporting the November 2014 designation of Guinea for TPS continue to be met.
• There continue to be extraordinary and temporary conditions in Guinea that prevent Guinean nationals (or aliens having no nationality who last habitually resided in Guinea) from returning to Guinea in safety.
• It is not contrary to the national interest of the United States to permit Guinean nationals (or aliens having no nationality who last habitually resided in Guinea) who meet the eligibility requirements of TPS to remain in the United States temporarily.
• The designation of Guinea for TPS should be extended for a 6-month period from May 22, 2016, through November 21, 2016.
• Requests for advance travel authorization (“advance parole”) for travel to Guinea, Liberia, or Sierra Leone no longer require demonstration of extraordinary circumstances in order to be approvable.
• There are approximately 990 current Guinea TPS beneficiaries who are expected to file for re-registration under the extension.
By the authority vested in me as Secretary under INA section 244, 8 U.S.C. 1254a, I have determined, after consultation with the appropriate Government agencies, that conditions supporting Guinea's November 2014 designation for TPS continue to be met.
To register or re-register for TPS based on the designation of Guinea, you must submit each of the following applications:
1. Application for Temporary Protected Status (Form I-821).
• If you are filing an application for late initial registration, you must pay the fee for the Application for Temporary Protected Status (Form I-821).
• If you are filing an application for re-registration, you do not need to pay the fee for the Application for Temporary Protected Status (Form I-821).
2. Application for Employment Authorization (Form I-765).
• If you are applying for late initial registration and want an EAD, you must pay the fee for the Application for Employment Authorization (Form I-765) only if you are age 14 through 65. You do not need to pay this fee if you are under the age of 14 or are 66 or older.
• If you are applying for re-registration, you must pay the fee for the Application for Employment Authorization (Form I-765), regardless of your age, if you want an EAD.
• You do not pay the fee for the Application for Employment
You must submit both completed application forms together. If you are unable to pay the application fee and/or biometrics fee, you may complete a Request for Fee Waiver (Form I-912) or submit a personal letter requesting a fee waiver with satisfactory supporting documentation. For more information on the application forms and fees for TPS, please visit the USCIS TPS Web page at
Biometrics (such as fingerprints) are required for all applicants 14 years and older. Those applicants must submit a biometric services fee. As previously stated, if you are unable to pay for the biometric services fee, you may complete a Request for Fee Waiver (Form I-912) or submit a personal letter requesting a fee waiver with satisfactory supporting documentation. For more information on the biometric services fee, please visit the USCIS Web site at
You should file as soon as possible within the 60-day re-registration period so USCIS can process your application and issue any EAD promptly. Filing early will also allow you to have time to re-file your application before the deadline, should USCIS deny your fee waiver request. If, however, you receive a denial of your fee waiver request and are unable to re-file by the re-registration deadline, you may still re-file your application. This situation will be reviewed to determine whether you established good cause for late re-registration. However, you are urged to re-file within 45 days of the date on any USCIS fee waiver denial notice, if possible.
Mail your application for TPS to the proper address in Table 1.
If you were granted TPS by an Immigration Judge (IJ) or the Board of Immigration Appeals (BIA) and you wish to request an EAD or are re-registering for the first time following a grant of TPS by an IJ or the BIA, please mail your application to the appropriate mailing address in Table 1. After you submit your application and receive a USCIS receipt number, please send an email to the appropriate USCIS Service Center handling your application, providing the receipt number and stating that you submitted a re-registration and/or request for an EAD based on an IJ/BIA grant of TPS. This will aid in the verification of your grant of TPS and processing of your application, as USCIS may not have received records of your grant of TPS by either the IJ or the BIA. To get additional information, including the email address of the appropriate Service Center, you may go to the USCIS TPS Web page at
You cannot electronically file your application when re-registering or submitting an initial registration for Guinea TPS. Please mail your application to the mailing address listed in Table 1.
The filing instructions on the Application for Temporary Protected Status (Form I-821) list all the documents needed to establish basic eligibility for TPS. You must also submit two color passport-style photographs of yourself. You may also find information on the acceptable documentation and other requirements for applying or registering for TPS on the USCIS Web site at
If one or more of the questions listed in Part 4, Question 2 of the Application for Temporary Protected Status (Form I-821) applies to you, then you must submit an explanation on a separate sheet(s) of paper and/or additional documentation.
To get case status information about your TPS application, including the status of a request for an EAD, you can check Case Status Online at
Provided that you currently have TPS under the designation of Guinea, this Notice automatically extends your EAD by 6 months if you:
• Are a national of Guinea (or an alien having no nationality who last habitually resided in Guinea);
• Received an EAD under the November 2014 designation of Guinea for TPS; and
• Have an EAD with a marked expiration date of May 21, 2016, bearing the notation “A-12” or “C-19” on the face of the card under “Category.”
Although this Notice automatically extends your EAD through November 21, 2016, you must re-register timely for TPS in accordance with the procedures described in this Notice if you would like to maintain your TPS.
You can find a list of acceptable document choices on the “Lists of Acceptable Documents” for Employment Eligibility Verification (Form I-9). You can find additional detailed information on the USCIS I-9 Central Web page at
You may present any document from List A (reflecting both your identity and employment authorization) or one document from List B (reflecting identity) together with one document from List C (reflecting employment authorization). An EAD is an acceptable document under “List A.” You may present an acceptable receipt for a List A, List B, or List C document as described in the Employment Eligibility Verification (Form I-9) Instructions. An acceptable receipt is one that shows an employee has applied to replace a document that was lost, stolen or damaged. If you present an acceptable receipt, you must present your employer with the actual document within 90 days. Employers may not reject a document based on a future expiration date.
If your EAD has an expiration date of May 21, 2016, and states “A-12” or “C-19” under “Category,” it has been extended automatically for 6 months by virtue of this
Even though EADs with an expiration date of May 21, 2016, that state “A-12” or “C-19” under “Category” have been automatically extended for 6 months by this
By November 21, 2016, the expiration date of the automatic extension, your employer must reverify your employment authorization. At that time, you must present any unexpired document from List A or any unexpired document from List C on Employment Eligibility Verification (Form I-9) to reverify employment authorization, or an acceptable List A or List C receipt described in the Employment Eligibility Verification (Form I-9) instructions. Your employer is required to reverify on Employment Eligibility Verification (Form I-9) the employment authorization of current employees upon the automatically extended expiration date of a TPS-related EAD, which is November 21, 2016, in this case. Your employer should use either Section 3 of the Employment Eligibility Verification (Form I-9) originally completed for the employee or, if this section has already been completed or if the version of Employment Eligibility Verification (Form I-9) is no longer valid, complete Section 3 of a new Employment Eligibility Verification (Form I-9) using the most current version. Note that your employer may not specify which List A or List C document employees must present, and cannot reject an acceptable receipt. An acceptable receipt is one that shows an employee has applied to replace a document that was lost, stolen or damaged.
No. When completing Employment Eligibility Verification (Form I-9), including reverifying employment authorization, employers must accept any documentation that appears on the “Lists of Acceptable Documents” for Employment Eligibility Verification (Form I-9) that reasonably appears to be genuine and that relates to you or an acceptable List A, List B, or List C receipt. Employers may not request documentation that does not appear on the “Lists of Acceptable Documents.” Therefore, employers may not request proof of Guinean citizenship or proof of re-registration for TPS when completing Employment Eligibility Verification (Form I-9) for new hires or reverifying the employment authorization of current employees. Refer to the “Note to Employees” section of this Notice for important information about your rights if your employer rejects lawful documentation, requires additional documentation, or otherwise discriminates against you based on your citizenship or immigration status, or your national origin. Note that although you are not required to provide your employer with a copy of this
After November 21, 2016, employers may no longer accept the EADs that this
When using an automatically extended EAD to complete Employment Eligibility Verification (Form I-9) for a new job before November 21, 2016, you and your employer should do the following:
1. For Section 1, you should:
a. Check “An alien authorized to work;”
b. Write the automatically extended EAD expiration date (November 21, 2016) in the first space; and
c. Write your alien number (USCIS number or A-number) in the second space (your EAD or other document from DHS will have your USCIS number or A-number printed on it; the USCIS number is the same as your A-number without the A prefix).
2. For Section 2, employers should record the:
a. Document title;
b. Issuing authority;
c. Document number; and
d. Automatically extended EAD expiration date (November 21, 2016).
By November 21, 2016, employers must reverify the employee's employment authorization in Section 3 of the Employment Eligibility Verification (Form I-9).
If you are an existing employee who presented a TPS-related EAD that was valid when you first started your job but that EAD has now been automatically extended, your employer may reinspect your automatically extended EAD if the employer does not have a photocopy of the EAD on file, and you and your employer should correct your previously completed Employment Eligibility Verification (Form I-9) as follows:
1. For Section 1, you should:
a. Draw a line through the expiration date in the first space;
b. Write “November 21, 2016” above the previous date;
c. Write “TPS Ext.” in the margin of Section 1; and
d. Initial and date the correction in the margin of Section 1.
2. For Section 2, employers should:
a. Draw a line through the expiration date written in Section 2;
b. Write “November 21, 2016” above the previous date;
c. Write “EAD Ext.” in the margin of Section 2; and
d. Initial and date the correction in the margin of Section 2.
By November 21, 2016, when the automatic extension of EADs expires, employers must reverify the employee's employment authorization in Section 3.
If you are an employer who participates in E-Verify and you have an employee who is a TPS beneficiary who provided a TPS-related EAD when he or she first started working for you, you will receive a “Work Authorization Documents Expiring” case alert when this EAD is about to expire. Usually, this message is an alert to complete Section 3 of the Employment Eligibility Verification (Form I-9) to reverify an employee's employment authorization. For existing employees with TPS-related EADs that have been automatically extended, employers should dismiss this alert by clicking the red “X” in the “dismiss alert” column and follow the instructions above explaining how to correct the Employment Eligibility Verification (Form I-9). By November 21, 2016, employment authorization must be reverified in Section 3. Employers should never use E-Verify for reverification.
Employers are reminded that the laws requiring proper employment eligibility verification and prohibiting unfair immigration-related employment practices remain in full force. This Notice does not supersede or in any way limit applicable employment verification rules and policy guidance, including those rules setting forth reverification requirements. For general questions about the employment eligibility verification process, employers may call USCIS at 888-464-4218 (TTY 877-875-6028) or email
For general questions about the employment eligibility verification process, you may call USCIS at 888-897-7781 (TTY 877-875-6028) or email
To comply with the law, employers must accept any document or combination of documents from the Lists of Acceptable Documents if the documentation reasonably appears to be genuine and to relate to the employee, or an acceptable List A, List B, or List C receipt described in the Employment Eligibility Verification (Form I-9) Instructions. Employers may not require extra or additional documentation beyond what is required for Employment Eligibility Verification (Form I-9) completion. Further, employers participating in E-Verify who receive an E-Verify case result of “Tentative Nonconfirmation” (TNC) must promptly inform employees of the TNC and give such employees an opportunity to contest the TNC. A TNC case result means that the information entered into E-Verify from Employment Eligibility Verification (Form I-9) differs from Federal or state government records.
Employers may not terminate, suspend, delay training, withhold pay, lower pay, or take any adverse action against you based on your decision to contest a TNC or because the case is still pending with E-Verify. A Final Nonconfirmation (FNC) case result is received when E-Verify cannot verify your employment eligibility. An employer may terminate employment based on a case result of FNC. Work-authorized employees who receive an FNC may call USCIS for assistance at 888-897-7781 (TTY 877-875-6028). If you believe you were discriminated against by an employer in the E-Verify process based on citizenship or immigration status or based on national origin, you may contact OSC's Worker Information Hotline at 800-255-7688 (TTY 800-237-2515). Additional information about proper nondiscriminatory Employment Eligibility Verification (Form I-9) and E-
While Federal Government agencies must follow the guidelines laid out by the Federal Government, State and local government agencies establish their own rules and guidelines when granting certain benefits. Each State may have different laws, requirements, and determinations about what documents you need to provide to prove eligibility for certain benefits. Whether you are applying for a Federal, State, or local government benefit, you may need to provide the government agency with documents that show you are a TPS beneficiary and/or show you are authorized to work based on TPS. Examples are:
(1) Your unexpired EAD;
(2) A copy of this
(3) A copy of your Application for Temporary Protected Status Notice of Action (Form I-797) for this re-registration;
(4) A copy of your past or current Application for Temporary Protected Status Approval Notice (Form I-797), if you received one from USCIS; and/or
(5) If there is an automatic extension of work authorization, a copy of the fact sheet from the USCIS TPS Web site that provides information on the automatic extension.
Check with the government agency regarding which document(s) the agency will accept. You may also provide the agency with a copy of this
Some benefit-granting agencies use the USCIS Systematic Alien Verification for Entitlements Program (SAVE) to verify the current immigration status of applicants for public benefits. If such an agency has denied your application based solely or in part on a SAVE response, the agency must offer you the opportunity to appeal the decision in accordance with the agency's procedures. If the agency has received and acted upon or will act upon a SAVE verification and you do not believe the response is correct, you may make an InfoPass appointment for an in-person interview at a local USCIS office. Detailed information on how to make corrections, make an appointment, or submit a written request to correct records under the Freedom of Information Act can be found at the SAVE Web site at
Fish and Wildlife Service, Interior.
Notice of availability; request for comment/information.
We, the Fish and Wildlife Service (Service), announce the availability of an incidental take permit (ITP) and a habitat conservation plan (HCP). JKAF Investments, LLC, and Kathryn Kendrick Davidow Trust (applicants) request ITP TE81666B-0 under the Endangered Species Act of 1973, as amended (Act). The applicants anticipate taking about 0.5 acre of feeding, breeding, and sheltering habitat used by the sand skink and blue-tailed mole skink incidental to land preparation and construction in Osceola County, Florida. The applicant's HCP describes proposed minimization measures and mitigation measures to address the effects of development on the covered species.
We must receive your written comments on the ITP application and HCP on or before April 21, 2016.
See the
Mr. Alfredo Begazo, South Florida Ecological Services Office (see
We, the Fish and Wildlife Service (Service), announce the availability of an incidental take permit (ITP) and a habitat conservation plan (HCP). JKAF Investments, LLC, and Kathryn Kendrick Davidow Trust (applicants) request ITP TE81666B-0 under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
If you wish to comment on the ITP application or HCP, you may submit comments by any one of the following methods:
Before including your address, phone number, email address, or other personal identifying information in your comments, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can request in your comments that your personal identifying information be withheld from public review, we cannot guarantee that we will be able to do so.
We received an application for an incidental take permit, along with a proposed habitat conservation plan. The applicants request an ITP under section 10(a)(1)(B) of the Act (16 U.S.C. 1531
The applicants propose to minimize impacts to skinks by preserving a total of 1 acre of skink-occupied habitat off site. The Service listed the skinks as threatened in 1987 (November 6, 1987; 52 FR 20715), effective December 7, 1987.
We have made a preliminary determination that the applicants' project, including the mitigation measures, will individually and cumulatively have a minor or negligible effect on the species covered in the HCP. Therefore, our proposed issuance of the requested ITP qualifies as a categorical exclusion under the National Environmental Policy Act (NEPA), as provided by Department of the Interior implementing regulations in part 46 of title 43 of the Code of Federal Regulations (43 CFR 46.205, 46.210, and 46.215).We base our preliminary determination that issuance of the ITP qualifies as a low-effect action on the following three criteria: (1) Implementation of the project would result in minor or negligible effects on federally listed, proposed, and candidate species and their habitats; (2) Implementation of the project would result in minor or negligible effects on other environmental values or resources; and (3) Impacts of the project, considered together with the impacts of other past, present, and reasonably foreseeable similarly situated projects, would not result, over time, in cumulative effects to environmental values or resources that would be considered significant. This preliminary determination may be revised based on our review of public comments that we receive in response to this notice.
We will evaluate the HCP and comments submitted thereon to determine whether the application meets the requirements of section 10(a) of the Act. We will also evaluate whether issuance of the section 10(a)(1)(B) ITP complies with section 7 of the Act by conducting an intra-Service section 7 consultation. The results of this consultation, in combination with the above findings, will be used in the final analysis to determine whether or not to issue the ITP. If it is determined that the requirements of the Act are met, the ITP will be issued.
We provide this notice under Section 10 of the Endangered Species Act (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of availability; request for comment/information.
We, the Fish and Wildlife Service (Service), announce the availability of an incidental take permit (ITP) and a habitat conservation plan (HCP). Love's Travel Stops & Country Stores, Inc. (applicant) requests ITP TE86106B-0 under the Endangered Species Act of 1973, as amended (Act). The applicant anticipates taking about 2.54 acres of feeding, breeding, and sheltering habitat used by the sand skink and blue-tailed mole skink incidental to land preparation and construction in Polk County, Florida. The applicant's HCP describes proposed minimization measures and mitigation measures to address the effects of development on the covered species.
We must receive your written comments on the ITP application and HCP on or before April 21, 2016.
See the
Mr. Alfredo Begazo, South Florida Ecological Services Office (see
We, the Fish and Wildlife Service (Service), announce the availability of an incidental take permit (ITP) and a habitat conservation plan (HCP). Love's Travel Stops & Country Stores, Inc. (applicant) requests ITP TE86106B-0 under the Endangered Species Act of 1973, as amended (Act). The applicant anticipates taking about 2.54 acres of feeding, breeding, and sheltering habitat used by the sand skink (
If you wish to comment on the ITP application or HCP, you may submit comments by any one of the following methods:
Before including your address, phone number, email address, or other personal identifying information in your comments, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can request in your comments that your personal identifying information be withheld from public review, we cannot guarantee that we will be able to do so.
We received an application for an incidental take permit, along with a proposed habitat conservation plan. The applicant requests an ITP under section 10(a)(1)(B) of the Act (16 U.S.C. 1531
The applicant proposes to minimize impacts to skinks by preserving a total of 5.08 acres of skink-occupied habitat off site. The Service listed the skinks as threatened in 1987 (November 6, 1987; 52 FR 20715), effective December 7, 1987.
We have made a preliminary determination that the applicant's project, including the mitigation measures, will individually and cumulatively have a minor or negligible effect on the species covered in the HCP. Therefore, our proposed issuance of the requested ITP qualifies as a categorical exclusion under the National Environmental Policy Act (NEPA), as provided by Department of the Interior implementing regulations in part 46 of title 43 of the Code of Federal Regulations (43 CFR 46.205, 46.210, and 46.215). We base our preliminary determination that issuance of the ITP qualifies as a low-effect action on the following three criteria: (1) Implementation of the project would result in minor or negligible effects on federally listed, proposed, and candidate species and their habitats; (2) Implementation of the project would result in minor or negligible effects on other environmental values or resources; and (3) Impacts of the project, considered together with the impacts of other past, present, and reasonably foreseeable similarly situated projects, would not result, over time, in cumulative effects to environmental values or resources that would be considered significant. This preliminary determination may be revised based on our review of public comments that we receive in response to this notice.
We will evaluate the HCP and comments submitted thereon to determine whether the application meets the requirements of section 10(a) of the Act. We will also evaluate whether issuance of the section 10(a)(1)(B) ITP complies with section 7 of the Act by conducting an intra-Service section 7 consultation. The results of this consultation, in combination with the above findings, will be used in the final analysis to determine whether or not to issue the ITP. If it is determined that the requirements of the Act are met, the ITP will be issued.
We provide this notice under Section 10 of the Endangered Species Act (16 U.S.C. 1531
Indian Health Service, HHS.
Notice and request for comments. Request for extension of approval.
In compliance with the Paperwork Reduction Act of 1995, the Indian Health Service (IHS) invites the general public to comment on the information collection titled, “IHS Forms to Implement the Privacy Rule (45 CFR parts 160 and 164),” Office of Management and Budget (OMB) Control Number 0917-0030.
Send your comments and suggestions regarding the proposed information collection contained in this notice, especially regarding the estimated public burden and associated response time to: Office of Management and Budget, Office of Regulatory Affairs, New Executive Office Building, Room 10235, Washington, DC 20503, Attention: Desk Officer for IHS.
To request more information on the proposed collection, or to obtain a copy of the data collection instruments and/or instruction(s), contact Tamara Clay by one of the following methods:
•
•
•
•
This previously approved information collection project was last published in the
The total estimated burden for this collection of information is 35,211 hours.
There are no capital costs, operating costs and/or maintenance costs to respondents.
(a) Whether the information collection activity is necessary to carry out an agency function;
(b) whether the agency processes the information collected in a useful and timely fashion;
(c) the accuracy of the public burden estimate (the estimated amount of time needed for individual respondents to provide the requested information);
(d) whether the methodology and assumptions used to determine the estimates are logical;
(e) ways to enhance the quality, utility, and clarity of the information being collected; and
(f) ways to minimize the public burden through the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Bureau of Land Management, Interior.
Notice.
The plats of survey of the following described lands are scheduled to be officially filed in the Bureau of Land Management, Oregon State Office, Portland, Oregon, 30 days from the date of this publication.
A copy of the plats may be obtained from the Public Room at the Bureau of Land Management, Oregon State Office, 1220 SW. 3rd Avenue, Portland, Oregon 97204, upon required payment.
Kyle Hensley, (503) 808-6132, Branch of Geographic Sciences, Bureau of Land Management, 1220 SW. 3rd Avenue, Portland, Oregon 97204. Persons who use a telecommunications device for the deaf (TDD) may call the Federal
A person or party who wishes to protest against this survey must file a written notice with the Oregon State Director, Bureau of Land Management, stating that they wish to protest. A statement of reasons for a protest may be filed with the notice of protest and must be filed with the Oregon State Director within thirty days after the protest is filed. If a protest against the survey is received prior to the date of official filing, the filing will be stayed pending consideration of the protest. A plat will not be officially filed until the day after all protests have been dismissed or otherwise resolved. Before including your address, phone number, email address, or other personally identifying information in your comment, you should be aware that your entire comment—including your personally identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personally identifying information from public review, we cannot guarantee that we will be able to do so.
Bureau of Land Management, Interior.
Notice of public meeting.
In accordance with the Federal Land Policy and Management Act and the Federal Advisory Committee Act of 1972 (FACA), the Department of the Interior, Bureau of Land Management (BLM) Nevada will hold a joint meeting of its three Resource Advisory Councils (RACs), the Sierra Front-Northwestern Great Basin RAC, the Northeastern Great Basin RAC, and the Mojave-Southern Great Basin RAC in Sparks, Nevada. The meeting is open to the public and a public comment period is scheduled for March 24.
Chris Rose, telephone: (775) 861-6480, email:
The three 15-member Nevada RACs advise the Secretary of the Interior, through the BLM Nevada State Director, on a variety of planning and management issues associated with public land management in Nevada. The meeting will be held at the Nugget Casino Resort, 1100 Nugget Avenue, Sparks, Nevada. Agenda topics include an update on sage grouse, grazing and wild horses and burros; closeout reports of the three RACs; breakout meetings of the three RACs; and scheduling meetings of the individual RACs for the upcoming year. The public may provide written comments to the three RAC groups or to an individual RAC.
Comments may also be submitted by email to
BLM Nevada Tri-RAC Comments, c/o Chris Rose, 1340 Financial Blvd., Reno, NV 89502.
Individuals who plan to attend and need further information about the meeting or need special assistance such as sign language interpretation or other reasonable accommodations may contact Chris Rose at the phone number or email address above.
Bureau of Land Management, Interior.
Notice of public meetings.
In accordance with the Federal Land Policy and Management Act (FLPMA), the Federal Advisory Committee Act of 1972 (FACA), and the Federal Lands Recreation Enhancement Act of 2004 (FLREA), the U.S. Department of the Interior, Bureau of Land Management (BLM) Twin Falls District Resource Advisory Council (RAC) will meet as indicated below.
The Twin Falls District RAC will meet April 21, 2016 at the Sawtooth Best Western Inn, 2653 S. Lincoln, Jerome, Idaho 83338. The meeting will begin at 9:00 a.m. and end no later than 5:00 p.m. The public comment period will take place from 9:45 to 10:15 a.m.
Heather Tiel-Nelson, Twin Falls District, Idaho, 2536 Kimberly Road, Twin Falls, Idaho 83301, (208) 736-2352.
The 15-member RAC advises the Secretary of the Interior, through the Bureau of Land Management, on a variety of planning and management issues associated with public land management in Idaho. During the April 21st meeting, there will be an update on the Craters of the Moon National Monument Draft Environmental Impact Statement Amendment, an update on the status of the wild horses gathered following the Soda Fire, an overview of BLM-Idaho's Artist in Residence program, and an update on the Sage-Grouse Environmental Impact Statement Amendments implementation strategy, as well as field office updates. Additional topics may be added and will be included in local media announcements.
More information is available at
43 CFR 1784.4-1.
30-Day notice.
The Department of Justice (DOJ) Office of Community Oriented Policing Services (COPS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The information collection was previously published in the
Comments are encouraged and will be accepted for an additional 30 April 21, 2016.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Lashon M. Hilliard, Department of Justice, Office of Community Oriented Policing Services, 145 N Street NE., Washington, DC 20530. Written comments and/or suggestions can also be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Department of Justice Desk Officer, Washington, DC 20530 or sent to
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
Federal Bureau of Investigation, Department of Justice.
60-Day notice.
The Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services (CJIS) Division will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the established review procedures of the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 60 days until May 23, 2016.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Mr. Samuel Berhanu, Unit Chief, Federal Bureau of Investigation, CJIS Division, Module E-3, 1000 Custer Hollow Road, Clarksburg, West Virginia 26306, or facsimile to (304) 625-3566.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., 3E.405B, Washington, DC 20530.
Drug Enforcement Administration, Department of Justice.
30-Day notice.
The Department of Justice (DOJ), Drug Enforcement Administration (DEA), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. This proposed information collection was previously published in the
Comments are encouraged and will be accepted for an additional 30 days until April 21, 2016.
If you have comments on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Barbara J. Boockholdt, Office of Diversion Control, Drug Enforcement Administration; Mailing Address: 8701 Morrissette Drive, Springfield, Virginia 22152; Telephone: (202) 598-6812. Written comments and/or suggestions can also be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503 or sent to
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
Overview of this information collection:
1.
2.
3.
4.
5.
6.
National Archives and Records Administration.
Notice.
The National Archives and Records Administration (NARA) seeks member nominations for our Freedom of Information Act (FOIA) Advisory Committee (Committee).
We must receive nominations for Committee membership before 5 p.m. EDT on April 30, 2016.
Email nominations to OGIS at
Kate Gastner by phone at 202-741-5770, by mail at National Archives and Records Administration; Office of Government Information Services; 8601 Adelphi Road; College Park, MD 20740-6001, or by email at
We established the Committee under the Federal Advisory Committee Act, 5 U.S.C. App., to advise NARA on improvements to the FOIA and to study the current FOIA landscape across the executive branch. We also established the Committee in accordance with the second United States Open Government National Action Plan released on December 5, 2013, and the directive in the FOIA, 5 U.S.C. 552(h)(1)(C), that the Office of Government Information Services (OGIS) within NARA “recommend policy changes . . . to improve” FOIA administration.
This Committee is subject to the Federal Advisory Committee Act (FACA), the FOIA, and the Government in the Sunshine Act (GISA).
We first chartered the Committee on May 20, 2014, and we anticipate renewing the charter for another two-year term beginning in May 2016. Member appointment terms run for two years, concurrently with the Committee charter.
The Committee includes at least eight Government and seven non-Government representatives. We select Committee members so that the Committee membership includes the following range of representatives, at a minimum:
All nominations for Committee membership should provide the following information:
1. Your name, title, and relevant contact information (including phone, fax, and email address);
2. The nominee's name, title, and relevant contact information, and the Committee position for which you are submitting the nominee;
3. A short paragraph or biography about the nominee (fewer than 250 words), summarizing their resumé or otherwise highlighting the contributions the nominee would bring to the Committee; and
4. The nominee's resumé or curriculum vitae.
OGIS will notify nominees selected for appointment to the Committee in the summer of 2016.
Nuclear Regulatory Commission.
Request for information.
The U.S. Nuclear Regulatory Commission (NRC) is requesting information from the public on a number of issues associated with the development of the agency's fees. Specifically, the NRC would like stakeholder input regarding the general communications the NRC provides about its fees and the public's understanding of the NRC's fees. The information collected will be used by the NRC in developing ways to improve the transparency of its fees development and invoicing processes.
Submit information and comments by May 6, 2016. Information and comments received after this date will be considered if it is practical to do so, but the NRC is able to assure consideration only for information and comments received on or before this date.
You may submit information and comments by any of the following methods:
•
•
For additional direction on obtaining and submitting information and comments, see “Obtaining and Submitting Information and Comments” in the
Anna Bradford, Office of the Chief Financial Officer, U.S Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone:
301-415-1560; email:
Please refer to Docket ID NRC-2016-0056 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:
• Federal Rulemaking Web site: Go to
• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at
• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.
Please include Docket ID NRC-2016-0056 in your submission.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your submission. The NRC will post all submissions at
If you are requesting or aggregating information 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 submissions. Your request should state that the NRC does not routinely edit submissions to remove such information before making the submissions available to the public or entering the submission into ADAMS.
Each year, the NRC determines its hourly, annual, and flat fees via the rulemaking process. During that rulemaking process, the NRC receives public comments regarding the specific fees being proposed, and at times also receives more generalized comments regarding the processes that the NRC uses to calculate and communicate those fees—such comments are outside the scope of the annual rulemaking process.
In a January 30, 2015, paper to the Commission (SECY-15-0015, “Project Aim 2020 Report and Recommendations,” ADAMS Accession No. ML15012A594), the NRC staff recommended that the Office of the Chief Financial Officer (OCFO) undertake an effort to: 1) Simplify how the NRC calculates its fees, 2) improve transparency, and 3) improve the timeliness of the NRC's communications about fee changes. These areas overlap with the out-of-scope comments that the NRC at times receives during its annual fee rulemaking. In addition, the NRC staff's paper recommended that the OCFO assess alternative methods of allocating fees; specifically, the paper recommended that the OCFO look at whether the NRC should continue to assess flat fees to materials licensees, and whether the NRC should use flat fees for other regulatory activities. The Commission approved these recommendations in a Staff Requirements Memorandum dated June 8, 2015 (ADAMS Accession No. ML15159A234).
In accordance with the Commission's direction in June 2015, the NRC is now seeking input from its stakeholders. The focus of this information-gathering effort is to obtain information for the NRC to consider in evaluating the changes (if any) that the NRC can make to improve the transparency and the timeliness of its fees development and invoicing processes. Potential improvements identified as a result of this information-gathering effort may be implemented in a variety of ways, including during the development of future annual fee rulemakings or by making changes to other agency communication methods (
The NRC is interested in obtaining stakeholder comments regarding the general communications the NRC provides about its fees and the public's understanding of the NRC's fees. In particular, the NRC is requesting answers to the following questions:
1. What are some specific ways that the NRC can improve the public's understanding of its fees and how those fees relate to the agency's budget?
2. What are some specific improvements that could be made to the fee-related work papers or forms that would assist in the public's understanding of those papers and forms? For example, can the NRC improve the clarity and content of NRC invoice forms? If so, how?
3. How can the NRC improve its explanation of any changes to the annual fees or hourly rates in the annual fee rule?
4. What additional information can the NRC provide along with the proposed fee rule and work papers to help explain how the NRC determines fees?
5. Given the statutory requirement to base the NRC's fees on the annual appropriation enacted by Congress, are there any ways that the NRC can improve the timeliness of completing its annual fee rulemaking or communicating fee changes?
6. Are there activities that the NRC should convert from fee-billable to non-fee-billable (or vice versa) and, if so, why? For example, should hearings for new licenses be fee-billable, or should the NRC continue to recover those costs through 10 CFR part 171 annual charges?
7. Are there activities or fee classes that are more suited to flat fees rather than hourly? For example, should reviews of topical reports be subject to a flat fee or is the level of effort associated with individual topical reports too variable?
8. Are the current fee classes and categories appropriately defined? If not, how should they be revised and why?
9. Is there general information that the NRC can add to its public Web site that would assist stakeholders in their understanding of the NRC's fees development and invoicing processes?
For the Nuclear Regulatory Commission.
In accordance with the purposes of Sections 29 and 182b of the Atomic Energy Act (42 U.S.C. 2039, 2232b), the Advisory Committee on Reactor Safeguards (ACRS) will hold a meeting on April 7-9, 2016, 11545 Rockville Pike, Rockville, Maryland.
Procedures for the conduct of and participation in ACRS meetings were published in the
Thirty-five hard copies of each presentation or handout should be provided 30 minutes before the meeting. In addition, one electronic copy of each presentation should be emailed to the Cognizant ACRS Staff one day before meeting. If an electronic copy cannot be provided within this timeframe, presenters should provide the Cognizant ACRS Staff with a CD containing each presentation at least 30 minutes before the meeting.
In accordance with Subsection 10(d) of Public Law 92-463 and 5 U.S.C. 552b(c), certain portions of this meeting may be closed, as specifically noted above. Use of still, motion picture, and television cameras during the meeting may be limited to selected portions of the meeting as determined by the Chairman. Electronic recordings will be permitted only during the open portions of the meeting.
ACRS meeting agendas, meeting transcripts, and letter reports are
Video teleconferencing service is available for observing open sessions of ACRS meetings. Those wishing to use this service should contact Mr. Theron Brown, ACRS Audio Visual Technician (301-415-8066), between 7:30 a.m. and 3:45 p.m. (ET), at least 10 days before the meeting to ensure the availability of this service. Individuals or organizations requesting this service will be responsible for telephone line charges and for providing the equipment and facilities that they use to establish the video teleconferencing link. The availability of video teleconferencing services is not guaranteed.
For the Nuclear Regulatory Commission.
March 21, 28, April 4, 11, 18, 25, 2016.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and closed.
There are no meetings scheduled for the week of March 21, 2016.
9:30 a.m. Briefing on Project Aim (Public Meeting), (Contact: Janelle Jessie: 301-415-6775).
This meeting will be webcast live at the Web address—
9:30 a.m. Briefing on Security Issues (Closed Ex. 1).
9:30 a.m. Briefing on Threat Environment Assessment (Closed Ex. 1).
There are no meetings scheduled for the week of April 11, 2016.
9:30 a.m. Meeting with the Organization of Agreement States and the Conference of Radiation Control Program Directors (Public Meeting), (Contact: Paul Michalak: 301-415-5804)
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of April 25, 2016.
The schedule for Commission meetings is subject to change on short notice. For more information or to verify the status of meetings, contact Denise McGovern at 301-415-0681 or via email at
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (
Members of the public may request to receive this information electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the Secretary, Washington, DC 20555 (301-415-1969), or email
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing concerning the addition of Global Expedited Package Services—Non-Published Rates Contract 10 to the competitive product list. 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.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30
To support its Request, the Postal Service filed the following attachments:
• Attachment 1, an application for non-public treatment of materials filed under seal;
• Attachment 2A, a redacted version of Governors' Decision No. 11-6;
• Attachment 2B, a revised version of Mail Classification Schedule section 2510.8 GEPS-NPR;
• Attachment 2C, a redacted version of the GEPS-NPR 10 Management Analysis;
• Attachment 2D, Maximum and Minimum Prices for Priority Express Mail International (PMEI), Priority Mail International (PMI), and Global Express Guaranteed (GXG); First-Class Package International Service (FCPIS); and International Merchandise Return Service (IMRS) prices under GEPS-NPR 10 Contracts;
• Attachment 2E, a certified statement concerning the prices for applicable negotiated service agreements under GEPS-NPR 10, required by 39 CFR 3015.5(c)(2);
• Attachment 3, a Statement of Supporting Justification, which is filed pursuant to 39 CFR 3020.32; and
• Attachment 4, a redacted version of the GEPS-NPR 10 model contract.
In a Statement of Supporting Justification, Giselle Valera, Managing Director and Vice President, Global Business, asserts the product is designed to increase efficiency of the Postal Service's process, as well as enhance its ability to compete in the marketplace.
She contends GEPS-NPR 10 belongs on the competitive product list as it is part of a market over which the Postal Service does not exercise market dominance,
The Postal Service included a redacted version of the GEPS-NPR 10 model contract with the Request.
The Postal Service represents it will notify each GEPS-NPR 10 customer of the contract's effective date no later than 30 days after receiving the signed agreement from the customer.
The Postal Service filed much of the supporting materials, including an unredacted model contract, under seal. Request at 3. It maintains that the redacted portions of the materials should remain confidential as sensitive business information.
The Commission establishes Docket Nos. MC2016-97 and CP2016-122 to consider the Request pertaining to the proposed GEPS-NPR 10 product and the related model contract, respectively.
The Commission invites comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than March 23, 2016. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Katalin K. Clendenin to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2016-97 and CP2016-122 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Katalin K. Clendenin is appointed to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
3. Comments are due no later than March 23, 2016.
4. 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 an existing Global Expedited Package Services 3 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 March 16, 2016, the Postal Service filed notice that it has entered into an additional Global Expedited Package Services 3 (GEPS 3) negotiated service agreement (Agreement).
To support its Notice, the Postal Service filed a copy of the Agreement, a copy of the Governors' Decision authorizing the product, a certification of compliance with 39 U.S.C. 3633(a), and an application for non-public
The Commission establishes Docket No. CP2016-125 for consideration of matters raised by the Notice.
The Commission invites comments on whether the Postal Service's filing is consistent with 39 U.S.C. 3632, 3633, or 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comments are due no later than March 24, 2016. The public portions of the filing can be accessed via the Commission's Web site (
The Commission appoints Lyudmila Y. Bzhilyanskaya to serve as Public Representative in this docket.
1. The Commission establishes Docket No. CP2016-125 for consideration of the matters raised by the Postal Service's Notice.
2. Pursuant to 39 U.S.C. 505, Lyudmila Y. Bzhilyanskaya is appointed to serve as an officer of the Commission to represent the interests of the general public in this proceeding (Public Representative).
3. Comments are due no later than March 24, 2016.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add Global Expedited Package Services—Non-Published Rates 10 (GEPS—NPR 10) to the Competitive Products List.
Christopher C. Meyerson, 202-268-7820.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642, on March 15, 2016, it filed with the Postal Regulatory Commission a
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), the Securities and Exchange Commission (the “Commission”) is soliciting comments on the collection of information summarized below. The Commission plans to submit this existing collection of information to the Office of Management and Budget for extension and approval.
In Canada, as in the United States, individuals can invest a portion of their earnings in tax-deferred retirement savings accounts (“Canadian retirement accounts”). These accounts, which operate in a manner similar to individual retirement accounts in the United States, encourage retirement savings by permitting savings on a tax-deferred basis. Individuals who establish Canadian retirement accounts while living and working in Canada and who later move to the United States (“Canadian-U.S. Participants” or “participants”) often continue to hold their retirement assets in their Canadian retirement accounts rather than prematurely withdrawing (or “cashing out”) those assets, which would result in immediate taxation in Canada.
Once in the United States, however, these participants historically have been unable to manage their Canadian retirement account investments. Most investment companies (“funds”) that are “qualified companies” for Canadian retirement accounts are not registered under the U.S. securities laws. Securities of those unregistered funds, therefore, generally cannot be publicly offered and sold in the United States without violating the registration requirement of the Investment Company Act of 1940 (“Investment Company Act”).
The Commission issued a rulemaking in 2000 that enabled Canadian-U.S. Participants to manage the assets in their Canadian retirement accounts by providing relief from the U.S. registration requirements for offers of securities of foreign issuers to Canadian-U.S. Participants and sales to Canadian retirement accounts.
Rule 7d-2 contains a “collection of information” requirement within the meaning of the Paperwork Reduction Act of 1995.
Rule 7d-2 requires written offering documents for securities offered or sold in reliance on the rule to disclose prominently that the securities are not registered with the Commission and may not be offered or sold in the United States unless registered or exempt from
The staff estimates that there are 3,164 publicly offered Canadian funds that potentially would rely on the rule to offer securities to participants and sell securities to their Canadian retirement accounts without registering under the Investment Company Act.
These burden hour estimates are based upon the Commission staff's experience and discussions with the fund industry. The estimates of average burden hours are made solely for the purposes of the Paperwork Reduction Act. These estimates are not derived from a comprehensive or even a representative survey or study of the costs of Commission rules.
Compliance with the collection of information requirements of the rule is mandatory and is necessary to comply with the requirements of the rule in general. 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 control number.
Written comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the Commission, including whether the information has practical utility; (b) the accuracy of the Commission's estimate of the burdens of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burdens of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Pamela Dyson, Chief Information Officer, Securities and Exchange Commission, C/O Remi Pavlik-Simon, 100 F St. NE., Washington, DC 20549; or send an email to:
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the Exchange's transaction fees at Rules 7018(a)(2) and (3) to provide a new credit to members for displayed quotes/orders (other than Supplemental Orders or Designated Retail Orders) that provide liquidity in Tape A and B securities.
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 purpose of the proposed rule change is to amend Rule 7018(a)(2) and (3), concerning the fees and credits provided for the use of the order execution and routing services of the Nasdaq Market Center by members for all securities priced at $1 or more that it trades. The Exchange is proposing to provide a new credit to members for displayed quotes/orders (other than Supplemental Orders or Designated Retail Orders) that provide liquidity in
Currently under Rules 7018(a)(2) and (3), the Exchange provides credits ranging from $0.0020 per share executed to $0.00305 per share executed to members for displayed quotes/orders (other than Supplemental Orders or Designated Retail Orders) if they qualify by meeting the requirements of the various credit tiers under the rules.
The Exchange is proposing to provide a new $0.0001 per share executed credit that would be provided to members for displayed quotes/orders (other than Supplemental Orders or Designated Retail Orders) in Tape A and B securities if they have shares of liquidity provided in all securities during the month representing at least 0.2% of Consolidated Volume
As noted, this rebate will be provided in addition to other displayed liquidity credits that a member qualifies for under Rules 7018(a)(2) and (3), and will also be provided in addition to any rebates that a member qualifies for under the ISP, NBBO, and QMM programs under Rule 7014. The proposed rebate, however, will not be additive to LMM rebates under Rule 7014 or Designated Retail Order credits under Rule 7018.
The Exchange is implementing the proposed credit on March 7, 2016, at which time any member that qualifies will begin to receive the credit. The measurement period for the Consolidated Volume required to qualify for the new credit will initially be calculated based on such volume provided from March 7, 2016 through March 31, 2016, and then monthly thereafter. For example, a member with shares of liquidity provided in all securities through one or more of its Nasdaq Market Center MPIDs that represent more than 0.10% of Consolidated Volume during the month would qualify for a $0.0025 per share executed credit under Rule 7018(a). If the member provides 0.21% of Consolidated Volume from March 7, 2016 through March 31, 2016 it would qualify for the new $0.0001 additional per share executed credit. The member's credit for displayed quotes/orders (other than Supplemental Orders or Designated Retail Orders) in Tape A and B securities from March 1, 2016 through March 4, 2016 would be $0.0025 per share executed, and from March 7, 2016 through March 31, 2016 would be $0.0026 per share executed ($0.0025 credit + $0.0001 credit). If a member did not provide 0.2% of Consolidated Volume from March 7, 2016 through March 31, 2016 the member would not qualify for the additional $0.0001 credit. This is true regardless of the percent of Consolidated Volume provided for the whole month of March.
The Exchange believes that its proposal is consistent with section 6(b) of the Act
The Exchange believes that the proposed new credit is reasonable because it may provide incentive to members to increase the level of liquidity provided to the Exchange, which will in turn benefit all market participants. Providing credits for displayed quotes/orders (other than Supplemental Orders or Designated Retail Orders) rewards members for improving the market through displayed liquidity. As such, the Exchange believes that providing an additional credit for such liquidity is reasonable.
The Exchange also believes that it is reasonable to limit the credit to only quotes/orders in Tape A and B securities because the Exchange has observed a decline in overall volume on the Exchange in Tape A and B securities in comparison to Tape C securities, and is thus providing incentive to members to provide displayed liquidity in Tape A and B securities.
Further, the Exchange has limited funds with which to apply in the form of incentives, and thus must deploy those limited funds to incentives that it believes will be the most effective and improve market quality in areas that the Exchange determines are in need of improvement. The Exchange believes that the proposed increased credit is an equitable allocation and is not unfairly discriminatory because the Exchange will provide the credit to all members that qualify for it under the rule.
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. In terms of inter-market competition, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more favorable. In such an environment, the Exchange must continually adjust its fees to remain competitive with other exchanges and with alternative trading systems that have been exempted from compliance with the statutory standards applicable to exchanges. Because competitors are free to modify their own fees in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited.
In this instance, the proposed new credit for displayed liquidity in Tape A and B securities is reflective of robust competition among exchanges and other trading venues and does not place any burden on competition whatsoever. The credit is designed to provide additional incentive to members to enter displayed quotes and orders in Tape A and B securities traded on the Exchange, which are most in need of improvement. To the extent the incentive is successful; it will benefit all market participants trading in such securities on the Exchange.
Last, although the Exchange does not believe the proposed changes will be unattractive to market participants, if the changes were unattractive then it is likely that the Exchange would lose market share as a result. Accordingly, the Exchange does not believe that the proposed changes will impair the ability of members or competing order execution venues to maintain their competitive standing in the financial markets.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to section 19(b)(3)(A)(ii) of the 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 a Closed Meeting on Thursday, March 24, 2016 at 2:00 p.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters also may be present.
The General Counsel of the Commission, or her designee, has certified that, in her opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) and 17 CFR 200.402(a)(3), (5), (7), 9(ii) and (10), permit consideration of the scheduled matter at the Closed Meeting.
Chair White, as duty officer, voted to consider the items listed for the Closed Meeting in closed session.
The subject matter of the Closed Meeting will be:
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact the Office of the Secretary at (202) 551-5400.
Securities and Exchange Commission (“Commission”).
Notice of application for an order approving the substitution of certain securities pursuant to Section 26(c) of the Investment Company Act of 1940 (the “Act”).
Brent J. Fields, Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090; Applicants: Britney Schnathorst, Principal Life Insurance Company, The Principal Financial Group, Des Moines, Iowa 50392-0300.
Laura J. Riegel, Senior Counsel, at (202) 551-6873, or Mary Kay Frech, Branch Chief at (202) 551-6821 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or an applicant using the Company name box, at
1. PLIC is a stock life insurance company incorporated under the laws of the state of Iowa. PLIC is authorized to transact life insurance business in all states of the United States and the District of Columbia. PLIC is a wholly-owned indirect subsidiary of Principal Financial Group, Inc. (“PFGI”). PLIC is the depositor and sponsor, as those terms have been interpreted by the Commission with respect to variable life insurance separate accounts, of PLIC Variable Life Separate Account. PLIC established PLIC Variable Life Separate Account as a separate account under Iowa law on November 2, 1987.
2. PNL is a stock life insurance company organized under the laws of the state of Ohio. PNL is authorized to transact life insurance business in the District of Columbia and in all states in the United States except New York. PNL is a wholly-owned indirect subsidiary of PFGI. PNL is the depositor and sponsor of PNL Variable Life Separate Account. PNL established PNL Variable Life Separate Account as a separate account under Iowa law on November 28, 2007.
3. Each Separate Account is a “separate account” as defined in Rule 0-1(e) under the Act and is registered as a unit investment trust under the Act. Under Iowa law, the applicable Insurance Company owns the assets of the Separate Account attributable to the Contracts through which interests in the Separate Account are issued, but those assets are held separately from all other assets of the applicable Insurance Company for the benefit of the owners of the Contracts (each, a “Contract Owner”) and the persons entitled to payment under the Contracts. Consequently, the assets in each Separate Account are not chargeable with liabilities arising out of any other business that the applicable Insurance Company may conduct.
4. Each Separate Account is divided into subaccounts. Each subaccount invests exclusively in shares of a corresponding underlying registered open-end management investment company. The applicable Separate Account supports the respective Contracts, and interests in the Separate Account offered through such Contracts have been registered under the Securities Act of 1933 on Form N-6. The application sets forth the registration file numbers for the respective Contracts under the applicable Separate Account.
5. The Contracts are individual flexible premium variable insurance policies. Applicants state that, as disclosed in the prospectuses for the Contracts, the Insurance Companies reserve the right, subject to Commission approval and compliance with applicable law, to substitute shares of one registered open-end management investment company for shares of another registered open-end management investment company held by a subaccount of a Separate Account.
6. Principal Variable Contracts Funds, Inc. (“PVC”) is organized as a Maryland corporation and is registered as an open-end management investment company under the Act. PVC currently offers 37 series, including the Existing Fund. Principal Management Corporation (“PMC”), an investment adviser registered under the Investment Advisers Act of 1940 (the “Advisers Act”), provides investment advisory services and certain corporate administrative services to PVC and the Existing Fund. Principal Global Investors, an affiliate of PMC, is the sub-adviser for the Existing Fund and has day-to-day responsibility for selecting investments for the Existing Fund. The Existing Fund served as the only underlying money market investment option for all of the Contracts until the addition of the Replacement Fund effective on February 6, 2016.
7. Fidelity Variable Insurance Products Fund V (“Fidelity VIP Fund V”) was created under a declaration of trust under Massachusetts law and is registered as an open-end management investment company under the Act. Fidelity VIP Fund V currently offers 32 series, including the Replacement Fund. Fidelity Management & Research Company (“FMR”), an investment adviser registered under the Advisers Act, serves as the investment adviser of the Replacement Fund, with overall responsibility for directing portfolio investments and handling Fidelity VIP Fund V's business affairs. Fidelity Investments Money Management, Inc. (“FIMM”) and other affiliates of FMR serve as sub-advisers to the Replacement Fund, with FIMM having day-to-day responsibility of choosing investments for the Replacement Fund. Effective December 1, 2015, the fundamental concentration policy of the Replacement Fund was modified in such a manner as to enable it to operate as a government money market fund. None of Fidelity VIP Fund V, FMR, FIMM, and other affiliates of FMR are affiliated persons (or affiliated persons of affiliated persons) of applicants or PVC.
8. Applicants propose to substitute Service Class Shares of the Replacement Fund for Class 1 Shares of the Existing Fund (the “Substitution”) to support the Contracts. Applicants represent that the Replacement Fund is an appropriate alternative for Contract Owners. Applicants state that the Replacement Fund and the Existing Fund each has an investment objective to seek current income as is consistent with preservation of capital and liquidity. In addition, while the principal investment strategies of the Replacement Fund may differ from those of the Existing Fund, the goal of each fund is to maintain a net asset value of $1.00 per share. Applicants note that although the risk profiles of the Replacement Fund and the Existing Fund differ, applicants believe that the Replacement Fund entails less investment risk than the Existing Fund. Additional information about the Existing Fund and the Replacement Fund, including investment objectives, principal investment strategies, principal risks and performance history can be found in the application.
9. Applicants represent that the proposed Substitution will result in a decrease in overall expenses, which benefits the Contract Owners. The application sets forth the fees and expenses of the appropriate class of the Existing Fund with the corresponding class of the Replacement Fund in greater detail.
10. Applicants state the board of directors of PVC voted to terminate the Existing Fund and liquidate its assets effective April 8, 2016. In light of the impending liquidation and the importance of offering a money market fund investment option for the Contracts, the applicants determined that the Substitution is necessary and in the best interest of Contract Owners.
11. Applicants represent that the Substitution and the selection of the Replacement Fund were not motivated by any financial consideration paid or to be paid to the Insurance Companies or their affiliates by the Replacement Fund, its adviser or underwriter, or their affiliates.
12. Applicants state that as of the effective date of the Substitution, April 8, 2016 (“Substitution Date”), shares of the Existing Fund will be redeemed for cash. The Insurance Companies, on behalf of the Existing Fund subaccount of the relevant Separate Account, will simultaneously place a redemption request with the Existing Fund and a purchase order with the Replacement Fund so that the purchase of Replacement Fund shares will be for the exact amount of the redemption proceeds. Thus, Contract values will remain fully invested at all times. The proceeds of such redemptions will then be used to purchase the appropriate number of shares of the Replacement Fund.
13. The Substitution will take place at relative net asset value (in accordance with Rule 22c-1 under the Act) with no change in the amount of the Contract value, cash value, accumulation value, account value or death benefit or in dollar value of the investment in the applicable Separate Account. The Insurance Companies or their affiliates will pay all expenses and transaction costs of the Substitution, including legal and accounting expenses, any applicable brokerage expenses and other fees and expenses.
14. The rights or obligations of the Insurance Companies under the Contracts of those Contract Owners with interests in the subaccount of the Existing Fund (“Affected Contract Owners”) will not be altered in any way. The Substitution will in no way alter the tax treatment of Affected Contract Owners in connection with their Contracts, and no tax liability will arise for Affected Contract Owners as a result of the Substitution. The Substitution also will not adversely affect any riders under the Contracts. To the extent a Contract offers living benefits, death benefits, or other guarantees, the value of any such guarantee will not materially decrease directly or indirectly as a result of the Substitution.
15. Affected Contract Owners will be permitted to make at least one transfer of Contract value from the subaccount investing in the Existing Fund (before the Substitution Date) or the Replacement Fund (after the Substitution Date) to any other available investment option under the Contract without charge for a period beginning at least 30 days before the Substitution Date through at least 30 days following the Substitution Date. Except as described in any market timing/short-term trading provisions of the relevant prospectus, the Insurance Companies will not exercise any right they may have under the Contracts to impose restrictions on transfers between the subaccounts under the Contracts, including limitations on the future number of transfers, for a period beginning at least 30 days before the Substitution Date through at least 30 days following the Substitution Date.
16. All Contract Owners were notified of this application by means of a supplement to the Contract prospectuses dated December 9, 2015. Among other information regarding the Substitution, the supplement informed Affected Contract Owners of the right to transfer Contract value from the subaccount investing in the Existing Fund (before the Substitution Date) or the Replacement Fund (after the Substitution Date) to any other available investment option under the Contract without charge. Additionally, a prospectus for the Replacement Fund was included with the supplement.
17. On March 9, 2016 (30 days before the Substitution Date), Affected Contract Owners were provided a “Pre-Substitution Notice,” setting forth: (a) the intended substitution of the Existing Fund with the Replacement Fund; (b) the intended Substitution Date (subject to approval and order by the Commission); and (c) information with respect to transfers. In addition, the Insurance Companies delivered a prospectus for the Replacement Fund with the Pre-Substitution Notice.
18. The Insurance Companies will deliver to each Affected Contract Owner within five (5) business days of the Substitution Date, a written confirmation, which will include confirmation that the Substitution was carried out as previously notified, a restatement of the information set forth in the Pre-Substitution Notice, and before and after account values.
19. Applicants will not receive, for three years from the Substitution Date, any direct or indirect benefits from the Replacement Fund, its adviser or underwriter (or their affiliates), in connection with assets attributable to Contracts affected by the Substitution, at a higher rate than they had received from the Existing Fund, its adviser or underwriter (or their affiliates), including, without limitation, 12b-1 fees, shareholder service, administrative or other service fees, revenue sharing, or other arrangements.
1. Applicants request that the Commission issue an order pursuant to Section 26(c) of the Act approving the proposed Substitution. Section 26(c) of the Act requires the depositor of a registered unit investment trust holding securities of a single issuer to receive Commission approval before substituting the securities held by the trust. Section 26(c) provides that such approval shall be granted by order of the Commission if the evidence establishes that the substitution is consistent with the protection of investors and the purposes of the Act.
2. Applicants submit that the proposed Substitution meets the standards set forth in Section 26(c) and that, if implemented, the Substitution would not raise any of the concerns underlying that provision. Applicants represent that the Substitution will provide Contract Owners with a comparable investment vehicle which will not circumvent Contract Owner-initiated decisions and the Insurance Companies' obligations under the Contracts, and will enable Contract Owners to continue to use the full range of applicable Contract features as they use today. Applicants further state that the Replacement Fund and the Existing Fund have essentially the same investment objectives, the Replacement Fund entails less investment risk than the Existing Fund, and the proposed Substitution will result in a decrease in overall expenses, thereby benefiting Contract Owners.
3. Applicants state that, as disclosed in the prospectuses for the Contracts, the Insurance Companies reserve the right, subject to Commission approval, to substitute shares of a registered open-end management investment company for shares of another registered open-end held by a subaccount of a Separate Account. Applicants determined that
4. Applicants also assert that the Substitution does not entail any of the abuses that Section 26(c) was designed to prevent. Each Affected Contract Owner has been advised of his right, any time prior to the Substitution Date, and for at least 30 days after the Substitution Date, to reallocate account value under the affected Contract without any cost or limitation, or otherwise withdraw or terminate his interest in accordance with the terms and conditions of his Contract. Furthermore, Contract Owners will not incur any additional tax liability or any additional fees or expenses as a result of the Substitution.
Applicants agree that any order granting the requested relief will be subject to the following conditions:
1. The Substitution will not be effected unless the Insurance Companies determine that: (a) The Contracts allow the substitution of shares of registered open-end investment companies in the manner contemplated by the application; (b) the Substitution can be consummated as described in the application under applicable insurance laws; and (c) any regulatory requirements in each jurisdiction where the Contracts are qualified for sale have been complied with to the extent necessary to complete the Substitution.
2. The Insurance Companies or their affiliates will pay all expenses and transaction costs of the Substitution, including legal and accounting expenses, any applicable brokerage expenses and other fees and expenses. No fees or charges will be assessed to the Affected Contract Owners to effect the Substitution.
3. The Substitution will be effected at the relative net asset values of the respective shares in conformity with Section 22(c) of the Act and Rule 22c-1 thereunder without the imposition of any transfer or similar charges by applicants. The Substitution will be effected without change in the amount or value of any Contracts held by Affected Contract Owners.
4. The Substitution will in no way alter the tax treatment of Affected Contract Owners in connection with their Contracts, and no tax liability will arise for Affected Contract Owners as a result of the Substitution.
5. The rights or obligations of the Insurance Companies under the Contracts of Affected Contract Owners will not be altered in any way. The Substitution will not adversely affect any riders under the Contracts.
6. Affected Contract Owners will be permitted to make at least one transfer of Contract value from the subaccount investing in the Existing Fund (before the Substitution Date) or the Replacement Fund (after the Substitution Date) to any other available investment option under the Contract without charge for a period beginning at least 30 days before the Substitution Date through at least 30 days following the Substitution Date. Except as described in any market timing/short-term trading provisions of the relevant prospectus, the Insurance Companies will not exercise any right they may have under the Contracts to impose restrictions on transfers between the subaccounts under the Contracts, including limitations on the future number of transfers, for a period beginning at least 30 days before the Substitution Date through at least 30 days following the Substitution Date.
7. All Affected Contract Owners will be notified, at least 30 days before the Substitution Date about: (a) The intended substitution of the Existing Fund with the Replacement Fund; (b) the intended Substitution Date; and (c) information with respect to transfers as set forth in Condition 6 above. In addition, the Insurance Companies will deliver to all Affected Contract Owners, at least thirty (30) days before the Substitution Date, a prospectus for the Replacement Fund.
8. The Insurance Companies will deliver to each Affected Contract Owner within five (5) business days of the Substitution Date a written confirmation which will include: (a) A confirmation that the Substitution was carried out as previously notified; (b) a restatement of the information set forth in the Pre-Substitution Notice; and (c) before and after account values.
9. Applicants will not receive, for three years from the Substitution Date, any direct or indirect benefits from the Replacement Fund, its adviser or underwriter (or their affiliates), in connection with assets attributable to Contracts affected by the Substitution, at a higher rate than they had received from the Existing Fund, its adviser or underwriter (or their affiliates), including without limitation 12b-1 fees, shareholder service, administrative or other service fees, revenue sharing, or other arrangements.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to adopt a Decommission Extension Fee for receipt of the NYSE BBO and NYSE Trades market data products. The proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to adopt a Decommission Extension Fee for receipt of the NYSE BBO and NYSE Trades market data products,
NYSE Trades is an NYSE-only last sale market data feed. NYSE Trades currently allows vendors, broker-dealers and others to make available on a real-time basis the same last sale information that the Exchange reports under the Consolidated Tape Association (“CTA”) Plan for inclusion in the CTA Plan's consolidated data streams. Specifically, the NYSE Trades feed includes, for each security traded on the Exchange, the real-time last sale price, time and size information and bid/ask quotations at the time of each sale and a stock summary message. The stock summary message updates every minute and includes NYSE's opening price, high price, low price, closing price, and cumulative volume for the security.
NYSE BBO is an NYSE-only market data feed that allows a vendor to redistribute on a real-time basis the same best-bid-and-offer information that the Exchange reports under the Consolidated Quotation (“CQ”) Plan for inclusion in the CQ Plan's consolidated quotation information data stream. The data feed includes the best bids and offers for all securities that are traded on the Exchange and for which NYSE reports quotes under the CQ Plan.
As part of the Exchange's efforts to regularly upgrade systems to support more modern data distribution formats and protocols as technology evolves, beginning March 1, 2016, NYSE BBO and NYSE Trades will both be transmitted in a new format, Exchange Data Protocol (XDP). Beginning March 1, 2016, the Exchange will transmit NYSE BBO and NYSE Trades in both the legacy format and in XDP without any additional fee being charged for providing these data feeds in both formats. The dual dissemination will remain in place until July 1, 2016, the planned decommission date of the legacy format. Beginning July 1, 2016, recipients of NYSE BBO and NYSE Trades who wish to continue to receive NYSE BBO and NYSE Trades in the legacy format will each be subject to the proposed Decommission Extension Fee of $5,000 per month. During the extension period, recipients of NYSE BBO and NYSE Trades would continue to be subject to the subscription fees currently noted in the Fee Schedule. The extension period for receiving these data feeds in the legacy format will expire on September 1, 2016, on which date distribution of NYSE BBO and NYSE Trades in the legacy format will be permanently discontinued.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange believes that adopting an extension fee for subscribers of NYSE BBO and NYSE Trades who wish to receive these data feeds in the legacy format for a period of time beyond the built-in overlap period is reasonable, equitable and not unfairly discriminatory because the proposed fee would apply equally to all data recipients that currently subscribe to NYSE BBO and NYSE Trades. The Exchange believes that it is reasonable to require data recipients to pay an additional fee for taking the data feeds in the legacy format beyond the period of time specifically allotted by the Exchange for data feed customers to adapt to the new XDP format at no extra cost. To that end, the extension fee is designed to encourage data recipients to migrate to the XDP format in order to continue to receive NYSE BBO and NYSE Trades in XDP as the legacy format would no longer be available after that date. The Exchange does not intend to support the legacy format at all after September 1, 2016.
The Exchange notes that NYSE BBO and NYSE Trades are entirely optional. The Exchange is not required to make NYSE BBO and NYSE Trades available or to offer any specific pricing alternatives to any customers, nor is any firm required to purchase NYSE BBO and NYSE Trades, nor is the Exchange required to offer any feed (NYSE BBO, NYSE Trades, or otherwise) in a particular format, and it is a benefit to the markets generally that NYSE update its distribution technology to make it more efficient (and at the same time eliminate less efficient forms of dissemination). Firms that do purchase NYSE BBO and NYSE Trades do so for the primary goals of using them to increase revenues, reduce expenses, and in some instances compete directly with the Exchange (including for order flow); those firms are able to determine for themselves whether NYSE BBO and NYSE Trades or any other similar products are attractively priced or not.
The decision of the United States Court of Appeals for the District of Columbia Circuit in
In fact, the legislative history indicates that the Congress intended that the market system
As explained below in the Exchange's Statement on Burden on Competition, the Exchange believes that there is substantial evidence of competition in the marketplace for proprietary market data and that the Commission can rely upon such evidence in concluding that the fees established in this filing are the product of competition and therefore satisfy the relevant statutory standards. In addition, the existence of alternatives to the legacy format, such as converting to XDP as soon as possible, further ensures that the Exchange cannot set unreasonable fees, or fees that are unreasonably discriminatory, when vendors and subscribers can select such alternatives.
As the
For these reasons, the Exchange believes that the proposed fees are reasonable, equitable, and not unfairly discriminatory.
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. An exchange's ability to price its proprietary market data feed products is constrained by actual competition for the sale of proprietary market data products, the joint product nature of exchange platforms, and the existence of alternatives to the Exchange's proprietary data (and in this instance, the ability of any firm to switch to the new distribution format in a time frame that eliminates the need to pay these fees entirely).
The market for proprietary data products is currently competitive and inherently contestable because there is fierce competition for the inputs necessary for the creation of proprietary data and strict pricing discipline for the proprietary products themselves. Numerous exchanges compete with one another for listings and order flow and sales of market data itself, providing ample opportunities for entrepreneurs who wish to compete in any or all of those areas, including producing and distributing their own market data. Proprietary data products are produced and distributed by each individual exchange, as well as other entities, in a vigorously competitive market. Indeed, the U.S. Department of Justice (“DOJ”) (the primary antitrust regulator) has expressly acknowledged the aggressive actual competition among exchanges, including for the sale of proprietary market data. In 2011, the DOJ stated that exchanges “compete head to head to offer real-time equity data products. These data products include the best bid and offer of every exchange and information on each equity trade, including the last sale.”
Moreover, competitive markets for listings, order flow, executions, and transaction reports provide pricing discipline for the inputs of proprietary data products and therefore constrain markets from overpricing proprietary market data. Broker-dealers send their order flow and transaction reports to multiple venues, rather than providing them all to a single venue, which in turn reinforces this competitive constraint. As a 2010 Commission Concept Release noted, the “current market structure can be described as dispersed and complex” with “trading volume . . . dispersed among many highly automated trading centers that compete for order flow in the same stocks” and “trading centers offer[ing] a wide range of services that are designed to attract different types of market participants with varying trading needs.”
If an exchange succeeds in competing for quotations, order flow, and trade executions, then it earns trading revenues and increases the value of its proprietary market data products because they will contain greater quote and trade information. Conversely, if an exchange is less successful in attracting quotes, order flow, and trade executions, then its market data products may be less desirable to customers in light of the diminished content and data products offered by competing venues may become more attractive. Thus, competition for quotations, order flow, and trade
In addition, in the case of products that are also redistributed through market data vendors, such as Bloomberg and Thompson Reuters, the vendors themselves provide additional price discipline for proprietary data products because they control the primary means of access to certain end users. These vendors impose price discipline based upon their business models. For example, vendors that assess a surcharge on data they sell are able to refuse to offer proprietary products that their end users do not or will not purchase in sufficient numbers. Vendors will not elect to make available NYSE BBO or NYSE Trades in the legacy format unless their customers request it, and customers will not elect to pay the proposed fees unless NYSE BBO and NYSE Trades can provide value in the legacy formats by sufficiently increasing revenues or reducing costs in the customer's business in a manner that will offset the fees. The Exchange has provided customers with adequate notice that it intends to discontinue dissemination of the data feeds in the legacy format. Therefore, the proposed Decommission Extension Fee would only be applicable to those customers who have a need or desire to continue to take the data feeds in the legacy format beyond the period provided for migration to the XDP format. Customers who timely migrate to the XDP format to receive the data feeds would not need to receive the data feeds in the legacy format and therefore would not be subject to the Decommission Extension Fee at all. All of these factors operate as constraints on pricing proprietary data products.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend and restate the Fifth Amended and Restated Bylaws of the Exchange's ultimate parent company, Intercontinental Exchange, Inc. (“ICE”), to implement proxy access. The proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend and restate the Fifth Amended and Restated Bylaws of ICE (“ICE Bylaws”). The proposed amendments to the ICE Bylaws would (1) add a new Section 2.15 that permits a stockholder, or stockholders, that meet specific requirements to nominate director nominees for the board of directors of ICE (“ICE Board”), provided that the nominating stockholder(s) and nominee(s) satisfy the proposed requirements, and (2) amend the advance notice provisions in Section 2.13 to account for proxy access.
ICE owns 100% of the equity interest in Intercontinental Exchange Holdings, Inc. (“ICE Holdings”), which in turn owns 100% of the equity interest in NYSE Holdings LLC (“NYSE Holdings”). NYSE Holdings owns 100% of the equity interest of NYSE Group, Inc., which in turn directly owns 100% of the equity interest of the Exchange and its affiliates New York Stock Exchange LLC and NYSE Arca, Inc.
The proposed amendments to the ICE Bylaws have been approved by the ICE Board, subject to Securities and Exchange Commission (“Commission”) approval. Under Section 11.1 of the ICE Bylaws, no stockholder approval is required for amendment of the ICE Bylaws. ICE filed a Form 8-K setting forth the proposed amendments on January 22, 2016 after approval by the ICE Board, and will file a further Form 8-K when the amendments are adopted.
The proposed rule change would add new Section 2.15 to the ICE Bylaws. Section 2.15 would permit a stockholder, or group of up to 20 stockholders, to nominate director nominees for the ICE Board, so long as the stockholder(s) have owned at least three percent of ICE's outstanding shares of common stock continuously for at least three years. The director nominees would be included in ICE's annual meeting proxy materials. The proposed provision would limit the number of proposed director nominees to a number equal to twenty percent of the number of directors then serving on the ICE Board (rounded down to the nearest whole number, but no less than two) provided that the stockholder(s) and nominee(s) satisfy the other conditions specified in the ICE Bylaws.
A candidate would be nominated by a nomination notice (“Nomination Notice”). Subject to satisfaction of the conditions of Section 2.15, described below, as determined by the ICE Board, ICE would include in its proxy statement for the next annual meeting of stockholders the following information:
• The names of any person or persons nominated for election;
• disclosure about each nominee and the nominating stockholder required under the rules of the Commission or other applicable law to be included in the proxy statement;
• any statement in support of the nominee's (or nominees', as applicable) election, subject to a limit of 500 words and subject to compliance with Section 14 of the Exchange Act
• any other information that ICE management or the ICE Board determines, in their discretion, to include relating to the nomination of the nominee(s), including, without limitation, any statement in opposition to the nomination.
ICE Bylaw 2.15 would permit stockholder nominees to constitute up to twenty percent of the number of directors then serving on the ICE Board, subject to the following:
• If twenty percent of the current number of directors is not a whole number, the number of permitted stockholder nominees would be rounded down to the nearest whole number, but no less than two.
• The number of permitted stockholder nominees would be further reduced by (a) the number of any stockholder nominees who are withdrawn or who are instead nominated by the ICE Board and (b) the number of directors, if any, who were stockholder nominees at the preceding annual meeting and whose re-election is recommended by the ICE Board. In the event that one or more vacancies for any reason were to occur on the ICE Board after the deadline for submitting a Nomination Notice, but before the date of the annual meeting, and the ICE Board resolved to reduce the size of the ICE Board, the number of permitted stockholder nominees would be calculated based on the number of directors in office as so reduced. If, after receipt of a Nomination Notice and following the deadline for receipt of such notices, either the nominating stockholder becomes ineligible or withdraws the nomination, or the nominee becomes ineligible or unwilling or unable to serve, such nominee will be disregarded.
• Bylaw 2.15(b) would provide a mechanism for pro rata reduction of the number of nominees nominated by different stockholders if the total number of permitted stockholder nominees exceeded the maximum permitted. Each nominating stockholder would select one of its nominees to be included in the proxy statement, with the nominees to be included selected from nominating stockholders going in the order of the largest stockholdings to the smallest, until the available number of nominees has been selected, with this process to be repeated if the maximum number of nominees has not been selected in the first round.
As a result of these potential reductions in the number of stockholder nominees, the number of stockholder nominees in any year could be fewer than two.
Each person or group of up to 20 persons desiring to nominate a candidate would be required to either (1) be a record holder of shares of ICE common stock used to satisfy the eligibility requirements for a stockholder nominee continuously for the three-year period, or (2) provide to the secretary of ICE evidence of continuous ownership of the minimum number of shares for such three-year period from one or more securities intermediaries in a form that the ICE Board determines would be acceptable for purposes of a shareholder proposal under Rule 14a-8(b)(2) under the
A person (or member of a group of persons) whose nominee has been elected as a director at an annual meeting would not be eligible to nominate or participate in the nomination of a nominee for the following two annual meetings other than the nomination of such previously elected nominee.
The proposed rule change would also specify that shares may be counted as “owned” only if the person making the nomination possess both the full voting and investment rights pertaining to the shares and the full economic interest in (including the opportunity for profit and risk of loss on) such shares. Shares that have been sold, borrowed or hedged are excluded. Loaned shares are included, provided they are recallable within five business days, and are recalled by the record date.
No person would be permitted to be in more than one group nominating a nominee. A person who appears as a member of more than one group would be deemed to be a member of the group that has the largest ownership position as reflected in the Nomination Notice.
A Nomination Notice would be required to be submitted to the secretary of ICE at ICE's principal executive office, no earlier than the close of business 150 calendar days, and no later than the close of business 120 calendar days, before the anniversary of the date that ICE mailed its proxy statement for the prior year's annual meeting of stockholders. If an annual meeting were not scheduled to be held within a period that commences 30 days before and ends 30 days after such anniversary date, a Nomination Notice would be required to be given by the later of the close of business on the date that is 120 days prior to the date of such annual meeting or the tenth day following the date on which such annual meeting date is first publicly announced or disclosed.
ICE Bylaw 2.15 would provide that any determination to be made by the ICE Board may be made by the ICE Board, a committee of the ICE Board or any officer of ICE designated by the ICE Board or a committee of the ICE Board and that any such determination shall be final and binding on ICE, any Eligible Holder (as defined in ICE Bylaw 2.15), any nominating stockholder, any nominee and any other person so long as made in good faith. The chairman of any annual meeting of stockholders shall have the power and duty to determine whether a Nominee has been nominated in accordance with the requirements of proposed Section 2.15 and, if not so nominated, shall direct and declare at the annual meeting that such Nominee shall not be considered.
The proposed rule change specifies information that would be required in a Nomination Notice, including:
• A Schedule 14N
• a written notice, in a form deemed satisfactory by the ICE Board, of the nomination of such nominee that includes additional information, agreements, representations and warranties by the nominating stockholder (including, in the case of a group, each group member),
○ the information otherwise required with respect to the nomination of directors by the ICE Bylaws;
○ the details of any relationship that existed within the past three years and that would have been described pursuant to Item 6(e) of Schedule 14N (or any successor item) if it existed on the date of submission of the Schedule 14N;
○ a representation and warranty that the nominating stockholder did not acquire, and is not holding, securities of ICE for the purpose or with the effect of influencing or changing control of ICE;
○ a representation and warranty that the nominee's candidacy or, if elected, membership on the ICE Board would not violate applicable state or federal law or the rules of the principal national securities exchange on which ICE's securities are traded;
○ a representation and warranty that the nominee:
Does not have any direct or indirect relationship with ICE that will cause the nominee to be deemed not independent pursuant to the ICE Board's Independence Policy
meets the audit committee independence requirements under the rules of the principal national securities exchange on which ICE's common stock is traded;
is a “non-employee director” for the purposes of Rule 16b-3 under the Exchange Act
is an “outside director” for the purposes of Section 162(m) of the Internal Revenue Code
is not and has not been subject to any event specified in Rule 506(d)(1) of Regulation D
○ a representation and warranty that the nominating stockholder satisfies the eligibility requirements set forth in Bylaw 2.15 and has provided evidence of ownership to the extent required by Bylaw 2.15(c)(i);
○ a representation and warranty that the nominating stockholder intends to continue to satisfy the eligibility requirements described in Bylaw 2.15(c) through the date of the annual meeting;
○ a representation and warranty that the nominating stockholder will not engage in a “solicitation” within the meaning of Rule 14a-1(l)
○ a representation and warranty that the nominating stockholder will not use any proxy card other than ICE's proxy card in soliciting stockholders in connection with the election of a nominee at the annual meeting;
○ if desired, a statement in support of the nominee meeting the standards identified above; and
○ in the case of a nomination by a group, the designation by all group members of one group member that is authorized to act on behalf of all group members with respect to matters relating to the nomination, including withdrawal of the nomination;
• an executed agreement, in a form deemed satisfactory by the ICE Board, pursuant to which the nominating stockholder (including each group member) agrees:
○ to comply with all applicable laws, rules and regulations in connection with the nomination, solicitation and election of a nominee;
○ to file any written solicitation or other communication with ICE's stockholders relating to one or more of ICE's directors or director nominees or any stockholder nominee with the Commission, regardless of whether any such filing is required under any rule or regulation or whether any exemption from filing is available for such materials under any rule or regulation;
○ to assume all liability stemming from an action, suit or proceeding concerning any actual or alleged legal or regulatory violation arising out of any communication by the nominating stockholder or any of its nominees with ICE, its stockholders or any other person in connection with the nomination or election of directors, including, without limitation, the Nomination Notice;
○ to indemnify and hold harmless (jointly with all other group members, in the case of a group member) ICE and each of its directors, officers and employees individually against any liability, loss, damages, expenses or other costs (including attorneys' fees) incurred in connection with any threatened or pending action, suit or proceeding, whether legal, administrative or investigative, against ICE or any of its directors, officers or employees arising out of or relating to a failure or alleged failure of the nominating stockholder or any of its nominees to comply with, or any breach or alleged breach of, its respective obligations, agreements or representations under Bylaw 2.15; and
○ in the event that (1) any information included in the Nomination Notice or any other communication by the nominating stockholder (including with respect to any group member) with ICE, its stockholders or any other person in connection with the nomination or election of a nominee ceases to be true and accurate in all material respects (or omits a material fact necessary to make the statements made not misleading) or (2) the nominating stockholder (including any group member) has failed to continue to satisfy the eligibility requirements described in Bylaw 2.15(c), to promptly (and in any event within 48 hours of discovering such misstatement, omission or failure) notify ICE and any other recipient of such communication of (1) the misstatement or omission in such previously provided information and of the information that is required to correct the misstatement or omission or (2) of such failure; and
• an executed agreement, in a form deemed satisfactory by the ICE Board, by the nominee:
○ to provide to ICE such other information and certifications, including completion of ICE's director questionnaire, as it may reasonably request;
○ that the nominee has read and agrees, if elected, to serve as a member of the ICE Board, to adhere to ICE's Corporate Governance Guidelines and Global Code of Business Conduct and any other policies and guidelines applicable to directors; and
○ that the nominee is not and will not become a party to (i) any compensatory, payment or other financial agreement, arrangement or understanding with any person or entity other than ICE in connection with service or action as a director of ICE that has not been disclosed to ICE, (ii) any agreement, arrangement or understanding with any person or entity as to how the nominee would vote or act on any issue or question as a director (a “Voting Commitment”) that has not been disclosed to ICE or (iii) any Voting Commitment that could reasonably be expected to limit or interfere with the nominee's ability to comply, if elected as a director of ICE, with its fiduciary duties under applicable law.
ICE Bylaw 2.15 would specify that the information and documents required to be provided by the nominating stockholder must be: (i) Provided with respect to and executed by each group member, in the case of information applicable to group members; and (ii) provided with respect to the persons specified in Instruction 1 to Items 6(c) and (d) of Schedule 14N (or any successor item) in the case of a nominating stockholder or group member that is an entity. A Nomination Notice would be deemed submitted on the date on which all of the information and documents required by ICE Bylaw 2.15 (other than such information and documents contemplated to be provided after the date the Nomination Notice is provided) have been delivered to or, if sent by mail, received by the Secretary of ICE.
Access to ICE's proxy statement for stockholder nominations under ICE Bylaw 2.15(e)(i) would not be available in any year in which ICE has received advance notice under ICE Bylaw Section 2.13 that a stockholder intends to nominate a director. In addition, nominations would be disregarded under ICE Bylaw 2.15(e)(i) if
• the nominating stockholder or its representative fails to appear at the annual meeting to present the nomination or withdraws its nomination;
• the nomination or election of the nominee would be in violation of ICE's certificate of incorporation or bylaws, or applicable law, rule or regulation, including those of stock exchanges;
• the nominee was nominated pursuant to ICE Bylaw 2.15 at one of the past two annual meetings and either withdrew or became ineligible, or failed to receive 20% of the vote;
• the nominee is, or has within the last three years been, an officer or director of a competitor of ICE or is a U.S. Disqualified Person as defined in ICE's certificate of incorporation; or
• ICE is notified, or the ICE Board determines, that a nominating stockholder has failed to continue to satisfy the eligibility requirements, any of the representations and warranties made in the Nomination Notice ceases to be true and accurate in all material respects (or omits a material fact necessary to make the statements made not misleading), the nominee becomes unwilling or unable to serve on the ICE Board or any material violation or breach occurs of the obligations, agreements, representations or warranties of the nominating stockholder or the nominee under ICE Bylaw Section 2.15.
In addition, Bylaw 2.15(e)(ii) would permit ICE to omit from its proxy statement, or supplement or correct, any information, including all or any portion of the statement in support of the Nominee included in the
• Such information is not true in all material respects or omits a material statement necessary to make the statements made not misleading;
• Such information directly or indirectly impugns the character, integrity or personal reputation of, or directly or indirectly makes charges concerning improper, illegal or immoral conduct or associations, without factual foundation, with respect to, any person; or
• The inclusion of such information in the proxy statement would otherwise violate the federal proxy rules or any other applicable law, rule or regulation.
The proposed rule change also would amend the existing advance notice provisions in Bylaw 2.13 to extend their application to stockholder nominations under the proxy access provision in Bylaw 2.15.
• Bylaw 2.13(b) would be amended to provide that stockholder nominations would be subject to inclusion in the ICE Board's notice of annual meeting, and that the timing and notice requirements of the existing advance notice bylaw would not apply to stockholder nominations, which have different timing and notice requirements as described above.
• Bylaw 2.13(d) would be amended to specify that the definition therein of “publicly announced or disclosed” would also apply in Bylaw 2.15.
Finally, the Exchange proposes to make conforming changes to the title of the Bylaws.
The Exchange believes that this filing is consistent with Section 6(b) of the Exchange Act,
For similar reasons, the Exchange also believes that this filing furthers the objectives of Section 6(b)(5) of the Exchange Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act. The proposed rule change is not designed to address any competitive issue in the U.S. or European securities markets or have any impact on competition in those markets; rather, adoption of a proxy access bylaw by ICE is intended to enhance corporate governance and accountability to stockholders.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend and restate the Fifth Amended and Restated Bylaws of the Exchange's ultimate parent company, Intercontinental Exchange, Inc. (“ICE”), to implement proxy access. The proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend and restate the Fifth Amended and Restated Bylaws of ICE (“ICE Bylaws”). The proposed amendments to the ICE Bylaws would (1) add a new Section 2.15 that permits a stockholder, or stockholders, that meet specific requirements to nominate director nominees for the board of directors of ICE (“ICE Board”), provided that the nominating stockholder(s) and nominee(s) satisfy the proposed requirements, and (2) amend the advance notice provisions in Section 2.13 to account for proxy access.
ICE owns 100% of the equity interest in Intercontinental Exchange Holdings, Inc. (“ICE Holdings”), which in turn owns 100% of the equity interest in NYSE Holdings LLC (“NYSE Holdings”). NYSE Holdings owns 100% of the equity interest of NYSE Group, Inc., which in turn directly owns 100% of the equity interest of the Exchange and its affiliates NYSE Arca, Inc. and NYSE MKT LLC.
The proposed amendments to the ICE Bylaws have been approved by the ICE Board, subject to Securities and Exchange Commission (“Commission”) approval. Under Section 11.1 of the ICE Bylaws, no stockholder approval is required for amendment of the ICE Bylaws. ICE filed a Form 8-K setting forth the proposed amendments on January 22, 2016 after approval by the ICE Board, and will file a further Form 8-K when the amendments are adopted.
The proposed rule change would add new Section 2.15 to the ICE Bylaws. Section 2.15 would permit a stockholder, or group of up to 20 stockholders, to nominate director nominees for the ICE Board, so long as the stockholder(s) have owned at least three percent of ICE's outstanding shares of common stock continuously for at least three years. The director nominees would be included in ICE's annual meeting proxy materials. The proposed provision would limit the number of proposed director nominees to a number equal to twenty percent of the number of directors then serving on the ICE Board (rounded down to the nearest whole number, but no less than two) provided that the stockholder(s) and nominee(s) satisfy the other conditions specified in the ICE Bylaws.
A candidate would be nominated by a nomination notice (“Nomination Notice”). Subject to satisfaction of the conditions of Section 2.15, described below, as determined by the ICE Board, ICE would include in its proxy statement for the next annual meeting of stockholders the following information:
• The names of any person or persons nominated for election;
• disclosure about each nominee and the nominating stockholder required under the rules of the Commission or other applicable law to be included in the proxy statement;
• any statement in support of the nominee's (or nominees', as applicable) election, subject to a limit of 500 words and subject to compliance with Section 14 of the Exchange Act
• any other information that ICE management or the ICE Board determines, in their discretion, to include relating to the nomination of the nominee(s), including, without limitation, any statement in opposition to the nomination.
ICE Bylaw 2.15 would permit stockholder nominees to constitute up to twenty percent of the number of directors then serving on the ICE Board, subject to the following:
• If twenty percent of the current number of directors is not a whole number, the number of permitted stockholder nominees would be rounded down to the nearest whole number, but no less than two.
• The number of permitted stockholder nominees would be further reduced by (a) the number of any stockholder nominees who are
• Bylaw 2.15(b) would provide a mechanism for pro rata reduction of the number of nominees nominated by different stockholders if the total number of permitted stockholder nominees exceeded the maximum permitted. Each nominating stockholder would select one of its nominees to be included in the proxy statement, with the nominees to be included selected from nominating stockholders going in the order of the largest stockholdings to the smallest, until the available number of nominees has been selected, with this process to be repeated if the maximum number of nominees has not been selected in the first round.
As a result of these potential reductions in the number of stockholder nominees, the number of stockholder nominees in any year could be fewer than two.
Each person or group of up to 20 persons desiring to nominate a candidate would be required to either (1) be a record holder of shares of ICE common stock used to satisfy the eligibility requirements for a stockholder nominee continuously for the three-year period, or (2) provide to the secretary of ICE evidence of continuous ownership of the minimum number of shares for such three-year period from one or more securities intermediaries in a form that the ICE Board determines would be acceptable for purposes of a shareholder proposal under Rule 14a-8(b)(2) under the Exchange Act
A person (or member of a group of persons) whose nominee has been elected as a director at an annual meeting would not be eligible to nominate or participate in the nomination of a nominee for the following two annual meetings other than the nomination of such previously elected nominee.
The proposed rule change would also specify that shares may be counted as “owned” only if the person making the nomination possess both the full voting and investment rights pertaining to the shares and the full economic interest in (including the opportunity for profit and risk of loss on) such shares. Shares that have been sold, borrowed or hedged are excluded. Loaned shares are included, provided they are recallable within five business days, and are recalled by the record date.
No person would be permitted to be in more than one group nominating a nominee. A person who appears as a member of more than one group would be deemed to be a member of the group that has the largest ownership position as reflected in the Nomination Notice.
A Nomination Notice would be required to be submitted to the secretary of ICE at ICE's principal executive office, no earlier than the close of business 150 calendar days, and no later than the close of business 120 calendar days, before the anniversary of the date that ICE mailed its proxy statement for the prior year's annual meeting of stockholders. If an annual meeting were not scheduled to be held within a period that commences 30 days before and ends 30 days after such anniversary date, a Nomination Notice would be required to be given by the later of the close of business on the date that is 120 days prior to the date of such annual meeting or the tenth day following the date on which such annual meeting date is first publicly announced or disclosed.
ICE Bylaw 2.15 would provide that any determination to be made by the ICE Board may be made by the ICE Board, a committee of the ICE Board or any officer of ICE designated by the ICE Board or a committee of the ICE Board and that any such determination shall be final and binding on ICE, any Eligible Holder (as defined in ICE Bylaw 2.15), any nominating stockholder, any nominee and any other person so long as made in good faith. The chairman of any annual meeting of stockholders shall have the power and duty to determine whether a Nominee has been nominated in accordance with the requirements of proposed Section 2.15 and, if not so nominated, shall direct and declare at the annual meeting that such Nominee shall not be considered.
The proposed rule change specifies information that would be required in a Nomination Notice, including:
• A Schedule 14N
• a written notice, in a form deemed satisfactory by the ICE Board, of the nomination of such nominee that includes additional information, agreements, representations and warranties by the nominating stockholder (including, in the case of a group, each group member),
○ the information otherwise required with respect to the nomination of directors by the ICE Bylaws;
○ the details of any relationship that existed within the past three years and that would have been described pursuant to Item 6(e) of Schedule 14N (or any successor item) if it existed on the date of submission of the Schedule 14N;
○ a representation and warranty that the nominating stockholder did not acquire, and is not holding, securities of ICE for the purpose or with the effect of influencing or changing control of ICE;
○ a representation and warranty that the nominee's candidacy or, if elected, membership on the ICE Board would not violate applicable state or federal law or the rules of the principal national securities exchange on which ICE's securities are traded;
○ a representation and warranty that the nominee:
Does not have any direct or indirect relationship with ICE that will cause the nominee to be deemed not independent pursuant to the ICE Board's Independence Policy
meets the audit committee independence requirements under the rules of the principal national securities exchange on which ICE's common stock is traded;
is a “non-employee director” for the purposes of Rule 16b-3 under the Exchange Act
is an “outside director” for the purposes of Section 162(m) of the Internal Revenue Code
is not and has not been subject to any event specified in Rule 506(d)(1) of Regulation D
○ a representation and warranty that the nominating stockholder satisfies the eligibility requirements set forth in Bylaw 2.15 and has provided evidence of ownership to the extent required by Bylaw 2.15(c)(i);
○ a representation and warranty that the nominating stockholder intends to continue to satisfy the eligibility requirements described in Bylaw 2.15(c) through the date of the annual meeting;
○ a representation and warranty that the nominating stockholder will not engage in a “solicitation” within the meaning of Rule 14a-1(l)
○ a representation and warranty that the nominating stockholder will not use any proxy card other than ICE's proxy card in soliciting stockholders in connection with the election of a nominee at the annual meeting;
○ if desired, a statement in support of the nominee meeting the standards identified above; and
○ in the case of a nomination by a group, the designation by all group members of one group member that is authorized to act on behalf of all group members with respect to matters relating to the nomination, including withdrawal of the nomination;
• an executed agreement, in a form deemed satisfactory by the ICE Board, pursuant to which the nominating stockholder (including each group member) agrees:
○ To comply with all applicable laws, rules and regulations in connection with the nomination, solicitation and election of a nominee;
○ to file any written solicitation or other communication with ICE's stockholders relating to one or more of ICE's directors or director nominees or any stockholder nominee with the Commission, regardless of whether any such filing is required under any rule or regulation or whether any exemption from filing is available for such materials under any rule or regulation;
○ to assume all liability stemming from an action, suit or proceeding concerning any actual or alleged legal or regulatory violation arising out of any communication by the nominating stockholder or any of its nominees with ICE, its stockholders or any other person in connection with the nomination or election of directors, including, without limitation, the Nomination Notice;
○ to indemnify and hold harmless (jointly with all other group members, in the case of a group member) ICE and each of its directors, officers and employees individually against any liability, loss, damages, expenses or other costs (including attorneys' fees) incurred in connection with any threatened or pending action, suit or proceeding, whether legal, administrative or investigative, against ICE or any of its directors, officers or employees arising out of or relating to a failure or alleged failure of the nominating stockholder or any of its nominees to comply with, or any breach or alleged breach of, its respective obligations, agreements or representations under Bylaw 2.15; and
○ in the event that (1) any information included in the Nomination Notice or any other communication by the nominating stockholder (including with respect to any group member) with ICE, its stockholders or any other person in connection with the nomination or election of a nominee ceases to be true and accurate in all material respects (or omits a material fact necessary to make the statements made not misleading) or (2) the nominating stockholder (including any group member) has failed to continue to satisfy the eligibility requirements described in Bylaw 2.15(c), to promptly (and in any event within 48 hours of discovering such misstatement, omission or failure) notify ICE and any other recipient of such communication of (1) the misstatement or omission in such previously provided information and of the information that is required to correct the misstatement or omission or (2) of such failure; and
• an executed agreement, in a form deemed satisfactory by the ICE Board, by the nominee:
○ to provide to ICE such other information and certifications, including completion of ICE's director questionnaire, as it may reasonably request;
○ that the nominee has read and agrees, if elected, to serve as a member of the ICE Board, to adhere to ICE's Corporate Governance Guidelines and Global Code of Business Conduct and any other policies and guidelines applicable to directors; and
○ that the nominee is not and will not become a party to (i) any compensatory, payment or other financial agreement, arrangement or understanding with any person or entity other than ICE in connection with service or action as a director of ICE that has not been disclosed to ICE, (ii) any agreement, arrangement or understanding with any person or entity as to how the nominee would vote or act on any issue or question as a director (a “Voting Commitment”) that has not been disclosed to ICE or (iii) any Voting Commitment that could reasonably be expected to limit or interfere with the nominee's ability to comply, if elected as a director of ICE, with its fiduciary duties under applicable law.
ICE Bylaw 2.15 would specify that the information and documents required to be provided by the nominating stockholder must be: (i) Provided with respect to and executed by each group member, in the case of information applicable to group members; and (ii) provided with respect to the persons specified in Instruction 1 to Items 6(c) and (d) of Schedule 14N (or any successor item) in the case of a nominating stockholder or group
Access to ICE's proxy statement for stockholder nominations under ICE Bylaw 2.15(e)(i) would not be available in any year in which ICE has received advance notice under ICE Bylaw Section 2.13 that a stockholder intends to nominate a director. In addition, nominations would be disregarded under ICE Bylaw 2.15(e)(i) if
• the nominating stockholder or its representative fails to appear at the annual meeting to present the nomination or withdraws its nomination;
• the nomination or election of the nominee would be in violation of ICE's certificate of incorporation or bylaws, or applicable law, rule or regulation, including those of stock exchanges;
• the nominee was nominated pursuant to ICE Bylaw 2.15 at one of the past two annual meetings and either withdrew or became ineligible, or failed to receive 20% of the vote;
• the nominee is, or has within the last three years been, an officer or director of a competitor of ICE or is a U.S. Disqualified Person as defined in ICE's certificate of incorporation; or
• ICE is notified, or the ICE Board determines, that a nominating stockholder has failed to continue to satisfy the eligibility requirements, any of the representations and warranties made in the Nomination Notice ceases to be true and accurate in all material respects (or omits a material fact necessary to make the statements made not misleading), the nominee becomes unwilling or unable to serve on the ICE Board or any material violation or breach occurs of the obligations, agreements, representations or warranties of the nominating stockholder or the nominee under ICE Bylaw Section 2.15.
In addition, Bylaw 2.15(e)(ii) would permit ICE to omit from its proxy statement, or supplement or correct, any information, including all or any portion of the statement in support of the Nominee included in the Nomination Notice, if the ICE Board determines that:
• Such information is not true in all material respects or omits a material statement necessary to make the statements made not misleading;
• Such information directly or indirectly impugns the character, integrity or personal reputation of, or directly or indirectly makes charges concerning improper, illegal or immoral conduct or associations, without factual foundation, with respect to, any person; or
• The inclusion of such information in the proxy statement would otherwise violate the federal proxy rules or any other applicable law, rule or regulation.
The proposed rule change also would amend the existing advance notice provisions in Bylaw 2.13 to extend their application to stockholder nominations under the proxy access provision in Bylaw 2.15.
• Bylaw 2.13(b) would be amended to provide that stockholder nominations would be subject to inclusion in the ICE Board's notice of annual meeting, and that the timing and notice requirements of the existing advance notice bylaw would not apply to stockholder nominations, which have different timing and notice requirements as described above.
• Bylaw 2.13(d) would be amended to specify that the definition therein of “publicly announced or disclosed” would also apply in Bylaw 2.15.
Finally, the Exchange proposes to make conforming changes to the title of the Bylaws.
The Exchange believes that this filing is consistent with Section 6(b) of the Exchange Act,
For similar reasons, the Exchange also believes that this filing furthers the objectives of Section 6(b)(5) of the Exchange Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act. The proposed rule change is not designed to address any competitive issue in the U.S. or European securities markets or have any impact on competition in those markets; rather, adoption of a proxy access bylaw by ICE is intended to enhance corporate governance and accountability to stockholders.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to adopt a Decommission Extension Fee for receipt of the NYSE MKT BBO and NYSE MKT Trades market data products. The proposed change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to adopt a Decommission Extension Fee for receipt of the NYSE MKT BBO and NYSE MKT Trades market data products,
NYSE MKT Trades is an NYSE MKT-only last sale market data feed. NYSE MKT Trades currently allows vendors, broker-dealers and others to make available on a real-time basis the same last sale information that the Exchange reports under the Consolidated Tape Association (“CTA”) Plan for inclusion in the CTA Plan's consolidated data streams. Specifically, the NYSE MKT Trades feed includes, for each security traded on the Exchange, the real-time last sale price, time and size information and bid/ask quotations at the time of each sale and a stock summary message. The stock summary message updates every minute and includes NYSE MKT's opening price, high price, low price, closing price, and cumulative volume for the security.
NYSE MKT BBO is an NYSE MKT-only market data feed that allows a vendor to redistribute on a real-time basis the same best-bid-and-offer information that the Exchange reports under the Consolidated Quotation (“CQ”) Plan for inclusion in the CQ Plan's consolidated quotation information data stream. The data feed
As part of the Exchange's efforts to regularly upgrade systems to support more modern data distribution formats and protocols as technology evolves, beginning March 1, 2016, NYSE MKT BBO and NYSE MKT Trades will both be transmitted in a new format, Exchange Data Protocol (XDP). Beginning March 1, 2016, the Exchange will transmit NYSE MKT BBO and NYSE MKT Trades in both the legacy format and in XDP without any additional fee being charged for providing these data feeds in both formats. The dual dissemination will remain in place until July 1, 2016, the planned decommission date of the legacy format. Beginning July 1, 2016, recipients of NYSE MKT BBO and NYSE MKT Trades who wish to continue to receive NYSE MKT BBO and NYSE MKT Trades in the legacy format will each be subject to the proposed Decommission Extension Fee of $5,000 per month. During the extension period, recipients of NYSE MKT BBO and NYSE MKT Trades would continue to be subject to the subscription fees currently noted in the Fee Schedule. The extension period for receiving these data feeds in the legacy format will expire on September 1, 2016, on which date distribution of NYSE MKT BBO and NYSE MKT Trades in the legacy format will be permanently discontinued.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange believes that adopting an extension fee for subscribers of NYSE MKT BBO and NYSE MKT Trades who wish to receive these data feeds in the legacy format for a period of time beyond the built-in overlap period is reasonable, equitable and not unfairly discriminatory because the proposed fee would apply equally to all data recipients that currently subscribe to NYSE MKT BBO and NYSE MKT Trades. The Exchange believes that it is reasonable to require data recipients to pay an additional fee for taking the data feeds in the legacy format beyond the period of time specifically allotted by the Exchange for data feed customers to adapt to the new XDP format at no extra cost. To that end, the extension fee is designed to encourage data recipients to migrate to the XDP format in order to continue to receive NYSE MKT BBO and NYSE MKT Trades in XDP as the legacy format would no longer be available after that date. The Exchange does not intend to support the legacy format at all after September 1, 2016.
The Exchange notes that NYSE MKT BBO and NYSE MKT Trades are entirely optional. The Exchange is not required to make NYSE MKT BBO and NYSE MKT Trades available or to offer any specific pricing alternatives to any customers, nor is any firm required to purchase NYSE MKT BBO and NYSE MKT Trades, nor is the Exchange required to offer any feed (NYSE MKT BBO, NYSE MKT Trades, or otherwise) in a particular format, and it is a benefit to the markets generally that NYSE MKT update its distribution technology to make it more efficient (and at the same time eliminate less efficient forms of dissemination). Firms that do purchase NYSE MKT BBO and NYSE MKT Trades do so for the primary goals of using them to increase revenues, reduce expenses, and in some instances compete directly with the Exchange (including for order flow); those firms are able to determine for themselves whether NYSE MKT BBO and NYSE MKT Trades or any other similar products are attractively priced or not.
The decision of the United States Court of Appeals for the District of Columbia Circuit in
In fact, the legislative history indicates that the Congress intended that the market system `evolve through the interplay of competitive forces as unnecessary regulatory restrictions are removed' and that the SEC wield its regulatory power `in those situations where competition may not be sufficient,' such as in the creation of a `consolidated transactional reporting system.'
As explained below in the Exchange's Statement on Burden on Competition, the Exchange believes that there is substantial evidence of competition in the marketplace for proprietary market data and that the Commission can rely upon such evidence in concluding that the fees established in this filing are the product of competition and therefore satisfy the relevant statutory standards. In addition, the existence of alternatives to the legacy format, such as converting to XDP as soon as possible, further ensures that the Exchange cannot set unreasonable fees, or fees that are unreasonably discriminatory, when vendors and subscribers can select such alternatives.
As the
For these reasons, the Exchange believes that the proposed fees are reasonable, equitable, and not unfairly discriminatory.
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. An exchange's ability to price its proprietary market data feed products is constrained by actual competition for the sale of proprietary market data products, the joint product nature of exchange platforms, and the existence of alternatives to the Exchange's proprietary data (and in this instance, the ability of any firm to switch to the new distribution format in a time frame that eliminates the need to pay these fees entirely).
The market for proprietary data products is currently competitive and inherently contestable because there is fierce competition for the inputs necessary for the creation of proprietary data and strict pricing discipline for the proprietary products themselves. Numerous exchanges compete with one another for listings and order flow and sales of market data itself, providing ample opportunities for entrepreneurs who wish to compete in any or all of those areas, including producing and distributing their own market data. Proprietary data products are produced and distributed by each individual exchange, as well as other entities, in a vigorously competitive market. Indeed, the U.S. Department of Justice (“DOJ”) (the primary antitrust regulator) has expressly acknowledged the aggressive actual competition among exchanges, including for the sale of proprietary market data. In 2011, the DOJ stated that exchanges “compete head to head to offer real-time equity data products. These data products include the best bid and offer of every exchange and information on each equity trade, including the last sale.”
Moreover, competitive markets for listings, order flow, executions, and transaction reports provide pricing discipline for the inputs of proprietary data products and therefore constrain markets from overpricing proprietary market data. Broker-dealers send their order flow and transaction reports to multiple venues, rather than providing them all to a single venue, which in turn reinforces this competitive constraint. As a 2010 Commission Concept Release noted, the “current market structure can be described as dispersed and complex” with “trading volume . . . dispersed among many highly automated trading centers that compete for order flow in the same stocks” and “trading centers offer[ing] a wide range of services that are designed to attract different types of market participants with varying trading needs.”
If an exchange succeeds in competing for quotations, order flow, and trade executions, then it earns trading revenues and increases the value of its proprietary market data products because they will contain greater quote and trade information. Conversely, if an exchange is less successful in attracting quotes, order flow, and trade executions, then its market data products may be less desirable to customers in light of the diminished content and data products offered by competing venues may become more attractive. Thus, competition for quotations, order flow, and trade executions puts significant pressure on an exchange to maintain both execution and data fees at reasonable levels.
In addition, in the case of products that are also redistributed through market data vendors, such as Bloomberg and Thompson Reuters, the vendors themselves provide additional price discipline for proprietary data products because they control the primary means of access to certain end users. These vendors impose price discipline based upon their business models. For example, vendors that assess a surcharge on data they sell are able to refuse to offer proprietary products that their end users do not or will not purchase in sufficient numbers. Vendors will not elect to make available NYSE MKT BBO or NYSE MKT Trades in the legacy format unless their customers request it, and customers will not elect to pay the proposed fees unless NYSE MKT BBO and NYSE MKT Trades can provide value in the legacy formats by sufficiently increasing revenues or reducing costs in the customer's business in a manner that will offset the fees. The Exchange has provided customers with adequate notice that it intends to discontinue dissemination of the data feeds in the legacy format. Therefore, the proposed Decommission Extension Fee would only be applicable to those customers who have a need or desire to continue to take the data feeds in the legacy format beyond the period provided for migration to the XDP format. Customers who timely migrate to the XDP format to receive the data feeds would not need to receive the data feeds in the legacy format and therefore would not be subject to the Decommission Extension Fee at all. All of these factors operate as constraints on pricing proprietary data products.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend and restate the Fifth Amended and Restated Bylaws of the Exchange's ultimate parent company, Intercontinental Exchange, Inc. (“ICE”), to implement proxy access. The proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend and restate the Fifth Amended and Restated Bylaws of ICE (“ICE Bylaws”). The proposed amendments to the ICE Bylaws would (1) add a new Section 2.15 that permits a stockholder, or stockholders, that meet specific requirements to nominate director nominees for the board of directors of ICE (“ICE Board”), provided that the nominating stockholder(s) and nominee(s) satisfy the proposed requirements, and (2) amend the advance notice provisions in Section 2.13 to account for proxy access.
ICE owns 100% of the equity interest in Intercontinental Exchange Holdings, Inc. (“ICE Holdings”), which in turn owns 100% of the equity interest in NYSE Holdings LLC (“NYSE Holdings”). NYSE Holdings owns 100% of the equity interest of NYSE Group, Inc., which in turn directly owns 100% of the equity interest of the Exchange and its affiliates New York Stock Exchange LLC and NYSE MKT LLC.
The proposed amendments to the ICE Bylaws have been approved by the ICE Board, subject to Securities and Exchange Commission (“Commission”) approval. Under Section 11.1 of the ICE Bylaws, no stockholder approval is required for amendment of the ICE Bylaws. ICE filed a Form 8-K setting forth the proposed amendments on January 22, 2016 after approval by the ICE Board, and will file a further Form 8-K when the amendments are adopted.
The proposed rule change would add new Section 2.15 to the ICE Bylaws. Section 2.15 would permit a
A candidate would be nominated by a nomination notice (“Nomination Notice”). Subject to satisfaction of the conditions of Section 2.15, described below, as determined by the ICE Board, ICE would include in its proxy statement for the next annual meeting of stockholders the following information:
• The names of any person or persons nominated for election;
• disclosure about each nominee and the nominating stockholder required under the rules of the Commission or other applicable law to be included in the proxy statement;
• any statement in support of the nominee's (or nominees', as applicable) election, subject to a limit of 500 words and subject to compliance with Section 14 of the Exchange Act
• any other information that ICE management or the ICE Board determines, in their discretion, to include relating to the nomination of the nominee(s), including, without limitation, any statement in opposition to the nomination.
ICE Bylaw 2.15 would permit stockholder nominees to constitute up to twenty percent of the number of directors then serving on the ICE Board, subject to the following:
• If twenty percent of the current number of directors is not a whole number, the number of permitted stockholder nominees would be rounded down to the nearest whole number, but no less than two.
• The number of permitted stockholder nominees would be further reduced by (a) the number of any stockholder nominees who are withdrawn or who are instead nominated by the ICE Board and (b) the number of directors, if any, who were stockholder nominees at the preceding annual meeting and whose re-election is recommended by the ICE Board. In the event that one or more vacancies for any reason were to occur on the ICE Board after the deadline for submitting a Nomination Notice, but before the date of the annual meeting, and the ICE Board resolved to reduce the size of the ICE Board, the number of permitted stockholder nominees would be calculated based on the number of directors in office as so reduced. If, after receipt of a Nomination Notice and following the deadline for receipt of such notices, either the nominating stockholder becomes ineligible or withdraws the nomination, or the nominee becomes ineligible or unwilling or unable to serve, such nominee will be disregarded.
• Bylaw 2.15(b) would provide a mechanism for pro rata reduction of the number of nominees nominated by different stockholders if the total number of permitted stockholder nominees exceeded the maximum permitted. Each nominating stockholder would select one of its nominees to be included in the proxy statement, with the nominees to be included selected from nominating stockholders going in the order of the largest stockholdings to the smallest, until the available number of nominees has been selected, with this process to be repeated if the maximum number of nominees has not been selected in the first round.
As a result of these potential reductions in the number of stockholder nominees, the number of stockholder nominees in any year could be fewer than two.
Each person or group of up to 20 persons desiring to nominate a candidate would be required to either (1) be a record holder of shares of ICE common stock used to satisfy the eligibility requirements for a stockholder nominee continuously for the three-year period, or (2) provide to the secretary of ICE evidence of continuous ownership of the minimum number of shares for such three-year period from one or more securities intermediaries in a form that the ICE Board determines would be acceptable for purposes of a shareholder proposal under Rule 14a-8(b)(2) under the Exchange Act
A person (or member of a group of persons) whose nominee has been elected as a director at an annual meeting would not be eligible to nominate or participate in the nomination of a nominee for the following two annual meetings other than the nomination of such previously elected nominee.
The proposed rule change would also specify that shares may be counted as “owned” only if the person making the nomination possess both the full voting and investment rights pertaining to the shares and the full economic interest in (including the opportunity for profit and risk of loss on) such shares. Shares that have been sold, borrowed or hedged are excluded. Loaned shares are included, provided they are recallable within five business days, and are recalled by the record date.
No person would be permitted to be in more than one group nominating a nominee. A person who appears as a member of more than one group would be deemed to be a member of the group that has the largest ownership position as reflected in the Nomination Notice.
A Nomination Notice would be required to be submitted to the secretary of ICE at ICE's principal executive office, no earlier than the close of business 150 calendar days, and no later than the close of business 120 calendar days, before the anniversary of the date that ICE mailed its proxy statement for the prior year's annual meeting of stockholders. If an annual meeting were not scheduled to be held within a period that commences 30 days before and ends 30 days after such anniversary date, a Nomination Notice would be required to be given by the later of the close of business on the date that is 120 days prior to the date of such annual meeting or the tenth day following the date on which such annual meeting date is first publicly announced or disclosed.
ICE Bylaw 2.15 would provide that any determination to be made by the ICE Board may be made by the ICE
The proposed rule change specifies information that would be required in a Nomination Notice, including:
• A Schedule 14N
• a written notice, in a form deemed satisfactory by the ICE Board, of the nomination of such nominee that includes additional information, agreements, representations and warranties by the nominating stockholder (including, in the case of a group, each group member),
○ the information otherwise required with respect to the nomination of directors by the ICE Bylaws;
○ the details of any relationship that existed within the past three years and that would have been described pursuant to Item 6(e) of Schedule 14N (or any successor item) if it existed on the date of submission of the Schedule 14N;
○ a representation and warranty that the nominating stockholder did not acquire, and is not holding, securities of ICE for the purpose or with the effect of influencing or changing control of ICE;
○ a representation and warranty that the nominee's candidacy or, if elected, membership on the ICE Board would not violate applicable state or federal law or the rules of the principal national securities exchange on which ICE's securities are traded;
○ a representation and warranty that the nominee:
• does not have any direct or indirect relationship with ICE that will cause the nominee to be deemed not independent pursuant to the ICE Board's Independence Policy
• meets the audit committee independence requirements under the rules of the principal national securities exchange on which ICE's common stock is traded;
• is a “non-employee director” for the purposes of Rule 16b-3 under the Exchange Act
• is an “outside director” for the purposes of Section 162(m) of the Internal Revenue Code
• is not and has not been subject to any event specified in Rule 506(d)(1) of Regulation D
○ a representation and warranty that the nominating stockholder satisfies the eligibility requirements set forth in Bylaw 2.15 and has provided evidence of ownership to the extent required by Bylaw 2.15(c)(i);
○ a representation and warranty that the nominating stockholder intends to continue to satisfy the eligibility requirements described in Bylaw 2.15(c) through the date of the annual meeting;
○ a representation and warranty that the nominating stockholder will not engage in a “solicitation” within the meaning of Rule 14a-1(l)
○ a representation and warranty that the nominating stockholder will not use any proxy card other than ICE's proxy card in soliciting stockholders in connection with the election of a nominee at the annual meeting;
○ if desired, a statement in support of the nominee meeting the standards identified above; and
○ in the case of a nomination by a group, the designation by all group members of one group member that is authorized to act on behalf of all group members with respect to matters relating to the nomination, including withdrawal of the nomination;
• an executed agreement, in a form deemed satisfactory by the ICE Board, pursuant to which the nominating stockholder (including each group member) agrees:
○ To comply with all applicable laws, rules and regulations in connection with the nomination, solicitation and election of a nominee;
○ to file any written solicitation or other communication with ICE's stockholders relating to one or more of ICE's directors or director nominees or any stockholder nominee with the Commission, regardless of whether any such filing is required under any rule or regulation or whether any exemption from filing is available for such materials under any rule or regulation;
○ to assume all liability stemming from an action, suit or proceeding concerning any actual or alleged legal or regulatory violation arising out of any communication by the nominating stockholder or any of its nominees with ICE, its stockholders or any other person in connection with the nomination or election of directors, including, without limitation, the Nomination Notice;
○ to indemnify and hold harmless (jointly with all other group members, in the case of a group member) ICE and each of its directors, officers and employees individually against any liability, loss, damages, expenses or other costs (including attorneys' fees) incurred in connection with any threatened or pending action, suit or proceeding, whether legal, administrative or investigative, against ICE or any of its directors, officers or employees arising out of or relating to a failure or alleged failure of the nominating stockholder or any of its nominees to comply with, or any breach or alleged breach of, its respective obligations, agreements or representations under Bylaw 2.15; and
○ in the event that (1) any information included in the Nomination Notice or any other communication by
• an executed agreement, in a form deemed satisfactory by the ICE Board, by the nominee:
○ To provide to ICE such other information and certifications, including completion of ICE's director questionnaire, as it may reasonably request;
○ that the nominee has read and agrees, if elected, to serve as a member of the ICE Board, to adhere to ICE's Corporate Governance Guidelines and Global Code of Business Conduct and any other policies and guidelines applicable to directors; and
○ that the nominee is not and will not become a party to (i) any compensatory, payment or other financial agreement, arrangement or understanding with any person or entity other than ICE in connection with service or action as a director of ICE that has not been disclosed to ICE, (ii) any agreement, arrangement or understanding with any person or entity as to how the nominee would vote or act on any issue or question as a director (a “Voting Commitment”) that has not been disclosed to ICE or (iii) any Voting Commitment that could reasonably be expected to limit or interfere with the nominee's ability to comply, if elected as a director of ICE, with its fiduciary duties under applicable law.
ICE Bylaw 2.15 would specify that the information and documents required to be provided by the nominating stockholder must be: (i) Provided with respect to and executed by each group member, in the case of information applicable to group members; and (ii) provided with respect to the persons specified in Instruction 1 to Items 6(c) and (d) of Schedule 14N (or any successor item) in the case of a nominating stockholder or group member that is an entity. A Nomination Notice would be deemed submitted on the date on which all of the information and documents required by ICE Bylaw 2.15 (other than such information and documents contemplated to be provided after the date the Nomination Notice is provided) have been delivered to or, if sent by mail, received by the Secretary of ICE.
Access to ICE's proxy statement for stockholder nominations under ICE Bylaw 2.15(e)(i) would not be available in any year in which ICE has received advance notice under ICE Bylaw Section 2.13 that a stockholder intends to nominate a director. In addition, nominations would be disregarded under ICE Bylaw 2.15(e)(i) if
• the nominating stockholder or its representative fails to appear at the annual meeting to present the nomination or withdraws its nomination;
• the nomination or election of the nominee would be in violation of ICE's certificate of incorporation or bylaws, or applicable law, rule or regulation, including those of stock exchanges;
• the nominee was nominated pursuant to ICE Bylaw 2.15 at one of the past two annual meetings and either withdrew or became ineligible, or failed to receive 20% of the vote;
• the nominee is, or has within the last three years been, an officer or director of a competitor of ICE or is a U.S. Disqualified Person as defined in ICE's certificate of incorporation; or
• ICE is notified, or the ICE Board determines, that a nominating stockholder has failed to continue to satisfy the eligibility requirements, any of the representations and warranties made in the Nomination Notice ceases to be true and accurate in all material respects (or omits a material fact necessary to make the statements made not misleading), the nominee becomes unwilling or unable to serve on the ICE Board or any material violation or breach occurs of the obligations, agreements, representations or warranties of the nominating stockholder or the nominee under ICE Bylaw Section 2.15.
In addition, Bylaw 2.15(e)(ii) would permit ICE to omit from its proxy statement, or supplement or correct, any information, including all or any portion of the statement in support of the Nominee included in the Nomination Notice, if the ICE Board determines that:
• Such information is not true in all material respects or omits a material statement necessary to make the statements made not misleading;
• Such information directly or indirectly impugns the character, integrity or personal reputation of, or directly or indirectly makes charges concerning improper, illegal or immoral conduct or associations, without factual foundation, with respect to, any person; or
• The inclusion of such information in the proxy statement would otherwise violate the federal proxy rules or any other applicable law, rule or regulation.
The proposed rule change also would amend the existing advance notice provisions in Bylaw 2.13 to extend their application to stockholder nominations under the proxy access provision in Bylaw 2.15.
• Bylaw 2.13(b) would be amended to provide that stockholder nominations would be subject to inclusion in the ICE Board's notice of annual meeting, and that the timing and notice requirements of the existing advance notice bylaw would not apply to stockholder nominations, which have different timing and notice requirements as described above.
• Bylaw 2.13(d) would be amended to specify that the definition therein of “publicly announced or disclosed” would also apply in Bylaw 2.15.
Finally, the Exchange proposes to make conforming changes to the title of the Bylaws.
The Exchange believes that this filing is consistent with Section 6(b) of the Exchange Act,
For similar reasons, the Exchange also believes that this filing furthers the objectives of Section 6(b)(5) of the
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act. The proposed rule change is not designed to address any competitive issue in the U.S. or European securities markets or have any impact on competition in those markets; rather, adoption of a proxy access bylaw by ICE is intended to enhance corporate governance and accountability to stockholders.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
By letter dated March 16, 2016 (the “Letter”), as supplemented by conversations with the staff of the Division of Trading and Markets, counsel for First Trust Exchange-Traded Fund VI (the “Trust”) on behalf of the Trust, First Trust Dorsey Wright Dynamic Focus 5 ETF (the “Fund”), any national securities exchange on or through which shares of the Fund (“Shares”) are listed and/or may subsequently trade, and persons or entities engaging in transactions in Shares (collectively, the “Requestors”), requested exemptions, or interpretive or no-action relief, from Rule 10b-17 of the Securities Exchange Act of 1934, as amended (“Exchange Act”), and Rules 101 and 102 of Regulation M, in connection with secondary market transactions in Shares and the creation or redemption of aggregations of Shares of 50,000 shares (“Creation Units”).
The Trust is registered with the Commission under the Investment Company Act of 1940, as amended (“1940 Act”), as an open-end management investment company. The Fund seeks to track the performance of an underlying index, the Dorsey Wright Dynamic Focus Five Index (“Underlying Index”). The Underlying Index is designed to provide targeted exposure to the five First Trust sector-based and industry-based ETFs that the index provider determines offer the greatest potential to outperform the other First Trust sector-based and industry-based ETFs. The Underlying Index is also designed to decrease overall equity exposure when the cash equivalents
The Fund will seek to track the performance of its Underlying Index by normally investing at least 80% of its total assets in the underlying exchange-traded funds and the cash equivalents that comprise the Underlying Index. In light of the composition of the Underlying Index, the Fund intends to operate as an “ETF of ETFs.” Except for the fact that the Fund will operate as an ETF of ETFs, the Fund will operate in a manner identical to the underlying ETFs.
The Requestors represent, among other things, the following:
• Shares of the Fund will be issued by the Trust, an open-end management investment company that is registered with the Commission;
• Creation Units will be continuously redeemable at the net asset value (“NAV”) next determined after receipt of a request for redemption by the Fund, and the secondary market price of the Shares should not vary substantially from the NAV of such Shares;
• Shares of the Fund will be listed and traded on The NASDAQ Stock Market LLC or another exchange in accordance with exchange listing standards that are, or will become, effective pursuant to Section 19(b) of the Exchange Act (the “Listing Exchange”);
• The Fund seeks to track the performance of the Underlying Index, all the components of which have publicly available last sale trade information;
• The Listing Exchange will disseminate continuously every 15 seconds throughout the trading day, through the facilities of the Consolidated Tape Association, the market value of a Share;
• The Listing Exchange, market data vendors or other information providers will disseminate, every 15 seconds throughout the trading day, a calculation of the intraday indicative value of a Share;
• On each business day before the opening of business on the Listing Exchange, the Fund will cause to be published through the National Securities Clearing Corporation the list of the names and the quantities of securities of the Fund's portfolio that will be applicable that day to creation and redemption requests;
• The arbitrage mechanism will be facilitated by the transparency of the Fund's portfolio and the availability of the intraday indicative value, the liquidity of securities held by the Fund, the ability to acquire such securities, as well as arbitrageurs' ability to create workable hedges;
• The Fund will invest solely in liquid securities;
• The Fund will invest in securities that will facilitate an effective and efficient arbitrage mechanism and the ability to create workable hedges;
• All ETFs in which the Fund invests will either meet all conditions set forth in one or more class relief letters,
• The Trust believes that arbitrageurs are expected to take advantage of price variations between the Fund's market price and its NAV; and
• A close alignment between the market price of Shares and the Fund's NAV is expected.
While redeemable securities issued by an open-end management investment company are excepted from the provisions of Rule 101 and 102 of Regulation M, the Requestors may not rely upon that exception for the Shares.
Generally, Rule 101 of Regulation M is an anti-manipulation rule that, subject to certain exceptions, prohibits any “distribution participant” and its “affiliated purchasers” from bidding for, purchasing, or attempting to induce any person to bid for or purchase any security which is the subject of a distribution until after the applicable restricted period, except as specifically permitted in the rule. Rule 100 of Regulation M defines “distribution” to mean any offering of securities that is distinguished from ordinary trading transactions by the magnitude of the offering and the presence of special selling efforts and selling methods. The provisions of Rule 101 of Regulation M apply to underwriters, prospective underwriters, brokers, dealers, or other persons who have agreed to participate or are participating in a distribution of securities. The Shares are in a continuous distribution and, as such, the restricted period in which distribution participants and their affiliated purchasers are prohibited from bidding for, purchasing, or attempting to induce others to bid for or purchase extends indefinitely.
Based on the representations and facts presented in the Letter, particularly that the Trust is a registered open-end management investment company, that Creation Unit size aggregations of the Shares of the Fund will be continuously redeemable at the NAV next determined after receipt of a request for redemption by the Fund, and that a close alignment between the market price of Shares and the Fund's NAV is expected, the Commission finds that it is appropriate in the public interest and consistent with the protection of investors to grant the Trust an exemption under paragraph (d) of Rule 101 of Regulation M with respect to the Fund, thus permitting persons participating in a distribution of Shares of the Fund to bid for or purchase such Shares during their participation in such distribution.
Rule 102 of Regulation M prohibits issuers, selling security holders, and any affiliated purchaser of such person from bidding for, purchasing, or attempting to
Based on the representations and facts presented in the Letter, particularly that the Trust is a registered open-end management investment company, that Creation Unit size aggregations of the Shares of the Fund will be continuously redeemable at the NAV next determined after receipt of a request for redemption by the Fund, and that a close alignment between the market price of Shares and the Fund's NAV is expected, the Commission finds that it is appropriate in the public interest and consistent with the protection of investors to grant the Trust an exemption under paragraph (e) of Rule 102 of Regulation M with respect to the Fund, thus permitting the Fund to redeem Shares of the Fund during the continuous offering of such Shares.
Rule 10b-17, with certain exceptions, requires an issuer of a class of publicly traded securities to give notice of certain specified actions (for example, a dividend distribution) relating to such class of securities in accordance with Rule 10b-17(b). Based on the representations and facts in the Letter, and subject to the conditions below, we find that it is appropriate in the public interest, and consistent with the protection of investors to grant the Trust a conditional exemption from Rule 10b-17 because market participants will receive timely notification of the existence and timing of a pending distribution, and thus the concerns that the Commission raised in adopting Rule 10b-17 will not be implicated.
This exemptive relief is subject to the following conditions:
• The Trust will comply with Rule 10b-17 except for Rule 10b-17(b)(1)(v)(a) and (b); and
• The Trust will provide the information required by Rule 10b-17(b)(1)(v)(a) and (b) to the Listing Exchange as soon as practicable before trading begins on the ex-dividend date, but in no event later than the time when the Listing Exchange last accepts information relating to distributions on the day before the ex-dividend date.
This exemptive relief is subject to modification or revocation at any time the Commission determines that such action is necessary or appropriate in furtherance of the purposes of the Exchange Act. Persons relying upon this exemptive relief shall discontinue transactions involving the Shares of the Fund, pending presentation of the facts for the Commission's consideration, in the event that any material change occurs with respect to any of the facts or representations made by the Requestors and, consistent with all preceding letters, particularly with respect to the close alignment between the market price of Shares and the Fund's NAV. In addition, persons relying on this exemption are directed to the anti-fraud and anti-manipulation provisions of the Exchange Act, particularly Sections 9(a) and 10(b), and Rule 10b-5 thereunder.
Responsibility for compliance with these and any other applicable provisions of the federal securities laws must rest with the persons relying on these exemptions. This order should not be considered a view with respect to any other question that the proposed transactions may raise, including, but not limited to the adequacy of the disclosure concerning, and the applicability of other federal or state laws to, the proposed transactions.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission (“Commission”).
Notice of application for an order approving the substitution of certain securities pursuant to Section 26(c) of the Investment Company Act of 1940 (the “Act”).
Brent J. Fields, Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090; Applicants: Doug Hodgson, Principal Life Insurance Company, The Principal Financial Group, Des Moines, Iowa 50392-0300.
Rochelle Kauffman Plesset, Senior Counsel, at (202) 551-6840, or Nadya Roytblat, Assistant Chief Counsel at (202) 551-0825 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or an applicant using the Company name box, at
1. PLIC is a stock life insurance company incorporated under the laws of the state of Iowa. PLIC is authorized to transact life insurance business in all states of the United States and the District of Columbia. PLIC is a wholly-owned indirect subsidiary of Principal Financial Group, Inc. PLIC is the depositor and sponsor, as those terms have been interpreted by the Commission with respect to variable annuity separate accounts, of the Separate Account. PLIC established the Separate Account as a separate account under Iowa law on January 12, 1970.
2. The Separate Account is a “separate account” as defined in Rule 0-1(e) under the Act and is registered as a unit investment trust under the Act. Under Iowa law, PLIC owns the assets of the Separate Account attributable to the Contracts through which interests in the Separate Account are issued, but those assets are held separately from all other assets of PLIC for the benefit of the owners of the Contracts and the persons entitled to payment under the Contracts. Consequently, the assets in the Separate Account are not chargeable with liabilities arising out of any other business that PLIC may conduct.
3. The Separate Account is divided into subaccounts. Each subaccount invests exclusively in shares of a corresponding underlying registered open-end management investment company. The Separate Account supports the Contracts and interests in the Separate Account offered through such Contracts have been registered under the Securities Act of 1933 on Form N-4. The application sets forth the registration file numbers for the Contracts under the Separate Account.
4. The Contracts are either individual flexible premium deferred variable annuity contracts (“Retail Contracts”) or group variable annuity contracts for employer-sponsored qualified and non-qualified retirement plans (“Group Contracts”). The Retail Contracts are: Principal Freedom Variable Annuity, Principal Investment Plus Variable Annuity, Principal Variable Annuity (Flexible Variable Annuity), Principal Variable Annuity (Flexible Variable Annuity with Purchase Payment Credit), Principal Freedom 2 Variable Annuity, Principal Lifetime Income Solutions, Principal Investment Plus Variable Annuity, and Principal Pivot Series Variable Annuity (“Pivot”). The Group Contracts are: Premier Variable Annuity Contract, Personal Variable Annuity Contract and Pension Builder Plus-Group Variable Annuity Contract.
5. Pursuant to the Contracts, Retail Contract owners and Group Contracts plan participants (together referred to as “Contract Owners”) may select among several variable account investment options. Applicants state that, as disclosed in the prospectuses for the Contracts, PLIC reserves the right, subject to Commission approval and compliance with applicable law, to substitute shares of another registered open-end management investment company for shares of a registered open-end management investment company held by a subaccount of a Separate Account.
6. Principal Variable Contracts Funds, Inc. (“PVC”) is organized as a Maryland corporation and is registered as an open-end management investment company under the Act. PVC currently offers 37 series, including the Existing Fund. Principal Management Corporation, (“PMC”), an investment adviser registered under the Investment Advisers Act of 1940 (the “Advisers Act”), provides investment advisory services and certain corporate administrative services to PVC and the Existing Fund. Principal Global Investors, an affiliate of PMC, is the sub-adviser for the Existing Fund and has day-to-day responsibility for selecting investments for the Existing Fund. The Existing Fund serves as the only underlying money market investment option for all Group Contracts. The Existing Fund also served as the only underlying money market investment option for all Retail Contracts until the addition of the Replacement Fund effective on February 6, 2016.
7. Fidelity Variable Insurance Products Fund V (“Fidelity VIP Fund V”) was created under a declaration of trust under Massachusetts law and is registered as an open-end management investment company under the Act. Fidelity VIP Fund V currently offers 32 series, including the Replacement Fund. Fidelity Management & Research Company (“FMR”), an investment adviser registered under the Advisers Act, serves as the investment adviser of the Replacement Fund, with overall responsibility for directing portfolio investments and handling Fidelity VIP Fund V's business affairs. Fidelity Investments Money Management, Inc. (“FIMM”) and other affiliates of FMR serve as sub-advisers to the Replacement Fund, with FIMM having day-to-day responsibility of choosing investments for the Replacement Fund. Effective December 1, 2015, the fundamental concentration policy of the Replacement Fund was modified in such a manner as to enable it to operate as a government money market fund. None of Fidelity VIP Fund V, FMR, FIMM, and other affiliates of FMR are affiliated persons (or affiliated persons of affiliated persons) of the Applicants or PVC.
8. With the exception of Pivot, Applicants propose to substitute Initial Class Shares of the Replacement Fund for Class 1 Shares of the Existing Fund. With respect to Pivot, Applicants propose to substitute Service Class 2 Shares of the Replacement Fund for Class 2 Shares of the Existing Fund (together, the “Substitutions”).
9. Applicants represent that the Replacement Fund is an appropriate alternative for Contract Owners. Applicants state that the Replacement Fund and the Existing Fund each has an investment objective to seek current income as is consistent with preservation of capital and liquidity. In addition, while the principal investment strategies of the Replacement Fund may differ from those of the Existing Fund, the goal of each is to maintain a net asset value of $1.00 per share. Applicants note that although the risk profiles of the Replacement Fund and the Existing Fund differ, applicants believe that the Replacement Fund entails less investment risk than the Existing Fund. Additional information about the Existing Fund and the Replacement Fund, including investment objectives, principal investment strategies, principal risks and performance history, can be found in the application.
10. Applicants represent that the Substitutions will result in a decrease in overall expenses, which benefits the Contract Owners. The application sets forth the fees and expenses of the
11. Applicants state that the board of directors of PVC voted to terminate the Existing Fund and liquidate its assets effective April 8, 2016. In light of the impending liquidation and the importance of offering a money market fund investment option for the Contracts, the applicants determined that the Substitutions are necessary and in the best interests of Contract owners.
12. Applicants represent that the Substitutions and the selection of the Replacement Fund were not motivated by any financial consideration paid or to be paid to PLIC or to its affiliates by the Replacement Fund, its adviser or underwriter, or their affiliates.
13. Applicants state that as of the effective date of the Substitution, April 8, 2016 (“Substitution Date”), shares of the Existing Fund will be redeemed for cash. PLIC, on behalf of the Existing Fund subaccount of the Separate Account, will simultaneously place a redemption request with the Existing Fund and a purchase order with the Replacement Fund so that the purchase of Replacement Fund shares will be for the exact amount of the redemption proceeds. Thus, Contract values will remain fully invested at all times. The proceeds of such redemptions will then be used to purchase the appropriate number of shares of the Replacement Fund.
14. The Substitutions will take place at relative net asset value (in accordance with Rule 22c-1 under the Act) with no change in the amount of the contract value, cash value, accumulation value, account value or death benefit or in dollar value of the investment in the Separate Account. PLIC or its affiliates will pay all expenses and transaction costs of the Substitutions, including legal and accounting expenses, any applicable brokerage expenses and other fees and expenses.
15. The rights or obligations of PLIC under the Contracts of those Contract Owners with interests in the subaccount of the Existing Fund (“Affected Contract Owners”) will not be altered in any way. The Substitutions will in no way alter the tax treatment of Affected Contract Owners in connection with their Contracts, and no tax liability will arise for Affected Contract Owners as a result of the Substitutions. The Substitutions also will not adversely affect any riders under the Contracts. To the extent a Contract offers living benefits, death benefits, or other guarantees, the value of any such guarantee will not materially decrease directly or indirectly as a result of the Substitution.
16. Affected Contract Owners will be permitted to make at least one transfer of Contract value from the subaccount investing in the Existing Fund (before the Substitution Date) or the Replacement Fund (after the Substitution Date) to any other available investment option under the Contract without charge for a period beginning at least 30 days before the Substitution Date through at least 30 days following the Substitution Date. Except as described in any market timing/short-term trading provisions of the relevant prospectus, PLIC will not exercise any right it may have under the Contracts to impose restrictions on transfers between the subaccounts under the Contracts, including limitations on the future number of transfers, for a period beginning at least 30 days before the Substitution Date through at least 30 days following the Substitution Date.
17. All Group Contract Owners were notified of this application by means of a supplement to the Contract prospectuses dated March 7, 2016. All Retail Contract Owners were notified of the intent to file this application by means of a supplement to the Contract prospectuses dated December 11, 2015. Among other information regarding the Substitutions, the supplement informed Affected Contract Owners of the right to transfer Contract value from the subaccount investing in the Existing Fund (before the Substitution Date) or the Replacement Fund (after the Substitution Date) to any other available investment option under the Contract without charge. Additionally, a prospectus for the Replacement Fund was included with the supplement.
18. On March 9, 2016 (30 days before the Substitution Date) Affected Contract Owners were provided a “Pre-Substitution Notice,” setting forth: (a) The intended substitution of the Existing Fund with the Replacement Fund; (b) the intended Substitution Date (subject to approval and order by the Commission); and (c) information with respect to transfers. In addition, PLIC delivered a prospectus for the Replacement Fund with the Pre-Substitution Notice.
19. PLIC will deliver to each Affected Contract Owner within five (5) business days of the Substitution Date, a written confirmation, which will include a confirmation that the Substitutions were carried out as previously notified, a restatement of the information set forth in the Pre-Substitution Notice, and before and after account values.
20. Applicants will not receive for three years from the Substitution Date, any direct or indirect benefits from the Replacement Fund, its adviser or underwriter (or their affiliates), in connection with assets attributable to Contracts affected by the proposed Substitutions, at a higher rate than they had received from the Existing Fund, its adviser or underwriter (or their affiliates), including, without limitation, 12b-1 fees, shareholder service, administrative or other service fees, revenue sharing, or other arrangements.
1. Applicants request that the Commission issue an order pursuant to Section 26(c) of the Act approving the proposed Substitutions. Section 26(c) of the Act requires the depositor of a registered unit investment trust holding securities of a single issuer to receive Commission approval before substituting the securities held by the trust. Section 26(c) provides that such approval shall be granted by order of the Commission if the evidence establishes that the substitution is consistent with the protection of investors and the purposes of the Act.
2. Applicants submit that the Substitutions meet the standards set forth in Section 26(c) and that, if implemented, the Substitutions would not raise any of the concerns underlying that provision. Applicants represent that the Substitutions will provide Contract Owners with a comparable investment vehicle which will not circumvent Contract Owner-initiated decisions and PLIC's obligations under the Contracts, and will enable Contract Owners to continue to use the full range of applicable Contract features as they use today. Applicants further state that the Replacement Fund and the Existing Fund have essentially the same investment objectives, the Replacement Fund entails less investment risk than the Existing Fund, and the Substitutions will result in a decrease in overall expenses, thereby benefiting Contract Owners.
3. Applicants state that, as disclosed in the prospectuses for the Contract, PLIC reserves the right, subject to Commission approval, to substitute shares of another registered open-end management investment company for shares of an open-end management investment company held by a subaccount of a Separate Account. Applicants determined that the Substitutions are necessary and in the best interests of Contract Owners in light of the impending liquidation of the Existing Fund and the importance of offering a money market fund investment option for the Contracts.
4. Applicants also assert that the Substitutions do not entail any of the abuses that Section 26(c) was designed to prevent. Each Affected Contract Owner has been advised of his right, any time prior to the Substitution Date, and for at least 30 days after the Substitution Date, to reallocate account value under the affected Contract without any cost or limitation, or otherwise withdraw or terminate his interest in accordance with the terms and conditions of his Contract. Furthermore, Contract Owners will not incur any additional tax liability or any additional fees or expenses as a result of the Substitutions.
Applicants agree that any order granting the requested relief will be subject to the following conditions:
1. The Substitutions will not be effected unless the Applicants determine that: (a) The Contracts allow the substitution of shares of registered open-end investment companies in the manner contemplated by the application; (b) the Substitutions can be consummated as described in the application under applicable insurance laws; and (c) any regulatory requirements in each jurisdiction where the Contracts are qualified for sale have been complied with to the extent necessary to complete the proposed Substitutions.
2. Applicants or their affiliates will pay all expenses and transaction costs of the proposed Substitutions, including legal and accounting expenses, any applicable brokerage expenses and other fees and expenses. No fees or charges will be assessed to the Affected Contract Owners to effect the proposed Substitutions.
3. The Substitutions will be effected at the relative net asset values of the respective shares in conformity with Section 22(c) of the Act and Rule 22c-1 thereunder without the imposition of any transfer or similar charges by Applicants. The Substitutions will be effected without change in the amount or value of any Contracts held by Affected Contract Owners.
4. The Substitutions will in no way alter the tax treatment of Affected Contract Owners in connection with their Contracts, and no tax liability will arise for Affected Contract Owners as a result of the proposed Substitutions.
5. The rights or obligations of the PLIC under the Contracts of Affected Contract Owners will not be altered in any way. The Substitutions will not adversely affect any riders under the Contracts.
6. Affected Contract Owners will be permitted to make at least one transfer of Contract value from the subaccount investing in the Existing Fund (before the Substitution Date) or the Replacement Fund (after the Substitution Date) to any other available investment option under the Contract without charge for a period beginning at least 30 days before the Substitution Date through at least 30 days following the Substitution Date. Except as described in any market timing/short-term trading provisions of the relevant prospectus, PLIC will not exercise any right they may have under the Contracts to impose restrictions on transfers between the subaccounts under the Contracts, including limitations on the future number of transfers, for a period beginning at least 30 days before the Substitution Date through at least 30 days following the Substitution Date.
7. All Affected Contract Owners will be notified, at least 30 days before the Substitution Date about: (a) The intended substitution of the Existing Fund with the Replacement Fund; (b) the intended Substitution Date; and (c) information with respect to transfers as set forth in Condition 6 above. In addition, the Applicants will deliver to all Affected Contract Owners, at least 30 days before the Substitution Date, a prospectus for the Replacement Fund.
8. Applicants will deliver to each Affected Contract Owner within five (5) business days of the Substitution Date a written confirmation which will include: (a) A confirmation that the proposed Substitutions were carried out as previously notified; (b) a restatement of the information set forth in the Pre-Substitution Notice; and (c) before and after account values.
9. Applicants will not receive, for three years from the Substitution Date, any direct or indirect benefits from the Replacement Fund, its adviser or underwriter (or their affiliates), in connection with assets attributable to Contracts affected by the Substitutions, at a higher rate than they had received from the Existing Fund, its adviser or underwriter (or their affiliates), including without limitation 12b-1 fees, shareholder service, administrative or other service fees, revenue sharing, or other arrangements.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to list and trade shares of the Pointbreak Diversified Commodity Fund (the “Fund”) of the Pointbreak ETF Trust (the “Trust”) under BATS Rule 14.11(i) (“Managed Fund Shares”). The shares of the Fund are referred to herein as the “Shares”.
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to list and trade the Shares under BATS Rule 14.11(i), which governs the listing and trading of Managed Fund Shares on the Exchange.
The Shares will be offered by the Trust, which was organized as a Delaware statutory trust on June 18, 2015. The Trust is registered with the Commission as an open-end investment company and has filed a registration statement on behalf of the Fund on Form N-1A (“Registration Statement”) with the Commission.
Pointbreak Advisers LLC is the investment adviser (“Adviser”) to the Fund. Brown Brothers Harriman & Co. (“BBH”) is the administrator, custodian and transfer agent for the Trust. ALPS Distributors, Inc. (“Distributor”) serves as the distributor for the Trust. The Adviser is not affiliated with either BBH or the Distributor.
BATS Rule 14.11(i)(7) provides that, if the investment adviser to the investment company issuing Managed Fund Shares is affiliated with a broker-dealer, such investment adviser shall erect a “fire wall” between the investment adviser and the broker-dealer with respect to access to information concerning the composition and/or changes to such investment company portfolio.
According to the Registration Statement, the Fund is an actively managed exchange-traded fund (“ETF”) that seeks to provide total return that exceeds that of a benchmark, the Solactive Diversified Commodity Index (the “Benchmark”) over time. The Fund is not an index tracking exchange-traded fund and is not required to invest in the specific components of the Benchmark. However, the Fund will generally seek to maintain a portfolio of instruments similar to those included in the Benchmark and will seek exposure to commodities included in the Benchmark. The Benchmark is a rules-based index composed of futures contracts on 16 heavily traded commodities across the energy, precious metals, industrial metals and agriculture sectors: Aluminum, Brent crude oil, cocoa, copper, corn, gold, heating oil, live cattle, natural gas, Reformulated Gasoline Blendstock for Oxygen Blending (“RBOB”) gasoline, silver, soybeans, sugar #11, wheat, WTI light crude oil, and zinc. The allocation among the Fund's investments generally approximates the allocation among the components of the Benchmark. The Benchmark will further seek to select the contract month, for each specific commodity, among the next 13 months that display the most backwardation, or the least contango, and does not attempt to always own those contracts that are closest to expiration. Although the Fund seeks returns comparable to the returns of the Benchmark, the Fund can have a higher or lower exposure to any component within the Benchmark at any time and may invest in other commodity-linked instruments as well, as described below.
According to the Registration Statement, under normal
Under normal circumstances, in addition to investing in Commodity Futures through the Subsidiary, the Fund will invest its remaining assets in Cash Instruments, including cash, cash-like instruments or high-quality collateral securities that provide liquidity, serve as margin, or collateralize the Subsidiary's investments in Commodity Futures. Such Cash Instruments include only the following instruments: (i) Short-term obligations issued by the U.S. Government; (ii) cash and cash-like instruments; (iii) money market mutual funds, including affiliated money market mutual funds; and (iv) repurchase agreements.
The Fund generally will not invest directly in Commodity Futures. The Fund expects to gain exposure to Commodity Futures by investing a portion of its assets in the Subsidiary, which will invest in Commodity Futures.
During times of adverse market, economic, political or other conditions, the Fund may depart temporarily from its principal investment strategies (such as by maintaining a significant uninvested cash position) for defensive purposes. Doing so could help the Fund avoid losses, but may mean lost investment opportunities. During these periods, the Fund may not achieve its investment objective.
The Fund intends to qualify each year as a regulated investment company (a “RIC”) under Subchapter M of the Internal Revenue Code of 1986, as amended.
The Fund may hold up to an aggregate amount of 15% of its net assets in illiquid assets (calculated at the time of investment) deemed illiquid by the Adviser
The Fund's investments will be consistent with the Fund's investment objective and will not be used to achieve leveraged or inverse leveraged returns (
According to the Registration Statement, the net asset value (“NAV”) of the Shares of the Fund will be calculated by dividing the value of the net assets of the Fund (
Securities and other assets held by both the Fund and the Subsidiary are generally valued at their market price using market quotations or information provided by a pricing service. Certain short-term debt securities are valued on the basis of amortized cost. Commodity
For more information regarding the valuation of Fund investments in calculating the Fund's NAV, see the Registration Statement.
The Fund will issue and redeem Shares on a continuous basis at the NAV per Share only in large blocks of a specified number of Shares or multiples thereof (“Creation Units”) in transactions with authorized participants who have entered into agreements with the Distributor. The Adviser currently anticipates that a Creation Unit will consist of 50,000 Shares, though this number may change from time to time, including prior to listing of the Shares. The exact number of Shares that will constitute a Creation Unit will be disclosed in the Registration Statement. Once created, Shares of the Fund may trade on the secondary market in amounts less than a Creation Unit.
Although the Adviser anticipates that purchases and redemptions for Creation Units will generally be executed on an all-cash basis, the consideration for purchase of Creation Units of the Fund may consist of an in-kind deposit of a designated portfolio of assets (including any portion of such assets for which cash may be substituted) (
The Deposit Assets and Fund Securities (as defined below), as the case may be, in connection with a purchase or redemption of a Creation Unit, generally will correspond pro rata, to the extent practicable, to the assets held by the Fund.
The Cash Component will be an amount equal to the difference between the NAV of the Shares (per Creation Unit) and the “Deposit Amount,” which will be an amount equal to the market value of the Deposit Assets, and serve to compensate for any differences between the NAV per Creation Unit and the Deposit Amount. The Adviser will make available through the National Securities Clearing Corporation (“NSCC”) on each business day, prior to the opening of business on the Exchange, the list of names and the required number or par value of each Deposit Asset and the amount of the Cash Component to be included in the current Fund Deposit (based on information as of the end of the previous business day) for the Fund.
The identity and number or par value of the Deposit Assets may change pursuant to changes in the composition of the Fund's portfolio as rebalancing adjustments and corporate action events occur from time to time. The composition of the Deposit Assets may also change in response to adjustments to the weighting or composition of the holdings of the Fund.
The Fund reserves the right to permit or require the substitution of a “cash in lieu” amount to be added to the Cash Component to replace any Deposit Asset that may not be available in sufficient quantity for delivery or that may not be eligible for transfer through the Depository Trust Company (“DTC”) or the clearing process through the NSCC.
Except as noted below, all creation orders must be placed for one or more Creation Units and must be received by the Distributor at a time specified by the Adviser. The Fund currently intends that such orders must be received in proper form no later than 10:30 a.m. Eastern Time on the date such order is placed in order for creation of Creation Units to be effected based on the NAV of Shares of the Fund as next determined on such date after receipt of the order in proper form. The “Settlement Date” is generally the third business day after the transmittal date. On days when the Exchange or the futures markets close earlier than normal, the Fund may require orders to create or to redeem Creation Units to be placed earlier in the day.
A standard creation transaction fee may be imposed to offset the transfer and other transaction costs associated with the issuance of Creation Units.
Shares of the Fund may be redeemed only in Creation Units at their NAV next determined after receipt of a redemption request in proper form by the Distributor and only on a business day. Adviser will make available through the NSCC, prior to the opening of business on the Exchange on each business day, the designated portfolio of assets (including any portion of such assets for which cash may be substituted) that will be applicable (subject to possible amendment or correction) to redemption requests received in proper form on that day (“Fund Securities”). The redemption proceeds for a Creation Unit generally will consist of a specified amount of cash less a redemption transaction fee. The Fund generally will redeem Creation Units entirely for cash.
A standard redemption transaction fee, in an amount disclosed in the current prospectus for the Fund, may be imposed to offset transfer and other transaction costs that may be incurred by the Fund.
Redemption requests for Creation Units of the Fund must be submitted to the Distributor by or through an authorized participant by a time specified by the Adviser. The Fund currently intends that such requests must be received no later than 10:30 a.m. Eastern Time on any business day, in order to receive that day's NAV. The authorized participant must transmit the request for redemption in the form required by the Fund to the Distributor in accordance with procedures set forth in the authorized participant agreement.
Additional information regarding the Shares and the Fund, including investment strategies, risks, creation and redemption procedures, fees and expenses, portfolio holdings disclosure policies, distributions, taxes and reports to be distributed to beneficial owners of the Shares can be found in the Registration Statement or on the Web site for the Fund (
The Fund's Web site, which will be publicly available prior to the public offering of Shares, will include a form of the prospectus for the Fund that may be downloaded. The Web site will include additional quantitative information updated on a daily basis, including, for the Fund: (1) The prior
In addition, for the Fund, an estimated value, defined in BATS Rule 14.11(i)(3)(C) as the “Intraday Indicative Value,” that reflects an estimated intraday value of the Fund's portfolio, will be disseminated. Moreover, the Intraday Indicative Value will be based upon the current value for the components of the Disclosed Portfolio and will be updated and widely disseminated by one or more major market data vendors at least every 15 seconds during the Exchange's Regular Trading Hours.
The dissemination of the Intraday Indicative Value, together with the Disclosed Portfolio, will allow investors to determine the value of the underlying portfolio of the Fund on a daily basis and provide an estimate of that value throughout the trading day.
Intraday price quotations on U.S. government securities, debt securities, and repurchase agreements of the type held by the Fund are available from major broker-dealer firms and from third-parties, which may provide prices free with a time delay, or “live” with a paid fee. For futures, such intraday information is available directly from the applicable listing exchange. Intraday price information is also available through subscription services, such as Bloomberg and Thomson Reuters, which can be accessed by authorized participants and other investors.
Information regarding market price and trading volume of the Shares will be continually available on a real-time basis throughout the day on brokers' computer screens and other electronic services. The previous day's closing price and trading volume information for the Shares will be generally available daily in the print and online financial press. Quotation and last sale information for the Shares will be available on the facilities of the CTA.
The Shares will be subject to BATS Rule 14.11(i), which sets forth the initial and continued listing criteria applicable to Managed Fund Shares. The Exchange represents that, for initial and/or continued listing, the Fund must be in compliance with Rule 10A-3 under the Act.
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of the Fund. The Exchange will halt trading in the Shares under the conditions specified in BATS Rule 11.18. Trading may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. These may include: (1) The extent to which trading is not occurring in the Commodity Futures and other assets composing the Disclosed Portfolio of the Fund; or (2) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present. Trading in the Shares also will be subject to Rule 14.11(i)(4)(B)(iv), which sets forth circumstances under which Shares of the Fund may be halted.
The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. BATS will allow trading in the Shares from 8:00 a.m. until 5:00 p.m. Eastern Time. The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions. As provided in BATS Rule 14.11(i)(2)(C), the minimum price variation for quoting and entry of orders in Managed Fund Shares traded on the Exchange is $0.01.
The Exchange believes that its surveillance procedures are adequate to properly monitor the trading of the Shares on the Exchange during all trading sessions and to deter and detect violations of Exchange rules and the applicable federal securities laws. Trading of the Shares through the Exchange will be subject to the Exchange's surveillance procedures for derivative products, including Managed Fund Shares. The Exchange may obtain information regarding trading in the Shares and the underlying futures, including futures contracts held by the Subsidiary, via the Intermarket Surveillance Group (“ISG”) from other exchanges who are members or affiliates of the ISG or with which the Exchange has entered into a comprehensive
Prior to the commencement of trading, the Exchange will inform its members in an Information Circular of the special characteristics and risks associated with trading the Shares. Specifically, the Information Circular will discuss the following: (1) The procedures for purchases and redemptions of Shares in Creation Units (and that Shares are not individually redeemable); (2) BATS Rule 3.7, which imposes suitability obligations on Exchange members with respect to recommending transactions in the Shares to customers; (3) how information regarding the Intraday Indicative Value and Disclosed Portfolio are disseminated; (4) the risks involved in trading the Shares during the Pre-Opening
In addition, the Information Circular will advise members, prior to the commencement of trading, of the prospectus delivery requirements applicable to the Fund. Members purchasing Shares from the Fund for resale to investors will deliver a prospectus to such investors. The Information Circular will also discuss any exemptive, no-action, and interpretive relief granted by the Commission from any rules under the Act.
In addition, the Information Circular will reference that the Fund is subject to various fees and expenses described in the Registration Statement. The Information Circular will also disclose the trading hours of the Shares of the Fund and the applicable NAV calculation time for the Shares. The Information Circular will disclose that information about the Shares of the Fund will be publicly available on the Fund's Web site. In addition, the Information Circular will reference that the Trust is subject to various fees and expenses described in the Registration Statement.
The Exchange believes that the proposal is consistent with section 6(b) of the Act
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed and traded on the Exchange pursuant to the initial and continued listing criteria in BATS Rule 14.11(i). The Exchange believes that its surveillance procedures are adequate to properly monitor the trading of the Shares on the Exchange during all trading sessions and to deter and detect violations of Exchange rules and the applicable federal securities laws. If the investment adviser to the investment company issuing Managed Fund Shares is affiliated with a broker-dealer, such investment adviser to the investment company shall erect a “fire wall” between the investment adviser and the broker-dealer with respect to access to information concerning the composition and/or changes to such investment company portfolio. The Adviser is not a registered broker-dealer and is not affiliated with a broker-dealer. The Exchange may obtain information regarding trading in the Shares and the underlying futures, including those held by the Subsidiary, via the ISG from other exchanges who are members or affiliates of the ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement.
Under normal circumstances, the Fund will invest, either directly or through the Subsidiary, in a combination of Commodity Futures and Cash Instruments. Commodity Futures provide exposure to the investment returns of the commodities markets, without investing directly in physical commodities. The Fund generally will not invest directly in Commodity Futures. The Fund expects to gain exposure to these investments by investing a portion of its assets in the Subsidiary. Cash Instruments include only the following instruments: (i) Short-term obligations issued by the U.S. Government; (ii) cash and cash-like instruments; and (iii) money market mutual funds, including affiliated money market mutual funds. The Fund will not invest in Cash Instruments that are below investment grade.
During times of adverse market, economic, political or other conditions, the Fund may depart temporarily from its principal investment strategies (such as by maintaining a significant uninvested cash position) for defensive purposes. Doing so could help the Fund avoid losses, but may mean lost investment opportunities. During these periods, the Fund may not achieve its investment objective.
Additionally, the Fund may hold up to an aggregate amount of 15% of its net assets in illiquid assets (calculated at the time of investment). The Fund will monitor its portfolio liquidity on an ongoing basis to determine whether, in light of current circumstances, an adequate level of liquidity is being maintained, and will consider taking appropriate steps in order to maintain adequate liquidity if, through a change in values, net assets, or other circumstances, more than 15% of the Fund's net assets are held in illiquid assets. Illiquid assets include assets subject to contractual or other restrictions on resale and other instruments that lack readily available markets as determined in accordance with Commission staff guidance.
The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that the Exchange will obtain a representation from the issuer of the Shares that the NAV will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time. In addition, a large amount of information is publicly available regarding the Fund and the
Intraday price quotations on U.S. government securities, debt securities, and repurchase agreements of the type held by the Fund are available from major broker-dealer firms and from third-parties, which may provide prices free with a time delay, or “live” with a paid fee. For futures, such intraday information is available directly from the applicable listing exchange. Intraday price information is also available through subscription services, such as Bloomberg and Thomson Reuters, which can be accessed by authorized participants and other investors.
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that it will facilitate the listing and trading of additional types of actively-managed exchange-traded product that will enhance competition among market participants, to the benefit of investors and the marketplace. As noted above, the Exchange has in place surveillance procedures relating to trading in the Shares and may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement as well as trade information for certain fixed income instruments as reported to FINRA's TRACE. In addition, as noted above, investors will have ready access to information regarding the Fund's holdings, the Intraday Indicative Value, the Disclosed Portfolio, and quotation and last sale information for the Shares.
For the above reasons, the Exchange believes that the proposed rule change is consistent with the requirements of section 6(b)(5) of the Act.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purpose of the Act. The Exchange notes that the proposed rule change, rather will facilitate the listing and trading of additional actively-managed exchange-traded products that will enhance competition among both market participants and listing venues, to the benefit of investors and the marketplace.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Within 45 days of the date of publication of this notice in the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to establish a fee for a new optional wireless connectivity service, Remote ITCH to Trade Options Wave Ports.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Nasdaq is proposing to amend Nasdaq Options Market (“NOM”) Rules chapter XV, section 3, to establish fees for Remote ITCH to Trade Options (“ITTO”) Wave Ports for clients co-located at other third-party data centers located in Mahwah, N.J. (“Mahwah”) and Secaucus, N.J. (“Secaucus”), through which Nasdaq ITTO market data will be distributed after delivery to those data centers via a wireless network. Nasdaq ITTO is a data feed that provides quotation information for individual orders on the NOM book, last sale information for trades executed on NOM, and Order Imbalance Information as set forth in NOM Rules chapter VI, section 8.
Nasdaq provides market data via two connectivity mediums: Fiber optic networks, and/or wireless networks, (aka, Remote Wave Ports). ITTO market data is currently provided only by Nasdaq through fiber optic networks. Nasdaq is now proposing to provide ITTO market data through Remote Wave Ports. A Remote Wave Port is a physical port located in Nasdaq's space within a third-party's (remote) data center that receives market data delivered by Nasdaq via a wireless network,
Nasdaq offers TotalView ITCH equities market data through Remote MITCH Wave Ports for clients co-located at third-party data centers in Mahwah and Secaucus.
Nasdaq is proposing to deliver ITTO market data to Nasdaq-owned cabinets at the third-party data centers located in Mahwah and Secaucus via a wireless network, as is currently done for TotalView ITCH market data. This offering, which is entirely optional, will enable delivery of Nasdaq ITTO market data to the third-party data centers at the same low latency.
Nasdaq is proposing to assess an installation charge for a Remote Wave Port in Mahwah of $5,000 and a charge of $2,500 for a Remote Wave Port in Secaucus. Nasdaq is also proposing a monthly recurring fee of $10,000 for a Remote Wave Port in Mahwah and $7,500 for a Remote Wave Port in Secaucus. Clients opting to subscribe to a Remote ITTO Wave Port will continue to be fee liable for the applicable market data fees as described in NOM Rules chapter XV, section 4(a).
Competition for market data distribution is considerable and the Exchange believes that this proposal clearly evidences such competition. Nasdaq is offering a new data delivery option via Remote Wave Ports to keep pace with changes in the industry and evolving customer needs as new technologies emerge and products continue to develop and change. The new delivery option is similar to existing offerings, entirely optional, and is geared towards attracting new customers, as well as retaining existing customers.
The proposed fees are based on the cost to Nasdaq and its vendors of installing and maintaining the wireless connectivity and on the value provided to the customer, which receives low latency delivery of data feeds. The costs associated with the wireless connectivity system are incrementally higher than fiber optics-based solutions due to the expense of the wireless equipment, cost of installation, and
The fees also allow Nasdaq to make a profit, and reflect the premium received by the clients in terms of lower latency over the fiber optics option. Clients can choose to build and maintain their own wireless networks or choose their own third party network vendors but the upfront and ongoing costs will be much more substantial than this Nasdaq wireless offering.
Nasdaq notes that the proposed fees are identical to, or less than, the analogous installation and monthly fees assessed for Remote MITCH Wave Ports located in the same third-party data centers in Mahwah and Secaucus.
Nasdaq believes that its proposal is consistent with section 6(b) of the Act,
Nasdaq operates in a highly competitive market in which exchanges offer co-location and connectivity services as a means to facilitate the trading activities of those members who believe that co-location and low latency connectivity enhances the efficiency of their trading.
Accordingly, fees charged for co-location and connectivity services are constrained by the active competition for the order flow of such members. If a particular exchange charges excessive fees for these services, affected members will opt to terminate their co-location and/or connectivity arrangements with that exchange, and adopt a possible range of alternative strategies, including using another vendor for connectivity services, co-locating with a different exchange, placing their servers in a physically proximate location outside the exchange's data center, or pursuing trading strategies not dependent upon co-location. Thus, the exchange charging excessive fees would stand to lose not only co-location and connectivity revenues but also revenues associated with the execution of orders routed to it by affected members.
Nasdaq notes that the Commission recently approved an NYSE MKT LLC (“NYSE MKT”) rule change to offer similar services.
A co-location customer may obtain a similar service by contracting with a wireless service provider to install the required dishes on towers near the data centers and paying the service provider to maintain the service. However, the cost involved in establishing service in this manner is substantial and could result in uneven access to wireless connectivity. Nasdaq's proposed fees will allow these clients to utilize wireless connectivity and obtain the lower latency transmission of data from Nasdaq that is available to others, at a reasonable cost.
Moreover, Nasdaq believes that the proposed fees for wireless connectivity to Nasdaq are reasonable because they are based on Nasdaq's and its vendors' costs to cover hardware, installation, testing and connection, as well expenses involved in maintaining and managing the new connection. The proposed fees allow Nasdaq to recoup these costs and make a profit, while providing customers the ability to reduce latency in the transmission of data from Nasdaq, and reducing the cost to them that would be involved if they build or buy their own wireless networks.
Nasdaq believes that the proposed fees are reasonable in that they reflect the costs of the connection and the benefit of the lower latency to clients. Last [sic], the proposed fees are reasonable because they are identical to, or less than, the analogous installation and monthly fees assessed by Nasdaq for Remote Wave Ports located in the same third-party data centers in Mahwah and Secaucus that receive ITCH market data.
Nasdaq believes the proposed Remote Wave Port fees are equitably allocated and non-discriminatory in that all co-location clients that voluntarily select this service option will be charged the same amount for the same services. As is true of all co-location services, all co-located clients have the option to select this voluntary connectivity option, and there is no differentiation among customers with regard to the fees charged for the service. Further, the latency reduction offered will be the same for all clients who choose to receive this wireless feed from the Remote Wave Ports, The [sic] same cannot be said of the alternative where entities with substantial resources invest in private services and thereby obtain lower latency transmission, while those without resources are unable to invest in the necessary infrastructure.
Nasdaq's proposal is also consistent with the requirement of section 6(b)(5) of the Act that Exchange rules be designed to promote just and equitable principles of trade [sic] to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest; and are not designed to permit unfair discrimination between customers, issuers, brokers, or dealers. The proposal is consistent with these requirements insomuch as it makes available to market participants, at a reasonable fee and on a non-discriminatory basis, access to low latency means of receiving Nasdaq's market data feeds at third-party data centers.
Initially, Nasdaq will perform substantial network testing prior to making the service available to members. After this testing period, the wireless network will continue to be closely monitored and maintained by the vendor and the client will be informed of any issues. Additionally, during the initial roll-out of the service and on a rolling basis for future clients, the Exchange will enable clients to test the receipt of the feed(s) for a minimum of 30 days before incurring any monthly recurring fees. Similar to receiving market data over fiber optic networks, the wireless network can encounter delays or outages due to equipment issues. As wireless networks may be affected by severe weather events, clients will be expected to have redundant methods to receive this market data and will be asked to attest to having alternate methods or establishing an alternate method in the
Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
To the contrary, this proposal will promote competition for distribution of market data by offering an optional and innovative product enhancement. Wireless technology has been in use for decades, is available from multiple providers, and has been adopted by other exchanges to offer microwave connectivity for delivery of market data.
As discussed above, the Exchange believes that fees for co-location services, including those proposed for microwave connectivity, are constrained by the robust competition for order flow among exchanges and non-exchange markets, because co-location exists to advance that competition. Further, excessive fees for co-location services, including for wireless technology, would serve to impair an exchange's ability to compete for order flow rather than burdening competition.
Competition between the Exchange and competing trading venues will be enhanced by allowing the Exchange to offer its market participants a lower latency connectivity option to receive market data, which is currently available through other connectivity. Competition among market participants will also be supported by allowing small and large participants the same price for this lower latency connectivity.
The proposed rule change will likewise enhance competition among service providers offering connections between market participants and the data centers. The offering will expand the multiple means of connectivity available, allowing customers to compare the benefits and costs of lower latency transmission and related costs with reference to numerous variables.
The Exchange, and presumably its competitors, selects service providers on a competitive basis in order to pass along price advantages to their customers, and to win and maintain their business. The offering is consistent with the Exchange's own economic incentives to facilitate as many market participants as possible in connecting to its market.
No written comments were either solicited or received.
Within 45 days of the date of publication of this notice in the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Small Business Administration.
30-Day Notice.
The Small Business Administration (SBA) is publishing this notice to comply with requirements of the Paperwork Reduction Act (PRA) (44 U.S.C. Chapter 35), which requires agencies to submit proposed reporting and recordkeeping requirements to OMB for review and approval, and to publish a notice in the
Submit comments on or before April 21, 2016.
Comments should refer to the information collection by name and/or OMB Control Number and should be sent to:
Curtis Rich, Agency Clearance Officer, (202) 205-7030,
Small Business Administration SBA Form 912 is used to collect information needed to make character determinations with respect to applicants for monetary loan assistance or applicants for participation in SBA programs. The information collected is used as the basis for conducting name checks at national Federal Bureau of Investigations (FBI) and local levels.
SBA is requesting that applicants include their email contact information when listing their (or their firm's) name and address. SBA is also requesting additional information pertaining to applicants' citizenship or Lawful Permanent Resident status. SBA made several minor changes to enhance the readability and clarity of the form, including renumbering Question 1, revising the wording of Questions 2 and 9, moving the burden information from Page 1 to Page 2, and explicitly instructing applicants that they “must” fully complete SBA Form 912, including furnishing details on a separate sheet for any “Yes” responses to Questions 7, 8, or 9.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of New Jersey (FEMA-4264-DR), dated 03/14/2016.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the President's major disaster declaration on 03/14/2016, Private Non-Profit organizations that provide essential services of governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 14669B and for economic injury is 14670B.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of TEXAS (FEMA-4255-DR), dated 02/09/2016.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
Alan Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of TEXAS, dated 02/09/2016, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for the State of Louisiana (FEMA-4263-DR), dated 03/13/2016.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
The notice of the Presidential disaster declaration for the State of LOUISIANA, dated 03/13/2016 is hereby amended to include the following areas as adversely affected by the disaster:
All other information in the original declaration remains unchanged.
Susquehanna River Basin Commission.
Notice.
As part of its regular business meeting held on March 10, 2016, in Aberdeen, Maryland, the Commission took the following actions: (1) Approved or tabled the applications of certain water resources projects; (2) accepted settlements in lieu of penalties from Aqua Pennsylvania, Inc., Cabot Oil & Gas Corporation, and King Valley Golf Course; and (3) took additional actions, as set forth in the
March 10, 2016.
Susquehanna River Basin Commission, 4423 N. Front Street, Harrisburg, PA 17110-1788.
Jason E. Oyler, General Counsel, telephone: (717) 238-0423, ext. 1312; fax: (717) 238-2436; email:
In addition to the actions taken on projects identified in the summary above and the listings below, the following items were also presented or acted upon at the business meeting: (1) Adoption of a budget for the 2017 fiscal year; (2) a recommendation for engaging an independent auditor; (3) approval/ratification of a grant amendment and an agreement; and (4) a report on delegated settlements with the following project sponsors, pursuant to SRBC Resolution 2014-15: Dauphin County General Authority—Highlands Golf Course, in the amount of $2,000; Talisman Energy USA Inc., in the amount of $1,000; and Mountain Energy Services, Inc., in the amount of $1,000.
The Commission approved settlements in lieu of civil penalties for the following projects:
1. Aqua Pennsylvania, Inc. (Beech Mountain System), Butler Township, Luzerne County, PA—$9,000.
2. Cabot Oil & Gas Corporation (GillinghamR P1 Pad (ABR-201305017; Forest Lake Township) and DeluciaR P1 Pad (ABR-201211002; Harford Township)), Susquehanna County, PA—$11,000.
3. King Valley Golf Course, Kimmel Township, Bedford County, PA—$10,000.
The Commission approved the following project applications:
1. Project Sponsor and Facility: Anadarko E&P Onshore LLC (Lycoming Creek), Lewis Township, Lycoming County, PA. Renewal of surface water withdrawal of up to 1.340 mgd (peak day) (Docket No. 20120301).
2. Project Sponsor: Aqua Pennsylvania, Inc. Project Facility: Midway Manor System, Kingston Township, Luzerne County, PA. Groundwater withdrawal of up to 0.115 mgd (30-day average) from Dug Road Well.
3. Project Sponsor: Aqua Pennsylvania, Inc. Project Facility: Midway Manor System, Kingston Township, Luzerne County, PA. Groundwater withdrawal of up to 0.035 mgd (30-day average) from Hilltop Well.
4. Project Sponsor: Aqua Pennsylvania, Inc. Project Facility: Midway Manor System, Kingston Township, Luzerne County, PA. Groundwater withdrawal of up to 0.158 mgd (30-day average) from Midway Well 1.
5. Project Sponsor: Aqua Pennsylvania, Inc. Project Facility: Midway Manor System, Kingston Township, Luzerne County, PA. Groundwater withdrawal of up to 0.110 mgd (30-day average) from Midway Well 2.
6. Project Sponsor and Facility: East Berlin Area Joint Authority, Reading Township, Adams County, PA. Groundwater withdrawal of up to 0.044 mgd (30-day average) from Well 1.
7. Project Sponsor and Facility: East Berlin Area Joint Authority, Reading Township, Adams County, PA. Groundwater withdrawal of up to 0.065 mgd (30-day average) from Well 2.
8. Project Sponsor and Facility: East Berlin Area Joint Authority, East Berlin Borough, Adams County, PA. Groundwater withdrawal of up to 0.058 mgd (30-day average) from Well 4.
9. Project Sponsor and Facility: East Berlin Area Joint Authority, East Berlin Borough, Adams County, PA. Renewal with modification to increase groundwater withdrawal limit, for a total of up to 0.051 mgd (30-day average) from Well 5 (Docket No. 19860601).
10. Project Sponsor and Facility: East Cocalico Township Authority, East Cocalico Township, Lancaster County, PA. Groundwater withdrawal of up to 0.059 mgd (30-day average) from Well 3A.
11. Project Sponsor and Facility: East Cocalico Township Authority, East Cocalico Township, Lancaster County, PA. Groundwater withdrawal of up to 0.023 mgd (30-day average) from Well 4.
12. Project Sponsor and Facility: East Cocalico Township Authority, East Cocalico Township, Lancaster County, PA. Groundwater withdrawal of up to 0.056 mgd (30-day average) from Well 5.
13. Project Sponsor and Facility: East Cocalico Township Authority, East Cocalico Township, Lancaster County, PA. Groundwater withdrawal of up to 0.022 mgd (30-day average) from Well 6.
14. Project Sponsor and Facility: East Cocalico Township Authority, East Cocalico Township, Lancaster County, PA. Groundwater withdrawal of up to 0.046 mgd (30-day average) from Well 7.
15. Project Sponsor and Facility: EQT Production Company (Wilson Creek), Duncan Township, Tioga County, PA. Renewal of surface water withdrawal of up to 0.720 mgd (peak day) (Docket No. 20120307).
16. Project Sponsor and Facility: Furman Foods, Inc., Point Township, Northumberland County, PA. Renewal of groundwater withdrawal to include a phased implementation of seasonal groundwater withdrawal limits for Well 1 (Docket No. 19850901).
17. Project Sponsor and Facility: Furman Foods, Inc., Point Township, Northumberland County, PA. Renewal of groundwater withdrawal to include a phased implementation of seasonal groundwater withdrawal limits for Well 4 (Docket No. 19850901).
18. Project Sponsor and Facility: Furman Foods, Inc., Point Township, Northumberland County, PA. Renewal of groundwater withdrawal to include a phased implementation of seasonal groundwater withdrawal limits for Well 7 (Docket No. 19850901).
19. Project Sponsor and Facility: Mount Joy Borough Authority, Mount Joy Borough, Lancaster County, PA. Modification to increase withdrawal limit from Well 2 by 0.105 mgd (30-day average), for a total Well 2 withdrawal limit of 1.270 mgd (30-day average), and to increase the combined withdrawal limit by an additional 0.199 mgd (30-day average), for a total combined withdrawal limit of 1.799 mgd (30-day average) from Wells 1 and 2 (Docket No. 20110617).
20. Project Sponsor and Facility: Muncy Borough Municipal Authority, Muncy Creek Township, Lycoming County, PA. Groundwater withdrawal of up to 0.324 mgd (30-day average) from Well 5.
21. Project Sponsor and Facility: Muncy Borough Municipal Authority, Muncy Creek Township, Lycoming County, PA. Groundwater withdrawal of up to 0.352 mgd (30-day average) from Well 6.
22. Project Sponsor and Facility: Muncy Borough Municipal Authority, Muncy Creek Township, Lycoming County, PA. Groundwater withdrawal of up to 0.126 mgd (30-day average) from Well 7.
23. Project Sponsor and Facility: Muncy Borough Municipal Authority, Muncy Creek Township, Lycoming County, PA. Groundwater withdrawal of up to 0.276 mgd (30-day average) from Well 8.
24. Project Sponsor: Pennsylvania Department of Environmental Protection, Bureau of Conservation and Restoration. Project Facility: Cresson Mine Drainage Treatment Plant, Cresson Borough, Cambria County, PA. Groundwater withdrawal from the Argyle Stone Bridge Well as part of a four-well system drawing up to 6.300 mgd (30-day average) from the Gallitzin Shaft and Cresson Mine Pools.
25. Project Sponsor: Pennsylvania Department of Environmental Protection, Bureau of Conservation and Restoration. Project Facility: Cresson Mine Drainage Treatment Plant, Cresson Township, Cambria County, PA. Groundwater withdrawal from the Cresson No. 9 Well as part of a four-well system drawing up to 6.300 mgd (30-day average) from the Gallitzin Shaft and Cresson Mine Pools.
26. Project Sponsor: Pennsylvania Department of Environmental Protection, Bureau of Conservation and Restoration. Project Facility: Cresson Mine Drainage Treatment Plant, Gallitzin Township, Cambria County, PA. Groundwater withdrawal from the Gallitzin Shaft Well 2A (Gallitzin Shaft #2) as part of a four-well system drawing up to 6.300 mgd (30-day average) from the Gallitzin Shaft and Cresson Mine Pools.
27. Project Sponsor: Pennsylvania Department of Environmental Protection, Bureau of Conservation and Restoration. Project Facility: Cresson Mine Drainage Treatment Plant, Gallitzin Township, Cambria County, PA. Groundwater withdrawal from the Gallitzin Shaft Well 2B (Gallitzin Shaft #1) as part of a four-well system drawing up to 6.300 mgd (30-day average) from the Gallitzin Shaft and Cresson Mine Pools.
28. Project Sponsor and Facility: SWN Production Company, LLC (Susquehanna River), Mehoopany Township, Wyoming County, PA. Surface water withdrawal of up to 1.500 mgd (peak day).
29. Project Sponsor and Facility: SWN Production Company, LLC (Susquehanna River), Oakland Township, Susquehanna County, PA. Renewal of surface water withdrawal of up to 3.000 mgd (peak day) (Docket No. 20120311).
30. Project Sponsor and Facility: SWN Production Company, LLC (Tunkhannock Creek), Lenox Township, Susquehanna County, PA. Renewal of surface water withdrawal of up to 1.218 mgd (peak day) (Docket No. 20120312).
The Commission tabled action on the following project application:
1. Project Sponsor and Facility: Black Bear Waters, LLC (Lycoming Creek), Lewis Township, Lycoming County, PA. Application for renewal of surface water withdrawal of up to 0.900 mgd (peak day) (Docket No. 20120303).
The Commission approved the following project application involving a diversion:
1. Project Sponsor: Gas Field Specialists, Inc. Project Facility: Wayne Gravel Products Quarry, Ceres Township, McKean County, PA. Into-basin diversion from the Ohio River Basin of up to 1.170 mgd (peak day).
Public Law 91-575, 84 Stat. 1509
Federal Aviation Administration, DOT
Notice of intent of waiver with respect to land.
The Federal Aviation Administration (FAA) is considering a proposal to authorize the release of 2.35 acres of the airport property at the Mankato Regional Airport, Mankato MN. The City is proposing a land swap to exchange this 2.35 acre parcel for another parcel of 2.0 acres.
The acreage being released is not needed for aeronautical use as currently identified on the Airport Layout Plan. The acreage comprising this parcel was originally acquired in 1982 and funded with an Airport Improvement Program (AIP) grant (3-27-0055-05-87). In exchange for the 2.35 acres the airport will receive a new parcel of land in the Runway Protection Zone (RPZ) to Runway 33. The FAA approved a Categorical Exclusion for environmental requirements on May 30, 2014. Approval does not constitute a commitment by the FAA to financially assist in the disposal of the subject airport property nor a determination of eligibility for grant-in-aid funding from the FAA. The disposition of proceeds from the disposal of the airport property will be in accordance with FAA's Policy and Procedures Concerning the Use of Airport Revenue, published in the
In accordance with section 47107(h) of title 49, United States Code, this notice is required to be published in the
Comments must be received on or before April 21, 2016.
Ms. Sandra E. DePottey, Program Manager, Federal Aviation Administration, Airports District Office, 6020 28th Avenue South, Room 102, Minneapolis, MN 55450-2706. Telephone Number (612) 253-4642/FAX Number (612) 253-4611. Documents reflecting this FAA action may be reviewed at this same location or at the Minnesota Department of Transportation, 222 East Plato Blvd., St. Paul, MN 55107.
Ms. Sandra E. DePottey, Program Manager, Federal Aviation Administration, Airports District Office, 6020 28th Avenue South, Room 102, Minneapolis, MN 55450-2706. Telephone Number (612) 253-4642/FAX Number (612) 253-4611. Documents reflecting this FAA action may be reviewed at this same location or at the Minnesota Department of Transportation, 222 East Plato Blvd., St. Paul, MN 55107.
Following is a description of the subject airport property to be released at Mankato Regional Airport in Mankato, Minnesota and described as follows:
A parcel of land to the Southeast of the Airport along the extended centerline of Runway 15/33, East of 594th Avenue, and North of 230th Street. Also identified as Lot 1, Block 3, Hilgers subdivision #2 (Hilgers Lot 1).
Said parcel subject to all easements, restrictions, and reservations of record.
Federal Aviation Administration (FAA), DOT.
Notice of Availability of a Final Environmental Assessment (Final EA) and Finding of No Significant Impact (FONSI)/Record of Decision (ROD) for a Proposed Airport Traffic Control Tower and Base Building at Peoria International Airport, Peoria, Illinois.
The Federal Aviation Administration (FAA) is issuing this notice to advise the public that the FAA has prepared, and approved on December 15, 2015, a Finding of No Significant Impact (FONSI)/Record of Decision (ROD) based on the Final Environmental Assessment (Final EA) for a Proposed Airport Traffic Control Tower (ATCT) with Associated Base Building at Peoria International Airport (PIA), Peoria, Illinois. The FAA prepared the Final EA in accordance with the National Environmental Policy Act and the FAA's regulations and guidelines for environmental documents and was signed on September 25, 2015. Copies of the FONSI/ROD and/or Final EA are available by contacting Ms. Virginia Marcks through the contact information provided below.
Ms. Virginia Marcks, Manager, Infrastructure Engineering Center, AJW-2C15H, Federal Aviation Administration, 2300 East Devon Avenue, Des Plaines, Illinois 60018. Telephone number: (847) 294-7494.
The Final EA evaluated the construction and operation of a new ATCT and Base Building at PIA. The ATCT will be located approximately 660 feet east of the existing ATCT facility on vacant land located on airport property. The new ATCT will be a Low Activity Level facility with a 440 square foot cab and will be at an overall height of 162 feet above ground level. The Base Building will be 11,000 sq. feet to house the Terminal Radar Approach Control (TRACON) facility. The project also includes, and the Final EA evaluated, construction of a paved parking area next to the Base Building; site work, including, grading, drainage, utilities, and fencing; decommissioning the existing ATCT; modification to the existing FAA Remote Transmitter/Receiver (RTR) and Low Level Windshear Alert System (LLWAS) including upgrade and/or relocation; unconditional approval of the revised Airport Layout Plan; and Federal funding of the project.
The Final EA has been prepared in accordance with the National Environmental Policy Act (NEPA) of 1969, as amended, and FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” which is compliant with FAA Order 1050.1F, effective July 16, 2015, paragraph 1-9, pertaining to ongoing environmental documents. In addition, FAA Order 5050.4B, “National Environmental Policy Act (NEPA) Implementing Instructions for Airport Actions” has been used as guidance in the preparation of the environmental analysis.
Federal Aviation Administration (FAA), DOT.
Notice of Intent to Rule on Request to Release Airport Property at the Humboldt Municipal Airport, Humboldt, Iowa.
The FAA proposes to rule and invites public comment on the release of land at the Humboldt Municipal, Humboldt, Iowa, under the provisions of 49 U.S.C. 47107(h)(2).
Comments must be received on or before April 21, 2016.
Comments on this application may be mailed or delivered to the FAA at the following address: Lynn D. Martin, Airports Compliance Specialist, Federal Aviation Administration, Airports Division, ACE-610C, 901 Locust Room 364, Kansas City, MO 64106.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to: Humboldt Airport Commission, Dave Dodgen, City of Humboldt, 29 Fifth Street South, Humboldt, IA 50548, 515-332-3435.
Lynn D. Martin, Airports Compliance Specialist, Federal Aviation Administration, Airports Division, ACE-610C, 901 Locust, Room 364, Kansas City, MO 64106, (816) 329-2644,
The FAA invites public comment on the request
The following is a brief overview of the request:
Humboldt Municipal Airport (0K7) is proposing the release of one parcel, of 3.82 acres, more or less. The release of land is necessary to comply with Federal Aviation Administration Grant Assurances that do not allow federally acquired airport property to be used for non-aviation purposes. The sale of the subject property will result in the land at the Humboldt Municipal Airport (0K7) being changed from aeronautical to non-aeronautical use and release the lands from the conditions of the Airport Improvement Program Grant Agreement Grant Assurances. In accordance with 49 U.S.C. 47107(c)(2)(B)(i) and (iii), the airport will receive fair market value for the property, which will be subsequently reinvested in another eligible airport improvement project for general aviation facilities at the Humboldt Municipal Airport.
Any person may inspect, by appointment, the request in person at the FAA office listed above under
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 120.4 acres and one parcel of land containing a total of approximately 86.0 acres.
Ownership of the associated property transferred Webb Air Force Base to the City of Big Spring via an “Indenture” between the United States of America and the City of Big Spring, Texas on October 6, 1978. 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 21, 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. James F. Little, Director, City of Big Spring/McMahon-Wrinkle Airport & Industrial Airpark, 3200 Rickabaugh Dr. West, Big Spring, TX 79720, telephone (432) 264-2362, 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 Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew the exemptions from the vision requirement in the Federal Motor Carrier Safety Regulations for 66 individuals. FMCSA has statutory authority to exempt individuals from the vision requirement if the exemptions granted will not compromise safety. The Agency has concluded that granting these exemption renewals will provide a level of safety that is equivalent to or greater than the level of safety maintained without the exemptions for these commercial motor vehicle (CMV) drivers.
Each group of renewed exemptions are effective from the dates stated in the discussions below. Comments must be received on or before April 21, 2016.
You may submit comments bearing the Federal Docket Management System (FDMS) numbers: Docket No. [Docket No. FMCSA-1998-4334; FMCSA-1999-5578; FMCSA-1999-5748; FMCSA-1999-6156; FMCSA-2000-7363; FMCSA-2001-10578; FMCSA-2003-15268; FMCSA-2003-15892; FMCSA-2005-22194; FMCSA-2005-22727; FMCSA-2007-0017; FMCSA-2007-27897; FMCSA-2009-0154; FMCSA-2009-0206; FMCSA-2009-0303; FMCSA-2011-0092; FMCSA-2011-0142; FMCSA-2011-0190; FMCSA-2011-0298; FMCSA-2011-0325; FMCSA-2013-0029; FMCSA-2013-0165; FMCSA-2-13-0166; FMCSA-2013-0167; FMCSA-2013-0168; FMCSA-2013-0169; FMCSA-2013-0170; FMCSA-2013-0174], using any of the following methods:
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Christine A. Hydock, Chief, Medical Programs Division, Medical Programs Division, 202-366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may renew an exemption from the vision requirements in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce, for a two-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The procedures for requesting an exemption (including renewals) are set out in 49 CFR part 381.
This notice addresses 66 individuals who have requested renewal of their exemptions in accordance with FMCSA procedures. FMCSA has evaluated these 66 applications for renewal on their merits and decided to extend each exemption for a renewable two-year period. Each individual is identified according to the renewal date.
The exemptions are extended subject to the following conditions: (1) That each individual has a physical examination every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the requirements in 49 CFR 391.41(b)(10), and (b) by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41; (2) that each individual provides a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (3) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file and retains a copy of the certification on his/her person while driving for presentation to a duly authorized Federal, State, or local enforcement official. Each exemption will be valid for two years unless rescinded earlier by FMCSA. The exemption will be rescinded if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315.
Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than two years from its approval date and may be renewed upon application for additional two year periods. The following group(s) of drivers will receive renewed exemptions effective in the month of February and are discussed below.
As of February 9, 2016, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 54 individuals have satisfied the conditions for obtaining a renewed exemption from the vision requirements (63 FR 66226; 64 FR 16517; 64 FR 27027; 64 FR 40404; 64 FR 51568; 64 FR 54948; 64 FR 66962; 65 FR 159; 65 FR 45817; 65 FR 77066; 66 FR 41656; 66 FR 48504; 66 FR 53826; 66 FR 66966; 66 FR 66969; 67 FR 71610; 68 FR 37917; 68 FR 44837; 68 FR 48989; 68 FR 52811; 68 FR 54775; 68 FR 61860; 68 FR 69432; 68 FR 69434; 70 FR 25878; 70 FR 41811; 70 FR 42615; 70 FR 53412; 70 FR 57353; 70 FR 61165; 70 FR 71884; 70 FR 72689; 70 FR 74102; 71 FR 644; 71 FR 4632; 71 FR 6825; 72 FR 39879; 72 FR 40360; 72 FR 52419; 72 FR 62896; 72 FR 62897; 72 FR 64273; 72 FR 67340; 72 FR 71993; 72 FR 71995; 72 FR 71998; 73 FR 1395; 73 FR 5259; 73 FR 6246; 74 FR 34632; 74 FR 37295; 74 FR 43217; 74 FR 43221; 74 FR 43222; 74 FR 48343; 74 FR 53581; 74 FR 57551; 74 FR 60021; 74 FR 60022; 74 FR 62632; 74 FR 65845; 74 FR 65847; 75 FR 1450; 75 FR 1451; 75 FR 4623; 76 FR 25766; 76 FR 37885; 76 FR 49528; 76 FR 53708; 76 FR 61143; 76 FR 62143; 76 FR 64171; 76 FR 66123; 76 FR 70210; 76 FR 70212; 76 FR 70215; 76 FR 75942; 76 FR 78728; 76 FR 78729; 76 FR 79760; 77 FR 543; 77 FR 545; 77 FR 3554; 78 FR 34143; 78 FR 47818; 78 FR 52602; 78 FR 62935; 78 FR 63302; 78 FR 63307; 78 FR 64271; 78 FR 64274; 78 FR 66099; 78 FR 67452; 78 FR 67454; 78 FR 67462; 78 FR 68137; 78 FR 76395; 78 FR 76704; 78 FR 76705; 78 FR 76707; 78 FR 77778; 78 FR 77780; 78 FR 77782; 78 FR 78475; 78 FR 78477; 79 FR 2247; 79 FR 2748; 79 FR 3919; 79 FR 4803):
The drivers were included in one of the following dockets: Docket Nos. FMCSA-1998-4334; FMCSA-1999-5578; FMCSA-1999-5748; FMCSA-1999-6156; FMCSA-2000-7363; FMCSA-2001-10578; FMCSA-2003-15268; FMCSA-2003-15892; FMCSA-2005-22194; FMCSA-2005-22727; FMCSA-2007-0017; FMCSA-2007-27897; FMCSA-2009-0154; FMCSA-2009-0206; FMCSA-2009-0303; FMCSA-2011-0092; FMCSA-2011-0142; FMCSA-2013-0029; FMCSA-2013-0165; FMCSA-2013-0166; FMCSA-2013-0167; FMCSA-2013-0168; FMCSA-2013-0169; FMCSA-2013-0170. Their exemptions are effective as of February 9, 2016 and will expire on February 9, 2018.
As of February 11, 2016 and in accordance with 49 U.S.C. 31136(e) and 31315, the following individual, Bobby R. Cox (TN), has satisfied the conditions for obtaining a renewed exemption from the vision requirements (79 FR 1908; 79 FR 14333).
The driver was included in Docket No. FMCSA-2013-0174. The exemption is effective as of February 11, 2016 and will expire on February 11, 2018.
As of February 22, 2016, and in accordance with 49 U.S.C. 31136(e) and 31315, the following 10 individuals have satisfied the conditions for obtaining a renewed exemption from the vision requirements (72 FR 67340; 73 FR 1395; 74 FR 65845; 76 FR 64169; 76 FR 70213; 76 FR 75943; 76 FR 78728; 77 FR 539; 77 FR 541; 77 FR 10608; 79 FR 6993):
The drivers were included in one of the following dockets: Docket No. FMCSA-2007-0017; FMCSA-2011-0190; FMCSA-2011-0298; FMCSA-2011-0325. Their exemptions are effective as of February 22, 2016 and will expire on February 22, 2018.
As of February 27, 2016 and in accordance with 49 U.S.C. 31136(e) and 31315, the following individual, Danielle Wilkins (CA), has satisfied the conditions for obtaining a renewed exemption from the vision requirements (79 FR 1908; 79 FR 14333).
The driver was included in Docket No. FMCSA-2013-0174. The exemption is effective as of February 27, 2016 and will expire on February 27, 2018.
Each of the 66 applicants listed in the groups above has requested renewal of the exemption and has submitted evidence showing that the vision in the better eye continues to meet the requirement specified at 49 CFR 391.41(b)(10) and that the vision impairment is stable. In addition, a review of each record of safety while driving with the respective vision deficiencies over the past two years indicates each applicant continues to meet the vision exemption requirements.
These factors provide an adequate basis for predicting each driver's ability to continue to drive safely in interstate commerce. Therefore, FMCSA concludes that extending the exemption for each renewal applicant for a period of two years is likely to achieve a level of safety equal to that existing without the exemption.
FMCSA will review comments received at any time concerning a particular driver's safety record and determine if the continuation of the exemption is consistent with the requirements at 49 U.S.C. 31136(e) and 31315. However, FMCSA requests that interested parties with specific data concerning the safety records of these drivers submit comments by April 21, 2016.
FMCSA believes that the requirements for a renewal of an exemption under 49 U.S.C. 31136(e) and 31315 can be satisfied by initially granting the renewal and then requesting and evaluating, if needed, subsequent comments submitted by interested parties. As indicated above, the Agency previously published notices of final disposition announcing its decision to exempt these 66 individuals from the vision requirement in 49 CFR 391.41(b)(10). The final decision to grant an exemption to each of these individuals was made on the merits of each case and made only after careful consideration of the comments received to its notices of applications. The notices of applications stated in detail the qualifications, experience, and medical condition of each applicant for an exemption from the vision requirements. That information is available by consulting the above cited
Interested parties or organizations possessing information that would otherwise show that any, or all, of these drivers are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will take immediate steps to revoke the exemption of a driver.
You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
We will consider all comments and material received during the comment period and may change the decision based on your comments. FMCSA may issue a response at any time after the close of the comment period.
To view comments, as well as any documents mentioned in this preamble, go to
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to exempt 36 individuals from the vision requirement in the Federal Motor Carrier Safety Regulations (FMCSRs). They are unable to meet the vision requirement in one eye for various reasons. The exemptions will enable these individuals to operate commercial motor vehicles (CMVs) in interstate commerce without meeting the prescribed vision requirement in one eye. The Agency has concluded that granting these exemptions will provide a level of safety that is equivalent to or greater than the level of safety maintained without the exemptions for these CMV drivers.
The exemptions were granted December 3, 2015. The exemptions expire on December 3, 2017.
Christine A. Hydock, Chief, Medical Programs Division, (202) 366-4001,
You may see all the comments online through the Federal Document Management System (FDMS) at
On November 2, 2015, FMCSA published a notice of receipt of exemption applications from certain individuals, and requested comments from the public (80 FR 67476). That notice listed 36 applicants' case histories. The 36 individuals applied for exemptions from the vision requirement in 49 CFR 391.41(b)(10), for drivers who operate CMVs in interstate commerce.
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the 2-year period. Accordingly, FMCSA has evaluated the 36 applications on their merits and made a determination to grant exemptions to each of them.
The vision requirement in the FMCSRs provides:
A person is physically qualified to drive a commercial motor vehicle if that person has distant visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses, distant binocular acuity of a least 20/40 (Snellen) in both eyes with or without corrective lenses, field of vision of at least 70° in the horizontal meridian in each eye, and the ability to recognize the colors of traffic signals and devices showing red, green, and amber (49 CFR 391.41(b)(10)).
FMCSA recognizes that some drivers do not meet the vision requirement but have adapted their driving to accommodate their vision limitation and demonstrated their ability to drive safely. The 36 exemption applicants listed in this notice are in this category. They are unable to meet the vision requirement in one eye for various reasons, including amblyopia, aniridia, anisotropic amblyopia, Best disease, branch retinal artery occlusion, chronic retinal detachment, complete loss of vision, corneal scar, fibrovascular
The 10 individuals that sustained their vision conditions as adults have had it for a range of 2 to 54 years.
Although each applicant has one eye which does not meet the vision requirement in 49 CFR 391.41(b)(10), each has at least 20/40 corrected vision in the other eye, and in a doctor's opinion, has sufficient vision to perform all the tasks necessary to operate a CMV. Doctors' opinions are supported by the applicants' possession of valid commercial driver's licenses (CDLs) or non-CDLs to operate CMVs. Before issuing CDLs, States subject drivers to knowledge and skills tests designed to evaluate their qualifications to operate a CMV.
All of these applicants satisfied the testing requirements for their State of residence. By meeting State licensing requirements, the applicants demonstrated their ability to operate a CMV, with their limited vision, to the satisfaction of the State.
While possessing a valid CDL or non-CDL, these 36 drivers have been authorized to drive a CMV in intrastate commerce, even though their vision disqualified them from driving in interstate commerce. They have driven CMVs with their limited vision in careers ranging for 3 to 54 years. In the past three years, 2 drivers were involved in crashes, and 3 drivers were convicted of moving violations in CMVs.
The qualifications, experience, and medical condition of each applicant were stated and discussed in detail in the November 2, 2015 notice (80 FR 67476).
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the vision requirement in 49 CFR 391.41(b)(10) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. Without the exemption, applicants will continue to be restricted to intrastate driving. With the exemption, applicants can drive in interstate commerce. Thus, our analysis focuses on whether an equal or greater level of safety is likely to be achieved by permitting each of these drivers to drive in interstate commerce as opposed to restricting him or her to driving in intrastate commerce.
To evaluate the effect of these exemptions on safety, FMCSA considered the medical reports about the applicants' vision as well as their driving records and experience with the vision deficiency.
To qualify for an exemption from the vision requirement, FMCSA requires a person to present verifiable evidence that he/she has driven a commercial vehicle safely with the vision deficiency for the past 3 years. Recent driving performance is especially important in evaluating future safety, according to several research studies designed to correlate past and future driving performance. Results of these studies support the principle that the best predictor of future performance by a driver is his/her past record of crashes and traffic violations. Copies of the studies may be found at Docket Number FMCSA-1998-3637.
FMCSA believes it can properly apply the principle to monocular drivers, because data from the Federal Highway Administration's (FHWA) former waiver study program clearly demonstrate the driving performance of experienced monocular drivers in the program is better than that of all CMV drivers collectively (See 61 FR 13338, 13345, March 26, 1996). The fact that experienced monocular drivers demonstrated safe driving records in the waiver program supports a conclusion that other monocular drivers, meeting the same qualifying conditions as those required by the waiver program, are also likely to have adapted to their vision deficiency and will continue to operate safely.
The first major research correlating past and future performance was done in England by Greenwood and Yule in 1920. Subsequent studies, building on that model, concluded that crash rates for the same individual exposed to certain risks for two different time periods vary only slightly (See Bates and Neyman, University of California Publications in Statistics, April 1952). Other studies demonstrated theories of predicting crash proneness from crash history coupled with other factors. These factors—such as age, sex, geographic location, mileage driven and conviction history—are used every day by insurance companies and motor vehicle bureaus to predict the probability of an individual experiencing future crashes (See Weber, Donald C., “Accident Rate Potential: An Application of Multiple Regression Analysis of a Poisson Process,” Journal of American Statistical Association, June 1971). A 1964 California Driver Record Study prepared by the California Department of Motor Vehicles concluded that the best overall crash predictor for both concurrent and nonconcurrent events is the number of single convictions. This study used 3 consecutive years of data, comparing the experiences of drivers in the first 2 years with their experiences in the final year.
Applying principles from these studies to the past 3-year record of the 36 applicants, 2 drivers were involved in crashes, and 3 drivers were convicted of moving violations in a CMV. All the applicants achieved a record of safety while driving with their vision impairment, demonstrating the likelihood that they have adapted their driving skills to accommodate their condition. As the applicants' ample driving histories with their vision deficiencies are good predictors of future performance, FMCSA concludes their ability to drive safely can be projected into the future.
We believe that the applicants' intrastate driving experience and history provide an adequate basis for predicting their ability to drive safely in interstate commerce. Intrastate driving, like interstate operations, involves substantial driving on highways on the interstate system and on other roads built to interstate standards. Moreover, driving in congested urban areas exposes the driver to more pedestrian and vehicular traffic than exists on interstate highways. Faster reaction to traffic and traffic signals is generally required because distances between them are more compact. These conditions tax visual capacity and driver response just as intensely as interstate driving conditions. The veteran drivers in this proceeding have operated CMVs safely under those conditions for at least 3 years, most for much longer. Their experience and driving records lead us to believe that each applicant is capable of operating in interstate commerce as safely as he/she has been performing in intrastate commerce. Consequently, FMCSA finds that exempting these applicants from the vision requirement in 49 CFR 391.41(b)(10) is likely to achieve a level of safety equal to that existing without the exemption. For this reason, the Agency is granting the exemptions for the 2-year period allowed by 49 U.S.C. 31136(e) and 31315 to the 36 applicants listed in the notice of November 2, 2015 (80 FR 67476).
We recognize that the vision of an applicant may change and affect his/her ability to operate a CMV as safely as in the past. As a condition of the exemption, therefore, FMCSA will impose requirements on the 36
Those requirements are found at 49 CFR 391.64(b) and include the following: (1) That each individual be physically examined every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the requirement in 49 CFR 391.41(b)(10) and (b) by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41; (2) that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (3) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy in his/her driver's qualification file if he/she is self-employed. The driver must have a copy of the certification when driving, for presentation to a duly authorized Federal, State, or local enforcement official.
FMCSA received no comments in this proceeding.
Based upon its evaluation of the 36 exemption applications, FMCSA exempts the following drivers from the vision requirement in 49 CFR 391.41(b)(10), subject to the requirements cited above (49 CFR 391.64(b)):
In accordance with 49 U.S.C. 31136(e) and 31315, each exemption will be valid for 2 years unless revoked earlier by FMCSA. The exemption will be revoked if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136 and 31315.
If the exemption is still effective at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time.
Federal Transit Administration, DOT.
Notice of Proposed Buy America waiver and request for comment.
The Federal Transit Administration (FTA) received a request from the Detroit Transportation Corporation (DTC) for a Buy America non-availability waiver for the procurement of two special trackwork turnout switch components (switch). The existing switches were installed as original equipment in 1987 and designed to European standards, using AREMA 115RE rail throughout the turnout with a special 60E1A1 switch point section. The proper operation of the switch is essential for the continued, safe operations of DTC vehicles. DTC seeks a waiver for the switch because there are no domestic manufacturers of the switch. In addition, European design and the proprietary nature of the equipment means that alternative proposers would need to first familiarize themselves with European standards, design, construction, and installation procedures to provide a replacement switch. DTC issued two requests for proposals (RFPs) for procurement of the switch, and received only one proposal, which was not Buy America-complaint. 49 U.S.C. 5323(j)(2) and 49 CFR 661.7(c)(2). In accordance with 49 U.S.C. 5323(j)(3)(A), FTA is providing notice of the non-availability waiver request and seeks public comment before deciding whether to grant the request. If granted, the waiver would apply for the switch identified in the waiver request.
Comments must be received by March 29, 2016. Late-filed comments will be considered to the extent practicable.
Please submit your comments by one of the following means, identifying your submissions by docket number FTA-2016-0005:
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Laura Ames, FTA Attorney-Advisor, at (202) 366-2743 or
The purpose of this notice is to provide
By way of background, DTC is the owner and operator of the Detroit People Mover, which is the largest municipal rail system in Michigan. It is a fully automated light rail system that operates twelve (12) rail cars between thirteen (13) passenger stations on an elevated single track in a 2.9 mile loop in Detroit's central business district. In March 2015, DTC solicited bids to procure special trackwork switch point for Turnout 3, which is located adjacent to the Maintenance Facility Building and provides access to the building. The special trackwork of concern was originally procured from Germany (by Krupp Stahl AG) and is of European standards, using AREMA 115RE rail throughout the turnout with special 60E1A1 (formerly Zu-160) track point section. The project includes replacing stock rails that connect the switch point section to the original running rails, as well as rubber pads; both the rails and pads will be sourced domestically. The waiver only applies to the switch component of the project.
DTC issued the first RFP in March 2015 to thirteen (13) companies: Atlantic Track & Turnout Co.; LB Foster Co.; Cleveland Track Materials (Vossioh); Progress Rail Services Corp.; Unitrac Railroad Materials, Inc.; London Trackwork, Inc.; Skelton; Voestalpine Nortrak, Inc.; RailWorks Projects, Inc.; All American Track; Construction Data Company; IntegriCo Composites; and Delta Railroad Construction, Inc. DTC received no responses. It contacted all the companies, and reissued the RFP in May 2015 to six (6) firms that expressed an interest in the project. From this RFP, DTC only received one proposal, from Delta Railroad Construction, Inc. (Delta). Delta, however, cannot comply with Buy America requirements because the only manufacturer of the switch is a German company. To change the manufacturer, Delta would need to re-engineer the switch and modify the “frog” section and guideway elements; this design would need to be certified. Delta would then need to locate a domestic source to manufacture the re-engineered switch. Upon installation, the proprietary software designer of the automated control train system would need to certify the switch's performance in order to ensure it could be safely used with the existing guideway switch machines. Moreover, DTC believes there is inadequate competition for the project and needs to move forward with this important maintenance project. Thus, DTC is seeking a Buy America non-availability waiver under 49 CFR 661.7(c)(1) for the switch.
With certain exceptions, FTA's Buy America requirements prevent FTA from obligating an amount that may be appropriated to carry out its program for a project unless “the steel, iron, and manufactured goods used in the project are produced in the United States.” 49 U.S.C. 5323(j)(1). A manufactured product is considered produced in the United States if: (1) All of the manufacturing processes for the product take place in the United States; and (2) all of the components of the product are of U.S. origin. A component is considered of U.S. origin if it is manufactured in the United States, regardless of the origin of its subcomponents. 49 CFR 661.5(d). If, however, FTA determines that “the steel, iron, and goods produced in the United States are not produced in a sufficient and reasonably available amount or are not of a satisfactory quality,” then FTA may issue a waiver (non-availability waiver). 49 U.S.C. 5323(j)(2)(B); 49 CFR 661.7(c). Under 49 CFR 661.7(c)(1), “It will be presumed that the conditions exist to grant this non-availability waiver if no responsive and responsible bid is received offering an item produced in the United States.” In addition, “If the Secretary denies an application for a waiver . . . the Secretary shall provide to the applicant a written certification that—the steel, iron, or manufactured goods, as applicable, (referred to in this subparagraph as the `item') is produced in the United States in a sufficient and reasonably available amount; (i) the item produced in the United States is of a satisfactory quality; and (ii) includes a list of known manufacturers in the United States from which the item can be obtained.” 49 U.S.C. 5323(j)(6).
The purpose of this notice is to publish DTC's request and seek public comment from all interested parties in accordance with 49 U.S.C. 5323(j)(3)(A). Comments will help FTA understand completely the facts surrounding the request, including the merits of the request. A full copy of the request has been placed in docket number FTA-2016-0005.
Federal Transit Administration, DOT.
Notice of proposed Buy America waiver and request for comment.
The Federal Transit Administration (FTA) received a request from the Metro North Railroad (MNR) for a Buy America non-availability waiver for the procurement of a steel excavator with a continuous wield platform (CWP). MNR seeks to procure a CWP to clear the right-of-way after storms and thereby enabling the timely resumption of passenger train service. MNR seeks a waiver for the requirement that final assembly take place in the United States because there is no domestic manufacturer available to produce the equipment. 49 U.S.C. 5323(j)(2) and 49 CFR 661.7(c)(2). In accordance with 49 U.S.C. 5323(j)(3)(A), FTA is providing notice of the non-availability waiver request and seeks public comment before deciding whether to grant the request. If granted, the waiver would apply to a one-time procurement only for the specific equipment identified in the waiver request.
Comments must be received by March 29, 2016. Late-filed comments will be considered to the extent practicable.
Please submit your comments by one of the following means, identifying your submissions by docket number FTA-2016-0006:
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Laura Ames, FTA Attorney-Advisor, at (202) 366-2743 or
The purpose of this notice is to provide notice and seek public comment on whether the FTA should grant a non-availability waiver to the Metro North Railroad (MNR) for the procurement of a steel excavator with a continuous wield platform (CWP). On May 13, 2015, Metro requested a Buy America waiver for the CWP because the only responsive bidder to its solicitation was a Canadian manufacturer. While 77% of the content of the material would be domestic origin, the CWP would be assembled in Canada. 49 U.S.C. 5323(j)(2)(A); 49 CFR 661.7(c).
By way of background, MNR operates commuter rail service spanning 787 track miles. Metro North has a large length of track along the shore line and flooding along the line can occur regularly at many of these locations. The risk of flooding can be reduced by keeping drainage infrastructure, clear of debris. Specialized equipment such as the CWP can quickly clear the right of way after storms enabling the resumption of passenger train service. After Hurricane Sandy, MNR leased a CWP, but given limited availability as well as the higher cost of leasing, MNR believes that purchase of the CWP is necessary to ensure that it will be available to expedite service restoration and was provided funding to purchase such equipment from FTA through the Section 5324 Emergency Relief Funds allocated for Superstorm Sandy.
A CWP is a train that consists of several platform suitable for holding/hauling and picking up or distributing a variety of materials, such as rocks, riprap, dirt or debris. The equipment is similar to a excavator which has an articulated arm, with the main difference being that it rides on rails and sits on a connected platform where it can dump or pick up material from in order to perform its functions. The main tasks the MNR uses the CWP for is shoreline stabilization/restoration and for removing debris from the right-of-way after storms.
MNR prepared and advertised a solicitation for the CWP on January 9, 2015. Bids were due and opened on February 5, 2015. The solicitation was advertised in local newspapers, the New York State Contract Report and the MTA Metro-North Web site. A single bid was submitted by BRRI, a Canadian firm. BRRI submitted a Certificate of Non-Compliance because the final assembly of the equipment would take place in Canada, although content of the material used would be 77% domestic origin. The total gross sum of the bid submitted is $3,930,000.00.
MNR states that it received “No Bid” response forms from seven vendors and that MNR contacted the vendors to determine why they did not submit bids. The responses from the vendors varied from “not interested in selling” to “could not meet the requested bid due date.” MNR then performed an internet search to for American made excavators with no results. MNR states that it then reached out to Herzog Railroad Services, Inc. and Dymax Rail and was told by both that they do not have the CWP in their fleet. Finally, MNR also contacted the National Institute of Statistics and Technology (NIST) to determine if there had been any research performed to identify U.S. manufacturers for this equipment. To date NIST has not conducted any supplier scouting or analyses for the item.
On August 15, 2015, FTA contacted MNR, noting that one of the No-Reponse bidders, Mecfor Inc. (Mecfor), stated that it could not meet the request bid due date but that it was not clear if Mecfor could meet FTA's Buy America requirements since it is a Canadian Firm. FTA asked MNR to contact Mecfor to confirm whether it had the CWP that would meet FTA's Buy America requirements. On August 25, 2015, MNR provided FTA Mecfor's response. Mecfor stated that more than 60% of the main componeents would be American made and that assembly of the CWP would be sub-contracted in the USA; however, Mecfor also declined for the second time an invitiation to re-bid stating that the company's workload was overbooked. Due to the fact that MNR did not receive a responsive bid for a CWP produced in the U.S. nor could it identify any potential bidders through research and outreach, MNR seeks a non-availability waiver of the Buy America requirements for final assembly pursuant to 49 U.S.C. 5323 (j)(2)(B).
With certain exceptions, FTA's Buy America requirements prevent FTA from obligating an amount that may be appropriated to carry out its program for a project unless “the steel, iron, and manufactured goods used in the project are produced in the United States.” 49 U.S.C. 5323(j)(1). A manufactured product is considered produced in the United States if: (1) All of the manufacturing processes for the product take place in the United States; and (2) all of the components of the product are of U.S. origin. A component is considered of U.S. origin if it is manufactured in the United States, regardless of the origin of its subcomponents. 49 CFR 661.5(d). If, however, FTA determines that “the steel, iron, and goods produced in the United States are not produced in a sufficient and reasonably available amount or are not of a satisfactory quality,” then FTA may issue a waiver (non-availability waiver). 49 U.S.C. 5323(j)(2)(B); 49 CFR 661.7(c).
MNR is requesting a Buy America non-availability waiver for the requirement that final assembly occur in the United States in order to procure a CWP for its shoreline stabilization/restoration and for removing debris from the right-of-way after storms.
The purpose of this notice is to publish MNR's request and seek public comment from all interested parties in accordance with 49 U.S.C. 5323(j)(3)(A). Comments will help FTA understand completely the facts surrounding the request, including the merits of the request. A full copy of the request has been placed in docket number FTA-2016-0006.
Federal Transit Administration, DOT.
Notice of Proposed Buy America waiver and request for comment.
The Federal Transit Administration (FTA) received requests from the Indianapolis Public Transportation Corporation (IPTC) for a Buy America non-availability waiver for the procurement of an Enviroair inverter-driven ductless mini-split system air conditioner, from the York Adams Transportation Authority (YATA) for ductless split system air conditioning units, from Key West Transit (KWT) for a ductless mini-split mechanical system for the City of Key West Public Transportation Facility, and from the Springfield Redevelopment Authority (SRA) for ductless mini-split air conditioners for the Union Station Regional Intermodal Transportation Center in Springfield, Massachusetts. IPTC is constructing its Downtown Transit Center which is expected to be Leadership in Energy and Environmental Design (LEED) certified and will incorporate many sustainable and energy efficient elements. The Enviroair inverter-driven ductless mini-split system air conditioner will contribute to the building's efficiency and is essential to achieving silver LEED certification. YATA is currently constructing a new Operations and Maintenance Facility in York, Pennsylvania and seeks to install several ductless air conditioning units at the facility. KWT is finishing construction on the bus transit operation and maintenance facility, which is a U.S. Green Building Council LEED project. The building contains many sustainable and efficient elements, including a variant refrigerant flow (VRF) heating, ventilation, and air conditioning (HVAC) system. KWT seeks a waiver for this VRF ductless mini-split mechanical system because there is no domestic manufacturer. The SRA seeks a waiver for ductless mini-split air conditioners as part of the renovation of the existing Terminal Building and the construction of a six story garage at the Union Station Regional Intermodal Transportation Center, because there is no domestic manufacturer. IPIC, YATA, KWT, and SRA seek waivers for these air conditioner systems because there are no domestic manufacturers. 49 U.S.C. 5323(j)(2) and 49 CFR 661.7(c)(2). In accordance with 49 U.S.C. 5323(j)(3)(A), FTA is providing notice of the non-availability waiver requests and seeks public comment before deciding whether to grant the requests. If granted, the waivers would apply to one-time procurements only for the specific air conditioning systems identified in the waiver request.
Comments must be received by March 29, 2016. Late-filed comments will be considered to the extent practicable.
Please submit your comments by one of the following means, identifying your submissions by docket number FTA-2016-0004:
1.
2.
3.
4.
Laura Ames, FTA Attorney-Advisor, at (202) 366-2743 or
The purpose of this notice is to provide notice and seek public comment on whether the FTA should grant non-availability waivers to the Indianapolis Public Transportation Corporation (IPTC) for the procurement of an Enviroair inverter-driven ductless mini-split system air conditioner, to the York Adams Transportation Authority (YATA) for the procurement of ductless split system air conditioning units which are needed at the new Operations and Maintenance Facility, to Key West Transit (KWT) for the procurement of a variable refrigerant flow (VRF) ductless mini-split mechanical system, and to the Springfield Redevelopment Authority (SRA) in Springfield, Massachusetts for the procurement of nine ductless mini-split air conditioners for the Union Station Regional Intermodal Transportation Center. IPTC, YATA, KWT, and SRA requested Buy America non-availability waivers on May 5, 2015, July 26, 2015, December 2, 2015, and on March 9, 2016, respectfully. All seek non-availability waivers since none of these air conditioning systems are produced in the United States in sufficient and reasonably available quantities or of satisfactory qualities. 49 U.S.C. 5323(j)(2)(A); 49 CFR 661.7(c).
By way of background, IPTC is constructing its Downtown Transit Center and the contractor and subcontractor hired for the project, Weddle Bros. Building Group, LLC and Commercial Air Inc., previously certified Buy America compliance. After awarding the contract, Commercial Air became aware that the inverter-driven ductless mini split system air conditioner selected for the center, was non-compliant. Enviroair manufactures this air conditioning system in China, although certain equipment is stocked and shipped from Utica, New York. IPTC selected the Enviroair system, which will be installed in the transit center's information technology room, because it will keep the room constantly cool and is the only way to cool the room in the space provided. IPTC also hopes to receive Silver LEED certification for the transit center and the Enviroair system is critical for achieving this certification. IPTC identified six other ductless mini-split air condition system manufacturers, all of which are manufactured abroad.
YATA seeks to install multiple ductless split system air conditioning units in its Operations and Maintenance Facility. These units will regulate environmental conditions in areas with specific temperature and/or humidity requirements, such as in server rooms or elevator machine rooms, or in rooms where conventional ductwork is not possible. YATA's successful bidder certified Buy America compliance, although later learned that the units
KWT is completing construction of its City of Key West Public Transportation Facility, which is a U.S. Green Building Council LEED project and includes many sustainable and efficient elements, including that of the HVAC system. The project consists of an 18,300 square foot bus operations and maintenance building, a 2,100 square foot bus wash building, fueling station, and parking facilities. The facility will serve as the City's transportation operations center and will provide maintenance, repair, cleaning, and bus parking facilities. The front portion of the main building includes offices for administration and operations, while the rear portion provides space for bus maintenance, repairs and cleaning, parts storage and technician amenities.
According to KWT's waiver request, the HVAC system is Buy America-compliant, with the exception of the VRF mechanical system which will be placed in three of the electrical, mechanical, and server rooms in the new facility. KWT states that these rooms must be able to function separately from the main operations building. KWT also is building this facility to be LEED silver certified and the energy-efficient VRF system will help KWT attain this certification. The VRF system sought will also better accommodate spatial constraints since the new facility is surrounded by a landfill, school bus parking lot, and other construction projects. It is also located in a highly-trafficked area, which limits the footprint of the project. Unlike other HVAC systems, the ductless mini-split system will be able to fit into the available space.
KWT is installing a Carrier ductless mini-split system in the facility. Before selecting this system, KWT conducted extensive research and reached out to domestic manufacturers, however, KWT was unable to find a domestically manufactured mini split air conditioning system. In fact, KWT states that it contacted the remaining America manufacturer of VRF HVAC systems and this manufacturer ceased production two years ago. As a result, KWT procured the Carrier ductless mini-split air conditioning equipment for the facility as no domestic manufacturer was available.
SRA is constructing the Union Station Regional Intermodal Transportation Center, which includes renovation of the existing Terminal Building and the construction of a six story parking garage. SRA is seeking to procure nine ductless mini-split air conditioners for the construction project. Each building within the transportation center will have its own HVAC system. SRA states that it is necessary to install ductless mini-split air conditioners in each individual room in order to maintain environs in each room. The air conditioners will be independent of other heating and cooling systems and will be backed up by a generator. Initially, SRA's contractor thought that Trane's product was Buy America-compliant. Subsequently, however, Trane notified SRA that its product was mislabeled and is actually foreign-made. SRA also contacted 8 other companies who manufacture ductless mini-split air conditioners, although none of these companies manufacturer the product domestically. As a result, SRA is seeking a non-availability waiver for the ductless mini-split air conditioners as there is no domestic manufacturer.
FTA also conducted a scouting search for ductless air conditioning systems through its Interagency Agreement with the U.S. Department of Commerce's National Institute of Standards and Technology (NIST). The scouting search identified two domestic manufacturers as potential matches for this opportunity: Kentuckiana Curb Company/KCC International in Louisville, Kentucky and Climate Conditioning Company, Inc./Liebert also in Louisville, Kentucky. The manufacturers identified either produce similar products to the ductless air conditioning systems, possess the capabilities to produce ductless air conditioning systems, have produced an item similar to ductless air conditioning systems in the past, or have expressed a business interest in producing ductless air conditioning systems. Upon request from FTA, IPTC and YATA reached out to these potential domestic suppliers. However, neither company manufactures the specific mini-split air conditioning systems sought and as described in this Notice. As such, IPTC and YATA are pursuing their non-availability waiver applications. FTA did not reach out to KWT or SRA as they submitted their waiver requests after scouting was complete.
With certain exceptions, FTA's Buy America requirements prevent FTA from obligating an amount that may be appropriated to carry out its program for a project unless “the steel, iron, and manufactured goods used in the project are produced in the United States.” 49 U.S.C. 5323(j)(1). A manufactured product is considered produced in the United States if: (1) All of the manufacturing processes for the product take place in the United States; and (2) all of the components of the product are of U.S. origin. A component is considered of U.S. origin if it is manufactured in the United States, regardless of the origin of its subcomponents. 49 CFR 661.5(d). If, however, FTA determines that “the steel, iron, and goods produced in the United States are not produced in a sufficient and reasonably available amount or are not of a satisfactory quality,” then FTA may issue a waiver (non-availability waiver). 49 U.S.C. 5323(j)(2)(B); 49 CFR 661.7(c).
The purpose of this Notice is to publish IPTC's, YATA's, KWT's, and SRA's requests and to seek public comment from all interested parties in accordance with 49 U.S.C. 5323(j)(3)(A). Comments will help FTA understand completely the facts surrounding the requests, including the merits of the requests. A full copy of the request has been placed in docket number FTA-2016-0004.
Federal Transit Administration, DOT.
Notice of proposed Buy America waiver and request for comment.
The Federal Transit Administration (FTA) received a request for a waiver to permit the use of FTA funding to purchase a radio communication system that is non-
Comments must be received by March 29, 2016. Late-filed comments will be considered to the extent practicable.
Please submit your comments by one of the following means, identifying your submissions by docket number FTA-2016-0002:
1.
2.
3.
4.
Laura Ames, FTA Attorney-Advisor, at (202) 366-2743 or
The purpose of this notice is to provide notice and seek comment on whether the FTA should grant a non-availability waiver for KCATA's purchase of a new radio communication system. The new radio system will replace KCATA's analog system, increase its systems capacity and allow KCSA to have a dedicated talk group on KCATA's system.
With certain exceptions, FTA's Buy America requirements prevent FTA from obligating an amount that may be appropriated to carry out its program for a project unless “the steel, iron, and manufactured goods used in the project are produced in the United States.” 49 U.S.C. 5323(j)(1). A manufactured product is considered produced in the United States if: (1) All of the manufacturing processes for the product take place in the United States; and (2) all of the components of the product are of U.S. origin. A component is considered of U.S. origin if it is manufactured in the United States, regardless of the origin of its subcomponents. 49 CFR 661.5(d). If, however, FTA determines that “the steel, iron, and goods produced in the United States are not produced in a sufficient and reasonably available amount or are not of a satisfactory quality,” then FTA may issue a waiver (non-availability waiver). 49 U.S.C. 5323(j)(2)(B); 49 CFR 661.7(c).
KCATA is a provider for public transportation services for Kansas City, Missouri. KCATA provides service to the entire Kansas City metropolitan area, operating in seven counties. KCATA's current radio system was purchased in 2002 and fully activated in 2005. The radio system is analog and operates on two separate channels. It has limited growth capabilities, issues with “talk over,” inaccessible voice connections, and after ten (10) years the maintenance costs are rising. KCATA is in the process of upgrading its radio system.
As part of its plan to upgrade the radio system, KCATA issued a Request for Proposals (RFP) seeking a “turnkey project that includes a DMR Tier III Trunked UHF Voice radio system, full integration of the radio system with the Trapeze TransitMaster CAD/AVL system, and extended maintenance and support.” KCATA only received on response to the RFP. Tait North America (“Tait”) expressed interest in the project but noted that it is headquartered in New Zealand and that a majority of the products would be assembled in New Zealand, making them non-compliant with Buy America. Under 49 CFR 661.7(c)(1), “It will be presumed that the conditions exist to grant this non-availability waiver if no responsive and responsible bid is received offering an item produced in the United States.” Since receiving the Tait proposal, KCATA has not been able to identify any companies in the United States that can meet the Buy America requirements for its project.
FTA also conducted a scouting search for comparable radio system through its Interagency Agreement with the U.S. Department of Commerce's National Institute of Standards and Technology (NIST). The scouting search identified no domestic manufacturers as matches for this opportunity. The scouting search identified one domestic manufacturer as a partial match, but that manufacturer does not currently manufacture a comparable radio system. As such, KCATA is pursuing its non-availability waiver applications.
The purpose of this notice is to publish KCATA's request and seek public comment from all interested parties in accordance with 49 U.S.C. 5323(j)(3)(A). Comments will help FTA understand completely the facts surrounding the request, including the effects of a potential waiver and the merits of the request. A full copy of the request has been placed in docket number FTA-2016-0002.
Federal Transit Administration, DOT.
Notice of Proposed Buy America waiver and request for comment.
The Federal Transit Administration (FTA) received a request from the Indianapolis Public Transportation Corporation (IPTC) for a Buy America non-availability waiver for the procurement of a Horizontal Lifeline Fall Protection Maintenance Tie Back System (System). IPTC is constructing a
Comments must be received by March 29, 2016. Late-filed comments will be considered to the extent practicable.
Please submit your comments by one of the following means, identifying your submissions by docket number FTA-2016-0003:
1.
2.
3.
4.
Laura Ames, FTA Attorney-Advisor, at (202) 366-2743 or
The purpose of this notice is to provide notice and seek public comment on whether the FTA should grant a Buy America non-availability waiver for the Indianapolis Public Transportation Corporation (IPTC) for the procurement of a Horizontal Lifeline Fall Protection Maintenance Tie Back System (the “System”). On June 2, 2015, IPTC requested a Buy America waiver for the System because it is not produced in the United States in sufficiently and reasonably available quantities or of a satisfactory quality. 49 U.S.C. 5323(j)(2)(A); 49 CFR 661.7(c).
IPTC is constructing a new Downtown Transit Center (DTC) in Indianapolis, Indiana that will serve as the hub for public transit. It will include a large indoor public waiting area and bus bays while serving pedestrians, cyclists, and bus riders. Per Occupational Safety and Health Administration (OSHA) regulations, IPTC has a duty to provide fall protection for employees performing maintenance on the new building. IPTC entered into a contract with Weddle Bros. Building Group (WBBG) in early September 2014 for the construction of the DTC. WBBG certified in good faith that it would comply with Buy America. As part of the project, IPTC issued an RFP for the complete design, supply and installation of a fall protection maintenance tie-back system to safeguard personnel to include all cable, intermediate brackets, end terminations, and modifications of structural steel as required for supplementary support of stanchions, user equipment, and attachment to roof structure for a complete and working fall protection maintenance tie-back system. It also included experience criteria for the professional engineer designing the system and a firm that has manufactured at least five (5) similar systems with specific liability insurance policies.
The two firms that responded to the RFP were American Anchor and Pro-Bel Group. Neither firm was able to certify a system as compliant with the Buy America regulations. The cables and tensioning system are not manufactured domestically for Pro-Bel. The hands-free set ups are not manufactured domestically for American Anchor. IPTC thus requests approval for WBBG to procure a System from Pro-Bel.
With certain exceptions, FTA's Buy America requirements prevent FTA from obligating an amount that may be appropriated to carry out its program for a project unless “the steel, iron, and manufactured goods used in the project are produced in the United States.” 49 U.S.C. 5323(j)(1). A manufactured product is considered produced in the United States if: (1) All of the manufacturing processes for the product take place in the United States; and (2) all of the components of the product are of U.S. origin. A component is considered of U.S. origin if it is manufactured in the United States, regardless of the origin of its subcomponents.
49 CFR 661.5(d). If, however, FTA determines that “the steel, iron, and goods produced in the United States are not produced in a sufficient and reasonably available amount or are not of a satisfactory quality,” then FTA may issue a waiver (non-availability waiver). 49 U.S.C. 5323(j)(2)(B); 49 CFR 661.7(c). Under 49 CFR 661.7(c)(1), “It will be presumed that the conditions exist to grant this non-availability waiver if no responsive and responsible bid is received offering an item produced in the United States.” In addition, “If the Secretary denies an application for a waiver . . . the Secretary shall provide to the applicant a written certification that—the steel, iron, or manufactured goods, as applicable, (referred to in this subparagraph as the `item') is produced in the United States in a sufficient and reasonably available amount; (i) the item produced in the United States is of a satisfactory quality; and (ii) includes a list of known manufacturers in the United States from which the item can be obtained.” 49 U.S.C. 5323(j)(6).
FTA also conducted a scouting search for the fall arrest system through its Interagency Agreement with the U.S. Department of Commerce's National Institute of Standards and Technology (NIST). The scouting search identified one domestic manufacturer as a potential match for this opportunity: Starr Products in Butler, Pennsylvania. The manufacturer identified has either produced similar products to the fall arrest system, possesses the capabilities to produce a fall arrest system, has produced an item similar to a fall arrest system in the past, or have expressed a business interest in producing a fall arrest system. Upon request from FTA, IPTC reached out to this potential domestic supplier. However, the company does not design or install fall arrest systems as defined in IPTC's project manual. As such, IPTC is pursuing its non-availability waiver application.
The purpose of this notice is to publish IPTC's request and seek public comment from all interested parties in accordance with 49 U.S.C. 5323(j)(3)(A). Comments will help FTA understand completely the facts surrounding the request, including the merits of the request. A full copy of the request has been placed in docket number FTA-2016-0003.
Office of the Secretary of Transportation, Department of Transportation.
Public notice.
This notice is to inform the public that NHTSA has satisfied the requirements in the Fixing America's Surface Transportation Act (FAST Act) necessary for increases in the maximum amount of civil penalties that NHTSA may collect for violations of the National Traffic and Motor Vehicle Safety Act (Vehicle Safety Act) to become effective.
Thomas Healy, Office of the Chief Counsel, NHTSA, 1200 New Jersey Ave. SE., West Building, W41-211, Washington, DC 20590. Telephone: (202) 366-2992 Fax: (202) 366-3820.
On December 4, 2015, the FAST Act, Public Law 114-94, was signed into law. Section 24110 of the FAST Act increases the maximum civil penalty that NHTSA may collect for each violation of the Vehicle Safety Act to $21,000 per violation (currently $7,000) and the maximum amount of civil penalties that NHTSA can collect for a related series of violations to $105 million (currently $35 million). In order for these increases to become effective, the Secretary of Transportation must certify to Congress that NHTSA has issued the final rule required by Section 31203 of the Moving Ahead for Progress in the 21st Century Act. Section 31203 required NHTSA to provide an interpretation of civil penalty factors in 49 U.S.C. 30165 for NHTSA
NHTSA issued the final rule required by Section 31203 of MAP-21 on February 24, 2016. On March 17, 2016, the Secretary certified to Congress by letter to the Chairman and Ranking Member of the Senate Committee on Commerce, Science, and Transportation, and to the Chairman and Ranking Member of the House Committee on Energy and Commerce that NHTSA had issued the Final Rule. Therefore, NHTSA shall enforce the increased maximum civil penalties for violation of the Vehicle Safety Act in 49 U.S.C. 30165 effective March 17, 2016.
Pub. L. 114-94.
Internal Revenue Service, Treasury.
Notice.
This Notice announces the requirements and procedures for the Tax Design Challenge (“the Challenge). The Challenge is a crowdsourcing competition, with cash prizes, that the IRS is hosting to begin reimagining the taxpayer experience of the future. The goal of this design challenge is to develop new concepts for designing, organizing and presenting tax information in a way that makes it easier for taxpayers to understand their taxpayer responsibilities and effectively use their own taxpayer data.
Effective on April 17, 2016. Challenge submission period ends May 10, 2016, 11:59 a.m. ET.
1. The kickoff meeting for the Tax Design Challenge will take place at 1776, 1133 15th Street NW., Washington, DC 20005.
2. Challenge submissions must be submitted electronically at
Christopher Daggett, 503-330-6311 or Michael Lin, 202-317-6381.
Tax information is available to taxpayers across multiple IRS channels and contains a wealth of information. Many taxpayers, however, might not know where to find this information or how to use it, as much of this information reads like a receipt and can be incomprehensible to those who are not financial professionals.
The Challenge asks: How might we design, organize, and present tax information in a way that makes it easier for taxpayers to manage their taxpayer responsibilities, and to use their own taxpayer data to make informed and effective decisions about their personal finances?
This is an incredible opportunity for civic-minded technologists, designers, and innovative thinkers to improve and shape the user experience of one of the most visited government Web sites in the U.S.
* Improves the visual layout and style of the information for the taxpayer
* Makes it easier for a taxpayer to manage his/her taxpayer responsibilities
* Empowers a taxpayer to make informed and effective decisions about his/her personal finances.
Entrants should consider end users in developing their design. Our tax system includes people from many different socioeconomic backgrounds, with different needs and responsibilities.
The Challenge is an opportunity for talented individuals to touch the lives of Americans across the country through design. The most innovative designs will be showcased in an online gallery. Winning submissions will receive monetary prizes.
The IRS enthusiastically supports crowdsourcing competitions, as they have proven to be cost-efficient vehicle for catalyzing innovation in government.
In order for an entry to be eligible to win the Challenge, it must meet the following requirements:
To be eligible to win a prize under the Challenge, an individual or entity—
(1) Must register to participate in the Challenge under the rules promulgated by the Internal Revenue Service.
(2) Must comply 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) Shall not be a Federal entity or Federal employee acting within the scope of their employment.
(5) Shall not be an employee of the Internal Revenue Service or the Mortgage Bankers Association (“the Cosponsor”).
(6) Shall not be affiliated with any judge on the review panel. In the case of a private entity, this means that no judge currently serves as a director, officer, or employee of the entity. In the case of a private individual, the individual shall not have a close family or professional relationship with any judge.
(7) Federal grantees may not use Federal funds to develop Challenge applications unless consistent with the purpose of their grant award.
(8) Federal contractors may not use Federal funds from a contract to develop Challenge applications or to fund efforts in support of a 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 Challenge on an equitable basis.
Entrants must agree to assume any and all risks and waive claims against the Federal Government, its related entities, and the Cosponsor, 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 participation in the Challenge, 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 Challenge activities.
(1)
(2)
(3)
(i) Each participant retains title and full ownership in and to their submissions. Participants expressly reserve all intellectual property rights not expressly granted under this notice.
(ii) By participating in the Challenge, each participant grants the IRS a non-exclusive, royalty-free, worldwide, irrevocable license to use any of participant's intellectual property incorporated in the participant's submission, in furtherance of the IRS's mission. This license includes the right to incorporate the submission into IRS products or processes, and to reproduce, publicly perform, publicly display, and use the submission, including, without limitation, for advertising and promotional purposes related to the Tax Design Challenge Series.
(iii) Participants warrant that they have permission to use any intellectual property of third parties that is included in their submissions, and that such permission extends to the IRS to the extent set forth in paragraph (3)(ii) of these Terms and Conditions.
(4)
(5)
To register for this challenge participants should either:
Access the
Access the Tax Design Challenge Web site at:
A registration link for the Challenge can be found on the landing page under the Challenge description.
Each submission will be considered for all three prize categories listed below. A review panel will select winners based on defined criteria (below). An individual submission can win multiple awards.
Awards may be subject to Federal income taxes and IRS will comply with all tax withholding and reporting requirements, where applicable.
Prizes will be funded by Cosponsor (Mortgage Bankers Association) and paid by IRS.
The review panel will make selections based upon the following criteria:
—Overall Appeal
—Taxpayer Usefulness: Does it address the taxpayer's responsibilities?
—Financial Capability: Does it make it easier for the taxpayer to make informed and effective decisions about his/her personal finances?
—Visual Hierarchy: Can the most important information be easily found?
—Information Density: Is it easy to digest the information that is presented?
—Accessibility: Can a varied population make use of this document?
The review panel will operate in a transparent manner. Following the Challenge, the IRS will publish information about the panel's decision.
15 U.S.C. 3719.
The Department of the Treasury will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13, on or after the date of publication of this notice.
Comments should be received on or before April 21, 2016 to be assured of consideration.
Send comments regarding the burden estimates, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission may be obtained by emailing
Category | Regulatory Information | |
Collection | Federal Register | |
sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
Publisher | Office of the Federal Register, National Archives and Records Administration |