Page Range | 18739-19019 | |
FR Document |
Page and Subject | |
---|---|
81 FR 18749 - New Animal Drugs; Approval of New Animal Drug Applications; Changes of Sponsorship | |
81 FR 18801 - Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Adjustment of Georges Bank and Southern New England/Mid-Atlantic Yellowtail Flounder Annual Catch Limits | |
81 FR 19019 - Continuation of the National Emergency With Respect to South Sudan | |
81 FR 19017 - Establishing the Inherent Resolve Campaign Medal | |
81 FR 19013 - Mental Health and Substance Use Disorder Parity Task Force | |
81 FR 18841 - Sunshine Act Meetings | |
81 FR 18739 - Delegation of Authority Pursuant to Section 102(b) of the Hizballah International Financing Prevention Act of 2015 | |
81 FR 18897 - Sunshine Act Meeting; National Science Board | |
81 FR 18748 - Filing of Rate Schedules and Tariffs | |
81 FR 18749 - Income Taxes | |
81 FR 18747 - General Rules and Regulations, Securities Exchange Act of 1934 | |
81 FR 18749 - Customs Financial and Accounting Procedure | |
81 FR 18749 - Air Commerce Regulations | |
81 FR 18749 - Special Classes of Merchandise | |
81 FR 18748 - Articles Conditionally Free, Subject to a Reduced Rate, etc. | |
81 FR 18748 - U.S. Customs and Border Protection | |
81 FR 18748 - Vessels in Foreign and Domestic Trades | |
81 FR 18748 - Nondiscrimination With Respect to Handicap | |
81 FR 18748 - Natural Gas Curtailment Under the Natural Gas Policy Act of 1978 | |
81 FR 18898 - Advisory Committee on Reactor Safeguards (ACRS); Meeting of the ACRS Subcommittee on Fukushima; Notice of Meeting | |
81 FR 18818 - Proposed Priority and Requirement-Equity Assistance Centers (Formerly Desegregation Assistance Centers (DAC)) | |
81 FR 18898 - Advisory Committee on Reactor Safeguards (ACRS); Meeting of the ACRS Subcommittee on Apr 1400; Notice of Meeting | |
81 FR 18899 - Advisory Committee on Reactor Safeguards (ACRS) Meeting of the ACRS Subcommittee on Fukushima; Notice of Meeting | |
81 FR 18899 - Advisory Committee on Reactor Safeguards (ACRS); Meeting of the ACRS Subcommittee on Plant License Renewal; Notice of Meeting | |
81 FR 18897 - Advisory Committee on Reactor Safeguards (ACRS), Meeting of the ACRS Subcommittee on Fukushima; Notice of Meeting | |
81 FR 18871 - Recovery Policy: Stafford Act Section 705, Disaster Grant Closeout Procedures | |
81 FR 18829 - Initiation of Five-Year (“Sunset”) Review | |
81 FR 18828 - Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Advance Notification of Sunset Reviews | |
81 FR 18826 - Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review | |
81 FR 18841 - Information Collection; Submission for OMB Review, Comment Request | |
81 FR 18876 - Renewal of Agency Information Collection for Energy Resource Development Program Grants | |
81 FR 18979 - Endangered and Threatened Wildlife and Plants; Notice of 12-Month Finding on Petitions to List the Common Thresher Shark and Bigeye Thresher Shark as Threatened or Endangered Under the Endangered Species Act (ESA) | |
81 FR 18749 - Drawbridge Operation Regulation; Tennessee River, Decatur, AL | |
81 FR 18789 - Pacific Halibut Fisheries; Catch Sharing Plan | |
81 FR 18943 - Submission for OMB Review; Comment Request | |
81 FR 18895 - Records Schedules; Availability and Request for Comments | |
81 FR 18941 - Proposed Collection; Comment Request for Form 5884 | |
81 FR 18943 - Proposed Collection; Comment Request for Regulation Project | |
81 FR 18942 - Proposed Collection; Comment Request for Regulation Project | |
81 FR 18932 - In the Matter of the Review of the Designation of Ansar al Islam (and other Aliases) as a Foreign Terrorist Organization Pursuant to Section 219 of the Immigration and Nationality Act, as Amended | |
81 FR 18843 - Notice of Availability of Government-Owned Inventions; Available for Licensing | |
81 FR 18840 - Procurement List; Additions and Deletions | |
81 FR 18839 - Procurement List; Proposed Additions and Deletions | |
81 FR 18796 - Atlantic Highly Migratory Species; Implementation of the International Commission for the Conservation of Atlantic Tunas Electronic Bluefin Tuna Catch Documentation System | |
81 FR 18892 - Whistleblower Protection Advisory Committee | |
81 FR 18944 - Submission for OMB Review; Comment Request | |
81 FR 18853 - Agency Forms Undergoing Paperwork Reduction Act Review | |
81 FR 18855 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
81 FR 18843 - Meeting of the Board of Advisors (BOA) to The President of the Naval Postgraduate School (NPS) Subcommittee | |
81 FR 18823 - Bighorn Resource Advisory Committee | |
81 FR 18852 - Environmental Impact Statements; Notice of Availability | |
81 FR 18888 - Ferrovanadium From Korea; Institution of Antidumping Duty Investigation and Scheduling of Preliminary Phase Investigation | |
81 FR 18802 - National Dairy Promotion and Research Program Order | |
81 FR 18933 - Notice of Final Federal Agency Actions on Proposed Highway in Idaho | |
81 FR 18843 - Free Application for Federal Student Aid (FAFSA®) Information To Be Verified for the 2017-2018 Award Year | |
81 FR 18842 - Submission for OMB Review; Comment Request | |
81 FR 18837 - Gulf of Mexico Fishery Management Council; Public Meeting | |
81 FR 18837 - Caribbean Fishery Management Council; Public Meetings | |
81 FR 18896 - Advisory Committee for Engineering; Notice of Meeting | |
81 FR 18865 - Temporary Reassignment of State, Tribal, and Local Personnel During a Public Health Emergency | |
81 FR 18852 - Agency Information Collection Activities: Submission for OMB Review; Comment Request (3064-0114) | |
81 FR 18853 - Notice to All Interested Parties of the Termination of the Receivership of 10447, the Farmers Bank of Lynchburg; Lynchburg, Tennessee | |
81 FR 18933 - Research, Engineering and Development Advisory Committee Meeting | |
81 FR 18835 - Magnuson-Stevens Act Provisions; General Provisions for Domestic Fisheries; Application for Exempted Fishing Permit | |
81 FR 18781 - Migratory Bird Subsistence Harvest in Alaska; Harvest Regulations for Migratory Birds in Alaska During the 2016 Season | |
81 FR 18867 - Oregon; Amendment No. 1 to Notice of a Major Disaster Declaration | |
81 FR 18897 - Advisory Committee for Biological Sciences; Notice of Meeting | |
81 FR 18871 - Texas; Amendment No. 1 to Notice of a Major Disaster Declaration | |
81 FR 18867 - Delaware; Major Disaster and Related Determinations | |
81 FR 18868 - Changes in Flood Hazard Determinations | |
81 FR 18873 - Receipt of Applications for Endangered Species Permits | |
81 FR 18875 - Endangered and Threatened Wildlife and Plants; Recovery Plan for the Behren's Silverspot Butterfly | |
81 FR 18865 - Termination of the Advisory Committee on Commercial Operations to U.S. Customs and Border Protection; Establishment of the Commercial Customs Operations Advisory Committee | |
81 FR 18881 - Proposed Information Collection; National Park Service Background Initiation Request Form | |
81 FR 18866 - Agency Information Collection Activities: Request for Information | |
81 FR 18880 - Notice of Joint Colorado Resource Advisory Council Meeting | |
81 FR 18842 - Charter Establishment of Department of Defense Federal Advisory Committees | |
81 FR 18877 - Notice of Utah Resource Advisory Council/Recreation Resource Advisory Council Meeting | |
81 FR 18877 - Interim Final Supplementary Rules for Public Lands at Bastendorff Beach and the Associated Headlands in Coos County, Oregon | |
81 FR 18750 - Amendments to the Rules of Practice for Trials Before the Patent Trial and Appeal Board | |
81 FR 18826 - Submission for OMB Review; Comment Request | |
81 FR 18896 - Arts Advisory Panel Meetings | |
81 FR 18806 - Airworthiness Directives; Rolls-Royce Deutschland Ltd & Co KG Turbofan Engines | |
81 FR 18848 - Combined Notice of Filings | |
81 FR 18804 - Airworthiness Directives; M7 Aerospace LLC Airplanes | |
81 FR 18821 - Special Regulations, Areas of the National Park Service, Golden Gate National Recreation Area, Dog Management-Extension of Public Comment Period and Corrections | |
81 FR 18861 - Agency Information Collection Activities; Proposed Collection; Comment Request; Format and Content Requirements for Over-the-Counter Drug Product Labeling | |
81 FR 18855 - Notice of Availability of the Final Environmental Assessment (Final EA) and a Finding of No Significant Impact (FONSI) for HHS/CDC Fort Collins Campus Proposed Improvements | |
81 FR 18838 - Proposed Information Collection; Comment Request; Greater Atlantic Region Permit Family of Forms | |
81 FR 18932 - Southern Switching Company-Operation Exemption-Lone Star Railroad, Inc. | |
81 FR 18858 - Agency Information Collection Activities; Proposed Collection; Comment Request; Clinical Laboratory Improvement Amendments Act of 1988 Waiver Applications | |
81 FR 18858 - Receipt of Notice That a Patent Infringement Complaint Was Filed Against a Biosimilar Applicant | |
81 FR 18863 - Agency Information Collection Activities; Announcement of Office of Management and Budget Approvals | |
81 FR 18860 - Advisory Committee; Arthritis Advisory Committee, Renewal | |
81 FR 18857 - Proposed Information Collection Activity; Comment Request | |
81 FR 18887 - Stainless Steel Sheet and Strip From China | |
81 FR 18750 - Drawbridge Operation Regulation; Shark River (South Channel), Avon, NJ | |
81 FR 18931 - Submission for OMB Review; Comment Request | |
81 FR 18919 - Submission for OMB Review; Comment Request | |
81 FR 18808 - Teacher Preparation Issues | |
81 FR 18935 - Request for Public Comments on NHTSA Enforcement Guidance Bulletin 2016-02: Safety-Related Defects and Emerging Automotive Technologies | |
81 FR 18941 - Information Reporting Program Advisory Committee (IRPAC); Nominations | |
81 FR 18940 - Agency Information Collection Activities; Information Collection Renewal; Submission for OMB Review; Leasing | |
81 FR 18939 - Agency Information Collection Activities; Information Collection Renewal; Submission for OMB Review; Securities Exchange Act Disclosure Rules and Securities of Federal Savings Associations | |
81 FR 18837 - Notice of Renewal of the Advisory Committee on Commercial Remote Sensing | |
81 FR 18893 - Advisory Board on Toxic Substances and Worker Health Meeting | |
81 FR 18889 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Network Centric Operations Industry Consortium, Inc. | |
81 FR 18888 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-ASTM International Standards | |
81 FR 18849 - Duke Energy Carolinas, LLC; Notice of Availability of Final Environmental Assessment | |
81 FR 18848 - Combined Notice of Filings #1 | |
81 FR 18848 - Dominion Cove Point LNG, LP.; Notice of Filing | |
81 FR 18849 - Dominion Carolina Gas Transmission, LLC; Notice of Filing | |
81 FR 18850 - Town of Cedaredge, Colorado; Notice of Application Accepted for Filing, Soliciting Comments, Motions to Intervene, and Protests | |
81 FR 18889 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Underground Coal Mine Fire Protection | |
81 FR 18902 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Delete From the Rulebook Section 10, Limitations on Dealings, of Chapter VII, Market Participants | |
81 FR 18907 - Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Delete From the Exchange's Rulebook Section 10, Limitations on Dealings, of Chapter VII, Market Participants | |
81 FR 18919 - Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Adopt Rule 3317 To Implement the Regulation NMS Plan To Implement a Tick Size Pilot Program | |
81 FR 18913 - Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Adopt Rule 4770 To Implement the Regulation NMS Plan To Implement a Tick Size Pilot Program | |
81 FR 18925 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Adopt Rule 4770 To Implement the Regulation NMS Plan To Implement a Tick Size Pilot Program | |
81 FR 18900 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the NYSE Arca Equities Schedule of Fees and Charges for Exchange Services | |
81 FR 18911 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Modify the Maximum Number of Times an Order on Nasdaq May Be Updated Before The System Cancels The Order | |
81 FR 18824 - Notice of Public Meeting of the Wisconsin Advisory Committee To Discuss Approval of a Project Proposal To Hear Updated Testimony on Hate Crimes in the State | |
81 FR 18851 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NESHAP for Area Sources: Asphalt Processing and Asphalt Roofing Manufacturing (Renewal) | |
81 FR 18850 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NESHAP for Paints and Allied Products Manufacturing Area Source Category (Renewal) | |
81 FR 18847 - Agency Information Collection Activities; Comment Request; William D. Ford Federal Direct Loan Program (DL) Regulations | |
81 FR 18946 - Advisory Committee on Minority Veterans, Notice of Meeting | |
81 FR 18825 - Submission for OMB Review; Comment Request | |
81 FR 18766 - Partial Approval and Partial Disapproval of Air Quality State Implementation Plans; California; Infrastructure Requirements for Ozone, Fine Particulate Matter (PM2.5 | |
81 FR 18864 - Advisory Committee on Heritable Disorders in Newborns and Children; Notice of Meeting | |
81 FR 18863 - Agency Information Collection Activities: Proposed Collection: Public Comment Request | |
81 FR 18946 - Voluntary Service National Advisory Committee; Notice of Meeting | |
81 FR 18830 - 1, 1, 1, 2-Tetrafluoroethane From the People's Republic of China: Initiation of Less Than Fair Value Investigation | |
81 FR 18743 - Alternative to Fingerprinting Requirement for Foreign Natural Persons | |
81 FR 18890 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; International Training Application | |
81 FR 18891 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; OFCCP Recordkeeping and Reporting Requirements-Supply and Service | |
81 FR 18825 - Advisory Committees Expiration; Correction | |
81 FR 18823 - White River National Forest; Pitkin County; Colorado; Snowmass Multi-Season Recreation Projects | |
81 FR 18884 - Certain Aluminum Extrusions From China; Institution of Five-Year Reviews | |
81 FR 18882 - Raw In-Shell Pistachios From Iran; Institution of a Five-Year Review | |
81 FR 18741 - Airworthiness Directives; The Boeing Company Airplanes | |
81 FR 18873 - Federal Property Suitable as Facilities To Assist the Homeless | |
81 FR 18934 - Revision of the Emergency Medical Services Agenda for the Future; Request for Information | |
81 FR 18949 - Terrorism Risk Insurance Program | |
81 FR 18872 - Committee name: Homeland Security Academic Advisory Council |
Agricultural Marketing Service
Forest Service
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Patent and Trademark Office
Navy Department
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
Health Resources and Services Administration
Coast Guard
Federal Emergency Management Agency
U.S. Customs and Border Protection
Fish and Wildlife Service
Indian Affairs Bureau
Land Management Bureau
National Park Service
Antitrust Division
Occupational Safety and Health Administration
Workers Compensation Programs Office
National Endowment for the Arts
Federal Aviation Administration
Federal Highway Administration
National Highway Traffic Safety Administration
Comptroller of the Currency
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for all The Boeing Company Model 787-8 and 787-9 airplanes. This AD requires revising the airplane flight manual (AFM) to instruct the flightcrew to avoid abrupt flight control inputs in response to sudden drops in airspeed, and to reinforce the need to disconnect the autopilot before making any manual flight control inputs. This AD was prompted by reports indicating that in certain weather conditions with high moisture content or possible icing, erroneous low airspeed may be displayed to the flightcrew before detection and annunciation via engine-indicating and crew-alerting system (EICAS) messages. We are issuing this AD to ensure that the flightcrew avoids abrupt pilot control inputs in response to an unrealistic, sudden drop in displayed airspeed at high actual airspeed. Abrupt pilot control inputs in this condition could exceed the structural capability of the airplane.
This AD is effective April 14, 2016.
We must receive comments on this AD by May 16, 2016.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
Fnu Winarto, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6659; fax: 425-917-6590; email:
We have received three reports of in-service displayed airspeed anomalies on Model 787 airplanes. We continue to investigate this issue with Boeing; however, the anomalous behavior is consistent with significant water ingestion or simultaneous icing of two or three of the three pitot probes. During each of the reported events, the displayed airspeed rapidly dropped significantly below the actual airplane airspeed. In normal operations, the air data reference system supplies the same airspeed to both the captain and first officer primary flight displays. During one in-service event, with autopilot engaged, the pilot overrode the engaged autopilot in response to the displayed erroneous low airspeed and made significant nose-down manual control inputs. In this situation, there is the potential for large pilot control inputs at high actual airspeed, which could cause the airplane to exceed its structural capability.
We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This AD requires revising the AFM to add a “Non-normal Procedure” for “Airspeed Drop” that instructs the flightcrew to avoid abrupt flight control inputs, and reinforces the need to disconnect the autopilot prior to making any manual flight control inputs.
We consider this AD interim action. The airplane manufacturer is currently developing modifications to the display and crew alerting system, flight control system, and air data system that will address the unsafe condition identified in this AD. Once these modifications are developed, approved, and available, we may consider additional rulemaking.
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 large, abrupt pilot control inputs in response to an unrealistic, sudden drop in displayed airspeed at high actual airspeed could exceed the structural capability of the airplane. 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.
This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about
We will post all comments we receive, without change, to
We estimate that this AD affects 43 airplanes of U.S. registry. We estimate the following costs to comply with this AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, 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 14, 2016.
None.
This AD applies to all The Boeing Company Model 787-8 and 787-9 airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 27, Flight controls.
This AD was prompted by reports indicating that in certain weather conditions with high moisture content or possible icing, erroneous low airspeed data may be displayed to the flightcrew before detection and annunciation via engine-indicating and crew-alerting system (EICAS) messages. We are issuing this AD to ensure that the flightcrew avoids abrupt pilot control inputs in response to an unrealistic, sudden drop in displayed airspeed at high actual airspeed. Abrupt pilot control inputs could exceed the structural capability of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 15 days after the effective date of this AD, revise the applicable Boeing 787 AFM to add a “Non-normal Procedure” that includes the information in figure 1 to paragraph (g) of this AD. This may be done by inserting a copy of this AD into the AFM.
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (i) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact Fnu Winarto, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6659; fax: 425-917-6590; email:
None.
Commodity Futures Trading Commission.
Final rule.
The Commodity Futures Trading Commission (“Commission” or “CFTC”) is amending existing Commission regulations to establish an alternative to fingerprinting to evaluate the fitness of natural persons who are required to submit fingerprints under the Commission's regulations and who have not resided in the United States since reaching 18 years of age (“Final Rule”).
The Final Rule is effective on May 2, 2016.
Katherine Driscoll, Associate Chief Counsel, 202-418-5544,
On January 12, 2016, the Commission published a Notice of Proposed Rulemaking (“Proposal”)
For the definitions of these registration categories (other than RFED), see Section 1a of the Commodity Exchange Act (“CEA” or “Act”) and Commission regulation 1.3. 7 U.S.C. 1a and 17 CFR 1.3. For the definition of RFED, see Commission regulation 5.1(h). 17 CFR 5.1(h).
In support of its initial promulgation of the fingerprinting requirements, the Commission stated that these requirements “are necessary to permit improvements in the Commission's background checking of applicants for registration, to permit positive identification of certain individuals with common names, to reduce the number of applications filed by individuals who are unfit for registration, and to facilitate fitness reviews of registrants on a spot and periodic basis.”
The Commission generally requested comments on the Proposal and also solicited comments on a number of specific matters.
The Commission received two relevant comments in response to the Proposal—one from Sutherland Asbill & Brennan LLP on behalf of The Commercial Energy Working Group (“The Working Group”) and one from Joyce Dillard (“Dillard”).
After careful consideration, the Commission is adopting the Final Rule as proposed. The Commission is not expanding the Final Rule to cover persons other than Foreign Natural Persons (as defined below) as requested by The Working Group because, while there are limitations on the usefulness of fingerprints of foreign nationals, fingerprinting is an expedient way to investigate whether someone has a criminal record in the United States. For instance, in the United States, fingerprints may be checked for possible matches against existing repositories of fingerprints quickly and efficiently.
As discussed in the Proposal, the Commission believes the Final Rule, in providing certainty to market participants by way of Commission regulation, makes the commodity interest markets it oversees more liquid, competitive, and accessible by enabling Foreign Natural Persons to demonstrate that they meet the minimum standards for fitness and competency without undue burden. The alternative to fingerprinting removes an impediment to participation in United States' markets by Foreign Natural Persons while also ensuring the continued protection of market participants and the public. Further, the Commission believes that, by providing an alternative for Foreign Natural Persons, the Final Rule is consistent with the principles of international comity.
Section 3.21(e)(2) provides that the obligation to provide a fingerprint card for a Foreign Natural Person under part 3 of the Commission's regulations shall be deemed satisfied for a Certifying Firm (as defined below) if: (a) Such Certifying Firm causes a criminal history background check of such Foreign Natural Person to be performed; (b) such criminal history background check does not reveal any matters that constitute a disqualification under Sections 8a(2) or 8a(3) of the CEA,
The certification must: (i) State that the conditions described above have been satisfied; and (ii) be signed by a person authorized by such Certifying Firm to make such certification. In addition, each criminal history background check must: (a) Be of a type that would reveal all matters listed under Sections 8a(2)(D) or 8a(3)(D), (E), or (H) of the CEA
In terms of definitions, § 3.21(e)(1)(i) defines Foreign Natural Person, solely for purposes of paragraph (e), as any natural person who has not resided in the United States since reaching the age of 18 years. Also, § 3.21(e)(1)(ii) defines Certifying Firm, also solely for purposes of paragraph (e), with respect to natural persons acting in certain specified capacities in relation to the firm.
By way of recordkeeping, § 3.21(e)(3) requires that the Certifying Firm maintain, in accordance with Commission regulation 1.31, records documenting each criminal history background check and the results thereof.
As discussed in the Proposal, the Final Rule supersedes the DSIO No-Action Letters without prejudice to those that were relying on either of the DSIO No-Action Letters and had satisfied the requirements thereof prior to January 12, 2016, the date the Proposal was published in the
The Regulatory Flexibility Act (“RFA”)
As discussed in the Proposal, the Final Rule affects certain FCMs, RFEDs, IBs, CPOs, CTAs, SDs, MSPs, LTMs, FBs, and FTs that wish to take advantage of the alternative to fingerprinting to evaluate the fitness of their Foreign Natural Persons for which fingerprints must be submitted to NFA.
Accordingly, for the reasons stated above, the Commission believes that the Final Rule will not have a significant economic impact on a substantial number of small entities. Therefore, the Chairman, on behalf of the Commission, hereby certifies, pursuant to 5 U.S.C. 605(b), that the Final Rule being published today by this
The Paperwork Reduction Act of 1995 (“PRA”)
As discussed in the Proposal, the Final Rule contains collections of information for which the Commission has previously received control numbers from the Office of Management and Budget (“OMB”). The titles for these collections of information are “Registration under the Commodity Exchange Act, OMB control number 3038-0023”
The responses to these collections of information are mandatory. 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 issued by OMB.
The collection of information in the Final Rule provides an optional alternative to complying with the Fingerprinting Requirement (as described above). Eligible persons have the option to elect the certification process, but no obligation to do so. For this reason, except to the extent that the Commission has amended the subject OMB control numbers for PRA purposes to reflect the alternative certification process, the Final Rule is not expected to impose any new burdens on market participants. Rather, to the extent that the Final Rule provides an alternative means to comply with the Fingerprinting Requirement and is elected by market participants, it is reasonable for the Commission to infer that the alternative is less burdensome to such participants.
Collections 3038-0023 and 3038-0072 are currently in force with their control numbers having been provided by OMB.
As discussed above, the Final Rule incorporates an alternative to fingerprinting to evaluate the fitness of certain Foreign Natural Persons. In order to qualify for this alternative, the Certifying Firm must take the steps required pursuant to the Final Rule, including submitting the required certification to NFA and maintaining records of the criminal history background check and the results thereof. Requiring such actions requires revisions to collections 3038-0023 and 3038-0072. Accordingly, the Commission submitted a request to amend each of collections 3038-0023 and 3038-0072 to OMB and invited public comment on its paperwork burdens in the Proposal. In particular, as further described in the Proposal, the Commission estimates that approximately 198 FCMs, RFEDs, IBs, CPOs, CTAs, LTMs, FBs, and FTs and 2 SDs and MSPs will submit the required certification
Collection 3038-0023 relates to collections of information from FCMs, RFEDs, IBs, CPOs, CTAs, LTMs, FBs, and FTs. The estimated additional hour burden for collection 3038-0023 of 495 hours is calculated as follows:
Collection 3038-0072 relates to collections of information from SDs and MSPs. The estimated additional hour
In the Proposal, the Commission invited the public and other Federal agencies to comment on any aspect of the information collection requirements discussed above. The Commission did not receive any such comments.
Section 15(a) of the Act
The Final Rule provides an alternative to complying with the Fingerprinting Requirement, which alternative no FCM, RFED, IB, CPO, CTA, SD, MSP, LTM, FB, FT, associated person, or other Foreign Natural Person is required to elect. As such, the Commission believes that the Final Rule does not impose any net cost on such persons, because the Commission presumes that such persons will elect the alternative only if they assess it to have a lower or equal net cost.
Because the Final Rule allows FCMs, RFEDs, IBs, CPOs, CTAs, SDs, MSPs, LTMs, FBs, and FTs to submit, subject to the terms and conditions herein, a certification in lieu of a fingerprint card for Foreign Natural Persons, NFA will need to develop a process to review and retain such certifications and consider amending its applications and/or other forms to reflect the availability of this alternative to the Fingerprinting Requirement. The Commission expects that the costs of such activities will not be significant, because NFA has been processing and retaining requests under the DSIO No-Action Letters since their issuance and the changes to NFA's applications and/or other forms to take into account the Final Rule would likely be minimal and could be included in other future unrelated updates.
The Commission believes that, by establishing an alternative method for evaluating the fitness of Foreign Natural Persons for whom a fingerprint card must currently be submitted, the Final Rule helps keep the United States' commodity interest markets accessible and competitive with other markets around the world by removing an impediment to participation in United States' markets by Foreign Natural Persons while also ensuring the continued protection of market participants and the public. Further, the Commission believes that, by providing an alternative for persons outside the United States, the Final Rule is consistent with the principles of international comity.
As discussed above, The Working Group requested that the Commission expand the alternative provided in the Proposal to include all natural persons that are principals or associated persons of registrants subject to the Fingerprinting Requirement. The Commission is not making such an expansion, because, while there are limitations on the usefulness of fingerprints of foreign nationals, fingerprinting is an expedient way to investigate whether someone has a criminal record in the United States.
Section 15(a) of the CEA requires the Commission to consider the costs and benefits of its actions before promulgating a regulation under the CEA or issuing certain orders. CEA Section 15(a) further specifies that the costs and benefits shall be evaluated in light of five broad areas of market and public concern: (i) Protection of market participants and the public; (ii) efficiency, competitiveness, and financial integrity of futures markets; (iii) price discovery; (iv) sound risk management practices; and (v) other public interest considerations.
The Final Rule continues to protect the public by ensuring that persons who are currently subject to the Fingerprinting Requirement, whether or not they reside in the United States, must have their fitness reviewed through the completion of a background check.
The Final Rule may increase the efficiency and competitiveness of the markets by encouraging more participation in United States markets by Foreign Natural Persons. The Commission does not believe that the integrity of financial markets is harmed because the Final Rule requires that the background check meet the objective standards which rely on the clearly-stated matters under Sections 8a(2)(D) and 8a(3)(D), (E), and (H) of the CEA.
The Commission generally believes that providing an alternative means of ensuring the fitness of a person who resides outside the United States for purposes of Commission registration, by reducing the burden that the Fingerprinting Requirement could impose on such persons, could reduce impediments to transact on a cross-border basis, increasing participation in commodity interest markets. The Commission believes that such increased participation and the resulting increased liquidity may help to facilitate price discovery.
One of the critically important functions of registration is to allow the Commission to ensure that all futures and swaps industry professionals who deal with the public meet minimum standards of fitness and competency.
Pursuant to Commission regulation 3.60, the Commission may, subject to some limitations, deny, grant with conditions, suspend, revoke, or restrict registration to an applicant if the Commission alleges and is prepared to prove that the registrant or applicant is subject to one or more of the statutory disqualifications set forth in section 8a(2), 8a(3) or 8a(4) of the Act. 17 CFR 3.60. Sections 8a(2) and 8a(3) of the Act contain an extensive list of matters that provide grounds for refusing or conditioning an applicant's registration, including, without limitation, felony convictions, commodities or securities law violations, bars or other adverse actions taken by financial regulators, and willfully omitting to state any material fact in an application.
The Commission believes that, by providing an alternative for persons outside the United States, the Final Rule is consistent with the principles of international comity.
Associated persons, Brokers, Commodity futures, Commodity pool operators, Commodity trading advisors, Customer protection, Fingerprinting, Foreign exchange, Futures commission merchants, Introducing brokers, Leverage transaction merchants, Leverage transactions, Major swap participants, Principals, Registration, Reporting and recordkeeping requirements, Retail foreign exchange dealers, Swap dealers, Swaps.
For the reasons set forth in the preamble, the Commodity Futures Trading Commission amends part 3 as follows:
5 U.S.C. 552, 552b; 7 U.S.C. 1a, 2, 6, 6a, 6b, 6b-1, 6c, 6d, 6e, 6f, 6g, 6h, 6i, 6k, 6m, 6n, 6o, 6p, 6s, 8, 9, 9a, 12, 12a, 13b, 13c, 16a, 18, 19, 21, 23.
(e)
(i) The term
(ii) The term
(A) For any natural person that is a principal or associated person of a futures commission merchant, retail foreign exchange dealer, swap dealer, major swap participant, introducing broker, commodity pool operator, commodity trading advisor, leverage transaction merchant, floor broker, or floor trader, such futures commission merchant, retail foreign exchange dealer, swap dealer, major swap participant, introducing broker, commodity pool operator, commodity trading advisor, leverage transaction merchant, floor broker, or floor trader; and
(B) For any natural person that is responsible for, or directs, the entry of orders from a floor broker's or floor trader's own account, such floor broker or floor trader.
(2) Any obligation in this part to provide a fingerprint card for a foreign natural person shall be deemed satisfied with respect to a certifying firm if:
(i) Such certifying firm causes a criminal history background check of such foreign natural person to be performed; and
(ii) The criminal history background check:
(A) Is of a type that would reveal all matters listed under Sections 8a(2)(D) or 8a(3)(D), (E), or (H) of the Act relating to such foreign natural person;
(B) Does not reveal any matters that constitute a disqualification under Sections 8a(2) or 8a(3) of the Act, other than those disclosed to the National Futures Association; and
(C) Is completed not more than one calendar year prior to the date that such certifying firm submits the certification described in paragraph (e)(2)(iii) of this section;
(iii) A person authorized by such certifying firm submits, in reliance on such criminal history background check, a certification by such certifying firm to the National Futures Association, that:
(A) States that the conditions of paragraphs (e)(2)(i) and (ii) of this section have been satisfied; and
(B) Is signed by a person authorized by such certifying firm to make such certification.
(3) The certifying firm shall maintain, in accordance with § 1.31 of this chapter, records documenting that the criminal history background check performed pursuant to paragraph (e)(2)(i) of this section was completed and the results thereof.
The following appendices will not appear in the Code of Federal Regulations.
On this matter, Chairman Massad and Commissioners Bowen and Giancarlo voted in the affirmative. No Commissioner voted in the negative.
I support the rule being finalized today, which provides foreign natural persons with an alternative to the fingerprinting requirement that applies to certain participants in our markets. This will reduce unnecessary burdens on foreign individuals while maintaining appropriate standards of fitness and competency. This final rule also continues the Commission's ongoing efforts to codify, where appropriate, and through notice-and-comment rulemaking, no-action relief that previously had been provided by Commission staff.
In Title 17 of the Code of Federal Regulations, part 240 to End, revised as of April 1, 2015, on page 543, § 240.17a-23 is removed and reserved.
In Title 18 of the Code of Federal Regulations, parts 1 to 399, revised as of April 1, 2015, in § 35.1, make the following changes:
1. On page 270, in paragraphs (d)(2) and (d)(3), add the phrase “, tariffs or service agreements” after the phrase “rate schedules”, and
2. On page 270, in paragraph (g), in the first sentence, add the word “service” before the third occurrence of the word “agreement”.
In Title 18 of the Code of Federal Regulations, parts 1 to 399, revised as of April 1, 2015, on page 273, § 35.4 is revised to read as follows:
The fact that the Commission permits a rate schedule or tariff, tariff or service agreement or any part thereof or any notice of cancellation to become effective shall not constitute approval by the Commission of such rate schedule or tariff, tariff or service agreement or part thereof or notice of cancellation.
In Title 18 of the Code of Federal Regulations, parts 1 to 399, revised as of April 1, 2015, on page 275, in § 35.11, in the first sentence, the phrase “a rate schedule, tariff, or service agreement,” is revised to read, “a rate schedule or tariff, tariff or service agreement,”; and the phrase “the rate schedule or tariff would become effective” is revised to read “the rate schedule or tariff, tariff or service agreement would become effective”. And, in the second sentence, the phrase “under such rate schedule or tariff,” is revised to read “under such rate schedule or tariff, tariff or service agreement,”.
In Title 18 of the Code of Federal Regulations, parts 1 to 399, revised as of April 1, 2015, on page 810, in § 281.204, in paragraph (a), in the first sentence and in the last sentence, remove the term “sheets” and add in its place the term “sheets or sections”.
In Title 18 of the Code of Federal Regulations, parts 400 to End, revised as of April 1, 2015, on page 210, in § 1307.4, in paragraph (b)(2), remove the term “activities” and add in its place “aid, benefits, or services”.
In Title 19 of the Code of Federal Regulations, parts 0 to 140, revised as of April 1, 2015, remove the term “Customs” and add in its place the term “CBP” in the following places:
1. On page 96, in § 10.1, in the introductory text of paragraph (h)(1), and
2. On page 113, in § 10.31, in paragraph (f), in two places.
In Title 19 of the Code of Federal Regulations, parts 0 to 140, revised as of April 1, 2015, on page 67, in § 4.88, in paragraph (a), remove the words “with a registry which” and add in their place “with a registry endorsement which”.
In Title 19 of the Code of Federal Regulations, parts 0 to 140, revised as of April 1, 2015, on page 259, in § 10.470, revise the section heading to read
In Title 19 of the Code of Federal Regulations, parts 0 to 140, revised as of April 1, 2015, on page 480, in § 12.74, in paragraph (b)(2), remove the phrase “a period of”.
In Title 19 of the Code of Federal Regulations, parts 0 to 140, revised as of April 1, 2015, on page 596, in § 24.22, in paragraph (g)(7), remove the term “Customs” and add “CBP” in its place.
In Title 19 of the Code of Federal Regulations, parts 0 to 140, revised as of April 1, 2015, on page 810, in § 122.24, in paragraph (b), after the paragraph heading, remove the introductory text before the table.
In rule document 2016-07135 beginning on page 17604 in the issue of Wednesday, March 30, 2016, make the following correction:
In Title 26 of the Code of Federal Regulations, part 1, §§ 1.908 to 1.1000, revised as of April 1, 2015, on page 394, in § 1.955A-3, revise the heading for paragraph (e) to read “
Coast Guard, DHS.
Notice of deviation from drawbridge regulations.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the Southern Railroad Drawbridge across the Tennessee River, mile 304.4, at Decatur, Alabama. The deviation is necessary to allow the bridge owner time to perform repairs and maintenance essential to the continued safe operation of the drawbridge. This deviation allows the bridge to open to vessel traffic with a two-hour advance notice.
This deviation is effective from April 4 through April 21, 2016.
The docket for this deviation, (USCG-2016-0199) is available at
If you have questions on this temporary deviation, call or email Eric A. Washburn, Bridge Administrator, Western Rivers, Coast Guard; telephone 314-269-2378, email
The Norfolk Southern Railroad requested a temporary deviation for the Southern Railroad Drawbridge, across the Tennessee River, mile 304.4, at Decatur, Alabama. This deviation allows the bridge to open on signal if at least 2-hours advance notice is given from 7 a.m. to 4:30 p.m., Monday through Thursday, April 4-21, 2016. This deviation is necessary for the bridge owner to replace cross ties, change out the counter weight and install inner guard rails.
The Southern Railroad Drawbridge currently operates in accordance with 33 CFR 117.5, which states the general requirement that the drawbridge shall open on signal.
The Southern Railroad Drawbridge provides a vertical clearance of 10.52 feet above normal pool in the closed-to-navigation position. Navigation on the waterway consists primarily of commercial tows and recreational watercraft and will not be significantly impacted. This temporary deviation has been coordinated with waterway users. No objections were received.
The bridge will not be able to open for emergencies and there are no alternate routes for vessels transiting this section of the Tennessee River. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so the vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this
Coast Guard, DHS.
Notice of deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the Railroad Bridge (NJT) across the Shark River (South Channel), mile 0.9, at Avon, NJ. This deviation is necessary to perform urgent bridge repairs. This deviation allows the bridge to remain in the closed-to-navigation position.
This deviation is effective from 7 a.m. to 6 p.m. on April 9, 2016.
The docket for this deviation, [USCG-2016-0232] is available at
If you have questions on this temporary deviation, call or email Mr. Hal R. Pitts, Bridge Administration Branch Fifth District, Coast Guard, telephone 757-398-6222, email
New Jersey Transit (NJT), that owns and operates the Railroad Bridge (NJT), has requested a temporary deviation from the current operating regulations to perform urgent repairs to the buffers which protect the bridge locks from damage during opening and closing movements. The bridge is a single bascule draw bridge and has a vertical clearance in the closed position of 8 feet above mean high water.
The current operating schedule is set out in 33 CFR 117.751. Under this temporary deviation, the bridge will remain in the closed-to-navigation position from 7 a.m. to 6 p.m. on April 9, 2016 and will open-to-navigation with at least one hour advance notice.
The Shark River is used by a variety of vessels including small U.S. government and public vessels, small commercial vessels, tug and barge, and recreational vessels. The Coast Guard has carefully considered the nature and volume of vessel traffic on the waterway in publishing this temporary deviation.
Vessels able to pass through the bridge in the closed position may do so at anytime. The bridge will be able to open for emergencies with at least one hour advance notice and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transit to minimize any impact caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.
United States Patent and Trademark Office, Commerce.
Final rule.
This final rule amends the existing consolidated set of rules relating to the United States Patent and Trademark Office (Office or USPTO) trial practice for
Susan L. C. Mitchell, Lead Administrative Patent Judge, by telephone at (571) 272-9797.
The Office published a second, proposed rule on August 20, 2015, which addressed more significant proposed changes to the rules and proposed revisions to the Office Patent Trial Practice Guide. The Office received comments from the public on these proposed rules, and presents in this
The Office anticipates that it will continue to refine the rules governing AIA trials to continue to ensure fairness and efficiency while meeting all congressional mandates. Therefore, the Office continues to encourage comments concerning how the rules may be refined to achieve this goal.
Also, the Office is continuing to pro-actively seek ways to enhance its operations and explore alternative approaches that might improve its handling of post grant administrative trials. As part of this process, the Office published in the
In response to the Request for Comments, the Office received eighteen written submissions from intellectual property organizations, associations, businesses, law firms, patent practitioners, and others. The majority of comments opposed the proposed pilot program; however, several comments supported modified pilot programs. The Office appreciates receiving the comments, and has considered and analyzed them. Taking into account the comments received, the Office has decided not to go forward with the proposed pilot program at this time.
On September 16, 2011, the AIA was enacted into law (Pub. L. 112-29, 125 Stat. 284 (2011)), and within one year, the Office implemented rules to govern Office trial practice for AIA trials, including IPR, PGR, CBM, and derivation proceedings pursuant to 35 U.S.C. 135, 316 and 326 and AIA 18(d)(2).
In an effort to gauge the effectiveness of these rules governing AIA trials, the Office conducted a nationwide listening tour in April and May of 2014. During the listening tour, the Office solicited feedback on how to make the trial proceedings more fair and effective by adjusting the rules and guidance where necessary. To elicit even more input, in June of 2014, the Office published a Request for Comments in the
In the second, proposed rulemaking, the Office sought comments on the proposed rules involving the application of a
In the proposed rules, the Office noted that the application of a
The Office has considered carefully the comments and determined to permit either party to request by motion a
Applying the broadest reasonable interpretation standard in the proceedings serves an important patent quality assurance function. Therefore, the Office agrees with comments that the application of the broadest reasonable interpretation for claims furthers the congressional goal of providing “a meaningful opportunity to improve patent quality and restore confidence in the presumption of validity that comes with issued patents in court.” H.R. Rep. No. 112-98(I) at 48 (2011),
Several commenters offered a bright-line rule of a fixed period of time to determine when to apply a
The Office believes that the best approach to determine when a particular patent will expire is to allow either party to request by motion that a
In the Notice of Proposed Rulemaking, the Office noted that AIA proceedings are neither
The Office stated in
In addition, the Office stated in the Notice of Proposed Rulemaking that the decision in
The Office received a spectrum of comments that ranged from approval of the Office's current motion to amend practice to those seeking significant changes to that practice. The Office addresses these additional comments below.
In the Notice of Proposed Rulemaking, the Office proposed amending the rules to allow the patent owner to file new testimonial evidence without any limit on scope with its preliminary response. Because the time frame for the preliminary phase of an AIA proceeding does not allow generally for cross-examination of a declarant before institution as of right, nor for the petitioner to file a reply brief as of right, the Office is amending the rules to provide that any factual dispute created by testimonial evidence that is material to the institution decision will be resolved in favor of the petitioner solely for purposes of determining whether to institute a trial. This presumption was proposed, among other reasons, to preserve petitioner's right to challenge statements made by the patent owner's declarant, which may be done as of right during a trial.
Commenters who favored allowing patent owner to present new testimonial evidence at the pre-institution stage expressed two areas of concern with the proposed changes to allow new testimonial evidence to be submitted with patent owner's preliminary response: (1) The presumption in favor of petitioner for resolving factual disputes; and (2) the availability of a reply. The Office addresses these comments below in the responses to Comment 4 and Comment 5.
In the Notice of Proposed Rulemaking, the Office stated that it will continue to apply several factors on a case-by-case basis when considering whether additional discovery in an
1. More Than A Possibility And Mere Allegation. The mere possibility of finding something useful, and mere allegation that something useful will be found, are insufficient. Thus, the party requesting discovery already should be in possession of a threshold amount of evidence or reasoning tending to show beyond speculation that something useful will be uncovered. “Useful” does not mean merely “relevant” or “admissible,” but rather means favorable in substantive value to a contention of the party moving for discovery.
2. Litigation Positions And Underlying Basis. Asking for the other party's litigation positions and the underlying basis for those positions is not necessarily in the interest of justice.
3. Ability To Generate Equivalent Information By Other Means. Discovery of information a party reasonably can figure out, generate, obtain, or assemble without a discovery request would not be in the interest of justice.
4. Easily Understandable Instructions. The requests themselves should be easily understandable. For example, ten pages of complex instructions are prima facie unclear.
5. Requests Not Overly Burdensome To Answer. The Board considers financial burden, burden on human resources, and burden on meeting the time schedule of the review. Requests should be sensible and responsibly tailored according to a genuine need.
In the Notice of Proposed Rulemaking, the Office also noted that it has provided guidance on its Web site,
In the Notice of Proposed Rulemaking, the Office stated that the
In the Notice of Proposed Rulemaking, the Office recognized that it is important to provide a patent owner a full and fair opportunity to develop arguments regarding secondary considerations. Evidence of many secondary considerations (
The Office noted in the Notice of Proposed Rulemaking that it is important to resolve real party-in-interest and privity issues as early as possible, preferably in the preliminary stage of the proceeding prior to institution, to avoid unnecessary delays and to minimize cost and burden on the parties and the resources of the Office. In most cases, the patent owner also recognizes the benefit of raising a real party-in-interest or privity challenge early in the proceeding, before or with the filing of its preliminary response, to avoid the cost and burden of a trial if the challenge is successful.
The Office also noted that to balance efficiency with fairness, the Office, in general, will permit a patent owner to raise a challenge regarding a real party-in-interest or privity at any time during a trial proceeding. Such a position is consistent with the final rule notice.
The Office asked a series of questions relating to how multiple proceedings, such as an AIA trial, reexamination, or reissue proceeding, before the Office involving the same patent should be coordinated, including whether one proceeding should be stayed, transferred, consolidated, or terminated in favor of another. In response to comments answering these questions, the Office noted in the Notice of Proposed Rulemaking that the current rules provide sufficient flexibility to address the unique factual scenarios presented to handle efficiently and fairly related proceedings before the Office on a case-by-case basis, and that the Office will continue to take into account the interests of justice and fairness to both petitioners and patent owners where multiple proceedings involving the same patent claims are before the Office. Although the Office proposed no new rule involving multiple proceedings, it indicated plans to add further discussion on what factors the Office considers when determining whether to stay, transfer, consolidate, or terminate a proceeding in the Office Patent Trial Practice Guide.
In the Notice of Proposed Rulemaking, the Office stated that it will continue to strive to meet the one-year statutory time period for trial, and that it does not propose to change the rules pertaining to the one-year pendency from institution-to-decision to provide for specific circumstances under which “good cause” may be shown. The Office proposed, however, to revise the Office Patent Trial Practice Guide to provide an exemplary list of instances in which an extension of the one-year statutory period may be warranted. Generally, commenters agree with the Office's approach to handling of the one-year period to issue a final determination. One commenter offered proposed examples of good cause for an extension, such as when one of the parties is prejudiced by circumstances that are unforeseeable and outside of its control or when the case is complex involving multiple proceedings. The Office will consider these suggestions in revising the Office Patent Trial Practice Guide to provide examples where good cause may be shown for extension of the one-year period to issue a final determination in an AIA proceeding.
In the Notice of Proposed Rulemaking, the Office noted that it will continue its present practice of considering requests for presentative of live testimony in an oral hearing on a case-by-case basis, but the Office does not expect that such live testimony will be required in every case where there is conflicting testimony. When requested by the parties, however, and where the panel believes live testimony will be helpful in making a determination, the Office will permit live testimony. The format for presenting live testimony is left to the discretion of the panel, but panels will make clear at the hearing that live testimony is evidence that becomes part of the record. The Office also noted in the Notice of Proposed Rulemaking that it will provide guidance on limiting parties to issues specified in the oral argument request in the FAQs on the PTAB Trials Web site and in the Office Patent Trial Practice Guide. The Office also proposed amending the rules to provide additional days for the parties to exchange and conference on demonstrative exhibits to resolve any disputes among themselves. Generally, commenters agree with the Office's approach to handling live testimony in oral hearings and also agree with the proposed change to the rules to allow more time for parties to resolve objections to demonstratives.
In the Notice of Proposed Rulemaking, the Office proposed to amend section 42.11, which prescribes the duty of candor owed to the Office, to include a Rule 11-type certification for papers filed with the Board with a provision for sanctions for noncompliance. The Office received several comments on the proposal and has responded to those comments below. The Office will implement a Rule-11 type certification in the final rule.
Improper use of the proceeding covers a broad range of prohibited activities including those in paragraphs (c)(2), (3), and (4) of the proposed rule.
In the Notice of Proposed Rulemaking, the Office proposed using a word count for the petition, patent owner preliminary response, patent owner response, and petitioner's reply brief. For all other briefing, the Office will maintain a page limit. The Office noted that this change will allow the Office to gain administrative efficiencies. For example, with the use of word counts for the main briefings for
In 2015, the Office launched an outreach initiative to explore various issues associated with confidential communications with patent agents or foreign patent practitioners. The Office published a notice convening a roundtable in February 2015 and requesting public comments.
Consistent with that earlier outreach initiative, the Office sought comments in the Notice of Proposed Rulemaking on the subject of attorney-client privilege or other limitations on discovery in PTAB proceedings, including on whether rules regarding privilege should be issued in connection with PTAB proceedings. The Office noted that such rules could, for example, explicitly recognize privilege for communications between patent applicants or owners and their domestic patent agents or foreign patent practitioners, under the same circumstances as such privilege is recognized for communications between applicants or owners and U.S. attorneys.
The Office appreciates the thoughtful comments that it received in response and will address these comments in a separate notice, if any further action is taken.
The Office amends 37 CFR 42.100(b), 42.200(b), and 42.300(b) as follows:
• Amend 37 CFR 42.100(b) to add the phrase “that will not expire before a final written decision is issued” after “an unexpired patent” and add that a party may request a district court-type claim construction approach be applied if a party certifies that the involved patent will expire within 18 months from the entry of the Notice of Filing Date Accorded to Petition. The request must be accompanied by a party's certification, and be made in the form of a motion under § 42.20, within 30 days from the filing of the petition.
• Amend 37 CFR 42.200(b) to add the phrase “that will not expire before a final written decision is issued” after “an unexpired patent” and add that a party may request a district court-type claim construction approach be applied if a party certifies that the involved patent will expire within 18 months from the entry of the Notice of Filing Date Accorded to Petition. The request must be accompanied by a party's certification, and be made in the form of a motion under § 42.20, within 30 days from the filing of the petition.
• Amend 37 CFR 42.300(b) to add the phrase “that will not expire before a final written decision is issued” after “an unexpired patent” and add that a party may request a district court-type claim construction approach be applied if a party certifies that the involved patent will expire within 18 months
The Office amends 37 CFR 42.23(b) by:
• Substituting “opposition, patent owner preliminary response, or patent owner response” for “opposition or patent owner response.”
The Office amends 37 CFR 42.107(a) to indicate that a preliminary response filed by the patent owner is subject to the word count under § 42.24, rather than a page limit.
The Office amends 37 CFR 42.107 to delete paragraph (c).
The Office revises 37 CFR 42.108(c) to indicate that the Board's decision will take into account a patent owner preliminary response where such a response is filed, including any testimonial evidence, but a genuine issue of material fact created by such testimonial evidence will be viewed in the light most favorable to the petitioner solely for purposes of deciding whether to institute an
The Office revises 37 CFR 42.207(a) to indicate that a preliminary response filed by the patent owner is subject to the word count under § 42.24, rather than a page limit.
The Office amends 37 CFR 42.207 to delete paragraph (c).
The Office revises 37 CFR 42.208(c) to indicate that during post-grant reviews, the Board's decision will take into account a patent owner preliminary response where such a response is filed, including any testimonial evidence, but a genuine issue of material fact created by such testimonial evidence will be viewed in the light most favorable to the petitioner solely for purposes of deciding whether to institute a post-grant review. A petitioner may file a reply to the preliminary response, but any such response must make a showing of good cause.
The Office amends 37 CFR 42.70(b) to require at least seven, not just five, days before oral argument for exchange of exhibits.
The Office amends 37 CFR 42.24 to implement a word count limitation for petitions, patent owner preliminary responses, patent owner responses, and petitioner's replies, by:
• Adding “Type-volume or” to the title;
• adding “word counts or” before “page limits”; adding “word count or” before “page limit”; adding “grounds for standing under §§ 42.104, 42.204, or 42.304, mandatory notices under § 42.8,” after “a table of authorities,” and adding “or word count” after “a certificate of service” in paragraph (a)(1);
• substituting “14,000 words” for “60 pages” in (a)(1)(i) and (a)(1)(iv);
• substituting “18,700 words” for “80 pages” in (a)(1)(ii) and (a)(1)(iii);
• substituting “word counts” for the first three instances of “page limits” and “word count” for the two instances of “page limit” in paragraph (a)(2), and adding “word counts or” before “page limits” in the last sentence;
• adding “word counts or” before the “page limits” in paragraph (b);
• substituting “word counts” for the two instances of “page limits” in paragraph (b)(1);
• substituting “word counts” for the two instances of “page limits” in paragraph (b)(2);
• adding “word counts or” before the two instances of “page limits” and adding “or word count” after “a certificate of service” in paragraph (c);
• substituting “5,600 words” for “25 pages” in paragraph (c)(1);
• adding a new paragraph that implements a requirement for a certification, stating the number of words, for any paper whose length is specified by type-volume limits.
The Office amends 37 CFR 42.11 to add “signing papers; representations to the Board; sanctions” to the title of the section, to designate existing text as paragraph (a) and to add a subheading to that paragraph, and to add new paragraphs that implement a signature requirement, as set forth in Rule 11.18(a), for every petition, response, written motion, and other paper filed in a proceeding; provide the representations that an attorney, registered practitioner, or unrepresented party makes when presenting to the Board a petition, response, written motion, or other paper; and set forth the process and conditions under which the Board will impose sanctions if the Board determines that § 41.11(c) has been violated.
This final rule revises the consolidated set of rules relating to Office trial practice for
Accordingly, prior notice and opportunity for public comment are not required pursuant to 5 U.S.C. 553(b) or (c) (or any other law), and thirty-day advance publication is not required pursuant to 5 U.S.C. 553(d) (or any other law).
For the reasons set forth herein, the Deputy General Counsel for General Law of the United States Patent and Trademark Office has certified to the Chief Counsel for Advocacy of the Small Business Administration that changes adopted in this notice will not have a significant economic impact on a substantial number of small entities.
The changes adopted in this document are to revise certain trial practice procedures before the Board. Any requirements resulting from these changes are of minimal or no additional burden to those practicing before the
For the foregoing reasons, the changes in this notice will not have a significant economic impact on a substantial number of small entities.
This rulemaking has been determined to be not significant for purposes of Executive Order 12866 (Sept. 30, 1993).
The Office has complied with Executive Order 13563. Specifically, the Office has, to the extent feasible and applicable: (1) Made a reasoned determination that the benefits justify the costs of the rule; (2) tailored the rule to impose the least burden on society consistent with obtaining the regulatory objectives; (3) selected a regulatory approach that maximizes net benefits; (4) specified performance objectives; (5) identified and assessed available alternatives; (6) involved the public in an open exchange of information and perspectives among experts in relevant disciplines, affected stakeholders in the private sector and the public as a whole, and provided on-line access to the rulemaking docket; (7) attempted to promote coordination, simplification, and harmonization across government agencies and identified goals designed to promote innovation; (8) considered approaches that reduce burdens and maintain flexibility and freedom of choice for the public; and (9) ensured the objectivity of scientific and technological information and processes.
This rulemaking does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999).
This rulemaking will not: (1) Have substantial direct effects on one or more Indian tribes; (2) impose substantial direct compliance costs on Indian tribal governments; or (3) preempt tribal law. Therefore, a tribal summary impact statement is not required under Executive Order 13175 (Nov. 6, 2000).
This rulemaking is not a significant energy action under Executive Order 13211 because this rulemaking is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required under Executive Order 13211 (May 18, 2001).
This rulemaking meets applicable standards to minimize litigation, eliminate ambiguity, and reduce burden as set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 (Feb. 5, 1996).
This rulemaking does not concern an environmental risk to health or safety that may disproportionately affect children under Executive Order 13045 (Apr. 21, 1997).
This rulemaking will not affect a taking of private property or otherwise have taking implications under Executive Order 12630 (Mar. 15, 1988).
Under the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801
The changes set forth in this rulemaking do not involve a Federal intergovernmental mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, of 100 million dollars (as adjusted) or more in any one year, or a Federal private sector mandate that will result in the expenditure by the private sector of 100 million dollars (as adjusted) or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This rulemaking will not have any effect on the quality of the environment and is thus categorically excluded from review under the National Environmental Policy Act of 1969.
The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) are not applicable because this rulemaking does not contain provisions which involve the use of technical standards.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3549) requires that the Office consider the impact of paperwork and other information collection burdens imposed on the public. This final rule involves information collection requirements which are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3549). This rulemaking does not add any additional information requirements or fees for parties before the Board. Therefore, the Office is not resubmitting information collection packages to OMB for its review and approval because the revisions in this rulemaking do not materially change the information collections approved under OMB control number 0651-0069.
Notwithstanding any other provision of law, no person is required to respond
Administrative practice and procedure, Inventions and patents.
For the reasons set forth in the preamble, the Office amends 37 CFR part 42 as follows:
35 U.S.C. 2(b)(2), 6, 21, 23, 41, 135, 311, 312, 316, 321-326; Pub. L. 112-29, 125 Stat. 284; and Pub. L. 112-274, 126 Stat. 2456.
(a)
(b)
(c)
(d)
(2)
(3)
(4)
(5)
(b) All arguments for the relief requested in a motion must be made in the motion. A reply may only respond to arguments raised in the corresponding opposition, patent owner preliminary response, or patent owner response.
(a)
(i) Petition requesting
(ii) Petition requesting post-grant review: 18,700 words.
(iii) Petition requesting covered business method patent review: 18,700 words.
(iv) Petition requesting derivation proceeding: 14,000 words.
(v) Motions (excluding motions to amend): 15 pages.
(vi) Motions to Amend: 25 pages.
(2) Petitions to institute a trial must comply with the stated word counts but may be accompanied by a motion to waive the word counts. The petitioner must show in the motion how a waiver of the word counts is in the interests of justice and must append a copy of proposed petition exceeding the word count to the motion. If the motion is not granted, the proposed petition exceeding the word count may be expunged or returned. Any other motion to waive word counts or page limits must be granted in advance of filing a motion, opposition, or reply for which the waiver is necessary.
(b)
(1) The word counts for a patent owner preliminary response to petition are the same as the word counts for the petition.
(2) The word counts for a patent owner response to petition are the same as the word counts for the petition.
(3) The page limits for oppositions are the same as those for corresponding motions.
(c)
(1)
(2)
(3)
(d)
(b) Demonstrative exhibits must be served at least seven business days before the oral argument and filed no later than the time of the oral argument.
(b) A claim in an unexpired patent that will not expire before a final written decision is issued shall be given its broadest reasonable construction in light of the specification of the patent in which it appears. A party may request a district court-type claim construction approach to be applied if a party certifies that the involved patent will expire within 18 months from the entry of the Notice of Filing Date Accorded to Petition. The request, accompanied by a party's certification, must be made in the form of a motion under § 42.20, within 30 days from the filing of the petition.
(a) The patent owner may file a preliminary response to the petition. The response is limited to setting forth the reasons why no
(c) [Reserved]
(c)
(b) A claim in an unexpired patent that will not expire before a final written decision is issued shall be given its broadest reasonable construction in light of the specification of the patent in which it appears. A party may request a district court-type claim construction approach to be applied if a party certifies that the involved patent will expire within 18 months from the entry of the Notice of Filing Date Accorded to Petition. The request, accompanied by a party's certification, must be made in the form of a motion under § 42.20, within 30 days from the filing of the petition.
(a) The patent owner may file a preliminary response to the petition. The response is limited to setting forth the reasons why no post-grant review should be instituted under 35 U.S.C. 324 and can include supporting evidence. The preliminary response is subject to the word count under § 42.24.
(c) [Reserved]
(c)
(b) A claim in an unexpired patent that will not expire before a final written decision is issued shall be given its broadest reasonable construction in light of the specification of the patent in which it appears. A party may a request a district court-type claim construction approach to be applied if a party certifies that the involved patent will expire within 18 months from the entry of the Notice of Filing Date Accorded to Petition. The request, accompanied by a party's certification, must be made in the form of a motion under § 42.20, within 30 days from the filing of the petition.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is partially approving and partially disapproving several State Implementation Plan (SIP) revisions submitted by the State of California pursuant to the requirements of the Clean Air Act (CAA or the Act) for the
This final rule is effective on May 2, 2016.
EPA has established a docket for this action, identified by Docket ID Number EPA-R09-OAR-2014-0547. The index to the docket for this action is available electronically at
Rory Mays, Air Planning Office (AIR-2), U.S. Environmental Protection Agency, Region IX, (415) 972-3227,
Throughout this document, the terms “we,” “us,” and “our” refer to EPA.
EPA proposed action on several California infrastructure SIP submittals on October 23, 2014 (proposed rule).
The rationale supporting EPA's action is explained in our October 23, 2014 proposed rule and the five associated technical support documents (TSDs)
Section 110(a)(1) of the CAA requires each state to submit to EPA, within three years after the promulgation of a primary or secondary NAAQS or any revision thereof, an infrastructure SIP revision that provides for the implementation, maintenance, and enforcement of such NAAQS. Section 110(a)(2) of the CAA sets the content requirements of such a plan, which generally relate to the information and authorities, compliance assurances, procedural requirements, and control measures that constitute the “infrastructure” of a state's air quality management program. Two elements identified in section 110(a)(2) are not governed by the three-year submittal deadline of section 110(a)(1) and are therefore not addressed in this action. These two elements are: (i) Section 110(a)(2)(C) to the extent it refers to permit programs required under part D (nonattainment new source review (NSR)), and (ii) section 110(a)(2)(I), pertaining to the nonattainment planning requirements of part D. As a result, this action does not address infrastructure for the nonattainment NSR portion of section 110(a)(2)(C) or the whole of section 110(a)(2)(I).
Between 1997 and 2012, EPA promulgated a series of new or revised NAAQS for ozone, PM
• 1997 ozone NAAQS, which established 8-hour average primary and secondary ozone standards of 0.08 ppm, and revoked the 1979 1-hour ozone standard of 0.12 parts per million (ppm).
• 2008 ozone NAAQS, which revised the 8-hour ozone standards to 0.075 ppm.
• 1997 PM
• 2006 PM
• 2012 PM
• 2008 Pb NAAQS, which revised the 1978 Pb quarterly average standard of 1.5 µg/m
• 2010 NO
• 2010 SO
The California Air Resources Board (ARB) has submitted several infrastructure SIP revisions pursuant to EPA's promulgation of the NAAQS addressed by this final rule, including the following:
• November 16, 2007—“Proposed State Strategy for California's 2007 State Implementation Plan.” Appendices B (“110(a)(2) Infrastructure SIP”) and G (“Legal Authority and Other Requirements”) contain California's infrastructure SIP revision for the 1997 ozone and 1997 PM
• October 6, 2011—“State Implementation Plan Revision for Federal Lead Standard Infrastructure Requirements,” which addresses the 2008 Pb NAAQS. (“California's 2011 Submittal”).
• December 12, 2012—“State Implementation Plan Revision for Federal Nitrogen Dioxide Standard Infrastructure Requirements,” which addressed the 2010 NO
• March 6, 2014—“California Infrastructure SIP,” which provided new submittals for the 2008 ozone, 2010 SO
• June 2, 2014—Great Basin Unified Air Pollution Control District (APCD) Rule 701 (“Air Pollution Episode Plan”), which addresses CAA section 110(a)(2)(G) for the 1987 coarse particulate matter (PM
We find that these submittals meet the procedural requirements for public participation under CAA section 110(a)(2) and 40 CFR 51.102. We are acting on all of these submittals since they collectively address the infrastructure SIP requirements for the NAAQS addressed by this final rule. We refer to them collectively herein as “California's Infrastructure SIP Submittals.” Importantly, however, California has not made a submittal for the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) with respect to the 2006 PM
The public comment period on EPA's proposed rule opened on October 24, 2014, the date of its publication in the
Mr. Robert Ukeiley commented on EPA's proposal with respect to the permitting-related infrastructure SIP requirements for the prevention of significant deterioration (PSD).
We have confirmed that the SIP-approved PSD permit rules of the seven air districts named in Mr. Ukeiley's letter include PM
With respect to SILs for PM
Specifically, six of the 12 air districts in California with SIP-approved PSD permit rules include PM
EPA has advised the districts with PM
The PSD permit rules for the remaining six air districts (Butte County, Great Basin Unified, Monterey Bay Unified, San Luis Obispo County, Santa Barbara County, and Yolo-Solano) do not include any PM
Mojave Desert Air Quality Management District (AQMD) commented that EPA was incorrect in stating that the district's minor NSR program had not been approved into the California SIP.
EPA agrees that Mojave Desert AQMD indeed has a minor NSR program in the California SIP that is sufficient to approve California's Infrastructure SIP Submittals consistent with the requirement of section 110(a)(2)(C) that the SIP include a program for the regulation of minor sources, though with one clarification.
In reviewing the minor NSR permit programs of California's 35 air districts, EPA generally relied on permit programs that applied to the whole air district. However, in some cases we found that air districts with two or more counties had county-based minor NSR programs that had been approved into the California SIP and applied to the NAAQS addressed by this rulemaking. For example, for Feather River AQMD we found that minor NSR rules for each of the two counties in the air district, Yuba and Sutter counties, had been approved into the California SIP and covered the NAAQS addressed by our rulemaking.
We inadvertently missed identifying the county-based minor NSR programs that have been approved into the California SIP for the portions of the two counties (San Bernardino and Riverside counties) that are within the jurisdiction of Mojave Desert AQMD. Specifically, EPA previously approved each county's Rule 201,
Thus, while Mojave Desert AQMD is correct that the district has sufficient minor NSR permit rules in the California SIP for purposes of CAA section 110(a)(2)(C), it is on the basis of the SIP-approved county-based Rules 102 and 201 that we remove Mojave Desert AQMD from the list of air districts that lack SIP-approved minor NSR programs. Please refer to section III of this final rule where we finalize this minor change from our proposed partial disapproval for Mojave Desert AQMD.
Northern Sonoma County Air Pollution Control District (APCD) states that its Board of Directors revised four regulations implementing the district's PSD program, for submittal through ARB as revisions to the California SIP, and that those revisions address the deficiencies identified in EPA's proposed rule.
EPA received Northern Sonoma County APCD's PSD program SIP revision on December 11, 2014 and it became complete by operation of law on June 11, 2015. While we have begun our review of that SIP submittal, we have not yet issued any proposed or final rulemaking on the submittal. We anticipate proposing and finalizing action on that SIP submittal over the coming months, per the CAA section 110(k)(2) deadline for EPA to take final action within 12 months of a completeness determination. To the extent that the district's PSD SIP revision resolves the deficiency identified in our proposed rule on California's Infrastructure SIP Submittals (
Under CAA section 110(k)(3), and based on the evaluation and rationale presented in the proposed rule, the related TSDs, and this final rule, EPA is approving in part and disapproving in part California's Infrastructure SIP Submittals for the 1997 ozone, 2008 ozone, 1997 PM
Based upon our evaluation, as presented in our proposed rule and our five TSDs, and additional information discussed below, EPA approves California's Infrastructure SIP Submittals with respect to the 1997 ozone, 2008 ozone, 1997 PM
• Section 110(a)(2)(A): Emission limits and other control measures.
• Section 110(a)(2)(B) (in part): Ambient air quality monitoring/data system.
• Section 110(a)(2)(C) (in part): Program for enforcement of control measures and regulation of new and modified stationary sources.
• Section 110(a)(2)(D)(i) (in part): Interstate pollution transport.
• Section 110(a)(2)(D)(ii) (in part): Interstate pollution abatement and international air pollution.
• Section 110(a)(2)(E): Adequate resources and authority, conflict of interest, and oversight of local and regional government agencies.
• Section 110(a)(2)(F): Stationary source monitoring and reporting.
• Section 110(a)(2)(G) (in part): Emergency episodes.
• Section 110(a)(2)(H): SIP revisions.
• Section 110(a)(2)(J) (in part): Consultation with government officials, public notification, PSD, and visibility protection.
• Section 110(a)(2)(K): Air quality modeling and submittal of modeling data.
• Section 110(a)(2)(L): Permitting fees.
• Section 110(a)(2)(M): Consultation/participation by affected local entities.
As part of these approvals, we also approve several state statutes and regulations and one air district rule into the California SIP. Specifically, for all of the NAAQS addressed in this proposal, we approve into the SIP five state provisions from the California Government Code statutes and California Code of Regulations, which were submitted in California's 2014 Submittal and address the conflict of interest requirements of CAA sections 110(a)(2)(E)(ii) and 128. These provisions include California Government Code, Title 9, Sections 82048, 87103, and 87302, and California Code of Regulations, Title 2, Sections 18700 and 18701. For discussion of these conflict of interest provisions, please see our Conflict of Interest TSD.
We also approve Great Basin Unified Air Pollution Control District (APCD) Rule 701 into the California SIP with respect to the 1987 PM
California's 2012 and 2014 Submittals requested that EPA reclassify several air quality control regions (AQCRs) with respect to the emergency episode planning requirements of CAA section 110(a)(2)(G) and 40 CFR part 51, subpart H, as applicable to ozone, NO
Accordingly, on the basis of California's ambient air quality data for 2011-2013 and the evaluation presented in our proposed rule and Emergency Episode Planning TSD, we hereby grant five of California's ten requests, and deny the five remaining requests, to reclassify AQCRs for emergency episode planning purposes for ozone, NO
For ozone, we reclassify two AQCRs, Lake Tahoe and North Central Coast, to Priority III. We deny the State's reclassification requests for ozone for five AQCRs, including Mountain Counties, Sacramento Valley, San Diego, San Francisco Bay Area, and Southeast Desert. As a result, upon the effective date of this final rule, California will have seven Priority I AQCRs for ozone, including the five for which we deny California's reclassification request and two others (Metropolitan Los Angeles and San Joaquin Valley AQCRs). California's applicable air districts have adequate emergency episode contingency plans for ozone for six of these seven Priority I areas, including Metropolitan Los Angeles, Sacramento Valley, San Diego, San Francisco Bay Area, San Joaquin Valley, and Southeast Desert AQCRs. Therefore, we partially approve California's 2007 and 2014 Submittals with respect to the 1997 ozone and 2008 ozone NAAQS for the emergency episode planning requirements of CAA section 110(a)(2)(G). Please see section III.B.iii of this final rule for our partial disapproval of these submittals with respect to the Mountain Counties AQCR.
For NO
For SO
For PM, we identified two areas where concentrations exceeded EPA's recommended 24-hour PM
EPA previously proposed to partially disapprove five of California's 35 air districts for CAA section 110(a)(2)(C) with respect to minor NSR on the basis that they each lacked permit rules for minor sources in the California SIP.
As noted in Mojave Desert AQMD's comment letter, Mojave Desert AQMD has county-based minor NSR rules in the California SIP for each of its two counties (San Bernardino and Riverside counties), which we inadvertently missed during our original evaluation of the California Infrastructure SIP Submittals.
We determined that, for each of the five remaining counties (Lake, Mariposa, Plumas, Sierra, and Tuolumne counties) in these four districts, the county-based rules that constitute each county's minor source permit program were approved into the California SIP
In sum, all 35 air districts in California have minor NSR permit programs in the California SIP that cover all NAAQS. Notwithstanding this approval, to the extent that air districts have revised their permit rules for minor sources and such revisions are not yet reflected in the California SIP, we recommend that such districts work with ARB to submit SIP revisions to revise the California SIP.
EPA partially disapproves California's Infrastructure SIP Submittals with respect to the NAAQS identified for each of the following infrastructure SIP requirements (details of the partial disapprovals are presented after this list):
• Section 110(a)(2)(B) (in part): Ambient air quality monitoring/data system (for the 1997 ozone and 2008 ozone NAAQS for the Bakersfield Metropolitan Statistical Area (MSA) in San Joaquin Valley APCD).
• Section 110(a)(2)(C) (in part): Program for enforcement of control measures and regulation of new and modified stationary sources (for all NAAQS addressed by this final rule due to PSD program deficiencies in certain air districts).
• Section 110(a)(2)(D)(i) (in part): Interstate pollution transport (for all NAAQS addressed by this final rule due to PSD program deficiencies in certain air districts).
• Section 110(a)(2)(D)(ii) (in part): Interstate pollution abatement and international air pollution (for all NAAQS addressed by this final rule due to PSD program deficiencies in certain air districts).
• Section 110(a)(2)(G) (in part): Emergency episodes (for the 1997 ozone and 2008 ozone NAAQS for the Mountain Counties AQCR, and for the 1997 PM
• Section 110(a)(2)(J) (in part): Consultation with government officials, public notification, PSD, and visibility protection (for all NAAQS addressed by this final rule due to PSD program deficiencies in certain air districts).
We partially disapprove California's 2007 and 2014 Submittals for CAA section 110(a)(2)(B) with respect to the 1997 ozone and 2008 ozone NAAQS for the Bakersfield MSA portion of the California SIP because the ozone monitor located at the Arvin-Bear Mountain Road site, which had been the maximum ozone concentration monitor in the Bakersfield MSA, was closed without an approved replacement site. The requirement to have such a maximum ozone concentration monitor is found in 40 CFR part 51, Appendix D, 4.1(b) and the requirement that modifications to a monitoring network must be reviewed and approved by the relevant Regional Administrator is found in 40 CFR 58.14(b).
We partially disapprove portions of California's Infrastructure SIP Submittals with respect to the PSD-related requirements of sections 110(a)(2)(C), (D)(i)(II), (D)(ii), and (J) for several air districts because the California SIP does not fully satisfy the statutory and regulatory requirements for PSD permit programs as to those air districts.
With respect to interstate transport requirement of CAA section 110(a)(2)(D)(i)(II), we also considered the status of the nonattainment NSR programs of the applicable California air districts and hereby approve California's Infrastructure SIP Submittals for this aspect of the interstate transport requirements. Lastly, regarding section 110(a)(2)(D)(ii) and compliance with the requirement of section 126(a) for proposed, major new or modified sources to notify all potentially affected, nearby states, as applicable, we partially disapprove California's Infrastructure SIP Submittals for multiple air districts. We provide a summary of the basis and district-by-district accounting of our partial disapprovals in the following paragraphs, including consideration of comments from Northern Sonoma County APCD, and review of EPA rulemaking on PSD and nonattainment NSR SIP submittals that has occurred since our proposal on California's Infrastructure SIP Submittals.
We reviewed the permit programs of California's 35 air districts for SIP-approved provisions to address PSD requirements that we consider “structural” for purposes of sections 110(a)(2)(C), (D)(i)(II), and (J), including the following requirements that were most recently added to the federal PSD regulations: Provisions identifying nitrogen oxides (NO
We proposed to approve seven air districts as meeting the structural PSD requirements. Our proposed approval of one of these seven air districts, Monterey Bay Unified APCD, was contingent on finalizing approval of the district's PSD SIP revision.
In addition, our proposed rule on California's Infrastructure SIP Submittals identified eight air districts that had submitted PSD SIP revisions for which EPA had not yet proposed or finalized action.
Four other air districts, including Mendocino County, North Coast Unified, Northern Sonoma County, and South Coast air districts, partially meet and partially do not meet the structural PSD requirements.
South Coast AQMD has a SIP-approved PSD program for GHGs only, but lacks a SIP-approved PSD program to address any other regulated NSR pollutant. Thus, we partially disapprove California's Infrastructure SIP Submittals with respect to South Coast AQMD for the PSD-related requirement of sections 110(a)(2)(C), (D)(i)(II), and (J).
North Coast Unified AQMD has a SIP-approved PSD program that, on the whole, addresses all regulated NSR pollutants. However, it does not explicitly regulate NO
Mendocino County AQMD and Northern Sonoma County APCD each have SIP-approved PSD programs that generally address the structural PSD requirements, but do not include requirements for a baseline date for PSD increments for PM
The remaining 19 air districts are subject to the existing PSD FIP in 40 CFR 52.21, including Amador County, Antelope Valley, Bay Area, Calaveras County, Colusa County, El Dorado County, Glenn County, Lake County, Lassen County, Mariposa County, Modoc County, Mojave Desert, Northern Sierra, San Diego County, Shasta County, Siskiyou County, Tehama County, Tuolumne County, and Ventura County.
At the time of our proposal on California's Infrastructure SIP Submittals, three of these districts (Bay Area, San Diego County, and Ventura County air districts) had submitted PSD SIP revisions for which EPA had not yet proposed or finalized action. EPA has proposed a limited approval and limited disapproval of the SIP revision from Bay Area AQMD, noting that most of the submittal's rules satisfy applicable requirements under CAA section 110(a)(2)(C) for the regulation of the modification and construction of stationary sources.
Accordingly, we partially disapprove California's Infrastructure SIP Submittals as to each of these 19 air districts with respect to the PSD-related requirements of section 110(a)(2)(C), (D)(i)(II), and (J). As discussed further in section III.C of this final rule, the partial disapprovals with respect to these 19 districts would not result in new FIP obligations, because EPA has already promulgated a PSD FIP for each district.
With respect to interstate transport requirement of CAA section 110(a)(2)(D)(i)(II), in addition to reviewing the air districts' PSD programs, we also reviewed the nonattainment NSR programs of California's 22 air districts that are designated nonattainment for ozone, PM
We find that California meets the nonattainment NSR element of section 110(a)(2)(D)(i)(II) through a variety of mechanisms, as follows. Nine of the 22 air districts with nonattainment areas meet the nonattainment NSR element via SIP-approved programs, including the following air districts: Antelope Valley, Eastern Kern, Mojave Desert, Placer County, San Diego County, and Ventura County (for the 1997 ozone and 2008 ozone NAAQS); Sacramento Metro and Feather River (for the 1997 ozone, 2008 ozone, and 2006 PM
An additional eight air districts, which have each been designated nonattainment for more than one NAAQS, have affirmed that they implement the interim nonattainment NSR program in 40 CFR part 51, Appendix S, including the following districts: Calaveras County, Mariposa County, and Northern Sierra (for the 1997 ozone and 2008 ozone NAAQS); and Bay Area, Butte County, El Dorado County, Imperial County, and Yolo-
Two other districts, Amador County APCD and Tuolumne County APCD, are designated nonattainment only for the 1997 ozone NAAQS. EPA revoked that NAAQS as part of the final implementation rule for the 2008 ozone NAAQS,
Lastly, portions of San Luis Obispo County APCD and Tehama County APCD are designated nonattainment only for the 2008 ozone NAAQS. Until SIP revisions are submitted by these two districts and approved by EPA, the districts are required to implement 40 CFR part 51, Appendix S for any new or modified major source emitting an applicable nonattainment pollutant (
In sum, we approve California's Infrastructure SIP Submittals for the 22 air districts designated nonattainment for ozone, PM
As described in section IV.B.i of our proposed rule, with respect to the international pollution abatement requirement in CAA section 110(a)(2)(D)(ii), we noted that EPA has no reason to approve or disapprove any existing state rules with regard to CAA section 115 since the EPA Administrator has made no formal notification that emissions originating in California endanger public health or welfare in a foreign country. With respect to the interstate pollution abatement requirement in CAA section 110(a)(2)(D)(ii), we evaluated California's 2014 Submittal only for purposes of compliance with section 126(a).
We proposed that 10 of California's 35 air districts have SIP-approved PSD permit programs that require notice to nearby states consistent with EPA's relevant requirements, and proposed to partially disapprove the remaining 25 air district with respect to CAA section 110(a)(2)(D)(ii). We have since finalized approval of the PSD SIP revisions of five additional districts,
We therefore approve California's 2014 Submittal for section 110(a)(2)(D)(ii) regarding compliance with the requirements of section 115 for the whole state and with respect to section 126(a) for the following 15 air districts: Butte County, Eastern Kern, Feather River, Great Basin Unified, Imperial County, Mendocino County, Monterey Bay Unified, North Coast Unified, Northern Sonoma County, Placer County, Sacramento Metro, San Joaquin Valley, San Luis Obispo County, Santa Barbara County and Yolo-Solano.
The remaining 20 air districts are deficient with respect to the PSD requirements in part C, title I of the Act and with respect to the requirement in CAA section 126(a) regarding notification to affected, nearby states of major new or modified sources proposing to locate in these remaining air districts. Therefore, we partially disapprove California's Infrastructure SIP Submittals for section 110(a)(2)(D)(ii) regarding compliance with the requirements of section 126(a) for the following 20 air districts: Amador County, Antelope Valley, Bay Area, Calaveras County, Colusa County, El Dorado County, Glenn County, Lake County, Lassen County, Mariposa County, Modoc County, Mojave Desert, Northern Sierra, San Diego County, Shasta County, Siskiyou County, South Coast, Tehama County, Tuolumne County, and Ventura County.
As described in section III.A.ii of this final rule, we deny California's request to reclassify the Mountain Counties AQCR to Priority III for ozone. Of the seven air districts that comprise the Mountain Counties AQCR, only El Dorado County APCD and Placer County APCD recorded 1-hour ozone levels above the Priority I ozone threshold of 0.10 ppm during 2011-2013. We proposed that to satisfy the requirements of 40 CFR 51.151 for contingency plans for Mountain Counties AQCR, California needed to provide emergency episode contingency plans applicable to ozone for El Dorado County APCD and Placer County APCD. We maintain that position in this final rule. Since the time of our proposal, Placer County APCD adopted and submitted an ozone emergency episode contingency plan that we have approved into the California SIP.
As discussed in section III.A.ii of this final rule, we reclassify San Joaquin Valley AQCR from Priority I to Priority II for PM emergency episode planning. However, San Joaquin Valley APCD's SIP-approved emergency episode plan, which comprises multiple rules under the district's Regulation 6 (“Air Pollution Emergency Episodes”), still does not have provisions specific to PM
EPA takes a disapproval of a state plan very seriously, as we believe that it is preferable, and preferred in the provisions of the Clean Air Act, that these requirements be implemented through state plans. A state plan need not contain exactly the same provisions that EPA might require, but EPA must be able to find that the state plan is consistent with the requirements of the Act. Further, EPA's oversight role requires that it assure consistent implementation of Clean Air Act requirements by states across the country, even while acknowledging that individual decisions from source to source or state to state may not have identical outcomes. EPA believes these disapprovals are the only path that is consistent with the Act at this time.
Under section 179(a) of the CAA, final disapproval of a submittal that addresses a requirement of part D, title I of the CAA (CAA sections 171-193) or is required in response to a finding of substantial inadequacy as described in CAA section 110(k)(5) (SIP Call) starts a sanctions clock. California's Infrastructure SIP Submittals were not submitted to meet either of these requirements. Therefore, the partial disapprovals in this final rule will not trigger mandatory sanctions under CAA section 179.
Section 110(c)(1) of the Act provides that EPA must promulgate a FIP within two years after finding that a state has failed to make a required submittal or disapproving a SIP submittal in whole or in part, unless EPA approves a SIP revision correcting the deficiencies within that two-year period. However, many of these partial disapprovals finalized by this final rule do not result in new FIP obligations, either because EPA has already promulgated a FIP to address the identified deficiency or because a FIP deadline has been triggered by EPA's disapproval of a prior SIP submittal based on the same identified deficiency or by a prior finding of failure to submit.
When preparing our proposed rule, we inadvertently did not consider existing FIP deadlines that were triggered by prior findings of failure to submit for the 1997 PM
For the most part, the approval actions taken in this final rule obviate the basis of the FIP obligations established by EPA's findings of failure to submit discussed above. The remaining FIP obligations stemming from these findings are relevant with respect to outstanding deficiencies for ozone related to ambient monitoring and emergency episode planning, and an outstanding deficiency for PM
Accordingly, we describe the consequences of our partial disapprovals first for those where a FIP is already in place, then for those that have FIP obligations that are overdue, and finally for those that establish new FIP obligations.
The provisions for which our partial disapprovals do not result in a new FIP obligation include:
• PSD-related requirements in sections 110(a)(2)(C), (D)(i)(II), (D)(ii), and (J) in the 19 air districts identified in section III.B.ii of this final rule, which are subject to the PSD FIP in 40 CFR 52.21 for the NAAQS and GHGs (
• PSD-related requirements in sections 110(a)(2)(C), (D)(i)(II), (D)(ii), and (J) in South Coast AQMD, which is subject to the PSD FIP in 40 CFR 52.21 for all regulated NSR pollutants except GHGs (
• PSD requirement in sections 110(a)(2)(C), (D)(i)(II), and (J) to regulate NO
• PSD requirement in sections 110(a)(2)(C), (D)(i)(II), and (J) to regulate PSD increments in North Coast Unified AQMD, for which EPA issued a finding of failure to submit that triggered an October 6, 2016 deadline for EPA to promulgate a FIP addressing this requirement.
The provisions for which our FIP obligation is overdue include:
• Ambient air monitoring requirement in section 110(a)(2)(B) with respect to the 2008 ozone NAAQS in the Bakersfield MSA, whose FIP deadline expired on February 14, 2015.
• Emergency episode planning requirement in section 110(a)(2)(G) with respect to the 2008 ozone NAAQS in the Mountain Counties AQCR (for El Dorado County APCD only), whose FIP deadline expired on February 14, 2015.
• Emergency episode planning requirement in section 110(a)(2)(G) with respect to the 1997 PM
For the remaining partial disapprovals, EPA has not previously promulgated a FIP to address the identified deficiency or triggered a FIP deadline by disapproving a prior SIP submittal or issuing a finding of failure to submit based on the same deficiency. Thus, under CAA section 110(c)(1), these remaining partial disapprovals of California's Infrastructure SIP Submittals require EPA to promulgate a FIP within two years after the effective date of this final rule, unless the State submits and EPA approves a SIP revision that corrects the identified deficiencies prior to the expiration of this two-year period. The provisions for which our partial disapprovals trigger a new FIP obligation include:
• Ambient air monitoring requirement in section 110(a)(2)(B) with respect to the 1997 ozone NAAQS in the Bakersfield MSA.
• PSD requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) to regulate PM
• PSD requirement in sections 110(a)(2)(C), (D)(i)(II), and (J) for a baseline date for PSD increments for PM
• Emergency episode planning requirement in section 110(a)(2)(G) with respect to the 1997 ozone NAAQS in the Mountain Counties AQCR (for El Dorado County APCD only).
• Emergency episode planning requirement in section 110(a)(2)(G) with respect to the 2006 PM
In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of five state provisions from the California Government Code statutes and California Code of Regulations for the conflict of interest requirements of CAA sections 110(a)(2)(E)(ii) and 128. These provisions include California Government Code, Title 9, Sections 82048 (last amended in 2004), 87103 (last amended in 2000), and 87302 (last amended in 1992), and California Code of Regulations, Title 2, Sections 18700 (last amendment filed on December 20, 2005) and 18701 (last amendment filed on December 29, 2005). Similarly, EPA is also finalizing the incorporation by reference of Great Basin Unified Air Pollution Control District (APCD) Rule 701, adopted on March 3, 2014, with respect to the 1987 p.m.
This action is not a “significant regulatory action” under the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO.
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's rule on small entities, I certify that this action will not have a significant impact on a substantial number of small entities. This rule does not impose any requirements or create impacts on small entities. This partial SIP approval and partial SIP disapproval under CAA section 110 will not in-and-of itself create any new requirements but simply approves certain State requirements, and disapproves certain other State requirements, for inclusion into the SIP. Accordingly, it affords no opportunity for EPA to fashion for small entities less burdensome compliance or reporting requirements or timetables or exemptions from all or part of the rule. Therefore, this action will not have a significant economic impact on a substantial number of small entities.
This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for State, local, or tribal governments or the private sector. EPA has determined that the partial approval and partial disapproval action does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This action approves certain pre-existing requirements, and disapproves certain other pre-existing requirements, under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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 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, as specified in Executive Order 13132, because it merely approves certain State requirements, and disapproves certain other State requirements, for inclusion into the SIP and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, Executive Order 13132 does not apply to this action.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR
EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997). This partial approval and partial disapproval under CAA section 110 will not in-and-of itself create any new regulations but simply approves certain State requirements, and disapproves certain other State requirements, for inclusion into the SIP.
This rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
EPA believes that this action is not subject to requirements of Section 12(d) of NTTAA because application of those requirements would be inconsistent with the Clean Air Act.
Executive Order (EO) 12898 (59 FR 7629, Feb. 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
EPA lacks the discretionary authority to address environmental justice in this rulemaking.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 31, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, and Sulfur dioxide.
42 U.S.C. 7401
Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(c) * * *
(386) * * *
(ii) * * *
(A) * * *
(5) “110(a)(2) Infrastructure SIP,” submitted as Appendix B to the 2007 State Strategy, and “Legal Authority and Other Requirements,” submitted as Appendix G to the 2007 State Strategy (collectively, “2007 Infrastructure SIP”).
(466) The following plan was submitted on October 6, 2011, by the Governor's Designee.
(i) [Reserved].
(ii) Additional materials.
(A) California Air Resources Board (CARB).
(1) CARB Resolution 11-28, dated September 22, 2011, adopting the “Proposed State Implementation Plan Revision for Federal Lead Standard Infrastructure Requirements.”
(2) “Proposed State Implementation Plan Revision for Federal Lead Standard
(467) The following plan was submitted on December 12, 2012, by the Governor's Designee.
(i) [Reserved].
(ii) Additional materials.
(A) California Air Resources Board (CARB).
(1) CARB Resolution 12-32, dated November 15, 2012, adopting the “Proposed State Implementation Plan Revision for Federal Nitrogen Dioxide Standard Infrastructure Requirements.”
(2) “Proposed State Implementation Plan Revision for Federal Nitrogen Dioxide Standard Infrastructure Requirements,” (“2012 NO
(468) The following plan was submitted on March 6, 2014, by the Governor's Designee.
(A) California Air Resources Board
(1) California Government Code, Title 9 (Political Reform), Chapter 2 (Definitions), Section 82048, “Public official,” added by California Initiative Measure approved on June 4, 1974, effective January 7, 1975, and last amended in 2004.
(2) California Government Code, Title 9 (Political Reform), Chapter 7 (Conflicts of Interest), Article 1 (General Prohibition), Section 87103, “Financial interest in decision by public official,” added by California Initiative Measure approved on June 4, 1974, effective January 7, 1975, and last amended in 2000.
(3) California Government Code, Title 9 (Political Reform), Chapter 7 (Conflicts of Interest), Article 3 (Conflict of Interest Codes), Section 87302, “Required provisions; exemptions,” added by California Initiative Measure approved on June 4, 1974, effective January 7, 1975, and last amended in 1992.
(4) Title 2, California Code of Regulations, Division 6 (Fair Political Practices Commission), Chapter 7 (Conflict of Interest), Article 1 (Conflicts of Interest; General Prohibition), Section 18700, “Basic Rule and Guide to Conflict of Interest Regulations” (filed on December 17, 1976, effective upon filing, and last amendment filed on December 20, 2005, operative January 19, 2006).
(5) Title 2, California Code of Regulations, Division 6 (Fair Political Practices Commission), Chapter 7 (Conflict of Interest), Article 1 (Conflicts of Interest; General Prohibition), Section 18701, “Definitions: Source of Income, Commission Income and Incentive Income” (filed on January 22, 1976, effective February 21, 1976, and last amendment filed on December 29, 2005, operative January 28, 2006).
(ii) Additional materials.
(A) California Air Resources Board (CARB).
(1) CARB Resolution 14-1, dated January 23, 2014, adopting the “California Infrastructure SIP.”
(2) “California Infrastructure SIP,” (“2014 Multi-pollutant Infrastructure SIP”).
(469) The following plan was submitted on June 2, 2014, by the Governor's Designee.
(A) Great Basin Unified Air Pollution Control District.
(1) Rule 701, “Air Pollution Episode Plan for Particulate Matter,” adopted on March 3, 2014.
The California plan was evaluated on the basis of the following classifications:
(i)
(1) San Joaquin Valley APCD (Bakersfield Metropolitan Statistical Area (MSA), only) for section 110(a)(2)(B).
(2) Mendocino County AQMD (PSD requirements for a baseline date for PM
(3) North Coast Unified AQMD (PSD requirements for the regulation of PM
(4) Northern Sonoma County APCD (PSD requirements for a baseline date for PM
(5) All areas in California that are subject to the Federal PSD program as provided in 40 CFR 52.270 for sections
(6) All areas in California that are subject to the Federal PSD program as provided in 40 CFR 52.270 for sections 110(a)(2)(D)(ii) (with respect to section 126(a), only).
(7) Mountain Counties AQCR (El Dorado County, only) for section 110(a)(2)(G).
(j)
(1) Mendocino County AQMD (PSD requirements for a baseline date for PM
(2) North Coast Unified AQMD (PSD requirements for the regulation of PM
(3) Northern Sonoma County APCD (PSD requirements for a baseline date for PM
(4) All areas in California that are subject to the Federal PSD program as provided in 40 CFR 52.270 for sections 110(a)(2)(C), (D)(i)(II) (interfere with measures in any other state to prevent significant deterioration of air quality, only), and (J), except for South Coast AQMD where the Federal PSD program applies to greenhouse gases, only.
(5) All areas in California that are subject to the Federal PSD program as provided in 40 CFR 52.270 for sections 110(a)(2)(D)(ii) (with respect to section 126(a), only).
(6) San Joaquin Valley Mountain Counties AQCR for section 110(a)(2)(G).
(k)
(1) Mendocino County AQMD (PSD requirements for a baseline date for PM
(2) North Coast Unified AQMD (PSD requirements for the regulation of PM
(3) Northern Sonoma County APCD (PSD requirements for a baseline date for PM
(4) All areas in California that are subject to the Federal PSD program as provided in 40 CFR 52.270 for sections 110(a)(2)(C), (D)(i)(II) (interfere with measures in any other state to prevent significant deterioration of air quality, only), and (J), except for South Coast AQMD where the Federal PSD program applies to greenhouse gases, only.
(5) All areas in California that are subject to the Federal PSD program as provided in 40 CFR 52.270 for sections 110(a)(2)(D)(ii) (with respect to section 126(a), only).
(6) San Joaquin Valley Mountain Counties AQCR for section 110(a)(2)(G).
(l)
(1) San Joaquin Valley APCD (Bakersfield Metropolitan Statistical Area (MSA), only) for section 110(a)(2)(B).
(2) Mendocino County AQMD (PSD requirements for a baseline date for PM
(3) North Coast Unified AQMD (PSD requirements for the regulation of PM
(4) Northern Sonoma County APCD (PSD requirements for a baseline date for PM
(5) All areas in California that are subject to the Federal PSD program as provided in 40 CFR 52.270 for sections 110(a)(2)(C), (D)(i)(II) (interfere with measures in any other state to prevent significant deterioration of air quality, only), and (J), except for South Coast AQMD where the Federal PSD program applies to greenhouse gases, only.
(6) All areas in California that are subject to the Federal PSD program as provided in 40 CFR 52.270 for sections 110(a)(2)(D)(ii) (with respect to section 126(a), only).
(7) Mountain Counties AQCR (El Dorado County, only) for section 110(a)(2)(G).
(m)
(1) Mendocino County AQMD (PSD requirements for a baseline date for PM
(2) North Coast Unified AQMD (PSD requirements for the regulation of PM
(3) Northern Sonoma County APCD (PSD requirements for a baseline date for PM
(4) All areas in California that are subject to the Federal PSD program as provided in 40 CFR 52.270 for sections 110(a)(2)(C), (D)(i)(II) (interfere with measures in any other state to prevent significant deterioration of air quality, only), and (J), except for South Coast AQMD where the Federal PSD program applies to greenhouse gases, only.
(5) All areas in California that are subject to the Federal PSD program as provided in 40 CFR 52.270 for sections 110(a)(2)(D)(ii) (with respect to section 126(a), only).
(n)
(1) Mendocino County AQMD (PSD requirements for a baseline date for PM
(2) North Coast Unified AQMD (PSD requirements for the regulation of PM
(3) Northern Sonoma County APCD (PSD requirements for a baseline date for PM
(4) All areas in California that are subject to the Federal PSD program as provided in 40 CFR 52.270 for sections 110(a)(2)(C), (D)(i)(II) (interfere with measures in any other state to prevent significant deterioration of air quality, only), and (J), except for South Coast AQMD where the Federal PSD program applies to greenhouse gases, only.
(5) All areas in California that are subject to the Federal PSD program as provided in 40 CFR 52.270 for sections 110(a)(2)(D)(ii) (with respect to section 126(a), only).
(o)
(1) Mendocino County AQMD (PSD requirements for a baseline date for PM
(2) North Coast Unified AQMD (PSD requirements for the regulation of PM
(3) Northern Sonoma County APCD (PSD requirements for a baseline date for PM
(4) All areas in California that are subject to the Federal PSD program as provided in 40 CFR 52.270 for sections 110(a)(2)(C), (D)(i)(II) (interfere with measures in any other state to prevent significant deterioration of air quality, only), and (J), except for South Coast AQMD where the Federal PSD program applies to greenhouse gases, only.
(5) All areas in California that are subject to the Federal PSD program as provided in 40 CFR 52.270 for sections 110(a)(2)(D)(ii) (with respect to section 126(a), only).
(c)
(1) The requirements of section 110(a)(2)(D)(i)(II) regarding interference with any other state's measures required under title I, part C of the Clean Air Act to prevent significant deterioration of air quality, except that these requirements are not fully met in the Air Pollution Control Districts (APCDs) or Air Quality Management Districts (AQMDs) listed in this paragraph.
(i) Mendocino County AQMD (PSD requirements for a baseline date for PM
(ii) North Coast APCD (PSD requirements for the regulation of PM
(iii) Northern Sonoma County APCD (PSD requirements for a baseline date for PM
(iv) South Coast AQMD (PSD requirements for the NAAQS, only).
(v) All other areas in California that are subject to the Federal PSD program as provided in 40 CFR 52.270.
(2) The requirements of section 110(a)(2)(D)(i)(II) regarding interference with other states' measures to protect visibility are met by chapter 3 (Emissions Inventory), chapter 4 (California 2018 Progress Strategy), and chapter 8 (Consultation) of the “California Regional Haze Plan,” adopted January 22, 2009.
(d)
(1) The requirements of section 110(a)(2)(D)(i)(II) regarding interference with any other state's measures required under title I, part C of the Clean Air Act to prevent significant deterioration of air quality, except that these requirements are not fully met in the Air Pollution Control Districts (APCDs) or Air Quality Management Districts (AQMDs) listed in this paragraph.
(i) Mendocino County AQMD (PSD requirements for a baseline date for PM
(ii) North Coast APCD (PSD requirements for the regulation of PM
(iii) Northern Sonoma County APCD (PSD requirements for a baseline date for PM
(iv) South Coast AQMD (PSD requirements for the NAAQS, only).
(v) All other areas in California that are subject to the Federal PSD program as provided in 40 CFR 52.270.
(2) The requirements of section 110(a)(2)(D)(i)(II) regarding interference with other states' measures to protect visibility are met by chapter 3 (Emissions Inventory), chapter 4 (California 2018 Progress Strategy), and chapter 8 (Consultation) of the
(e)
(1) The requirements of CAA section 110(a)(2)(D)(i)(I) regarding significant contribution to nonattainment of the 2008 Pb NAAQS in any other State and interference with maintenance of the 2008 Pb NAAQS by any other State.
(2) The requirements of section 110(a)(2)(D)(i)(II) regarding interference with any other state's measures required under title I, part C of the Clean Air Act to prevent significant deterioration of air quality, except that these requirements are not fully met in the Air Pollution Control Districts (APCDs) or Air Quality Management Districts (AQMDs) listed in this paragraph.
(i) Mendocino County AQMD (PSD requirements for a baseline date for PM
(ii) North Coast APCD (PSD requirements for the regulation of PM
(iii) Northern Sonoma County APCD (PSD requirements for a baseline date for PM
(iv) South Coast AQMD (PSD requirements for the NAAQS, only).
(v) All other areas in California that are subject to the Federal PSD program as provided in 40 CFR 52.270.
(3) The requirements of section 110(a)(2)(D)(i)(II) regarding interference with other states' measures to protect visibility are met by chapter 3 (Emissions Inventory), chapter 4 (California 2018 Progress Strategy), and chapter 8 (Consultation) of the “California Regional Haze Plan,” adopted January 22, 2009.
(f)
(1) The requirements of CAA section 110(a)(2)(D)(i)(I) regarding significant contribution to nonattainment of the 2010 NO
(2) The requirements of section 110(a)(2)(D)(i)(II) regarding interference with any other state's measures required under title I, part C of the Clean Air Act to prevent significant deterioration of air quality, except that these requirements are not fully met in the Air Pollution Control Districts (APCDs) or Air Quality Management Districts (AQMDs) listed in this paragraph.
(i) Mendocino County AQMD (PSD requirements for a baseline date for PM
(ii) North Coast APCD (PSD requirements for the regulation of PM
(iii) Northern Sonoma County APCD (PSD requirements for a baseline date for PM
(iv) South Coast AQMD (PSD requirements for the NAAQS, only).
(v) All other areas in California that are subject to the Federal PSD program as provided in 40 CFR 52.270.
(3) The requirements of section 110(a)(2)(D)(i)(II) regarding interference with other states' measures to protect visibility are met by chapter 3 (Emissions Inventory), chapter 4 (California 2018 Progress Strategy), and chapter 8 (Consultation) of the “California Regional Haze Plan,” adopted January 22, 2009.
(g)
(1) The requirements of section 110(a)(2)(D)(i)(II) regarding interference with any other state's measures required under title I, part C of the Clean Air Act to prevent significant deterioration of air quality, except that these requirements are not fully met in the Air Pollution Control Districts (APCDs) or Air Quality Management Districts (AQMDs) listed in this paragraph.
(i) Mendocino County AQMD (PSD requirements for a baseline date for PM
(ii) North Coast APCD (PSD requirements for the regulation of PM
(iii) Northern Sonoma County APCD (PSD requirements for a baseline date for PM
(iv) South Coast AQMD (PSD requirements for the NAAQS, only).
(v) All other areas in California that are subject to the Federal PSD program as provided in 40 CFR 52.270.
(2) The requirements of section 110(a)(2)(D)(i)(II) regarding interference with other states' measures to protect visibility are met by chapter 3 (Emissions Inventory), chapter 4 (California 2018 Progress Strategy), and chapter 8 (Consultation) of the “California Regional Haze Plan,” adopted January 22, 2009.
Fish and Wildlife Service, Interior.
Final rule.
The U.S. Fish and Wildlife Service (Service or we) is establishing migratory bird subsistence harvest regulations in Alaska for the 2016 season. These regulations allow for the continuation of customary and traditional subsistence uses of migratory birds in Alaska and prescribe regional information on when and where the harvesting of birds may occur. These regulations were developed under a co-management process involving the Service, the Alaska Department of Fish and Game, and Alaska Native representatives. The rulemaking is necessary because the regulations governing the subsistence harvest of migratory birds in Alaska are subject to annual review. This rulemaking establishes region-specific regulations that will go into effect on April 2, 2016, and expire on August 31, 2016.
The amendments to subpart D of 50 CFR part 92 are effective April 2, 2016, through August 31, 2016. The amendments to subparts A and C of 50 CFR part 92 are effective May 2, 2016.
Donna Dewhurst, U.S. Fish and Wildlife Service, 1011 E. Tudor Road, Mail Stop 201, Anchorage, AK 99503; (907) 786-3499.
This rulemaking is necessary because, by law, the migratory bird harvest
Background information, including past events leading to this rulemaking, accomplishments since the Migratory Bird Treaties with Canada and Mexico were amended, and a history, were originally addressed in the
Recent
The U.S. Fish and Wildlife Service (Service or we) is establishing migratory bird subsistence harvest regulations in Alaska for the 2016 season. These regulations allow for the continuation of customary and traditional subsistence uses of migratory birds in Alaska and prescribe regional information on when and where the harvesting of birds may occur. These regulations were developed under a co-management process involving the Service, the Alaska Department of Fish and Game, and Alaska Native representatives.
We opened the process to establish regulations for the 2016 spring and summer subsistence harvest of migratory birds in Alaska in a proposed rule published in the
The Alaska Migratory Bird Co-management Council (Co-management Council) held meetings on April 8-9, 2015, to develop recommendations for changes that would take effect during the 2016 harvest season. The Co-management Council also amended the consent agenda package of carry-over regulations to request a limited emperor goose harvest for 2016; these recommended changes were presented first to the Pacific Flyway Council and then to the Service Regulations Committee (SRC) for approval at the committee's meeting on July 31, 2015.
On December 17, 2015, we published in the
Eligibility to harvest under the regulations established in 2003 was limited to permanent residents, regardless of race, in villages located within the Alaska Peninsula, Kodiak Archipelago, the Aleutian Islands, and in areas north and west of the Alaska Range (50 CFR 92.5). These geographical restrictions opened the initial migratory bird subsistence harvest to about 13 percent of Alaska residents. High-populated, roaded areas such as Anchorage, the Matanuska-Susitna and Fairbanks North Star boroughs, the Kenai Peninsula roaded area, the Gulf of Alaska roaded area, and Southeast Alaska were excluded from eligible subsistence harvest areas.
Based on petitions requesting inclusion in the harvest in 2004, we added 13 additional communities based on criteria set forth in 50 CFR 92.5(c). These communities were Gulkana, Gakona, Tazlina, Copper Center, Mentasta Lake, Chitina, Chistochina, Tatitlek, Chenega, Port Graham, Nanwalek, Tyonek, and Hoonah, with a combined population of 2,766. In 2005, we added three additional communities for glaucous-winged gull egg gathering only, based on petitions requesting inclusion. These southeastern communities were Craig, Hydaburg, and Yakutat, with a combined population of 2,459, based on the latest census information at that time.
In 2007, we enacted the Alaska Department of Fish and Game's request to expand the Fairbanks North Star Borough excluded area to include the Central Interior area. This action excluded the following communities from participation in this harvest: Big Delta/Fort Greely, Healy, McKinley Park/Village, and Ferry, with a combined population of 2,812.
In 2012, we received a request from the Native Village of Eyak to include Cordova, Alaska, for a limited season that would legalize the traditional gathering of gull eggs and the hunting of waterfowl during spring. This request resulted in a new, limited harvest of spring waterfowl and gull eggs starting in 2014.
Under subpart A, General Provisions, we are amending § 92.4 by adding a new definition for “Edible meat” and revising the definition for “Nonwasteful taking.” These changes were requested in 2014, by the Bristol Bay Regional Council, which recommended that all edible parts of migratory waterfowl must be salvaged when harvested. The topic was originally brought up by the Association of Village Council Presidents after an incident in their region where tundra swans were only breasted and the remainder of the bird was discarded. The concern was that “indigenous inhabitants” harvesters come from a variety of different cultures, and it was expressed that subsistence should involve retaining the whole bird for food and other uses.
Under subpart C, General Regulations Governing Subsistence Harvest, we are amending § 92.22, the list of birds open to subsistence harvest, by updating scientific names for six species and clarifying the nomenclature for Canada goose subspecies. These nomenclature updates come from the Service and the Alaska Department of Fish and Game.
The regulations we are establishing for subpart D, Annual Regulations Governing Subsistence Harvest, are the same as the 2015 regulations. While we are not establishing any changes to the 2015 regulations for subpart D in this 2016 rule, we provide information below on potential changes to the regulations for this subpart in the 2017 migratory bird subsistence harvest regulations in Alaska.
The Co-management Council proposed a new emperor goose (
In addition, two studies are being conducted concurrently by the Service and the Alaska Department of Fish and Game. The first study is designed to provide a comprehensive evaluation of all available emperor goose survey data and assess harvest potential of the population. The second study is designed to develop a Bayesian state space population model to improve estimates of population size by integrating current population assessment methods using all available data sets. The model provides a framework from which to make inferences about survival rates, age structure, and population size. The results of these studies will assist in amending the management plans.
The Service conducted the spring emperor goose survey April 25-28, 2015, and results indicated that the 2015 spring index (98,155) was 23 percent above the 2014 count (79,883), and 49 percent higher than the long-term (1981-2014) average (65,923). The most recent 3-year average count (2012, 2014, 2015) is 81,875 geese and the highest on record since 1984. Further, it is above the threshold for consideration of an open hunting season on emperor geese as specified in the Yukon-Kuskokwim Delta Goose Management Plan and the Pacific Flyway Council Management Plan for emperor geese.
As a result of this new information, the Co-management Council amended their motion of the consent agenda to add an allowance for a limited emperor goose harvest in 2016. The Pacific Flyway Council met in July 2015, and supported the Co-management Council's recommendation to work with the State of Alaska and the Service to develop harvest regulations and monitoring for a limited emperor goose harvest in 2016. On July 31, 2015, the SRC supported the Co-management Council's proposed limited harvest of emperor geese for the 2016 Alaska spring and summer subsistence season. However, the approval was provisional based upon the following:
(1) A limited harvest of 3,500 emperor geese to ensure that population growth continues toward the Flyway management plan objective;
(2) A harvest allocation (
(3) Agreement on a monitoring program to index abundance of the emperor goose population; and
(4) A revised Pacific Flyway Emperor Goose Management Plan, including harvest allocation among all parties (including spring/summer and fall/winter), population objective, population monitoring, and thresholds for season restriction or closure.
The harvest allocation design and harvest monitoring plan are to be completed by November 1, 2016. Additionally, there was an explicit statement that the limited, legalized harvest of 3,500 birds was not in addition to existing subsistence harvest (approximately 3,200 emperor geese). The 3,500-bird allowable harvest is to be allocated to subsistence users during the spring and summer subsistence season. The SRC suggested that the allowable harvest should be monitored to ensure it does not exceed 3,500 birds.
On August 13-14, and September 21, 2015, the Co-management Council Native Caucus met separately and with all partners to discuss options available to limit and monitor the harvest, as well as options to allocate the 3,500 birds across the six regions where emperor geese occur. Given the limited time provided to address the four conditions placed on this new harvest by the SRC, all partners agreed that the best course of action would be to spend additional time working together to develop a culturally sensitive framework tailored to each participating region that conserves the population and adequately addresses the data needs of all partners. In support of this recommendation, the Co-management Council took action to: Postpone an emperor goose harvest until 2017; work with all partners to develop the harvest framework; and work with their Emperor Goose Subcommittee and the Pacific Flyway Council on updating the Pacific Flyway Emperor Goose Management Plan.
We have monitored subsistence harvest for the past 25 years through the use of household surveys in the most heavily used subsistence harvest areas, such as the Yukon-Kuskokwim Delta. In recent years, more intensive surveys combined with outreach efforts focused on species identification have been added to improve the accuracy of information gathered from regions still reporting some subsistence harvest of listed or candidate species.
Spectacled eiders
The Service has dual objectives and responsibilities for authorizing a subsistence harvest while protecting migratory birds and threatened species. Although these objectives continue to be challenging, they are not irreconcilable, provided that regulations continue to protect threatened species, measures to address documented threats are implemented, and the subsistence community and other conservation partners commit to working together. With these dual objectives in mind, the Service, working with North Slope partners, developed measures in 2009, to further reduce the potential for shooting mortality or injury of closed species. These conservation measures included: (1) Increased waterfowl hunter outreach and community awareness through partnering with the North Slope Migratory Bird Task Force; and (2) continued enforcement of the migratory bird regulations that are protective of listed eiders.
This final rule continues to focus on the North Slope from Barrow to Point
The Service is aware of and appreciates the considerable efforts by North Slope partners to raise awareness and educate hunters on Steller's eider conservation via the bird fair, meetings, radio shows, signs, school visits, and one-on-one contacts. We also recognize that no listed eiders have been documented shot from 2009 through 2012; however, one Steller's eider and one spectacled eider were found shot during the summer of 2013, and one Steller's eider was found shot in 2014. In 2015, one spectacled eider was found dead, and it appeared to have been shot by a hunter. The Service acknowledges progress made with the other eider conservation measures, including partnering with the North Slope Migratory Bird Task Force, for increased waterfowl hunter awareness, continued enforcement of the regulations, and in-season verification of the harvest. To reduce the threat of shooting mortality of threatened eiders, we continue to work with North Slope partners to conduct education and outreach. In addition, the emergency closure authority provides another level of assurance if an unexpected number of Steller's eiders are killed by shooting (50 CFR 92.21 and 50 CFR 92.32).
In-season harvest monitoring information will be used to evaluate the efficacy of regulations, conservation measures, and outreach efforts. Conservation measures are being continued by the Service, with the amount of effort and emphasis being based on regulatory adherence.
The longstanding general emergency closure provision at 50 CFR 92.21 specifies that the harvest may be closed or temporarily suspended upon finding that a continuation of the regulation allowing the harvest would pose an imminent threat to the conservation of any migratory bird population. With regard to Steller's eiders, the regulations at 50 CFR 92.32, carried over from the past 5 years, clarify that we will take action under 50 CFR 92.21 as is necessary to prevent further take of Steller's eiders, and that action could include temporary or long-term closures of the harvest in all or a portion of the geographic area open to harvest. When and if mortality of threatened eiders is documented, we will evaluate each mortality event by criteria such as cause, quantity, sex, age, location, and date. We will consult with the Co-management Council when we are considering an emergency closure. If we determine that an emergency closure is necessary, we will design it to minimize its impact on the subsistence harvest.
Section 7 of the Endangered Species Act (16 U.S.C. 1536) requires the Secretary of the Interior to “review other programs administered by him and utilize such programs in furtherance of the purposes of the Act” and to “insure that any action authorized, funded, or carried out * * * is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat. * * *” We conducted an intra-agency consultation with the Service's Fairbanks Fish and Wildlife Field Office on this harvest as it will be managed in accordance with this final rule and the conservation measures. The consultation was completed with a biological opinion dated December 18, 2015, that concluded the final rule and conservation measures are not likely to jeopardize the continued existence of Steller's and spectacled eiders or result in the destruction or adverse modification of designated critical habitat.
On December 17, 2015, we published in the
We derive our authority to issue these regulations from the Migratory Bird Treaty Act of 1918, at 16 U.S.C. 712(1), which authorizes the Secretary of the Interior, in accordance with the treaties with Canada, Mexico, Japan, and Russia, to “issue such regulations as may be necessary to assure that the taking of migratory birds and the collection of their eggs, by the indigenous inhabitants of the State of Alaska, shall be permitted for their own nutritional and other essential needs, as determined by the Secretary of the Interior, during seasons established so as to provide for the preservation and maintenance of stocks of migratory birds.”
The amendments to subpart D of 50 CFR part 92 will take effect less than 30 days after publication (see DATES, above). If there was a delay in the effective date of these regulations after this final rulemaking, subsistence hunters would not be able to take full advantage of their subsistence hunting opportunities. We therefore find that “good cause” exists justifying the earlier start date, within the terms of 5 U.S.C. 553(d)(3) of the Administrative Procedure Act, and under authority of the Migratory Bird Treaty Act (July 3, 1918), as amended (16 U.S.C. 703-712).
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The OIRA has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
The Department of the Interior certifies that, if adopted, this rule will not have a significant economic impact on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:
(a) Will not have an annual effect on the economy of $100 million or more. It legalizes and regulates a traditional subsistence activity. It will not result in a substantial increase in subsistence harvest or a significant change in harvesting patterns. The commodities that will be regulated under this final rule are migratory birds. This rule deals with legalizing the subsistence harvest of migratory birds and, as such, does not involve commodities traded in the marketplace. A small economic benefit from this final rule will derive from the sale of equipment and ammunition to carry out subsistence hunting. Most, if not all, businesses that sell hunting equipment in rural Alaska qualify as small businesses. We have no reason to believe that this final rule will lead to a disproportionate distribution of benefits.
(b) Will not cause a major increase in costs or prices for consumers; individual industries; Federal, State, or local government agencies; or geographic regions. This final rule does not deal with traded commodities and, therefore, does not have an impact on prices for consumers.
(c) Will 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 final rule deals with the harvesting of wildlife for personal consumption. It does not regulate the marketplace in any way to generate substantial effects on the economy or the ability of businesses to compete.
We have determined and certified under the Unfunded Mandates Reform Act (2 U.S.C. 1501
Under the criteria in Executive Order 12630, this final rule will not have significant takings implications. This final rule is not specific to particular land ownership, but applies to the harvesting of migratory bird resources throughout Alaska. A takings implication assessment is not required.
Under the criteria in Executive Order 13132, this final rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. We discuss effects of this final rule on the State of Alaska in the
The Department, in promulgating this final rule, has determined that it will not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988.
Consistent with Executive Order 13175 (65 FR 67249; November 6, 2000), “Consultation and Coordination with Indian Tribal Governments”, and Department of Interior policy on Consultation with Indian Tribes (December 1, 2011), in January 2016, we sent letters via electronic mail to all 229 Alaska Federally recognized Indian tribes. Consistent with Congressional direction (Pub. L. 108-199, div. H, Sec. 161, Jan. 23, 2004, 118 Stat. 452, as amended by Pub. L. 108-447, div. H, title V, Sec. 518, Dec. 8, 2004, 118 Stat. 3267), we also sent letters to approximately 200 Alaska Native corporations and other tribal entities in Alaska soliciting their input as to whether or not they would like the Service to consult with them on the 2016 migratory bird subsistence harvest regulations. We received one response that requested consultation. We conducted one consultation with a Native Traditional Council on February 16, 2016. The tribal contacts were happy with the information provided and did not have any specific comments on the regulations.
We implemented the amended treaty with Canada with a focus on local involvement. The treaty calls for the creation of management bodies to ensure an effective and meaningful role for Alaska's indigenous inhabitants in the conservation of migratory birds. According to the Letter of Submittal, management bodies are to include Alaska Native, Federal, and State of Alaska representatives as equals. They develop recommendations for, among other things: Seasons and bag limits, methods and means of take, law enforcement policies, population and harvest monitoring, education programs, research and use of traditional knowledge, and habitat protection. The management bodies involve village councils to the maximum extent possible in all aspects of management. To ensure maximum input at the village level, we required each of the 11 participating regions to create regional management bodies consisting of at least one representative from the participating villages. The regional management bodies meet twice annually to review and/or submit proposals to the Statewide body.
This final rule does not contain any new collections of information that require Office of Management and Budget (OMB) approval under the PRA (44 U.S.C. 3501
• Voluntary annual household surveys that we use to determine levels of subsistence take (OMB Control Number 1018-0124, expires June 30, 2016).
• Permits associated with subsistence hunting (OMB Control Number 1018-0075, expires April 30, 2016).
The annual regulations and options are considered in an October 2016 environmental assessment, “Managing Migratory Bird Subsistence Hunting in Alaska: Hunting Regulations for the 2016 Spring/Summer Harvest,” dated October 9, 2015. Copies are available from the person listed under
Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This is not a significant regulatory action under this Executive Order; it would allow only for traditional subsistence harvest and improve conservation of migratory birds by allowing effective regulation of this harvest. Further, this final rule is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action under Executive Order 13211, and a Statement of Energy Effects is not required.
Hunting, Treaties, Wildlife.
For the reasons set out in the preamble, we amend title 50, chapter I, subchapter G, of the Code of Federal Regulations as follows:
16 U.S.C. 703-712.
The revisions read as follows:
(a) * * *
(3) Canada goose (
(5) Canada goose, subspecies Aleutian goose—except in the Semidi Islands.
(6) Canada goose, subspecies cackling goose—except no egg gathering is permitted.
(i) * * *
(3) Spotted sandpiper (
(13) Wilson's snipe (
(15) Red phalarope (
(j) * * *
(4) Bonaparte's gull (
(15) Aleutian tern (
(l) * * *
(2) Snowy owl (
The 2016 season dates for the eligible subsistence harvest areas are as follows:
(a)
(i) Season: April 2-June 30.
(ii) Closure: July 1-August 31.
(2) Central Unit (Aleutian Region's eastern boundary on the Alaska Peninsula westward to and including Unalaska Island):
(i) Season: April 2-June 15 and July 16-August 31.
(ii) Closure: June 16-July 15.
(iii) Special Black Brant Season Closure: August 16-August 31, only in Izembek and Moffet lagoons.
(iv) Special Tundra Swan Closure: All hunting and egg gathering closed in Game Management Units 9(D) and 10.
(3) Western Unit (Umnak Island west to and including Attu Island):
(i) Season: April 2-July 15 and August 16-August 31.
(ii) Closure: July 16-August 15.
(b)
(2) Closure: 30-day closure dates to be announced by the Service's Alaska Regional Director or his designee, after consultation with field biologists and the Association of Village Council President's Waterfowl Conservation Committee. This 30-day period will occur between June 1 and August 15 of each year. A press release announcing the actual closure dates will be forwarded to regional newspapers and radio and television stations.
(3) Special Black Brant and Cackling Goose Season Hunting Closure: From the period when egg laying begins until young birds are fledged. Closure dates to be announced by the Service's Alaska Regional Director or his designee, after consultation with field biologists and the Association of Village Council President's Waterfowl Conservation Committee. A press release announcing the actual closure dates will be forwarded to regional newspapers and radio and television stations.
(c)
(2) Closure: June 15-July 15 (general season); July 16-August 31 (seabird egg gathering).
(d)
(i) Season: April 15-June 14 and July 16-August 31.
(ii) Closure: June 15-July 15.
(2) Remainder of the region:
(i) Season: April 2-June 14 and July 16-August 31 for waterfowl; April 2-July 19 and August 21-August 31 for all other birds.
(ii) Closure: June 15-July 15 for waterfowl; July 20-August 20 for all other birds.
(e)
(1) Season: April 2-June 30 and July 31-August 31 for seabirds; April 2-June 20 and July 22-August 31 for all other birds.
(2) Closure: July 1-July 30 for seabirds; June 21-July 21 for all other birds.
(f)
(2) Closure: June 10-August 14, except for the taking of seabird eggs and molting/non-nesting waterfowl as provided in paragraph (f)(1) of this section.
(g)
(i) Season: April 2-June 29 and July 30-August 31 for seabirds; April 2-June 19 and July 20-August 31 for all other birds.
(ii) Closure: June 30-July 29 for seabirds; June 20-July 19 for all other birds.
(iii) Special Black Brant Hunting Opening: From June 20-July 5. The open area consists of the coastline, from mean high water line outward to include open water, from Nokotlek Point east to longitude line 158°30′ W. This includes Peard Bay, Kugrua Bay, and Wainwright Inlet, but not the Kuk and Kugrua river drainages.
(2) Northern Unit (At Peard Bay, everything east of the longitude line 158°30′ W. and north of the latitude line 70°45′ N. to west bank of the Ikpikpuk River, and everything north of the latitude line 69°45′ N. between the west bank of the Ikpikpuk River to the east bank of Sagavinirktok River):
(i) Season: April 2-June 6 and July 7-August 31 for king and common eiders; April 2-June 15 and July 16-August 31 for all other birds.
(ii) Closure: June 7-July 6 for king and common eiders; June 16-July 15 for all other birds.
(3) Eastern Unit (East of eastern bank of the Sagavanirktok River):
(i) Season: April 2-June 19 and July 20-August 31.
(ii) Closure: June 20-July 19.
(4) All Units: Yellow-billed loons. Annually, up to 20 yellow-billed loons total for the region inadvertently entangled in subsistence fishing nets in the North Slope Region may be kept for subsistence use.
(5) North Coastal Zone (Cape Thompson north to Point Hope and east along the Arctic Ocean coastline around Point Barrow to Ross Point, including Iko Bay, and 5 miles inland).
(i) No person may at any time, by any means, or in any manner, possess or have in custody any migratory bird or part thereof, taken in violation of subparts C and D of this part.
(ii) Upon request from a Service law enforcement officer, hunters taking, attempting to take, or transporting migratory birds taken during the subsistence harvest season must present them to the officer for species identification.
(h)
(2) Closure: June 15-July 15.
(i)
(1) Season: April 15-May 26 and June 27-August 31.
(2) Closure: May 27-June 26.
(3) The Copper River Basin communities listed above also documented traditional use harvesting birds in Game Management Unit 12, making them eligible to hunt in this unit using the seasons specified in paragraph (h) of this section.
(j)
(i) Season: April 2-May 31 and July 1-August 31.
(ii) Closure: June 1-30.
(2) Prince William Sound Area East (Harvest area: Game Management Units 6[B] and [C]—Barrier Islands between Strawberry Channel and Softtuk Bar), (Eligible Chugach communities: Cordova):
(i) Season: April 2-April 30 (hunting); May 1-May 31 (gull egg gathering).
(ii) Closure: May 1-August 31 (hunting); April 2-30 and June 1-August 31 (gull egg gathering).
(iii) Species Open for Hunting: Greater white-fronted goose; snow goose; gadwall; Eurasian and American wigeon; blue-winged and green-winged teal; mallard; northern shoveler; northern pintail; canvasback; redhead; ring-necked duck; greater and lesser scaup; king and common eider; harlequin duck; surf, white-winged, and black scoter; long-tailed duck; bufflehead; common and Barrow's goldeneye; hooded, common, and red-breasted merganser; and sandhill crane. Species open for egg gathering: glaucous-winged, herring, and mew gulls.
(iv) Use of Boats/All-Terrain Vehicles: No hunting from motorized vehicles or any form of watercraft.
(v) Special Registration: All hunters or egg gatherers must possess an annual permit, which is available from the Cordova offices of the Native Village of Eyak and the U.S. Forest Service.
(3) Kachemak Bay Area (Harvest area: Game Management Unit 15[C] South of a line connecting the tip of Homer Spit to the mouth of Fox River) (Eligible Chugach Communities: Port Graham, Nanwalek):
(i) Season: April 2-May 31 and July 1-August 31.
(ii) Closure: June 1-30.
(k)
(1) Season: April 2-May 31—That portion of Game Management Unit 16(B) south of the Skwentna River and west of the Yentna River, and August 1-31—That portion of Game Management Unit 16(B) south of the Beluga River, Beluga Lake, and the Triumvirate Glacier.
(2) Closure: June 1-July 31.
(l)
(i) Season: Glaucous-winged gull egg gathering only: May 15-June 30.
(ii) Closure: July 1-August 31.
(2) Communities of Craig and Hydaburg (Harvest area: Small islands and adjacent shoreline of western Prince of Wales Island from Point Baker to Cape Chacon, but also including Coronation and Warren islands):
(i) Season: Glaucous-winged gull egg gathering only: May 15-June 30.
(ii) Closure: July 1-August 31.
(3) Community of Yakutat (Harvest area: Icy Bay (Icy Cape to Point Riou), and coastal lands and islands bordering the Gulf of Alaska from Point Manby southeast to and including Dry Bay):
(i) Season: glaucous-winged gull egg gathering: May 15-June 30.
(ii) Closure: July 1-August 31.
Upon finding that continuation of these subsistence regulations would pose an imminent threat to the conservation of threatened Steller's eiders (
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
This final rule announces the approval of the Catch Sharing Plan (Plan) for halibut fishing in Area 2A (waters off the U.S. West Coast) with modifications recommended by the Pacific Fishery Management Council (Council), and establishes implementing regulations for 2016. These actions are intended to conserve Pacific halibut, provide angler opportunity where available, and minimize bycatch of overfished groundfish species. The sport fishing management measures in this rule are an additional subsection of the regulations for the International Pacific Halibut Commission (IPHC) published on March 16, 2016.
This rule is effective April 1, 2016. The 2016 management measures are effective until superseded.
Additional requests for information regarding this action may be obtained by contacting the Sustainable Fisheries Division, NMFS West Coast Region, 7600 Sand Point Way, NE., Seattle, WA 98115. For information regarding all halibut fisheries and general regulations not contained in this rule contact the International Pacific Halibut Commission, 2320 W. Commodore Way Suite 300, Seattle, WA 98199-1287; this final rule also is accessible via the Internet at the Federal eRulemaking portal at
Sarah Williams, 206-526-4646, email at
This rule is accessible via the Internet at the Office of the Federal Register Web site at
The IPHC has promulgated regulations governing the Pacific halibut fishery in 2016, pursuant to the Convention between Canada and the United States for the Preservation of the Halibut Fishery of the North Pacific Ocean and Bering Sea (Convention), signed at Ottawa, Ontario, on March 2, 1953, as amended by a Protocol Amending the Convention (signed at Washington, DC, on March 29, 1979). Pursuant to the Northern Pacific Halibut Act of 1982 (Halibut Act) at 16 U.S.C. 773b, the Secretary of State accepted the 2016 IPHC regulations as provided by the Northern Pacific Halibut Act of 1982 (Halibut Act) at 16 U.S.C. 773-773k. NMFS published these regulations on March 16, 2016 (81 FR 14000).
The Halibut Act provides that the Regional Fishery Management Councils may develop, and the Secretary may implement, regulations governing harvesting privileges among U.S. fishermen in U.S. waters that are in addition to, and not in conflict with, approved IPHC regulations. To that end, since 1988 the Council and NMFS have managed the halibut fisheries in Area 2A, which is off the coasts of Washington, Oregon, and California, through a Catch Sharing Plan (Plan). The Plan allocates the Area 2A Total Allowable Catch (TAC), which is set by the IPHC, among treaty Indian and non-Indian commercial and sport harvesters. The treaty Indian fisheries include tribal commercial, tribal ceremonial, and subsistence fisheries. Between 1988 and 1995, the Council developed and NMFS implemented annual catch sharing plans for Area 2A. In 1995, NMFS implemented the Council-recommended long-term Plan (60 FR 14651, March 20, 1995). Every year since then, minor revisions to the Plan have been made to adjust for the changing needs of the fisheries. These revisions are not codified.
NMFS implements the allocation framework in the Plan through annual regulations for Area 2A. The proposed rule describing the changes the Council recommended to the Plan and resulting proposed Area 2A regulations for 2016 was published on February 19, 2016 (81 FR 8466). The IPHC held its annual meeting January 25-29, 2016, and selected a TAC of 1,140,000 pounds for Area 2A.
For 2016, this final rule contains only those regulations implementing the Plan in Area 2A. NMFS published the complete IPHC regulations, which apply to commercial, treaty Indian, and recreational fisheries in addition to this rule, separately on March 16, 2016 (81 FR 14000). Therefore anyone wishing to fish for halibut in Area 2A should read both this final rule and the March 16, 2016 final rule that implements the IPHC regulations.
This final rule announces the approval of several Council-recommended changes to the Pacific Fishery Management Council's Area 2A Plan and implements the Plan through annual management measures. For 2016, the Council recommended minor modifications to sport fisheries to better match the needs of the fishery, updates to the inseason procedures to reflect current practices, and an update to the description of the tribal fishing area. The Council also recommended changes to the codified regulations to remove coordinates that are described in groundfish regulations so that fishers have one location for closed areas coordinates, updates to Tribal fishing areas to account for a recent court order, updates to the description of non-trawl Rockfish Conservation Area to match modifications made through the 2015-2016 groundfish harvest specifications, and minor changes to match the changes to the Plan.
The Plan provides that incidental halibut retention in the sablefish primary fishery north of Pt. Chehalis, Washington, will be allowed when the Area 2A TAC is greater than 900,000 lb (408.2 mt), provided that a minimum of 10,000 lb (4.5 mt) is available above a Washington recreational TAC of 214,100 lb (97.1 mt). In 2016, the TAC is 1,140,000 lb (517.10 mt); therefore, based on the formula set forth in the Plan (any amount of the Washington recreational TAC over 214,000 lbs, up to 70,000 lbs) the allocation for incidental halibut retention in the sablefish fishery is 49,686 lb (22.54 mt). Landing
The Plan allocates 15 percent of the non-Indian commercial TAC to the salmon troll fishery in Area 2A. For 2016 the allocation is 34,126 lb (15.48 mt). The Council approved a range of landing restrictions for public review at its recent March meeting. The final landing restrictions will be addressed at the Council's April 2016 meeting and implemented in the annual salmon management measures.
NMFS accepted comments on the proposed rule for the Area 2A Plan and annual management measures through March 10, 2016. NMFS received three public comment letters: one comment letter each from the Washington Department of Fish and Wildlife (WDFW), Oregon Department of Fish and Wildlife (ODFW), and California Department of Fish and Wildlife (CDFW) recommending season dates for halibut sport fisheries in each state.
On February 19, 2016, NMFS published a proposed rule to modify the Plan and recreational management measures for Area 2A (81 FR 8466). The allocations in the proposed rule are consistent with the final Area 2A TAC of 1,140,000 lb (517.10 mt) and the 2016 Plan as recommended by the Council. The only substantive change from the proposed rule is that season dates as recommended by the states following their stakeholder meetings are included in the final rule.
The sport fishing regulations for Area 2A, included in section 26 below, are consistent with the measures adopted by the IPHC and approved by the Secretary of State, but were developed by the Pacific Fishery Management Council and promulgated by the United States under the Halibut Act. Section 26 refers to a section that is in addition to and corresponds to the numbering in the IPHC regulations published on March 16, 2016 (81 FR 14000).
(1) The total allowable catch of halibut shall be limited to:
(a) 214,110 pounds (97.1 metric tons) net weight in waters off Washington;
(b) 220,077 pounds (99.8 metric tons) net weight in waters off Oregon; and
(c) 29,640 pounds (13.4 metric tons) net weight in waters off California.
(2) The Commission shall determine and announce closing dates to the public for any area in which the catch limits promulgated by NMFS are estimated to have been taken.
(3) When the Commission has determined that a subquota under paragraph (8) of this section is estimated to have been taken, and has announced a date on which the season will close, no person shall sport fish for halibut in that area after that date for the rest of the year, unless a reopening of that area for sport halibut fishing is scheduled in accordance with the Catch Sharing Plan for Area 2A, or announced by the Commission.
(4) In California, Oregon, or Washington, no person shall fillet, mutilate, or otherwise disfigure a halibut in any manner that prevents the determination of minimum size or the number of fish caught, possessed, or landed.
(5) The possession limit on a vessel for halibut in the waters off the coast of Washington is the same as the daily bag limit. The possession limit on land in Washington for halibut caught in U.S. waters off the coast of Washington is two halibut.
(6) The possession limit on a vessel for halibut caught in the waters off the coast of Oregon is the same as the daily bag limit. The possession limit for halibut on land in Oregon is three daily bag limits.
(7) The possession limit on a vessel for halibut caught in the waters off the coast of California is one halibut. The possession limit for halibut on land in California is one halibut.
(8) The sport fishing subareas, subquotas, fishing dates, and daily bag limits are as follows, except as modified under the in-season actions in 50 CFR 300.63(c). All sport fishing in Area 2A is managed on a “port of landing” basis, whereby any halibut landed into a port counts toward the quota for the area in which that port is located, and the regulations governing the area of landing apply, regardless of the specific area of catch.
(a) The area in Puget Sound and the U.S. waters in the Strait of Juan de Fuca, east of a line extending from 48°17.30′ N. lat., 124°23.70′ W. long. north to 48°24.10′ N. lat., 124°23.70′ W. long., is
(i) The fishing season in Puget Sound is May 7, 12, 13, 14, 26, 27, 28, and 29.
(ii) The daily bag limit is one halibut of any size per day per person.
(b) The quota for landings into ports in the area off the north Washington coast, west of the line described in paragraph (2)(a) of section 26 and north of the Queets River (47°31.70′ N. lat.) (North Coast subarea), is 108,030 lb (49 mt).
(i) The fishing seasons are:
(A) Fishing is open May 7, 12, and 14. Any openings after May 14 will be based on available quota and announced on the NMFS hotline.
(B) If sufficient quota remains the fishery will reopen until there is not sufficient quota for another full day of fishing and the area is closed by the Commission. After May 14, any fishery opening will be announced on the NMFS hotline at 800-662-9825. No halibut fishing will be allowed after May 14 unless the date is announced on the NMFS hotline.
(ii) The daily bag limit is one halibut of any size per day per person.
(iii) Recreational fishing for groundfish and halibut is prohibited within the North Coast Recreational Yelloweye Rockfish Conservation Area (YRCA). It is unlawful for recreational fishing vessels to take and retain, possess, or land halibut taken with recreational gear within the North Coast Recreational YRCA. A vessel fishing with recreational gear in the North Coast Recreational YRCA may not be in possession of any halibut. Recreational vessels may transit through the North Coast Recreational YRCA with or without halibut on board. The North Coast Recreational YRCA is a C-shaped area off the northern Washington coast intended to protect yelloweye rockfish. The North Coast Recreational YRCA is defined in groundfish regulations at § 660.70(a).
(c) The quota for landings into ports in the area between the Queets River, WA (47°31.70′ N. lat.), and Leadbetter Point, WA (46°38.17′ N. lat.) (South Coast subarea), is 42,739 lb (19.39 mt).
(i) This subarea is divided between the all-waters fishery (the Washington South coast primary fishery), and the incidental nearshore fishery in the area from 47°31.70′ N. lat. south to 46°58.00′ N. lat. and east of a boundary line approximating the 30 fm depth contour. This area is defined by straight lines connecting all of the following points in the order stated as described by the following coordinates (the Washington South coast, northern nearshore area):
(1) 47°31.70′ N. lat, 124°37.03′ W. long;
(2) 47°25.67′ N. lat, 124°34.79′ W. long;
(3) 47°12.82′ N. lat, 124°29.12′ W. long;
(4) 46°58.00′ N. lat, 124°24.24′ W. long.
The south coast subarea quota will be allocated as follows: 40,739 lb (18.48 mt) for the primary fishery and 2,000 lb (0.91 mt) for the nearshore fishery. The primary fishery commences on May 1, and continues 2 days a week (Sunday and Tuesday) until May 17. If the primary quota is projected to be obtained sooner than expected, the management closure may occur earlier. Beginning on May 29, the primary fishery will be open at most 2 days per week (Sunday and/or Tuesday) until the quota for the south coast subarea primary fishery is taken and the season is closed by the Commission, or until September 30, whichever is earlier. The fishing season in the nearshore area commences on May 1, and continues 7 days per week. Subsequent to closure of the primary fishery, the nearshore fishery is open 7 days per week, until 42,739 lb (19.39 mt) is projected to be taken by the two fisheries combined and the fishery is closed by the Commission or September 30, whichever is earlier. If the fishery is closed prior to September 30, and there is insufficient quota remaining to reopen the northern nearshore area for another fishing day, then any remaining quota may be transferred in-season to another Washington coastal subarea by NMFS via an update to the recreational halibut hotline.
(ii) The daily bag limit is one halibut of any size per day per person.
(iii) Seaward of the boundary line approximating the 30-fm depth contour and during days open to the primary fishery, lingcod may be taken, retained and possessed when allowed by groundfish regulations at 50 CFR 660.360, subpart G.
(iv) Recreational fishing for groundfish and halibut is prohibited within the South Coast Recreational YRCA and Westport Offshore YRCA. It is unlawful for recreational fishing vessels to take and retain, possess, or land halibut taken with recreational gear within the South Coast Recreational YRCA and Westport Offshore YRCA. A vessel fishing in the South Coast Recreational YRCA and/or Westport Offshore YRCA may not be in possession of any halibut. Recreational vessels may transit through the South Coast Recreational YRCA and Westport Offshore YRCA with or without halibut on board. The South Coast Recreational YRCA and Westport Offshore YRCA are areas off the southern Washington coast established to protect yelloweye rockfish. The South Coast Recreational YRCA is defined at 50 CFR 660.70(d). The Westport Offshore YRCA is defined at 50 CFR 660.70(e).
(d) The quota for landings into ports in the area between Leadbetter Point, WA (46°38.17′ N. lat.), and Cape Falcon, OR (45°46.00′ N. lat.) (Columbia River subarea), is 11,009 lb (4.99 mt).
(i) This subarea is divided into an all-depth fishery and a nearshore fishery. The nearshore fishery is allocated 500 pounds of the subarea allocation. The nearshore fishery extends from Leadbetter Point (46°38.17′ N. lat., 124°15.88′ W. long.) to the Washington-Oregon Border (46°16.00′ N. lat., 124°15.88′ W. long.) by connecting the following coordinates in Washington 46°38.17′ N. lat., 124°15.88′ W. long. 46°16.00′ N. lat., 124°15.88′ W. long and connecting to the boundary line approximating the 40 fm (73 m) depth contour in Oregon. The nearshore fishery opens May 2, and continues 3 days per week (Monday-Wednesday) until the nearshore allocation is taken, or September 30, whichever is earlier. The all depth fishing season commences on May 1, and continues 4 days a week (Thursday-Sunday) until 10,509 lb (4.77 mt) are estimated to have been taken and the season is closed by the Commission, or September 30, whichever is earlier. Subsequent to this closure, if there is insufficient quota remaining in the Columbia River subarea for another fishing day, then any remaining quota may be transferred inseason to another Washington and/or Oregon subarea by NMFS via an update to the recreational halibut hotline. Any remaining quota would be transferred to each state in proportion to its contribution.
(ii) The daily bag limit is one halibut of any size per day per person.
(iii) Pacific Coast groundfish may not be taken and retained, possessed or landed when halibut are on board the vessel, except sablefish, Pacific cod, and flatfish species when allowed by Pacific Coast groundfish regulations, during days open to the all depth fishery only.
(iv) Taking, retaining, possessing, or landing halibut on groundfish trips is only allowed in the nearshore area on days not open to all-depth Pacific halibut fisheries.
(e) The quota for landings into ports in the area off Oregon between Cape Falcon (45°46.00′ N. lat.) and Humbug Mountain (42°40.50′ N. lat.) (Oregon
(i) The fishing seasons are:
(A) The first season (the “inside 40-fm” fishery) commences June 1, and continues 7 days a week, in the area shoreward of a boundary line approximating the 40-fm (73-m) depth contour, or until the sub-quota for the central Oregon “inside 40-fm” fishery of 24,769 lb (11.24 mt), or any in-season revised subquota, is estimated to have been taken and the season is closed by the Commission, whichever is earlier. The boundary line approximating the 40-fm (73-m) depth contour between 45°46.00′ N. lat. and 42°40.50′ N. lat. is defined at § 660.71(k).
(B) The second season (spring season), which is for the “all-depth” fishery, is open May 12, 13, 14; 19, 20, 21; 26, 27, 28; and June 2, 3, 4. Back-up dates will be June 16, 17, 18; 30, July 1, 2; 14, 15, 16; 28, 29, 30. The allocation to the all-depth fishery is 181,641 lb (82.4 mt). If sufficient unharvested quota remains for additional fishing days, the season will re-open. Notice of the re-opening will be announced on the NMFS hotline (206) 526-6667 or (800) 662-9825. No halibut fishing will be allowed on the re-opening dates unless the date is announced on the NMFS hotline.
(C) If sufficient unharvested quota remains, the third season (summer season), which is for the “all-depth” fishery, will be open August 5, 6; 19, 20; September 2, 3; 16, 17; 30, October 1; 14, 15; 28, 29 or until the combined spring season and summer season quotas in the area between Cape Falcon and Humbug Mountain, OR, are estimated to have been taken and the area is closed by the Commission, or October 31, whichever is earlier. NMFS will announce on the NMFS hotline in July whether the fishery will re-open for the summer season in August. No halibut fishing will be allowed in the summer season fishery unless the dates are announced on the NMFS hotline. Additional fishing days may be opened if sufficient quota remains after the last day of the first scheduled open period. If, after this date, an amount greater than or equal to 60,000 lb (27.2 mt) remains in the combined all-depth and inside 40-fm (73-m) quota, the fishery may re-open every Friday and Saturday, beginning August 6 and ending October 31. If after September 4, an amount greater than or equal to 30,000 lb (13.6 mt) remains in the combined all-depth and inside 40-fm (73-m) quota, and the fishery is not already open every Friday and Saturday, the fishery may re-open every Friday and Saturday, beginning September 9 and 10, and ending October 31. After September 4, the bag limit may be increased to two fish of any size per person, per day. NMFS will announce on the NMFS hotline whether the summer all-depth fishery will be open on such additional fishing days, what days the fishery will be open and what the bag limit is.
(ii) The daily bag limit is one halibut of any size per day per person, unless otherwise specified. NMFS will announce on the NMFS hotline any bag limit changes.
(iii) During days open to all-depth halibut fishing, no Pacific Coast groundfish may be taken and retained, possessed or landed, when halibut are on board the vessel, except sablefish, Pacific cod, and flatfish species, when allowed by Pacific Coast groundfish regulations.
(iv) When the all-depth halibut fishery is closed and halibut fishing is permitted only shoreward of a boundary line approximating the 40-fm (73-m) depth contour, halibut possession and retention by vessels operating seaward of a boundary line approximating the 40-fm (73-m) depth contour is prohibited.
(v) Recreational fishing for groundfish and halibut is prohibited within the Stonewall Bank YRCA. It is unlawful for recreational fishing vessels to take and retain, possess, or land halibut taken with recreational gear within the Stonewall Bank YRCA. A vessel fishing in the Stonewall Bank YRCA may not possess any halibut. Recreational vessels may transit through the Stonewall Bank YRCA with or without halibut on board. The Stonewall Bank YRCA is an area off central Oregon, near Stonewall Bank, intended to protect yelloweye rockfish. The Stonewall Bank YRCA is defined at § 660.70(f).
(f) The quota for landings into ports in the area south of Humbug Mountain, OR (42°40.50′ N. lat.) to the Oregon/California Border (42°00.00′ N. lat.) (Southern Oregon subarea) is 8,605 lb (3.9 mt).
(i) The fishing season commences on May 1, and continues 7 days per week until the subquota is taken, or October 31, whichever is earlier.
(ii) The daily bag limit is one halibut per person with no size limit.
(iii) No Pacific Coast groundfish may be taken and retained, possessed or landed, except sablefish, Pacific cod, and flatfish species, in areas closed to groundfish, if halibut are on board the vessel.
(g) The quota for landings into ports south of the Oregon/California Border (42°00.00′ N. lat.) and along the California coast is 29,640 lb (13.44 mt).
(i) The fishing season will be open May 1-15, June 1-15, July 1-15, August 1-15, September 1-October 31, or until the subarea quota is estimated to have been taken and the season is closed by the Commission. NMFS will announce any closure by the Commission on the NMFS hotline (206) 526-6667 or (800) 662-9825.
(ii) The daily bag limit is one halibut of any size per day per person.
Regulations governing the U.S. fisheries for Pacific halibut are developed by the IPHC, the Pacific Fishery Management Council, the North Pacific Fishery Management Council, and the Secretary of Commerce. Section 5 of the Northern Pacific Halibut Act of 1982 (Halibut Act, 16 U.S.C. 773c) provides the Secretary of Commerce with the general responsibility to carry out the Convention between Canada and the United States for the management of Pacific halibut, including the authority to adopt regulations as may be necessary to carry out the purposes and objectives of the Convention and Halibut Act. This action is consistent with the Pacific Council's authority to allocate halibut catches among fishery participants in the waters in and off the U.S. West Coast.
This action has been determined to be not significant for purposes of Executive Order 12866.
NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) in association with the proposed rule for the 2016 Area 2A Catch Sharing Plan. The final regulatory flexibility analysis (FRFA) incorporates the IRFA, a summary of the significant issues raised by the public comments in response to the IRFA, if any, and NMFS' responses to those comments, and a summary of the analyses completed to support the action. NMFS received no comments on the IRFA. A copy of the FRFA is available from the NMFS West Coast Region (see
This rule implements changes to the Halibut Catch Sharing Plan (CSP) that addresses the commercial and recreational fisheries within Area 2A (waters off the U.S. West Coast). The International Pacific Halibut Commission (IPHC) sets the overall Total Allowable Catch (TAC) and the CSP governs the allocation of that TAC between tribal and non-tribal fisheries, and among non-tribal fisheries. The Council, with input from industry, the states, and the tribes, may recommend changes to the CSP. (Note that the IPHC also sets the commercial fishery opening date(s), duration, and vessel trip limits to ensure that the quota for the non-tribal fisheries is not exceeded.) For
There were no significant issues raised by the public comments in response to IRFA. The IPHC increased the Area 2A TAC by 17.5% from 970,000 lbs (2015) to 1,140,000 lbs (517.10 mt). Within this 17.5% increase, different subgroups are being affected differently because of the CSP allocation formula.
The 2A Halibut Catch Sharing Plan, as outlined above, allocates the TAC at various levels. The commercial fishery is further divided into a directed commercial fishery that is allocated 85 percent of the commercial allocation of the Pacific halibut TAC, and incidental catch in the salmon troll fishery that is allocated 15 percent of the commercial allocation. The directed commercial fishery in Area 2A is confined to southern Washington (south of 46°53.30′ N. lat.), Oregon, and California. North of 46°53.30′ N. lat. (Pt. Chehalis), the Plan allows for incidental halibut retention in the sablefish primary fishery when the overall Area 2A TAC is above 900,000 lb (408.2 mt). The Plan also divides the sport fisheries into seven geographic subareas, each with separate allocations, seasons, and bag limits. The non-tribal allocation is divided into four shares. At the first level, there are specific percentage allocations for tribal and non-tribal fisheries. The non-tribal portion is then allocated to commercial components and to recreational components. The commercial component is then apportioned into directed, incidental troll, and incidental sablefish fisheries. The recreational portions for Oregon and Washington are furthered apportioned into area subquotas and these subquotas are further split into seasonal or depth fisheries (nearshore vs all depths). There may be gear restrictions and other management measures established as necessary to minimize the potential for the allocations to be exceeded.
At the September meeting, the Council adopted a range of Plan alternatives for public review. For 2016, the Council adopted two types of changes that are discussed separately below. The first were the routine recreational fishery adjustments to the Plan proposed by the states each year to accommodate the needs of their fisheries. The second were changes to the Plan and codified regulations proposed by NMFS which do not have alternatives, because they are either mandated by a recent court decision or are administrative in nature. At its November meeting, the Council made final Plan change recommendations from the range of alternatives for the recreational fishery adjustments; which is described in detail below.
The changes to the Plan are expected to slightly increase fishing opportunities in some areas and at some times and to slightly decrease fishing opportunities in other areas and at other times. The Council's recommended changes to the Plan modify the opening dates for the sport fisheries in Washington and Oregon with the goal of extending the seasons and increasing opportunity. The change to the tribal Usual &Accustomed (U&A) boundaries is made to comply with a court order, and NMFS has no discretion to do otherwise. Thus this change is not analyzed here. The Council considered changes to the Washington North Coast, Columbia River, Oregon Central Coast, and Southern Oregon subareas:
(1) For the Washington North Coast, the Council considered two opening dates: The first Thursday in May or the first Saturday in May. The Council recommended and this final rule implements an opening day for this fishery on the first Saturday in May. This is a minor change that will not reduce overall fishing opportunity in this area.
(2) For the Columbia River subarea, the Council considered two season structures: Status quo (4 days per week Thursday through Sunday) and a seven day a week fishery. The Council recommended the status quo season structure because ODFW did not receive definitive public support for this change and felt it was not necessary at this time; therefore, this rule does not implement changes to the Columbia River subarea.
(3) For the Oregon Central Coast subarea, the Council considered two season allocation alternatives: Status quo (12 percent nearshore, 63 percent spring, 25 percent summer) and Alternative 1 (81.75 percent spring and summer combined, 18.25 percent nearshore). The Council recommended the status quo season allocations because ODFW felt, given the magnitude of this change, more time was needed to allow public input; therefore, this rule does not implement any change to the Oregon Central Coast season allocations.
(4) For the Oregon Central Coast nearshore fishery, the Council considered a change to the season dates: (1) Status quo fishery opens July 1, seven days per week until October 31; (2) fishery opens May 1, seven days per week, until October 31; (3) fishery opens May 1, seven days per week until October 31 or quota attainment, with 25 percent of the nearshore fishery allocation set-aside and available beginning July 1; and (4) fishery opens May 1, seven days per week until October 31 or quota attainment, with 50 percent of the nearshore fishery allocation set-aside and available beginning July 1. The Council recommended and this rule implements an alternative that is within the range listed above that would open the fishery on June 1, seven days per week, until October 31. This is a minor change that will not reduce overall fishing opportunity in this area.
(5) For the Southern Oregon subarea, the Council considered two incidental retention alternatives: Status quo (no bottomfish species retention outside of 30 fathoms) and Alternative 1 (allow retention of other species of flatfish, Pacific cod, and sablefish outside 30 fathoms, when fishing for halibut) and an allocation modification from 4 percent to 3.91 percent of the Oregon sport allocation. The Council recommended and this final rule implements the change to the subarea allocation and Alternative 1 with a slight modification to describe this allowance as allowed when groundfish retention is closed not at a specific depth. The changes to the Southern Oregon incidentally landed species allowances are expected to increase recreational opportunities by turning previously discarded incidental flatfish catch into landed catch.
The Small Business Administration defines a “small” harvesting business as one with annual receipts, not in excess of $20.5 million. For related fishprocessing businesses, a small business is one that employs 500 or fewer persons. For wholesale businesses, a small business is one that employs not more than 100 people. For marinas and charter/party boats, a small business is one with annual receipts, not in excess of $7.5 million. This rule directly affects charterboat operations, and participants in the non-treaty directed commercial fishery off the coast of Washington, Oregon, and California. Applying the SBA's size standard for small businesses, NMFS considers all of the charterboat operations and participants in the non-
In 2015, 512 vessels were issued IPHC licenses to retain halibut. IPHC issues licenses for: The directed commercial fishery and the incidental fishery in the sablefish primary fishery in Area 2A (22 licenses in 2015); incidental halibut caught in the salmon troll fishery (363 licenses in 2015); and the charterboat fleet (127 licenses in 2013, the most recent year available). No vessel may participate in more than one of these three fisheries per year. These license estimates overstate the number of vessels that participate in the fishery. IPHC estimates that 60 vessels participated in the directed commercial fishery, 100 vessels in the incidental commercial (salmon) fishery, and 13 vessels in the incidental commercial (sablefish) fishery. All of these estimated 173 commercial vessels are considered small entities. Although recent information on charterboat activity is not available, prior analysis indicated that 60 percent of the IPHC charterboat license holders may be affected by these regulations.
The major effect of halibut management on small entities is from the internationally set TAC decisions made by the IPHC. Based on the recommendations of the states, the Council recommended and NMFS is implementing in this final rule minor changes to the Plan to provide increased recreational and commercial opportunities under the allocations that result from the TAC. There are no large entities involved in the halibut fisheries; therefore, none of these changes will have a disproportionate negative effect on small entities versus large entities. These minor changes to the Plan are not expected to have a significant economic impact on a substantial number of small entities.
This final rule does not contain a collection of information requirement subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). There are no projected reporting or recordkeeping requirements associated with this action. There are no relevant Federal rules that may duplicate, overlap, or conflict with this action.
Pursuant to Executive Order 13175, the Secretary recognizes the sovereign status and co-manager role of Indian tribes over shared Federal and tribal fishery resources. Section 302(b)(5) of the Magnuson-Stevens Fishery Conservation and Management Act establishes a seat on the Council for a representative of an Indian tribe with federally recognized fishing rights from California, Oregon, Washington, or Idaho. The U.S. Government formally recognizes that 13 Washington tribes have treaty rights to fish for Pacific halibut. The Plan allocates 35 percent of the Area 2A TAC to U.S. treaty Indian tribes in the State of Washington. Each of the treaty tribes has the discretion to administer their fisheries and to establish their own policies to achieve program objectives. Accordingly, tribal allocations and regulations, including the changes to the Plan, have been developed with the affected tribe(s) and, insofar as possible, with tribal consensus.
In 2014, an Environmental Assessment (EA) was prepared analyzing the continuing implementation of the Catch Sharing Plan for 2014-2016. The Plan changes for 2016 are not expected to have any effects on the environment beyond those discussed in the EA and in the finding of no significant impact (FONSI).
NMFS conducted a formal section 7 consultation under the Endangered Species Act for the Area 2A Catch Sharing Plan for 2014-2016 addressing the effects of implementing the Plan on ESA-listed yelloweye rockfish, canary rockfish, and bocaccio in Puget Sound, the Southern Distinct Population Segment (DPS) of green sturgeon, salmon, marine mammals, and sea turtles. In the biological opinion the Regional Administrator determined that the implementation of the Catch Sharing Plan for 2014-2016 is not likely to jeopardize the continued existence of Puget Sound yelloweye rockfish, Puget Sound canary rockfish, Puget Sound bocaccio, Puget Sound Chinook, Lower Columbia River Chinook, and green sturgeon. It is not expected to result in the destruction or adverse modification of critical habitat for green sturgeon or result in the destruction or adverse modification of proposed critical habitat for Puget Sound yelloweye rockfish, canary rockfish, or bocaccio. In addition, the opinion concluded that the implementation of the Plan is not likely to adversely affect marine mammals, the remaining listed salmon species and sea turtles, and is not likely to adversely affect critical habitat for Southern resident killer whales, stellar sea lions, leatherback sea turtles, any listed salmonids, and humpback whales. Further, the Regional Administrator determined that implementation of the Catch Sharing Plan will have no effect on southern eulachon; this determination was made in a letter dated March 12, 2014. The 2016 Plan and regulations do not change the conclusions from the biological opinion.
NMFS is currently conducting informal consultation with the US Fish and Wildlife Service regarding the ongoing implementation of the Catch Sharing Plan and its effects on short-tailed and black-footed albatross, California least tern, marbled murrelet, bull trout, and sea otters. NMFS has prepared a 7(a)(2)/7(d) determination memo under the ESA concluding that any effects of the 2016 fishery on listed seabirds are expected to be quite low, and are not likely to jeopardize the continued existence of any listed species. Further, in no way will the 2016 fishery make an irreversible or irretrievable commitment of resources by the agency.
NMFS finds good cause to waive the 30-day delay in effectiveness and make this rule effective on April 1, 2016, pursuant to 5 U.S.C. 553(d)(3), so that this final rule may become effective on April 1, 2016, when incidental halibut retention in the sablefish primary fishery begins. The 2016 TAC is higher than the 2015 TAC, resulting in increased allocations to the salmon troll and sablefish primary fisheries. Therefore, allowing the 2015 measures to remain in place could unnecessarily restrict the fisheries with incidental landing limits that do not match the increased allocations. Finally, this final rule approves the Council's 2016 Plan that responds to the needs of the fisheries in each state and approves the portions of the Plan allocating incidentally caught halibut in the salmon troll and sablefish primary fisheries, which start April 1. Therefore, allowing the 2015 subarea allocations and Plan to remain in place would not respond to the needs of the fishery and would be in conflict with the Council's final recommendation for 2016. For all of these reasons, a delay in effectiveness could ultimately cause economic harm to the fishing industry and associated fishing communities by reducing fishing opportunity at the start of the fishing year to keep catch within the lower 2015 allocations or result in harvest levels inconsistent with the best available scientific information. As a result of the potential harm to fishing communities that could be caused by delaying the effectiveness of this final rule, NMFS finds good cause to waive the 30-day delay in effectiveness and make this rule effective on April 1, 2016.
Administrative practice and procedure, Antarctica, Canada, Exports, Fish, Fisheries, Fishing, Imports, Indians, Labeling, Marine resources, Reporting and recordkeeping
For the reasons set out in the preamble, 50 CFR part 300 is amended as follows:
16 U.S.C. 773-773k.
(c) * * *
(3) * * *
(ii) Actual notice of inseason management actions will be provided by a telephone hotline administered by the West Coast Region, NMFS, at 206-526-6667 or 800-662-9825. Since provisions of these regulations may be altered by inseason actions, sport fishers should monitor the telephone hotline for current information for the area in which they are fishing.
(e) * * *
(1) Non-treaty commercial vessels operating in the directed commercial fishery for halibut in Area 2A are required to fish outside of a closed area, known as the Rockfish Conservation Area (RCA), that extends along the coast from the U.S./Canada border south to 40°10′ N. lat. Between the U.S./Canada border and 46°16′ N. lat., the eastern boundary of the RCA, is the shoreline. Between 46°16′ N. lat. and 40°10′ N. lat., the RCA is defined along an eastern boundary by a line approximating the 30-fm (55-m) depth contour. Coordinates for the 30-fm (55-m) boundary are listed at 50 CFR 660.71(e). Between the U.S./Canada border and 40°10′ N. lat., the RCA is defined along a western boundary approximating the 100-fm (183-m) depth contour. Coordinates for the 100-fm (183-m) boundary are listed at 50 CFR 660.73(a).
(i) The following table sets forth the fishing areas of each of the 13 treaty Indian tribes fishing pursuant to this section. Within subarea 2A-1, boundaries of a tribe's fishing area may be revised as ordered by a Federal Court.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule; fishery notification.
This final rule adopts regulations governing international trade documentation and tracking programs for Atlantic bluefin tuna to fulfill recommendations from recent meetings of the International Commission for the Conservation of Atlantic Tunas (ICCAT). The final rule transitions from the current ICCAT paper-based bluefin tuna catch documentation program (BCD program), used in the United States by highly migratory species (HMS) international trade permit (ITP) holders, to use of the ICCAT electronic bluefin tuna catch documentation system (eBCD system). The final rule also contains two unrelated regulatory text corrections related to bluefin tuna landings reports and cross-references related to prohibitions for fishing Atlantic tunas with speargun gear.
Additionally, NMFS will hold three public conference call and webinars on April 21, April 22, and May 3, 2016, to provide further information on requirements of the final rule and use of the eBCD system (see
This rule is effective on May 1, 2016. Operator-assisted, public conference call and webinars will be held on April 21, April 22, and May 3, 2016, from 2:30 to 4:30, Eastern Time.
For details on the call-in and Web site information for three public conference call and webinars, please see the table in the
Copies of the 2006 Consolidated Atlantic Highly Migratory Species Fishery Management Plan (Consolidated HMS FMP) and other relevant documents are available from the Atlantic HMS Management Division Web site at
Carrie Soltanoff at (301) 427-8503.
Atlantic bluefin tuna are managed under the dual authority of the Magnuson-Stevens Fishery Conservation and Management Act (MSA), 16 U.S.C. 1801
Background information about the need to implement ICCAT recommendations to transition from the current paper-based BCD program to an eBCD system was provided in the preamble to the proposed rule (80 FR 61146, October 9, 2015) and most of that information is not repeated here.
In response to the need to detect fraud and deter illegal, unregulated, and unreported (IUU) shipments, as well as to improve tracking of bluefin tuna catch and commerce, ICCAT adopted Recommendation 10-11 in 2010 to develop an eBCD system, which would ultimately replace the paper-based BCD program. Deadlines were set for system implementation in subsequent recommendations that ultimately proved too ambitious given system development and financing issues.
Most recently, ICCAT adopted Recommendation 15-10 requiring all ICCAT parties to use the eBCD system as of May 1, 2016, unless, based on examination of the status of the system, a technical working group (TWG) advises the Commission that the system is not sufficiently ready for implementation. If the TWG so advises the Commission, all ICCAT parties must use the eBCD system to the fullest extent practicable, but paper BCDs shall continue to be accepted until the system is sufficiently ready to be implemented. The TWG will meet in late April 2016. After May 1, 2016, or the date that the TWG advises the Commission that the system is sufficiently ready to be implemented (whichever is later), paper BCDs will no longer be accepted except in limited circumstances consistent with the ICCAT recommendation. Such limited circumstances include the use of paper BCDs as a “back-up” in the event that technical difficulties with the system arise that precludes use of the eBCD system. In light of the above, the final rule includes a provision allowing NMFS to notify the public (via actual or
The eBCD system is designed to collect largely the same information that is currently collected under the paper-based BCD program. Therefore, this final rule makes minor adjustments to the existing regulations implementing the paper-based BCD program to implement the electronic system and require its use for bluefin tuna catch documentation.
NMFS also notes, for informational purposes only, that on December 29, 2015, NMFS published a proposed rule in the
The comment period for the proposed rule closed on November 9, 2015. NMFS received one comment from an environmental non-governmental organization, delivered both in writing and verbally during a public conference call/webinar on October 13, 2015. A summary of that comment is provided below along with NMFS's response.
In this final rule NMFS has added a provision that certain trade tracking requirements must be satisfied by use of the ICCAT eBCD system for Atlantic bluefin tuna “unless NMFS provides otherwise through actual notice or
To enhance the clarity of the regulations, the final rule breaks out the Atlantic bluefin tuna eBCD requirements into separate subparagraphs (
In addition to these changes, two unrelated corrections to the HMS regulations are included in this final rule for purposes of administrative efficiency (
The second change corrects an incorrect cross-reference. The regulations at § 635.71(b)(30), (31), (33), (34), and (35), which are prohibitions for fishing Atlantic tunas with speargun gear, contain an incorrect cross-reference, which is listed as § 635.21(f) but should refer to § 635.21(i). The cross-reference is corrected in this final rule.
NMFS will hold three public conference call and webinars to provide further information about the requirements of the final rule and use of the eBCD system. To participate in those calls, use the following information:
To participate in the webinars online, enter your name and email address, and click the “JOIN” button. Participants that have not used WebEx before will be prompted to download and run a plug-in program that will enable them to view the webinar. Presentation materials and other supporting information will be posted on the HMS Web site at
The NMFS Assistant Administrator has determined that this final rule is consistent with the Magnuson-Stevens Act, the 2006 Consolidated Atlantic HMS FMP and its amendments, ATCA, and other applicable law.
This final rule has been determined to be not significant for purposes of Executive Order 12866.
In addition, NMFS has determined that this final rule would not affect the coastal zone of any state, and a negative determination pursuant to 15 CFR 930.35 is not required. Therefore, pursuant to 15 CFR 930.33(a)(2), coordination with appropriate state agencies under Section 307 of the Coastal Zone Management Act is not required.
This final action is categorically excluded from the requirement to prepare an environmental assessment in accordance with NAO 216-6. A categorical exclusion applies because the rule would implement minor adjustments to regulations and would not have a significant effect, individually or cumulatively, on the human environment. This action also does not directly affect fishing effort, quotas, fishing gear, authorized species, interactions with threatened or endangered species, or other relevant parameters.
This final rule contains a collection-of-information requirement subject to review and approval by OMB under the Paperwork Reduction Act. ICCAT Recommendation 15-10 requires transition from the paper-based BCD program to an eBCD system with certain limited exceptions. To comply with this Recommendation, NMFS will require Atlantic bluefin tuna dealers with HMS ITPs to use the eBCD system effective May 1, 2016. An amendment to OMB Control Number 0648-0040 (Dealer Reporting Family of Forms) has been approved by the Office of Management and Budget.
The Chief Council for Regulation of the Department of Commerce certified to the Chief Council for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification or on the impacts of the rule more generally. As a result, a regulatory flexibility analysis is not required and none has been prepared.
Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on the following three changes made in this final rule, as notice and comment would be impracticable, unnecessary, and contrary to the public interest. As explained above, this final rule makes three changes to the final rule: (1) A notice provision that allows for paper BCDs instead of eBCDs if NFMS provides actual notice or a
With regard to the first change, prior notice and comment would be impracticable, contrary to the public interest, and unnecessary. ICCAT Recommendation 15-10, adopted after the proposed rule was published, included a provision on certain circumstances under which paper BCDs could continue to be accepted in lieu of eBCDs. These circumstances include using paper BCDs or printed eBCDs as a back-up in the limited event that technical difficulties with the system arise that preclude use of the eBCD system. The Recommendation also specified a process through which a TWG would make a determination regarding whether the system was sufficiently ready for implementation and specified that paper BCDs would be accepted until that determination was made. NMFS recently learned that the relevant TWG meeting will not take place until late April 2016. Thus, in the unlikely event that the system is not ready to be implemented, NMFS must have an option to allow the use of paper BCDs to ensure that bluefin tuna trade is not disrupted. On the other hand, if the system is ready for implementation, the final rule must be in place to ensure compliance with ICCAT recommendations and to switch over to the eBCD system. Given the unexpectedly late timing of TWG review, the simultaneous potential requirement to implement the system by May 1, and the need to have a back-up system as a contingency, the time required for public notice and comment would be impracticable. Moreover, not allowing this change is contrary to the public interest. In the absence of a paper-based option, if the eBCD system experiences technical problems, bluefin dealers with HMS ITPs would not be able to proceed with imports and exports of bluefin. Currently, dealers use paper BCDs, thus it is unnecessary to provide for notice and comment on continued—albeit, more limited—use of these documents.
With regard to the second change, prior notice and comment are contrary to the public interest and unnecessary. The final rule for Amendment 7 inadvertently deleted text from a prior rulemaking, the 2006 Consolidated HMS FMP (71 FR 58058; October 2, 2006), that allowed bluefin tuna dealers to
There is also good cause to waive prior notice and comment for the third change. As currently written, the speargun prohibitions incorrectly cross-reference rod-and-reel provisions. Prior notice and comment on corrections to these cross-references is impracticable because NMFS just learned about the error and failure to make this minor change in a timely fashion may result in ongoing and unnecessary confusion among regulated parties. This confusion regarding the regulations could create enforcement issues with no corresponding benefit to the public. Thus, delaying the change to allow for notice and comment would be contrary to the public interest.
Administrative practice and procedure, Exports, Fish, Fisheries, Fishing, Imports, Reporting and recordkeeping requirements, Treaties.
Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, Penalties, Reporting and recordkeeping requirements, Treaties.
For reasons set out in the preamble, 50 CFR part 300, subpart M, and 50 CFR part 635 are proposed to be amended as follows:
16 U.S.C. 951-961 and 971
The revisions and additions read as follows:
The revisions read as follows:
(a) * * *
(2) * * *
(ii) Bluefin tuna:
(A) Imports which were re-exported from another nation must also be accompanied by an original, completed, approved, validated, species-specific re-export certificate.
(
(
(B) Bluefin tuna, imported into the Customs territory of the United States or entered for consumption into the separate customs territory of a U.S. insular possession, from a country requiring a BCD tag on all such bluefin tuna available for sale, must be accompanied by the appropriate BCD tag issued by that country, and said BCD tag must remain on any bluefin tuna until it reaches its final import destination. If the final import destination is the United States, which includes U.S. insular possessions, the BCD tag must remain on the bluefin tuna until it is cut into portions. If the bluefin tuna portions are subsequently packaged for domestic commercial use or re-export, the BCD tag number and the issuing country must be written legibly and indelibly on the outside of the package.
(iii) Fish or fish products regulated under this subpart other than bluefin tuna and shark fins:
(A) Imports that were previously re-exported and were subdivided or consolidated with another consignment before re-export, must also be accompanied by an original, completed, approved, validated, species-specific re-export certificate.
(B) Imports that have been previously re-exported from another nation must have the intermediate importer's certification of the original statistical document completed.
(iv) Consignment documents must be validated as specified in § 300.187 by an authorized government official of the flag country whose vessel caught the fish (regardless of where the fish are first landed). Re-export certificates must be validated by an authorized government official of the re-exporting country. For electronically generated Atlantic bluefin tuna catch documents, validation must be electronic using the ICCAT eBCD system.
(v) A permit holder may not accept an import without the completed consignment document or re-export certificate as described in paragraphs (a)(2)(i) through (iv) of this section.
(vi) For fish or fish products, except shark fins, regulated under this subpart that are entered for consumption, the permit holder must provide correct and complete information, as requested by NMFS, on the original consignment document that accompanied the consignment.
(A) For Atlantic bluefin tuna, this information must be provided electronically in the ICCAT eBCD system, unless NMFS provides otherwise through actual notice or
(B) For non-Atlantic bluefin tuna, this information must be provided on the
(vii) Customs forms can be obtained by contacting the local CBP port office; contact information is available at
(3)
(i) For Atlantic bluefin tuna, this requirement must be satisfied electronically by entering the specified information into the ICCAT eBCD system as directed in paragraph (a)(2)(vi)(A) of this section, unless NMFS provides otherwise through actual notice or
(ii) For non-Atlantic bluefin tuna, this requirement must be satisfied by submitting the original paper consignment document.
(b) * * *
(2)
(i) For Atlantic bluefin tuna, this requirement must be satisfied by electronic completion of a consignment document in the ICCAT eBCD system, unless NMFS provides otherwise through actual notice or
(ii) For non-Atlantic bluefin tuna, this requirement must be satisfied by completion of a paper consignment document.
(3)
(i) For Atlantic bluefin tuna, this requirement must be satisfied electronically by entering the specified information into the ICCAT eBCD system as directed in paragraph (b)(2)(i) of this section, unless NMFS provides otherwise through actual notice or
(ii) For non-Atlantic bluefin tuna, this requirement must be satisfied by submitting the original paper consignment document.
(c) * * *
(2) * * *
(i) If a permit holder re-exports a consignment of bluefin tuna, or subdivides or consolidates a consignment of fish or fish products regulated under this subpart, other than shark fins, that was previously entered for consumption as described in paragraph (c)(1) of this section, the permit holder must complete an original, approved, individually numbered, species-specific re-export certificate issued to that permit holder by NMFS for each such re-export consignment. Such an individually numbered document is not transferable and may be used only once by the permit holder to which it was issued to report on a specific re-export consignment. A permit holder must provide on the re-export certificate the correct information and re-exporter certification. The permit holder must also attach the original consignment document that accompanied the import consignment or a copy of that document, and must note on the top of both the consignment documents and the re-export certificates the entry number assigned by CBP authorities at the time of filing the entry summary.
(A) For Atlantic bluefin tuna, these requirements must be satisfied by electronic completion of a re-export certificate in the ICCAT eBCD system, unless NMFS provides otherwise through actual notice or
(B) For non-Atlantic bluefin tuna, these requirements must be satisfied by completion of a paper re-export certificate.
(iii) Re-export certificates must be validated, as specified in § 300.187, by NMFS or another official authorized by NMFS. A list of such officials may be obtained by contacting NMFS. A permit holder requesting validation for re-exports should notify NMFS as soon as possible to avoid delays in inspection and validation of the re-export shipment. Electronic re-export certificates created for Atlantic bluefin tuna using the ICCAT eBCD system will be validated electronically.
(3)
(i) For Atlantic bluefin tuna, this requirement must be satisfied electronically by entering the specified information into the ICCAT eBCD system as directed in paragraph (c)(2)(i)(A) of this section, unless NMFS provides otherwise through actual notice or
(ii) For non-Atlantic bluefin tuna, this requirement must be satisfied by submitting the original paper re-export certificate.
(a)
(f)
(2)
16 U.S.C. 971
(b) * * *
(2) * * *
(i) * * *
(A)
(b) * * *
(30) Fish for any HMS, other than Atlantic BAYS tunas, with speargun fishing gear, as specified at § 635.21(i).
(31) Harvest or fish for BAYS tunas using speargun gear with powerheads, or any other explosive devices, as specified in § 635.21(i).
(33) Fire or discharge speargun gear without being physically in the water, as specified at § 635.21(i).
(34) Use speargun gear to harvest a BAYS tuna restricted by fishing lines or other means, as specified at § 635.21(i).
(35) Use speargun gear to fish for BAYS tunas from a vessel that does not possess either a valid HMS Angling or HMS Charter/Headboat permit, as specified at § 635.21(i).
In rule document 2016-06306, appearing on pages 14986 through 14988 in the issue of Monday, March 21, 2016, make the following corrections:
1. On page 14986, in the third column, in the
2. On page 14987, in the second column, on the seventeenth and eighteenth lines, “April 18, 2016” should read “March 18, 2016”.
Agricultural Marketing Service, USDA.
Proposed rule.
This document invites comments on a proposed amendment to the Dairy Promotion and Research Order (Dairy Order). The proposal would modify the number of National Dairy Promotion and Research Board (Dairy Board) importer members. The total number of domestic Dairy Board members would remain the same at 36 and the total number of importer members would be reduced from 2 to 1. The Dairy Order requires that at least once every three years, after the initial appointment of importer members on the Dairy Board, the Secretary shall review the average volume of domestic production of dairy products compared to the average volume of imports of dairy products into the United States during the previous three years and, on the basis of that review, if warranted, reapportion the importer representation on the Dairy Board to reflect the proportional shares of the United States market served by domestic production and imported dairy products. This reapportionment review is the first conducted since importer members were appointed to the Dairy Board on November 2, 2011. The review could not be conducted prior to 2015 since the required data was not available.
Comments must be submitted on or before May 2, 2016.
Comments on this proposed rule should be identified with the docket number AMS-DA-14-0074. Commenters should identify the date and page number of the issue of the proposed rule. Interested persons may comment on this proposed rule using either of the following procedures:
•
•
•
•
All comments to this proposed rule, submitted by the above procedures will be available for viewing at:
Whitney A. Rick, Director, Promotion, Research, and Planning Division, Dairy Program, AMS, USDA, 1400 Independence Ave. SW., Room 2958-S, Stop 0233, Washington, DC 20250-0233. Phone: (202) 720-6909. Email:
This proposed rule is issued pursuant to the Dairy Production Stabilization Act (Dairy Act) of 1983, Pub L. 98-180 as codified in 7 U.S.C. 4501-4514, as amended.
The Office of Management and Budget has waived the review process required by Executive Order 12866 for this action.
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This proposed rule is not intended to have a retroactive effect. If adopted, this rule would not preempt any State or local laws, regulations, or policies unless they present an irreconcilable conflict with this rule.
The Dairy Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under Section 118 of the Dairy Act, any person subject to the Dairy Order may file with the Secretary a petition stating that the Dairy Order, any provision of the Dairy Order, or any obligation imposed in connection with the Dairy Order is not in accordance with the law and request a modification of the Dairy Order or to be exempted from the Dairy Order (7 U.S.C. 4509). Such person is afforded the opportunity for a hearing on the petition. After a hearing, the Secretary would rule on the petition. The Dairy Act provides that the district court of the United States in any district in which the person is an inhabitant or has his principal place of business, has jurisdiction to review the Secretary's ruling on the petition, provided a complaint is filed not later than 20 days after the date of the entry of the ruling.
In accordance with the Regulatory Flexibility Act (5 U.S.C. 601-612), the Agricultural Marketing Service has considered the economic impact of this action on small entities and has certified that this proposed rule will not have a significant economic impact on a substantial number of small entities. The purpose of the Regulatory Flexibility Act is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be disproportionately burdened.
The Dairy Act authorizes a national program for dairy product promotion, research and nutrition education. Congress found that it is in the public interest to authorize the establishment of an orderly procedure for financing (through assessments on all milk produced in the United States for commercial use and on imported dairy products) and carrying out a coordinated program of promotion designed to strengthen the dairy industry's position in the marketplace and to maintain and expand domestic and foreign markets and uses for fluid milk and dairy products.
According to the U.S. Customs and Border Protection (CBP), in 2014, approximately 1,400 importers paid assessments under Section 1150.152(b). Although data is not available concerning the sizes of these firms, it is reasonable to assume that most of them would be considered small businesses. Although many types of businesses import dairy products, the most common classification for dairy product
The proposed rule would amend the Dairy Order by modifying the number of Dairy Board importer members.
Currently, the Dairy Order is administered by a 38-member Dairy Board, 36 members representing 12 geographic regions within the United States and 2 members representing importers. The Dairy Order at section 1150.131(f) provides that at least once every three years, after the initial appointment of importer members on the Dairy Board, the Secretary shall review the average volume of domestic production of dairy products compared to the average volume of imports of dairy products into the United States during the previous three years and, on the basis of that review, if warranted, reapportion the importer representation on the Board to reflect the proportional shares of the United States market served by domestic production and imported dairy products.
The proposed amendment should not have a significant economic impact on persons subject to the Dairy Order. The proposed changes merely would allow representation on the Dairy Board to better reflect the volume of dairy product imports into the United States.
In accordance with the Office of Management and Budget (OMB) regulation [5 CFR part 1320] which implements the Paperwork Reduction Act of 1995 [44 U.S.C. chapter 35], the information collection requirements and record keeping provisions imposed by the Dairy Order have been previously approved by OMB and assigned OMB Control No. 0581-0093. No relevant Federal rules have been identified that duplicate, overlap, or conflict with this rule.
The Dairy Order is administered by a 38-member Dairy Board, 36 members representing 12 geographic regions within the United States and 2 members representing importers. The Dairy Order requires in Section 1150.131(f) that at least once every three years, after the initial appointment of importer representatives on the Dairy Board, the Secretary shall review the average volume of domestic production of dairy products compared to the average volume of imports of dairy products into the United States during the previous three years and, on the basis of that review, if warranted, reapportion the importer representation on the Dairy Board to reflect the proportional shares of the United States market served by domestic production and imported dairy products. This reapportionment review is the first conducted since importer members were appointed to the Dairy Board in 2011.
For initial representation of importers, the Dairy Act states “In making initial appointments to the Board of importer representatives, the Secretary shall appoint 2 members who represent importers of dairy products and are subject to assessment under the order.” (7 U.S.C. 4504(b)(6)(A)) For subsequent representation of importers, the Dairy Act goes on to state “At least once every 3 years after the initial appointment of importer representatives under subparagraph (A), the Secretary shall review the average volume of domestic production of dairy products compared to the average volume of imports of dairy products into the United States during the previous 3 years and, on the basis of that review, shall reapportion importer representation on the Board to reflect the proportional share of the United States market by domestic production and imported dairy products.” (7 U.S.C. 4504(b)(6)(B))
The Dairy Order at section 1150.131(f) states that the basis for the comparison of domestic production of dairy products to imported products should be estimated total milk solids. The calculation of total milk solids of imported dairy products for reapportionment purposes “shall be the same as the calculation of total milk solids of imported dairy products for assessment purposes.” The reapportionment review was not conducted prior to 2015 because three full years' worth of data was not available.
Using National Agricultural Statistics Service (NASS) annual Dairy Products Summary data, the average U.S. milk total solids for domestic dairy products for 2012 to 2014 was 23,462 billion pounds annually. Based on the total milk solids number, each of the 36 domestic Dairy Board producer members would represent 652 million pounds of total milk solids (23,462 billion pounds divided by 36 producer members equals 652 million pounds per producer).
Using information received from CBP, the average total milk solids imported during 2012 to 2014 was 589 million pounds. Currently, each of the two importers on the Dairy Board would represent approximately 295 million pounds of total milk solids (589 million pounds divided by 2 importer members equals 295 million pounds per importer). Table 1 summarizes the total milk solids represented by the 36 domestic producer members and the total milk solids represented by the 2 current importer members.
Based on the calculations, it is proposed that Dairy Board importer member representation be reduced from 2 importer members to 1 importer member, to accurately represent the volume of imported total milk solids compared to the volume of total solids represented by each of the 36 domestic producer members. Table 2 reflects the proposed changes.
A 30-day comment period is provided for interested persons to comment on this proposed rule. One term of office for an importer member will expire on October 31, 2016. Thus, a 30-day comment period is provided for a timely announcement of the Dairy Board nomination solicitation in 2016.
Dairy products, Milk, Promotion, Research.
For the reasons set forth in the preamble, it is proposed that 7 CFR part 1150 be amended as follows:
7 U.S.C. 4501-4514 and 7 U.S.C. 7401.
(c) One member of the board shall be an importer who is subject to assessments under § 1150.152(b).
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for M7 Aerospace LLC Models SA26-AT, SA26-T, SA226-AT, SA226-T, SA226-T(B), SA226-TC, SA227-AC (C-26A), SA227-AT, SA227-BC (C-26A), SA227-CC, SA227-DC (C-26B), and SA227-TT airplanes. This proposed AD was prompted by reports of multiple cracks in the steel horizontal tube of the cockpit control column. This proposed AD would require inspection of the cockpit control column horizontal tube with repair or replacement as necessary of the cockpit control column. We are proposing this AD to correct the unsafe condition on these products.
We must receive comments on this proposed AD by May 16, 2016.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact M7 Aerospace LLC, 10823 NE Entrance Road, San Antonio, Texas 78216; phone: (210) 824-9421; fax: (210) 804-7766; Internet:
You may examine the AD docket on the Internet at
Andrew McAnaul, Aerospace Engineer, FAA, ASW-143 (c/o San Antonio MIDO), 10100 Reunion Place, Suite 650, San Antonio, Texas 78216; phone: (210) 308-3365; fax: (210) 308-3370; email:
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The FAA received reports of multiple cracks in the cockpit control column horizontal tube at the corners of the access panel cutout, at the pulley bolt welds, and at the elevator arm weld in the steel horizontal tube of the control column on M7 Aerospace SA26, SA226, and SA227 airplanes.
This condition, if not corrected, could result in partial or complete control column failure with partial or complete loss of pitch and/or roll control.
We reviewed M7 Aerospace LLC SA26 Series Service Bulletin (SB) 26-27-002, M7 Aerospace LLC SA226 Series SB 226-27-078, M7 Aerospace LLC SA227 Series SB 227-27-058, and M7 Aerospace LLC SA227 Series SB CC7-27-030, all dated October 8, 2015. The service information describes procedures for inspection of the cockpit control column horizontal tube for cracks and repair or replacement of the cockpit control column as necessary. All of the related service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of these same type designs.
This proposed AD would require repetitive inspections of the cockpit control column horizontal tube for cracks and repair or replacement of the cockpit control column as necessary.
We have revised the compliance times of the proposed AD to differ from service information. We have determined we have met the safety intent with the revised compliance times while allowing for clarity. The compliance times in the proposed AD action would take precedence over those in the service bulletin.
We estimate that this proposed AD affects 350 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We estimate the following costs to do any necessary repairs/replacements that would be required based on the results of the proposed inspection. We have no way of determining the number of airplanes that might need these repairs/replacements:
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
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by May 16, 2016.
None.
This AD applies to M7 Aerospace LLC Models SA26-AT, SA26-T, SA226-AT, SA226-T, SA226-T(B), SA226-TC, SA227-AC (C-26A), SA227-AT, SA227-BC (C-26A), SA227-CC, SA227-DC (C-26B), and SA227-TT airplanes, all serial numbers, certificated in any category.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 2700, Flight Controls.
This AD was prompted by reports of multiple cracks in the steel horizontal tube of the cockpit control column. We are issuing this AD to require repetitive inspections of the cockpit control column horizontal tube with repair or replacement, as necessary, of the cockpit control column. We are proposing this AD to correct the unsafe condition on these products.
Comply with paragraphs (g)(1) through (g)(2) of this AD using the following service bulletins within the compliance times specified below, unless already done:
(1)
(2)
(3)
(4)
(1)
(i)
(ii)
(2)
A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 5 minutes per response, including the time for reviewing instructions, completing and reviewing the collection of information. All responses to this collection of information are mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at: 800 Independence Ave. SW., Washington, DC 20591, Attn: Information Collection Clearance Officer, AES-200.
(1) The Manager, Fort Worth Airplane Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (j) of this AD.
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(1) For more information about this AD, contact Andrew McAnaul, Aerospace Engineer, FAA, ASW-143 (c/o San Antonio MIDO), 10100 Reunion Place, Suite 650, San Antonio, Texas 78216; phone: (210) 308-3365; fax: (210) 308-3370; email:
(2) For service information identified in this AD, contact M7 Aerospace LLC, 10823 NE Entrance Road, San Antonio, Texas 78216; phone: (210) 824-9421; fax: (210) 804-7766; Internet:
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Rolls-Royce Deutschland Ltd & Co KG (RRD) BR700-710A1-10, -710A2-20, and -710C4-11 turbofan engines. This proposed AD was prompted by a seized low-pressure turbine (LPT) fuel shut-off pawl carrier caused by corrosion of the pawl carrier pivot pin. This proposed AD would require removing the pawl carrier pivot pins, part number (P/N) BRR17117, from service and replacing them with parts eligible for installation. We are proposing this AD to prevent failure of the fuel shut-off mechanism, uncontained part release, damage to the engine, and damage to the airplane.
We must receive comments on this proposed AD by May 31, 2016.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
Philip Haberlen, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7770; fax: 781-238-7199; email:
We invite you to send any written relevant data, views, or arguments about this NPRM. 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 2016-0034, dated February 24, 2016 (referred to hereinafter as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
Seizing of a fuel shut-off mechanism pawl carrier was reported. The subsequent investigation determined that corrosion of the pawl carrier pivot pin P/N BRR17117, was the failure cause.
This condition, if not corrected, could lead to loss of the fuel shut-off mechanism functionality and loss of the engine over-speed protection, possibly resulting in release of high-energy debris, with consequent damage to, and/or reduced control of the airplane.
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 Germany, 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 proposing 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 NPRM would require removing the pawl carrier pivot pin, P/N BRR17117, from service and replacing with a part eligible for installation.
RRD has issued ASB SB-BR700-72-A101523, Revision 3, dated December 10, 2015. The service information describes procedures for replacing the pawl carrier pivot pins. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We estimate that this proposed AD affects 4 engines installed on airplanes of U.S. registry. We also estimate that it would take about 3 hours per engine to comply with this proposed AD. The average labor rate is $85 per hour. Required parts cost about $860 per engine. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $4,460.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska 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 proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by May 31, 2016.
None.
(1) This AD applies to:
(i) Rolls-Royce Deutschland (RRD) BR700-710A1-10 engines with serial number (S/N) 11505 and below and with a low-pressure turbine (LPT) module, part number (P/N) M51-104 or P/N M51-111, installed;
(ii) RRD BR700-710A2-20 engines with S/N 12492 and below and with an LPT module, P/N M51-108 or P/N M51-111, installed;
(iii) RRD BR700-710C4-11 engines with S/N 15277 and below, with configuration standard 710C4-11 engraved on the engine data plate and with an LPT module, P/N M51-112, installed; and
(iv) RRD BR700-710C4-11 engines with S/N 15329 and below, with configuration standard 710C4-11/10 engraved on the engine data plate and with an LPT module, P/N M51-112, installed.
(2) Reserved.
This AD was prompted by a seized LPT fuel shut-off pawl carrier caused by corrosion of the pawl carrier pivot pin. We are issuing this AD to prevent failure of the fuel shut-off mechanism, uncontained part release, damage to the engine, and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) Within 6 months after the effective date of this AD, remove each pawl carrier pivot pin, P/N BRR17117, from service and replace with a part eligible for installation.
(2) Reserved.
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 Philip Haberlen, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7770; fax: 781-238-7199; email:
(2) Refer to MCAI European Aviation Safety Agency AD 2016-0034, dated February 24, 2016, for more information. You may examine the MCAI in the AD docket on the Internet at
(3) RRD Alert Service Bulletin SB-BR700-72-A101523, Revision 3, dated December 10, 2015, can be obtained from RRD using the contact information in paragraph (g)(4) of this AD.
(4) For service information identified in this AD, contact Rolls-Royce Deutschland Ltd & Co KG, Eschenweg 11, Dahlewitz, 15827 Blankenfelde-Mahlow, Germany; phone: +49 (0) 33 7086 2673; fax: +49 (0) 33 7086 3276.
(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.
Office of Postsecondary Education, Department of Education.
Supplemental notice of proposed rulemaking; re-opening of the comment period for specific issues.
On December 3, 2014, the Department published a notice of proposed rulemaking (NPRM) to implement requirements for the teacher preparation program accountability system under title II of the Higher Education Act of 1965, as amended (HEA), and also to amend the regulations governing the Teacher Education Assistance for College and Higher Education (TEACH) Grant Program under title IV of the HEA. The comment period closed on February 2, 2015.
The Department received over 4,800 comments in response to the NPRM. Some commenters requested clarification regarding how the proposed State reporting requirements would affect teacher preparation programs provided through distance education and TEACH Grant eligibility for students enrolled in teacher preparation programs provided through distance education. In response to these comments, the Department is considering revising the proposed regulations to clarify these areas.
This supplemental notice of proposed rulemaking (supplemental NPRM) therefore reopens the public comment period on the Teacher Preparation Issues proposed rule for 30 days solely to seek comment on these specific issues. The Department is not soliciting comments on any other issues related to the December 3, 2014, NPRM, and the Department will not consider public comments that address issues other than those specific to reporting by States on teacher preparation programs provided through distance education and TEACH Grant eligibility requirements for teacher preparation programs provided through distance education.
The comment period for a specific topic in the NPRM published on December 3, 2014 (79 FR 71820), is reopened. The due date for comments discussed in this supplemental NPRM is May 2, 2016.
Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments by fax or by email. To ensure that we do not receive duplicate copies, please submit your comments only one time. In addition, please include the Docket ID at the top of your comments.
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The Department's policy is to make all comments received from members of the public available for public viewing in their entirety on the Federal eRulemaking Portal at
Sophia McArdle, Ph.D., U.S. Department of Education, 400 Maryland Avenue SW., room 6W256, Washington, DC 20202. Telephone: (202) 453-6318 or by email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
On December 3, 2014, the Department published an NPRM in the
The NPRM contained proposed requirements for State reporting on teacher preparation programs provided through distance education under the title II reporting system, as well as proposed regulations governing TEACH Grant eligibility for teacher preparation programs provided through distance education. Some commenters expressed concern that the proposed regulations did not provide enough clarity with respect to the requirements for teacher preparation programs provided through distance education. These commenters expressed concern about two specific areas in the proposed regulations related to teacher preparation programs offered through distance education.
The first area of concern was State reporting on teacher preparation programs provided through distance education. In the NPRM, we included requirements for States to report on certain metrics (student learning outcomes, employment outcomes, survey outcomes, and program characteristics) for teacher preparation programs in the State, including distance education programs. The NPRM proposed that the State reporting requirements would apply to all teacher preparation programs, including those offered through distance education. Our intent was to ensure that the State reporting requirements were consistent across teacher preparation programs, including teacher preparation programs provided through distance education. Commenters questioned which State would be responsible for reporting on, and determining the performance level for, teacher preparation programs provided through distance education.
Commenters stated that the proposed requirement was unclear. They specifically asked for clarification on whether only one State would be responsible for reporting on, and determining the performance level of, teacher preparation programs offered through distance education, or whether any State in which a teacher preparation program provided through distance education that enrolled students would do so. For example, according to some commenters, the proposed regulations could be interpreted as requiring a State to report: (a) Only if students enrolled in that program resided or become certified in the State; or (b) only if the teacher preparation program provided through distance education is physically headquartered in the State. The commenters asked us to clarify which of these alternatives would apply. Commenters also asked whether States would have to report on teacher preparation programs provided through distance education if those programs generated fewer than 25 teachers in a given State.
The second area of concern expressed by some commenters relates to TEACH Grant eligibility for students enrolling in teacher preparation programs offered through distance education. Commenters noted that there are teacher preparation programs offered through distance education that are available in multiple States, and, therefore, the same program could be rated as effective by one State and low-performing or at-risk of being low- performing by another. Commenters stated that the proposed regulations were unclear regarding both how TEACH Grant eligibility would be determined for students enrolled in a teacher preparation program offered through distance education, and, specifically, in instances where different States provide conflicting ratings. Commenters asked the Department to clarify these points in the regulations.
In light of these comments, we are seeking comment on the proposals in this supplemental NPRM that would amend the proposed regulations. In particular, the Department seeks comments and recommendations on ways to improve, and alternatives to, these proposed amendments to the proposed regulations included in this supplemental NPRM.
In this regard, we note that while our NPRM proposed to incorporate the definition of “distance education” in 34 CFR 600.2, we know that some teacher preparation programs combine aspects of distance education with aspects of preparation that occur in a “brick and mortar” setting. While we solicit comments and recommendations on any aspect of this NPRM, we specifically solicit comments and recommendations on—
(1) Under what circumstances, for purposes of both reporting and determining the teacher preparation program's level of overall performance, a State should use procedures applicable to teacher education programs offered through distance education and when it should use procedures for teacher preparation programs provided at brick and mortar institutions, and
(2) For a single program, if one State uses procedures applicable to teacher preparation programs offered through distance education, and another State uses procedures for teacher preparation programs provided at brick and mortar, what are the implications, especially for TEACH Eligibility, and how these inconsistencies should be addressed.
In the December 2014 NPRM, proposed § 612.4 requires that each State report to the Secretary, using a State report card (SRC) that is prescribed by the Secretary, on the quality of all approved teacher preparation programs in the State (both traditional teacher preparation programs and alternative routes to State certification or licensure programs), including distance education programs.
To clarify how States must report on the quality of all teacher preparation programs provided through distance education in the State, we are proposing to amend the proposed regulations by striking the words “including distance education programs” from proposed § 612.4(a)(1)(1); redesignating proposed § 612.4(a)(1)(ii) as proposed § 612.4(a)(1)(iii); and adding new proposed § 612.4(a)(1)(ii). This new provision would require States to report on the quality of all teacher preparation programs provided through distance education in the State in ways that meet the reporting and aggregation requirements proposed in § 612.4(b)(4); however, rather than determine that the program produces 25 new teachers as set forth in our proposed § 612.4(b)(4), for teacher preparation programs provided through distance education, a State would determine whether there are at least 25 new teachers from that program who become certified in the State in a given title II reporting year.
Under § 612.4(b)(4) as proposed in the December 2014 NPRM, except for certain programs subject to proposed § 612.4(b)(4)(ii)(D) or (E), each State would ensure that all of its teacher preparation programs are represented in the SRC. Consistent with the NPRM, States would report on a teacher preparation program provided through distance education individually if the program produced at least 25 new teachers in the State, and would report through different aggregation methods if it produced fewer than 25 new teachers in the State.
In contrast, under new proposed § 612.4(a)(1)(ii), which applies to teacher preparation programs provided through distance education, consistent with the reporting threshold of 25 or more new teachers for reporting in previously proposed § 612.4(b)(4)(1), each State would be required to report annually and separately on the performance of each teacher preparation program provided through distance education if at least 25 graduates of that program become certified in the State in a title II reporting year. For teacher preparation programs provided through distance education, if fewer than 25 graduates of that program become certified in the State in a given title II reporting year, reporting would be accomplished consistent with the methods of reporting addressed in proposed § 612.4(b)(4)(ii). These proposed regulations would also permit a State, at its discretion, to establish a program size threshold lower than 25.
Thus, for a distance education program that produces fewer than 25 new teachers whom the State has certified to teach in a given title II reporting year, the State would use the same procedures for data aggregation in proposed § 612.4(a)(1)(ii)(A)-(C) as the State would use for all other small teacher preparation programs. Under proposed § 612.4(a)(1)(ii)(D) and (E), the State would be permitted to exclude from reporting distance education programs that are particularly small, for which aggregation procedures cannot be applied, or where reporting on those programs would be inconsistent with State or Federal privacy or confidentiality laws and regulations.
We are now proposing this regulation because of the inherent differences between “brick and mortar” teacher preparation programs and teacher preparation programs provided through distance education. Unlike teacher preparation programs physically located in a State that produce new teachers whom a State may easily confirm as completers of that program, a teacher preparation program provided through distance education generally does not have a physical location in the State, and its students could be participating in the program from anywhere. Any State would have great difficulty identifying and tracking new teachers the distance education program produces, much less new teachers it produces who plan to teach in the State.
Because we understand that States track individuals whom they certify as teachers in the State and collect what teacher preparation programs they have completed, it seems reasonable to apply the same State reporting requirements for distance education programs as we have proposed for “brick and mortar” programs that are physically located in the State with the one modification described above. That is, instead of the State reporting on the program based on the number of new teachers it produced in a given title II reporting year, for distance education programs the State would report using the procedures in proposed § 612.4(b)(4) based on whether the distance education program produced at least 25 teachers or fewer than 25 whom the State had certified to teach in the State in the title II reporting year. Where these teachers resided when they took the program would not matter.
For purposes of TEACH Grant eligibility, in the NPRM we proposed that, to be eligible for a TEACH Grant, an otherwise eligible student must, in part, be enrolled in a high-quality teacher preparation program. As previously noted, we received comments asking us to clarify how TEACH Grant eligibility would be determined for a student enrolled in a teacher preparation program offered through distance education, and specifically how TEACH Grant eligibility would be determined for a student if one State rates a teacher preparation program offered through distance education as ineffective and another State rates it as effective.
To clarify how TEACH Grant eligibility would be determined for a teacher preparation program provided through distance education, in this supplemental NPRM we are proposing to add a definition for the term “high-quality teacher preparation program provided through distance education.” We would also make corresponding changes to the definitions of TEACH Grant-eligible institution and TEACH Grant-eligible program.
The proposed definition of a high-quality teacher preparation program in the December 2014 NPRM links a State's classification of a teacher preparation program as being of effective or exceptional to an institution physically located in the State; this classification is thus made on a State-by-State basis. We believe this proposed definition works well for “brick and mortar” teacher preparation programs offered by an institution physically located in a State, but not for teacher preparation programs provided through distance education as individuals may take those programs anywhere.
Furthermore, the types of teacher preparation programs provided through distance education that are offered by institutions vary. Some teacher preparation programs provided through distance education are State-specific, meaning that they are designed to prepare individuals to serve in a specific State, (
Thus, the new proposed definition for a high-quality teacher preparation program provided through distance education would require that no single State has classified the program as low-performing or at-risk of being low- performing.
More specifically, we are proposing to define a high-quality teacher preparation program provided through distance education as a teacher preparation program provided through distance education that: (a) For TEACH Grant program purposes in the 2021-2022 title IV award year, is not classified by any State as low-performing or at-risk of being low performing under 34 CFR 612.4(b) in either or both the April 2020 and/or April 2021 SRCs; and (b) for TEACH Grant program purposes in the 2022-2023 title IV award year and subsequent award years, is not classified by any State as low-performing or at-risk of being low-performing under 34 CFR 612.4(b) for two out of the previous three years, with the earliest year being the April 2020 SRC. Taking into consideration that we have not yet published final regulations, we are proposing to move the implementation dates for these proposed regulations back by one year to account for the delay.
Thus, as with students enrolled in “brick and mortar” teacher preparation programs for the 2021-2022 title IV award year, no student enrolled in a teacher preparation program provided through distance education would be able to receive a TEACH Grant, regardless of their State of residence, if the program is classified by any State as low-performing or at-risk of being low-performing under 34 CFR 612.4(b) in either or both the April 2020 and/or April 2021 SRC. For TEACH Grant program purposes in the 2022-2023 title IV award year, students in the distance education program would not be able to receive TEACH Grants in any State if it is classified by any State as low-performing or at-risk of being low-performing under 34 CFR 612.4(b), in any two of the April 2020, 2021, or 2022 SRCs.
In other words, if one State classified a teacher preparation program provided through distance education as low-performing or at-risk of being low-performing in April 2020 and a different State classified the program as low-performing or at-risk in April of 2021, no student in any State who participates in that same distance education program would be able to receive a TEACH Grant in the 2021-2022 title IV award year because the program had been classified as low-performing or at-risk in both years by at least one State. Similarly, beginning with the April 2020 State Report Card, for the 2022-2023 title IV award year and subsequent award years, if one State classified a teacher preparation program provided through distance education as low-performing or at-risk for one year under 34 CFR 612.4(b), and another State classified the same distance education program as low-performing or at-risk of being low-performing in at least one of the next two years, no student in any State enrolled in that distance education program would be able to receive a TEACH Grant in the 2022-2023 title IV HEA award year.
We are confident that a State that has granted teacher certification to graduates of a teacher preparation program provided through distance education, and then found the program to be low-performing or at-risk of being low-performing, will want to work proactively with the program to improve its performance and to ensure that, when next evaluated, the State is able to report an acceptable level of performance. Moreover, even if only one State were to classify a teacher preparation program provided through distance education as low-performing or at-risk, this fact should raise great concern. Given that prospective teachers in teacher preparation programs provided through distance education may be seeking teaching positions in any of a number of States, they should be aware that one or more States have deemed that certain teacher preparation programs provided through distance education were classified as less than effective. We strongly believe that the States that rated the teacher preparation program provided through distance education as effective will want to work with the program in question to ensure that the program would maintain its effective or better classification, and the States that found the performance of the program to be less than effective would want to work with the program to ensure that the poor performance rating does not recur. Finally, we believe that this proposed provision will help ensure that eligibility to award TEACH grants is limited to IHEs that the Secretary determines provide high-quality teacher preparation, pursuant to HEA section 420L(1)(A).
The Department has analyzed the costs of complying with the proposed regulations in this supplemental NPRM. Due to uncertainty about the total number of distance education programs in the country that would be subject to reporting under these proposed regulations, the current capacity of States in some relevant areas, and the considerable discretion the regulations would provide States (
The following is a detailed analysis of the estimated costs of implementing the specific requirements, including the costs of complying with paperwork-related requirements, followed by a discussion of the anticipated benefits. The burden hours of implementing specific paperwork-related requirements are also shown in the tables in the Paperwork Reduction Act section of this supplemental NPRM.
As noted elsewhere in this supplemental NPRM, these proposed regulations clarify States' responsibilities regarding reporting on teacher preparation programs offered through distance education. Reporting and accountability for such programs were not directly discussed in the original NPRM, and, therefore, were not explicitly included in our original cost estimates. However, upon review of prior State submissions under title II of the HEA, it is clear that at least some States have been reporting on distance education programs, though it is unclear to what extent such reporting was systematic either within or across States. As such, we believe that there will be an increase in the costs and burdens associated with reporting and accountability for such programs relative to our initial estimates.
In order to quantify the extent of these costs and burdens, the Department must first estimate the total number of teacher preparation programs provided through distance education on which reporting will be required. However, this is not a simple task. As noted above, States have not been systematically reporting on such programs, and it is possible that, under the proposed regulations, multiple States will be required to report on the same program (if, for example, a single distance education program produces 25 new teachers who become certified in each of multiple States). To estimate the total number of distance education teacher preparation programs nationwide, we used publicly available data from the Department's Integrated Postsecondary Education Data System (IPEDS).
In the IPEDS Completions survey component, IHEs identify programs of study at their institutions using Classification of Instructional Programs (CIP) codes that correspond to the particular subject area or focus of coursework. For each six-digit CIP code, the first two digits reference a broad area of study (
We first identified education programs nationwide that corresponded to CIP codes (either four or six digits) reported to the Department in the most recent title II reporting period. We then used additional information available in IPEDS to determine whether each of these programs were offered through distance education, the total number of program completers with the specific CIP code in the past year, and their award level (bachelors, Masters, etc.). For purposes of our final analysis, we only included awards of a Bachelor's degree, post-baccalaureate certificate, Master's degree, or post-Master's certificate. This was based on our belief that programs offering other types of academic awards (
As noted elsewhere in this supplemental NPRM, States are required to report in their SRCs on all programs provided through distance education that produce teachers to whom the State has granted State certification; consistent with proposed § 612.4(b)(4), how a State reports depends on whether or not the State certifies at least 25 or more new teachers in any given title II reporting year. However, the IPEDS dataset does not provide the specific number of students in each program who completed the program via distance education, only the total number of completers and whether or not each program is offered via distance education. However, there are several ways to estimate the number of individuals who completed these programs through distance education.
One way of estimating the number of individuals who complete teacher preparation programs offered through distance education is to assume that all individuals who complete a program that has a distance education component did so using the distance education option. This would, of course, provide the highest estimate for the total number of distance education students. However, it would fail to account for programs (unique CIP code/degree level/institution combinations) that are offered both on-site and through distance education and offer only a single degree (
IPEDS does offer data on the total number of individuals enrolled in programs through distance education at the institution level, but does not do so at the program (CIP code) level. However, as an alternative to the first methodology, we could use the institution-wide distance education rate as a proxy for the percentage of students in the teacher preparation program enrolled via distance education (
Despite the improvements that an enrollment rate for distance education programs may make to our estimates, the requirements on reporting of distance education programs apply, under existing regulations, and these proposed regulations, to all teacher preparation programs in the State. As such, we assume that States would have already reported on such programs operating in their State in the current Title II data collection. In that instance, costs associated with these programs would have been included in the regulatory impact analysis in the December 3, 2014 NPRM. For example, if 70 percent of students in a teacher preparation program in Ohio are enrolled in a distance education program, and all of the program graduates become newly certified teachers in Ohio, the status of those recent graduates as distance education graduates would not result in any additional cost or burden on Ohio or other States because Ohio would have already been responsible for reporting on the program under the existing Title II data collection, and therefore costs related to implementing our proposed regulations are already a part of the cost estimates in our December 2014 NPRM (which used the current number of programs reported under title II of the HEA as a baseline).
Therefore, we believe that the best approach to estimating the costs of the regulations proposed in this supplemental NPRM is to use the number of students enrolled via distance education who, during the time they are enrolled, are located in a State or jurisdiction other than the one in which the institution is located.
Once we have developed an estimate of the number of program completers for each program (unique CIP code/degree/institution combination), we must calculate the total number of programs on which States will be reporting. As provided in proposed § 612.4(b)(4), a State would be required to report on any teacher preparation program that produces 25 or more new teachers in a given reporting year and smaller programs, subject to a number of aggregation methods. While we do not have data on the number of new teachers produced by each of the distance teacher preparation programs in our database for this analysis, as stated above, we will assume that all program completers become new teachers in the State where they were located when completing the course. This will result in an overestimate of the reporting burden on States, as not all individuals completing such distance education programs will become new teachers. Using our dataset, we determined that 710 programs nationally had at least 25 program completers. Using the out-of-State distance education estimate as described above, there would only be 109 programs that required annual reporting beyond those in our initial estimates (which included 26,589 programs
In addition to having States report on those programs that produce 25 or more new teachers in a given reporting year, proposed § 612.4(b)(4)(ii) provides options for aggregating smaller programs that produce fewer teachers each year. Beginning with § 612.4(b)(4)(ii)(A), one option a State has is to aggregate data across programs operated by the same teacher preparation entity that are similar to or broader than the program in content. In order to estimate the number of additional programs that this provision would add to the calculations, we aggregated data for programs with fewer than 25 program completers with
Under proposed § 612.4(b)(4)(ii)(B), States could alternatively aggregate small programs across reporting years (not to exceed four) until a sufficient program size was reached. In order to estimate the number of additional distance programs that this clause would generate, we determined the number of programs that generated fewer than 25 program completers in a given year that would, if aggregated across no more than four years, generate the required program size. In doing so, we identified a total of only 253 teacher preparation programs provided through distance education nationwide that had 25 or more program completers in a given year or, if aggregated across four years, would have at least 25 program completers.
Under proposed § 612.4(b)(4)(ii)(C), a State may use a combination of the two methods described above in order to meet the program size thresholds. For this estimate, the Department began by determining those programs that either did not have 25 program completers in a given year or would not generate 25 new teachers when aggregated across a number of years, not to exceed four. We then determined how many of the remaining programs could generate the required program size if aggregated with programs at the same institution with similar CIP codes (four digits) and with program completers aggregated across multiple years, not to exceed four. In using all of these combinations, the Department developed an estimate of 295 teacher preparation programs offered through distance education.
To provide upper-bound estimates of the burden these proposed distance education requirements would place on States, the Department used a different methodology to create proxy “programs”—groups of 25 program completers regardless of their actual course of study. First, the Department estimated the maximum number of “programs” on which a State would have to report if students at each institution were divided into the smallest possible programs that met the reporting thresholds (
As stated above, because the proposed regulations would only require additional reporting insofar as students are new teachers certified in States other than the one in which the institution is located, the Department believes that 295 is a reasonable estimate for the total number of additional teacher preparation programs provided through distance education on which States will be required to report beyond the reporting included in our initial estimates contained in the December 2014 NPRM. However, to further capture the maximum increased burden associated with this estimate, the Department further determined the maximum number of reporting instances that these 295 programs could generate. If new teachers from these 295 programs were divided into as many groups of 25 new teachers as possible (thus mandating reporting by the State), we estimate that there would be as many as 812 reporting instances from these 295 programs. As such, in the estimates that follow, we will calculate burden based on 812 additional reports required by States.
The proposed regulations would require that each IHE that conducts a traditional teacher preparation program or alternative route to State certification or licensure program and enrolls students who receive title IV, HEA funds, report to the State on the quality of its program using an institutional report card (IRC) prescribed by the Secretary. While the proposed regulations would shift the data IHEs report from the institutional level to the program level, the IRC would continue to be compiled, reported, and posted by the IHE. Given that the proposed regulations would not change the IHEs that are subject to IRC reporting requirements, we do not believe that there would be any increased costs associated with these proposed regulations above those already included in our estimates. Regardless of whether individual programs are offered via distance or not, we assume that those programs are already included in IRCs. Rather, the impact of the proposed regulations will be to increase the burden on States to report on additional programs that are not located in their States, not to increase the number of programs on which institutions are required to report.
Section 205(b) of the HEA requires each State that receives funds under the HEA to report annually to the Secretary on the quality of teacher preparation in the State, both for traditional teacher preparation programs and for alternative routes to State certification or licensure programs, and to make this report available to the general public. In the cost estimates included in the December 3, 2014 NPRM, the Department assumed it would take the 50 States, the District of Columbia, and the Commonwealth of Puerto Rico, Guam, American Samoa, the United States Virgin Islands, the Commonwealth of the Northern Mariana Islands, and the Freely Associated States, which include the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau 235 hours each to report the required data under the SRC. We estimate that the 812 additional instances of reporting that States would be required to report on under these proposed regulations would result in an 8 hour increase in the time it would take to complete such reports at an annual cost of $12,170. This 8 hour estimate is based on an increase in the time to complete the SRC proportional to the increase in the number of programs on which States will be required to report.
In the original NPRM, the Department also estimated costs associated with States' providing assurances whether each teacher preparation program in the State either: (a) Is accredited by a specialized accrediting agency recognized by the Secretary for accreditation of professional teacher education programs, or (b) provides teacher candidates with content and pedagogical knowledge and quality clinical preparation, and has rigorous teacher candidate entry and exit standards. See proposed § 612.5(a)(4)(i) and (ii), respectively. Using data from the Council for Accreditation of Educator Preparation (CAEP), the Department estimated that States would have to provide the assurances described in proposed § 612.5(a)(4)(ii) for 10,716 programs based at IHEs nationwide in addition to 2,688 programs not associated with IHEs. For purposes of determining the impact that the inclusion of distance education programs would have on this cost, we assume that distance education programs are just as likely as other IHE-based programs to be located at an IHE with specialized accreditation. As such, we estimate that States will have to provide these assurances on 390 of the 812 reporting instances for a total cost of $20,110 (2 hours per reporting instance for 390 reporting instances at $25.78 per hour). Further, we estimate that the annual reporting burden associated with this provision would cost approximately $2,510 (0.25 hours per reporting instance for 390 reporting instances at $25.78 per hour).
States would also be required to annually report on their classification of teacher preparation programs. We estimate that the inclusion of distance education programs in such reporting would increase the cost to States of reporting the classification they had determined for each distance education program by $10,470 (0.5 hours per reporting instance for 812 reporting instances at $25.78 per hour). Additionally, in response to public comment, we have included an additional item of cost in its estimates of the burden associated with the SRCs under the proposed regulations. The Department's estimates now include one hour per program annually for teacher preparation programs to review and verify the data that States will use for accountability purposes. We estimate that this review and verification for distance education programs will increase costs by $20,930 (1 hour per reporting instance for 812 reporting instances at $25.78 per hour).
The Department does not estimate any increase in costs (above those outlined in the December 2014 NPRM) associated with other elements of our initial estimates of the costs of the SRC related to the inclusion of distance education programs as all other estimated costs were flat costs associated with Statewide activities regardless of the number of programs being reported on.
The Department's original estimates calculated the burden associated with reporting on student learning outcomes at the program level. We estimate that such reporting would take approximately 2.5 hours per program per State for a total additional annual cost of $52,330 to report on distance education programs.
In the December 2014 NPRM, we also estimated costs associated with reporting employment outcomes at the program level. Assuming that such reporting would take 3.5 hours per program for 812 reporting instances, we estimate that such reporting would cost approximately $73,270.
Our December 2014 NPRM also proposed that States annually report on the results of teacher and employer surveys. At 1 hour per program, we estimate that such reporting on the 812 reporting instances would cost approximately $20,930 per year.
In the original NPRM, the Department did not account for costs associated with reporting on other indicators that the State may use to assess a program's performance beyond those that would be required by the proposed regulations. Our revised estimates include such
We do not estimate that any other elements of our initial cost estimates not outlined above will increase as a result of these supplemental proposed regulations.
In the following table, we have prepared an accounting statement showing the classification of the expenditures associated with the provisions of these proposed regulations. This table provides our best estimate of the changes in annual monetized costs, benefits, and transfers as a result of the proposed regulations.
As part of its continuing effort to reduce paperwork and respondent burden, the Department provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)). This helps ensure that: the public understands the Department's collection instructions, respondents can provide the requested data in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the Department can properly assess the impact of collection requirements on respondents.
Sections 612.3, 612.4, 612.5, 612.6, 612.7, 612.8, and 686.2 contain information collection requirements. Under the PRA, the Department has submitted a copy of these sections to OMB for its review. A Federal agency may not conduct or sponsor a collection of information unless OMB approves the collection under the PRA and the corresponding information collection instrument displays a currently valid OMB control number.
Notwithstanding any other provision of law, no person is required to comply with, or is subject to penalty for failure to comply with, a collection of information if the collection instrument does not display a currently valid OMB control number.
In the final regulations, we will display the control numbers assigned by OMB to any information collection requirements proposed in this NPRM and adopted in the final regulations.
These proposed regulations execute a statutory requirement that IHEs and States establish an information and accountability system through which IHEs and States report on the performance of their teacher preparation programs. Parts of the proposed regulations in the original NPRM would require IHEs and States to establish or scale up certain systems and processes in order to collect information necessary for annual reporting. As such, IHEs and States may incur one-time start-up costs for developing those systems and processes associated with those proposed regulations. However, nothing in the proposed regulations in this supplemental NPRM would institute any such new requirements beyond those already contemplated in the original NPRM. We therefore do not report any start-up burdens associate with these proposed regulations.
As outlined in the “Discussion of Costs, Benefits, and Transfers” section of this supplemental NPRM, the Department estimates that the inclusion of reporting on distance education programs in SRCs under § 612.4(a) will increase the reporting burden on States by approximately 8 hours each, for a total burden increase of 472 hours.
Under the proposed regulations, States would be required to classify teacher preparation programs each year. We estimate that such classification, using already-gathered indicator data and existing program classification methodologies would take approximately 0.5 hours per program. Applying such estimates to the 812 distance education programs, the total burden associated with classification of distance education programs would be 406 hours (812 programs multiplied by 0.5 hours per program). Aggregating the burdens calculated above, the Department estimates the total annual burden associated with these proposed rules under proposed § 612.4 to be 878 hours.
The Department estimates that each State will require approximately 2.5 hours per program to gather and report data on student learning outcomes for distance education programs, for a total burden of 2,030 hours.
The Department estimates that each State will require 3.5 hours to compile, calculate, and transmit data on the employment outcomes of recent graduates of distance education programs, for a burden of 2,842 hours.
The Department estimates that each State will require 1 hour to report the results of their surveys of new teachers and their employers, for a total burden of 812 hours.
States would also be required to report on whether programs that do not have specialized accreditation meet certain program characteristics. The Department believes that it will take approximately 2 hours per program for a State to make such determinations and an additional 0.25 hours to report on such findings. As discussed in this Supplemental NPRM, the Department estimates that States will only have to do such reviews for 390 distance education programs, for a total of 878 hours.
The Department also estimates that each distance education program will require approximately 1 hour to review and verify State data regarding their program's performance, for a total of 812 hours.
Aggregating the calculated burdens in this section, the Department estimates that these proposed regulations will increase the calculated reporting burden associated with § 612.5 by 7,374 hours.
Aggregating the total burdens calculated under the preceding sections of part 612 results in the following burdens: total burden incurred under § 612.4 is 878 hours and under § 612.5 is 7,374 hours. This totals 8,252 hours nationwide.
We have prepared an Information Collection Request (ICR) for OMB collection 1840-0744. If you want to review and comment on the ICR [ICRs], please follow the instructions in the
The Office of Information and Regulatory Affairs in the Office of Management and Budget (OMB), and the Department of Education review all comments posted at
In preparing your comments you may want to review the ICR, which is available at
We consider your comments on these proposed collections of information in—
• Deciding whether the proposed collections are necessary for the proper performance of our functions, including whether the information will have practical use;
• Evaluating the accuracy of our estimate of the burden of the proposed collections, including the validity of our methodology and assumptions;
• Enhancing the quality, usefulness, and clarity of the information we collect; and
• Minimizing the burden on those who must respond.
OMB is required to make a decision concerning the collections of information contained in these proposed regulations between 30 and 60 days after publication of this document in the
These programs are subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.
This document provides early notification of our specific plans and actions for these programs.
In accordance with section 411 of the General Education Provisions Act, 20 U.S.C. 1221e-4, the Secretary particularly requests comments on whether these proposed regulations would require transmission of information that any other agency or authority of the United States gathers or makes available.
Executive Order 13132 requires us to ensure meaningful and timely input by State and local elected officials in the development of regulatory policies that have federalism implications. “Federalism implications” means 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. The proposed regulations in § 612.4 may have federalism implications, as defined in Executive Order 13132. We encourage State and local elected officials and others to review and provide comments on these proposed regulations.
You may also access documents of the Department published in the
Administrative practice and procedure, Colleges and universities, Education, Elementary and secondary education, Grant programs—education, Reporting and recordkeeping requirements, Student aid.
Administrative practice and procedure, Colleges and universities, Education, Elementary and secondary education, Grant programs—education, Reporting and recordkeeping requirements, Student aid.
For the reasons discussed in the preamble, the Secretary proposes to amend 34 CFR part 612, as proposed to be added at 79 FR 71885, December 3, 2014, and part 686, as proposed to be amended at 79 FR 71889, December 3, 2014, as follows:
20 U.S.C. 1022d, unless otherwise noted.
The addition reads as follows:
(a) * * *
(1) * * *
(ii) The quality of all teacher preparation programs provided through distance education in the State, using procedures for reporting that are consistent with paragraph (b)(4) of this section, but based on whether the program produces at least 25 or fewer than 25 new teachers whom the State certified to teach in a given reporting year; and
20 U.S.C. 1070g,
The additions and revisions read as follows:
(e) * * *
(i) For TEACH Grant program purposes in the 2021-2022 Title IV HEA award year, is not classified by any State as low-performing or at-risk of being low-performing under 34 CFR 612.4(b) in either or both the April 2020 and/or April 2021 State Report Cards, and for TEACH Grant program purposes in the 2022-2023 Title IV HEA award year and subsequent award years, is not classified by any State as low-performing or at-risk of being low-performing under 34 CFR 612.4(b), beginning with the April 2020 State Report Card, for two out of the previous three years; or
(ii) Meets the exception from State reporting of teacher preparation program performance under 34 CFR 612.4(b)(4)(ii)(D) or (E).
(i) At least one high-quality teacher preparation program or high-quality teacher preparation program provided through distance education at the baccalaureate or master's degree level that also provides supervision and support services to teachers, or assists in the provision of services to teachers, such as—
(A) Identifying and making available information on effective teaching skills or strategies;
(B) Identifying and making available information on effective practices in the supervision and coaching of novice teachers; and
(C) Mentoring focused on developing effective teaching skills and strategies;
(ii) A two-year program that is acceptable for full credit in a TEACH Grant-eligible program or a TEACH Grant-eligible STEM program offered by an institution described in paragraph (i) of this definition or a TEACH Grant-eligible STEM program offered by an institution described in paragraph (iii) of this definition, as demonstrated by the institution that provides the two year program;
(iii) A TEACH Grant-eligible STEM program and has entered into an agreement with an institution described in paragraph (i) or (iv) of this definition to provide courses necessary for its students to begin a career in teaching; or
(iv) A high-quality teacher preparation program or high-quality teacher preparation program provided through distance education that is a post-baccalaureate program of study.
Office of Elementary and Secondary Education, Department of Education.
Proposed priority and requirement.
The Assistant Secretary for Elementary and Secondary Education (Assistant Secretary) proposes a priority and a requirement under the Equity Assistance Centers (EAC) Program. The Assistant Secretary may use this priority and this requirement for competitions in fiscal year 2016 and later years. We take this action to encourage applicants with a track record of success or demonstrated expertise in socioeconomic integration strategies that are effective for addressing problems occasioned by the desegregation of schools based on race, national origin, sex, or religion. We intend for the priority and the requirement to help ensure that grant recipients have the capacity to increase socioeconomic diversity to create successful plans for desegregation and
We must receive your comments on or before May 2, 2016.
Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments submitted by fax or by email or those submitted after the comment period. To ensure that we do not receive duplicate copies, please submit your comments only once. In addition, please include the Docket ID at the top of your comments.
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The Department's policy is to make all comments received from members of the public available for public viewing in their entirety on the Federal eRulemaking Portal at
Britt Jung, U.S. Department of Education, 400 Maryland Avenue SW., Room 3E206, Washington, DC 20202-6135. Telephone: (202) 205-4513 or by email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
We invite you to assist us in complying with the specific requirements of Executive Orders 12866 and 13563 and their overall requirement of reducing regulatory burden that might result from this proposed priority and requirement. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the programs.
During and after the comment period, you may inspect all public comments about this notice by accessing Regulations.gov. You may also inspect the comments in person in Room 3E206, 400 Maryland Avenue SW., Washington, DC, between the hours of 8:30 a.m. and 4:00 p.m., Washington, DC time, Monday through Friday of each week except Federal holidays. Please contact the person listed under
20 U.S.C. 1221e-3; 42 U.S.C. 2000c- 2000c-2 and 2000c-5.
We published a notice of proposed rulemaking elsewhere in the
This notice contains one proposed priority.
Under section 403 of title IV of the Civil Rights Act of 1964 (42 U.S.C. 2000c-2), the Secretary is authorized, upon request, to render technical assistance in the preparation, adoption, and implementation of plans for the desegregation of public schools. We propose to add a priority to further the work of the EACs in the desegregation of public schools and, specifically, to promote socioeconomic diversity.
Sixty years after
Children living in concentrated poverty face overwhelming barriers to learning, placing a burden on high-poverty schools and contributing to poor academic and life outcomes for students.
Rumberger, Russell W., and Gregory J. Palardy. (September 2005). “Does Segregation Still Matter? The Impact of Student Composition on Academic Achievement in High School.” Teachers College Record, Columbia University. Volume 107, Number 9, pp 1999-2045. Retrieved from:
Aud, S., W. Hussar, M. Planty, T. Snyder, K. Bianco, M. Fox, L. Frohlich, J. Kemp, and L. Drake. (2010). “The Condition of Education 2010” (NCES 2010-028). National Center for Education Statistics, Institute of Education Sciences, U.S. Department of Education. Washington, DC: Government Printing Office. Retrieved from:
Mulligan, G.M., S. Hastedt, and J.C. McCarroll. (2012). “First-Time Kindergartners in 2010-11: First Findings From the Kindergarten Rounds of the Early Childhood Longitudinal Study, Kindergarten Class of 2010-11” (ECLS-K:2011) (NCES 2012-049). National Center for Education Statistics, U.S. Department of Education. Washington, DC: Government Printing Office. Retrieved from:
Ross, T., G. Kena, A. Rathbun, A. KewalRamani, J. Zhang, P. Kristapovich, and E. Manning. (2012). “Higher Education: Gaps in Access and Persistence Study”
Students attending high-poverty schools continue to have unequal access to—(1) advanced coursework; (2) the most effective teachers; and (3) necessary funding and supports.
Max, Jeffrey and Steven Glazerman (2014). “Do Disadvantaged Students Get Less Effective Teaching? ” U.S. Department of Education, National Center for Education Evaluation and Regional Assistance. Washington, DC: Government Printing Office. Retrieved from:
Gray, Lucinda, et al. Educational Technology in U.S. Public Schools: Fall 2008 (Apr. 2010) (NCES 2010-034). U.S. Department of Education, National Center for Education Statistics, available at:
Wells, John, and Laurie Lewis. Internet Access in U.S. Public Schools and Classrooms: 1994-2005 (November 2006). U.S. Department of Education, National Center for Education Statistics, available at:
Moreover, research shows that States with less socioeconomically diverse schools tend to have larger achievement gaps between low- and higher-income students.
The Department intends to continue our efforts to reduce racial isolation in public schools. However, given the growing body of research showing that socioeconomically diverse schools can lead to improved outcomes for disadvantaged students,
Eligible applicants that have a track record of success or demonstrated expertise in both of the following:
(a) Providing effective and comprehensive technical assistance on strategies or interventions supported by evidence and designed to increase socioeconomic diversity within or across schools, districts, or communities; and
(b) Researching, evaluating, or developing strategies or interventions supported by evidence and designed to increase socioeconomic diversity within or across schools, districts, or communities.
When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the
The Assistant Secretary proposes the following requirement for this program. We may apply this requirement in any year in which this program is in effect.
This notice does
Under Executive Order 12866, the Secretary must determine whether this proposed regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—
(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities in a material way (also referred to as an “economically significant” rule);
(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.
This proposed regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.
We have also reviewed this proposed regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles,
(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”
We are issuing this proposed priority and requirement only on a reasoned determination that its benefits would justify its costs. In choosing among alternative regulatory approaches, we selected those approaches that would maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.
We also have determined that this regulatory action would not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.
In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.
This document provides early notification of our specific plans and actions for this program.
You may also access documents of the Department published in the
National Park Service, Interior.
Proposed rule; extension of public comment period; corrections.
The National Park Service is extending the public comment period for the proposed rule to amend its special regulations for Golden Gate National Recreation Area regarding dog walking. Reopening the comment period for 30 days will allow more time for the public to review the proposal and submit comments. This document also corrects Table 4 to § 7.97 in the proposed rule by removing the designation of Ocean Beach as a Voice and Sight Control Area for walking four to six dogs that was included by an administrative error. The proposed rule also contained a typographical error in the email address for persons to contact the NPS for further information. The correct email address is
The comment period for the proposed rule that published on February 24, 2016 (81 FR 9139), is extended. Comments must be received by 11:59 p.m. EDT on May 25, 2016.
You may submit comments, identified by Regulation Identifier Number (RIN) 1024-AE16, by any of the following methods:
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Golden Gate National Recreation Area, Attn: Public Affairs Office (Alexandra Picavet), Fort Mason, Building 201, San Francisco, CA, 94123. Phone: (415) 561-4728. Email:
On February 24, 2014, the National Park Service (NPS) published in the
To view comments received through the Federal eRulemaking portal, go to
In the proposed rule on page 9150, make the following correction in Table 4 to § 7.97—Voice and Sight Control or On-Leash Dog Walking: Four to Six Dogs: Remove and reserve paragraph (E). This correction removes the designation of Ocean Beach as a Voice and Sight Control Area for walking four to six dogs, which was never intended to be designated this way and was included in Table 4 by an administrative error.
In the proposed rule, on page 9140 in the first column, in the
Forest Service, USDA.
Notice of meeting.
The Bighorn Resource Advisory Committee (RAC) will meet in Greybull, Wyoming. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act. RAC information can be found online at
The meeting will be held Thursday, May 12, 2016, at 3:00 p.m.
All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under
The meeting will be held at Medicine Wheel District Office, 95 Highway 16/20, Greybull, Wyoming.
Written comments may be submitted as described under
Christopher D. Jones, RAC Coordinator, by phone at 307-674-2627 or via email at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
The purpose of the meeting is to:
1. Update the RAC on the status of existing Title II projects, and
2. Consider project proposals for the current year.
The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by April 28, 2016, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time for oral comments must be sent to Christopher D. Jones, RAC Coordinator, 2013 Eastside 2nd Street, Sheridan, Wyoming 82801; by email to
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
Aspen Skiing Company (ASC) has submitted a proposal to the White River National Forest (WRNF) to pursue approval of select projects from the 2015 Snowmass Mountain Master Development Plan (SMMDP) at Snowmass Ski Area (Snowmass). The WRNF has accepted this proposal and is initiating the preparation of an Environmental Impact Statement (EIS) to analyze and disclose the potential environmental effects of implementing the projects. The Proposed Action includes: Mountain biking and hiking trails; a mountain coaster; a canopy tour and zip line; a challenge course; a climbing wall; and multi-purpose activity areas.
Comments concerning the scope of the analysis must be received May 2, 2016. A public open house regarding this proposal will be held on April 7, 2016 from 6:00 p.m. to 8:00 p.m. at the Treehouse Kids Adventure Center, Eagle Peak Room (120 Lower Carriage Way, Snowmass Village, CO 81615). The venue is on the west end of the Base Village Plaza, just downhill of the Village Express Chairlift. The draft environmental impact statement is expected to be available for public review in summer 2016, and the final environmental impact statement is expected winter 2017.
Send written comments to: Scott Fitzwilliams, Forest Supervisor, c/o Roger Poirier, Project Leader, 900 Grand Avenue, Glenwood Springs, CO 81601, FAX: (970) 963-1012 (please include “Snowmass Multi-Season Recreation Projects” in the subject line).
Additional information related to the proposed project can be obtained from: Roger Poirier, Project Leader. Mr. Poirier can be reached by phone at (970) 945-3245 or by email at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.
Interest in summer outdoor recreation at ski areas has grown nationwide in
Snowmass has been offering summer recreation opportunities since the 1990s and has utilized the Elk Camp area as the designated hub for these activities since 2009. The various programs currently offered have proven to be popular and well-received by guests. These opportunities primarily include dispersed activities, specifically lift-served hiking and mountain biking via the Elk Camp Gondola and Chairlift, and dispersed activities on multiple-use trails on the western side of the mountain.
The activities at Snowmass are fairly limited to a spectrum of visitors that have the physical ability and skillset to participate. There are few opportunities for developed recreation that enable guests without a particular level of skill or experience to engage in adventure or thrill-based experiences.
There is a desire to offer a range of experiences to engage current Forest users as well as encourage new users to visit and experience National Forest System (NFS) lands. Currently at Snowmass there is a lack of recreational opportunities that provide:
• Adventure or thrill-based experiences that require little specialized knowledge, skills, equipment or familiarity with the mountain environment—elements which can be a barrier for visitors (
• Sufficient supply and variety of mountain biking trails serving a wide range of ability levels;
• Settings for educational and interpretive programs and events; and
• Activity-based interaction with a forested, mountain environment in a controlled setting, offering an opportunity for users to interact with and learn about nature.
There is a need for a broad and diverse mix of multi-season recreational activities that collectively provide the public with a range of outdoor activities from passive to active, intimate to interactive, and serve a range of personal interests, skills and abilities among guests.
The Proposed Action includes the construction of the following elements:
• Approximately 16 miles of new mountain biking and hiking trails;
• A mountain coaster in the Elk Camp vicinity;
• A canopy tour near Elk Camp Meadows;
• A zip line down to the Gondola Turn Station;
• A challenge course in the Elk Camp Meadows area;
• A permanent climbing wall within the former Café Suzanne restaurant site;
• Multi-purpose activity areas.
A full description of each element can be found at
The Responsible Official is Scott Fitzwilliams, Forest Supervisor for the WRNF.
Based on the analysis that will be documented in the forthcoming EIS, the Responsible Official will decide whether or not to implement, in whole or in part, the Proposed Action or another alternative that may be developed by the Forest Service as a result of scoping.
This notice of intent initiates the scoping process, which guides the development of the environmental impact statement. The Forest Service is soliciting comments from Federal, State and local agencies and other individuals or organizations that may be interested in or affected by implementation of the proposed projects. A public open house regarding this proposal will be held on April 7, 2016 from 6:00 p.m. to 8:00 p.m. at the Treehouse Kids Adventure Center, Eagle Peak Room (120 Lower Carriage Way, Snowmass Village, CO 81615). The venue is on the west end of the Base Village Plaza, just downhill of the Village Express Chairlift. Continuous bus service is available via RFTA or TOSV bus systems, and free parking is available in the Base Village Parking Garage after 5:00 p.m. Representatives from the WRNF and ASC will be present to answer questions and provide additional information on this project.
To be most helpful, comments should be specific to the project area and should identify resources or effects that should be considered by the Forest Service. Submitting timely, specific written comments during this scoping period or any other official comment period establishes standing for filing objections under 36 CFR parts 218 A and B. Additional information and maps of this proposal can be found at:
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.
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Wisconsin Advisory Committee (Committee) will hold a meeting on Wednesday, April 27, 2016, at 12:00 p.m. CDT for the purpose of discussing approval of a project proposal to hear current testimony on hate crime in the state.
This meeting is open to the public through the following toll-free call-in number: 888-438-5525, conference ID: 2447433. Any interested member of the public may call this number and listen to the meeting. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number.
Member of the public are invited to make statements to the Committee during the scheduled open comment period. In addition, members of the public may submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Regional Programs Unit, U.S. Commission on Civil Rights, 55 W. Monroe St., Suite 410, Chicago, IL 60615. They may also be faxed to the Commission at (312) 353-8324, or emailed to Carolyn Allen at
Records and documents discussed during the meeting will be available for public viewing prior to and after the meeting at
The meeting will be held on Wednesday, April 27, 2016, at 12:00 p.m. CDT.
Melissa Wojnaroski, DFO, at 312-353-8311 or
United States Commission on Civil Rights.
Solicitation of applications; correction.
The U.S. Commission on Civil Rights published a document in the
David Mussatt, Chief, Regional Programs Unit, 55 W. Monroe St., Suite 410, Chicago, IL 60603, (312) 353-8311.
In the
Because the terms of the members of the Hawaii Advisory Committee are expiring on June 19, 2016, the United States Commission on Civil Rights hereby invites any individual who is eligible to be appointed to apply.
In the
Because the terms of the members of the California Advisory Committee are expiring on June 19, 2016, the United States Commission on Civil Rights hereby invites any individual who is eligible to be appointed to apply.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
The Act establishes the First Responder Network Authority (FirstNet) as an independent authority within NTIA and authorizes it to take all actions necessary to ensure the design, construction, and operation of the NPSBN, based on a single, national network architecture.
The Act also charges NTIA with establishing a grant program, the State and Local Implementation Grant Program (SLIGP), to assist State, regional, tribal, and local jurisdictions with identifying, planning, and implementing the most efficient and effective means to use and integrate the infrastructure, equipment, and other architecture associated with the NPSBN to satisfy the wireless broadband and data services needs of their jurisdictions. The SLIGP program office awarded $116.5 million in grant funds to 54 active state and territorial recipients between July and September 2013. NTIA will use the collection of information to monitor and evaluate how SLIGP recipients are achieving the core purposes of the program established by the Act.
The original approval of the performance progress report form was obtained on August 1, 2013, and the current form has an expiration date of August 31, 2016. The publication of this notice allows NTIA to begin the process to extend the approval for the standard three years, with a minor adjustment to the wording on the form to more clearly indicate how recipients are to report each measure.
This request is for an extension (revision with change) of a current information collection.
NTIA published a Notice in the
This information collection request may be viewed at reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
This information collection request may be viewed at reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Brenda E. Waters, Office of AD/CVD Operations, Customs Liaison Unit, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230, telephone: (202) 482-4735.
Each year during the anniversary month of the publication of an antidumping or countervailing duty order, finding, or suspended investigation, an interested party, as defined in section 771(9) of the Tariff Act of 1930, as amended (“the Act”), may request, in accordance with 19 CFR 351.213, that the Department of Commerce (“the Department”) conduct an administrative review of that antidumping or countervailing duty order, finding, or suspended investigation.
All deadlines for the submission of comments or actions by the Department discussed below refer to the number of calendar days from the applicable starting date.
In the event the Department limits the number of respondents for individual examination for administrative reviews initiated pursuant to requests made for the orders identified below, the Department intends to select respondents based on U.S. Customs and Border Protection (“CBP”) data for U.S. imports during the period of review. We intend to release the CBP data under Administrative Protective Order (“APO”) to all parties having an APO within five days of publication of the initiation notice and to make our decision regarding respondent selection within 21 days of publication of the initiation
In the event the Department decides it is necessary to limit individual examination of respondents and conduct respondent selection under section 777A(c)(2) of the Act:
In general, the Department finds that determinations concerning whether particular companies should be “collapsed” (
Pursuant to 19 CFR 351.213(d)(1), a party that requests a review may withdraw that request within 90 days of the date of publication of the notice of initiation of the requested review. The regulation provides that the Department may extend this time if it is reasonable to do so. In order to provide parties additional certainty with respect to when the Department will exercise its discretion to extend this 90-day deadline, interested parties are advised that, with regard to reviews requested on the basis of anniversary months on or after April 2016, the Department does not intend to extend the 90-day deadline unless the requestor demonstrates that an extraordinary circumstance prevented it from submitting a timely withdrawal request. Determinations by the Department to extend the 90-day deadline will be made on a case-by-case basis.
The Department is providing this notice on its Web site, as well as in its “Opportunity to Request Administrative Review” notices, so that interested parties will be aware of the manner in which the Department intends to exercise its discretion in the future.
In accordance with 19 CFR 351.213(b), an interested party as defined by section 771(9) of the Act may request in writing that the Secretary conduct an administrative review. For both antidumping and countervailing duty reviews, the interested party must specify the individual producers or exporters covered by an antidumping finding or an antidumping or countervailing duty order or suspension agreement for which it is requesting a review. In addition, a domestic interested party or an interested party described in section 771(9)(B) of the Act must state why it desires the Secretary to review those particular producers or exporters. If the interested party intends for the Secretary to review sales of merchandise by an exporter (or a producer if that producer also exports merchandise from other suppliers) which was produced in more than one country of origin and each country of origin is subject to a separate order, then the interested party must state specifically, on an order-by-order basis, which exporter(s) the request is intended to cover.
Note that, for any party the Department was unable to locate in prior segments, the Department will not accept a request for an administrative review of that party absent new information as to the party's location. Moreover, if the interested party who files a request for review is unable to locate the producer or exporter for which it requested the review, the interested party must provide an explanation of the attempts it made to locate the producer or exporter at the same time it files its request for review, in order for the Secretary to determine if the interested party's attempts were reasonable, pursuant to 19 CFR 351.303(f)(3)(ii).
As explained in
Further, as explained in
Following initiation of an antidumping administrative review when there is no review requested of the NME entity, the Department will instruct CBP to liquidate entries for all exporters not named in the initiation notice, including those that were suspended at the NME entity rate.
All requests must be filed electronically in Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (“ACCESS”) on Enforcement and Compliance's ACCESS Web site at
The Department will publish in the
For the first administrative review of any order, there will be no assessment of antidumping or countervailing duties on entries of subject merchandise entered, or withdrawn from warehouse, for consumption during the relevant provisional-measures “gap” period of the order, if such a gap period is applicable to the period of review.
This notice is not required by statute but is published as a service to the international trading community.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Every five years, pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”), the Department of Commerce (“the Department”) and the International Trade Commission automatically initiate and conduct a review to determine whether revocation of a countervailing or antidumping duty order or termination of an investigation suspended under section 704 or 734 of the Act would be likely to lead to continuation or recurrence of dumping or a countervailable subsidy (as the case may be) and of material injury.
The following Sunset Reviews are scheduled for initiation in May 2016 and will appear in that month's Notice of Initiation of Five-Year Sunset Review (“Sunset Review”).
The Department's procedures for the conduct of Sunset Reviews are set forth in 19 CFR 351.218. The Notice of Initiation of Five-Year (“Sunset”) Reviews provides further information regarding what is required of all parties to participate in Sunset Reviews.
Pursuant to 19 CFR 351.103(c), the Department will maintain and make available a service list for these proceedings. To facilitate the timely preparation of the service list(s), it is requested that those seeking recognition as interested parties to a proceeding contact the Department in writing within 10 days of the publication of the Notice of Initiation.
Please note that if the Department receives a Notice of Intent to Participate from a member of the domestic industry within 15 days of the date of initiation,
This notice is not required by statute but is published as a service to the international trading community.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
In accordance with section 751(c) of the Tariff Act of 1930, as amended (“the Act”), the Department of Commerce (“the Department”) is automatically initiating the five-year review (“Sunset Review”) of the antidumping and countervailing duty (“AD/CVD”) orders listed below. The International Trade Commission (“the Commission”) is publishing concurrently with this notice its notice of
The Department official identified in the
The Department's procedures for the conduct of Sunset Reviews are set forth in its
In accordance with 19 CFR 351.218(c), we are initiating Sunset Reviews of the following antidumping and countervailing duty orders:
As a courtesy, we are making information related to sunset proceedings, including copies of the pertinent statute and Department's regulations, the Department's schedule for Sunset Reviews, a listing of past revocations and continuations, and current service lists, available to the public on the Department's Web site at the following address: “
This notice serves as a reminder that any party submitting factual information in an AD/CVD proceeding must certify to the accuracy and completeness of that information.
On April 10, 2013, the Department modified two regulations related to AD/CVD proceedings: The definition of factual information (19 CFR 351.102(b)(21)), and the time limits for the submission of factual information (19 CFR 351.301).
Pursuant to 19 CFR 351.103(d), the Department will maintain and make available a public service list for these proceedings. Parties wishing to participate in any of these five-year reviews must file letters of appearance as discussed at 19 CFR 351.103(d)). To facilitate the timely preparation of the public service list, it is requested that those seeking recognition as interested parties to a proceeding submit an entry of appearance within 10 days of the publication of the Notice of Initiation.
Because deadlines in Sunset Reviews can be very short, we urge interested parties who want access to proprietary information under administrative protective order (“APO”) to file an APO application immediately following publication in the
Domestic interested parties, as defined in section 771(9)(C), (D), (E), (F), and (G) of the Act and 19 CFR 351.102(b), wishing to participate in a Sunset Review must respond not later than 15 days after the date of publication in the
If we receive an order-specific notice of intent to participate from a domestic interested party, the Department's regulations provide that
This notice of initiation is being published in accordance with section 751(c) of the Act and 19 CFR 351.218(c).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Keith Haynes at (202) 482-5139, AD/CVD Operations, Enforcement and Compliance, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.
On March 3, 2016, the Department of Commerce (“Department”) received an antidumping duty (“AD”) petition concerning imports of 1,1,1,2-Tetrafluoroethane (“R-134a”) from the People's Republic of China (“PRC”), filed in proper form on behalf of the American HFC Coalition and its individual members,
On March 8, 2016, the Department requested additional information and clarification of certain areas of the Petition.
In accordance with section 732(b) of the Tariff Act of 1930, as amended (“the Act”), Petitioners alleged that imports of R-134a from the PRC are being, or are likely to be, sold in the United States at less than fair value within the meaning of section 731 of the Act, and that such imports are materially injuring, or threatening material injury to, an industry in the United States. Also, consistent with section 732(b)(1) of the Act, the Petition is accompanied by information reasonably available to Petitioners supporting their allegations.
The Department finds that Petitioners filed the Petition on behalf of the domestic industry because Petitioners are interested parties as defined in sections 771(9)(C),(D), and (F) of the Act. The Department also finds that Petitioners demonstrated sufficient industry support with respect to the initiation of the AD investigation that Petitioners are requesting.
Pursuant to 19 CFR 351.204(b)(1), because the Petition was filed on March 3, 2016, the period of investigation (“POI”) is July 1, 2015 through December 31, 2015.
The product covered by this investigation is R-134a from the PRC. For a full description of the scope of this investigation,
During our review of the Petition, the Department issued questions to, and received responses from, Petitioners pertaining to the proposed scope to ensure that the scope language in the Petition would be an accurate reflection of the products for which the domestic industry is seeking relief.
As discussed in the preamble to the Department's regulations,
The Department requests that any factual information the parties consider relevant to the scope of the investigation be submitted during this time period. However, if a party subsequently finds that additional factual information pertaining to the scope of the investigation may be relevant, the party may contact the Department and request permission to submit the additional information.
All submissions to the Department must be filed electronically using Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (“ACCESS”).
The Department requests comments from interested parties regarding the appropriate physical characteristics of R-134a to be reported in response to the Department's AD questionnaires. This information will be used to identify the key physical characteristics of the subject merchandise in order to report the relevant factors and costs of production accurately as well as to develop appropriate product-comparison criteria.
Interested parties may provide any information or comments that they feel are relevant to the development of an accurate list of physical characteristics. Specifically, they may provide comments as to which characteristics are appropriate to use as: (1) General product characteristics and (2) product-comparison criteria. We note that it is not always appropriate to use all product characteristics as product-comparison criteria. We base product-comparison criteria on meaningful commercial differences among products. In other words, although there may be some physical product characteristics utilized by manufacturers to describe R-134a, it may be that only a select few product characteristics take into account commercially meaningful physical characteristics. In addition, interested parties may comment on the order in which the physical characteristics should be used in matching products. Generally, the Department attempts to list the most important physical characteristics first and the least important characteristics last.
In order to consider the suggestions of interested parties in developing and issuing the AD questionnaires, all comments must be filed by 5:00 p.m. ET on Tuesday, April 12, 2016, which is twenty calendar days from the signature date of this notice. Any rebuttal comments must be filed by 5:00 p.m. ET on Tuesday, April 19, 2016, which is seven calendar days from the initial comments deadline. All comments and submissions to the Department must be filed electronically using ACCESS, as explained above, on the record of this investigation.
Section 732(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 732(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 732(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the “industry.”
Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (“ITC”), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product,
Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation” (
With regard to the domestic like product, Petitioners do not offer a definition of the domestic like product distinct from the scope of the investigation. Based on our analysis of the information submitted on the record, we have determined that R-134a, as defined in the scope, constitutes a single domestic like product and we have analyzed industry support in terms of that domestic like product.
In determining whether Petitioners have standing under section 732(c)(4)(A) of the Act, we considered the industry support data contained in the Petition with reference to the domestic like product as defined in the “Scope of the Investigation,” in Appendix I of this notice. To establish industry support, Petitioners provided the 2015 production of the domestic like product by the members of the American HFC Coalition that produce R-134a in the United States (Arkema Inc., The Chemours Company FC LLC, and Mexichem Fluor Inc.).
Our review of the data provided in the Petition and other information readily available to the Department indicates that Petitioners have established industry support.
The Department finds that Petitioners filed the Petition on behalf of the domestic industry because they are interested parties as defined in sections 771(9)(C), (D), and (F) of the Act and they have demonstrated sufficient industry support with respect to the AD investigation that they are requesting the Department initiate.
Petitioners allege that the U.S. industry producing the domestic like product is being materially injured, or is threatened with material injury, by reason of the imports of the subject merchandise sold at less than normal value (“NV”). In addition, Petitioners allege that subject imports exceed the negligibility threshold provided for under section 771(24)(A) of the Act.
Petitioners contend that the industry's injured condition is illustrated by reduced market share, underselling and price suppression or depression, adverse impact on capacity, capacity utilization, and employment, decline in shipments and output, negative impact on sales revenues and operating profits, and lost sales and revenues.
The following is a description of the allegations of sales at less-than-fair value upon which the Department based its decision to initiate an investigation of imports of R-134a from the PRC. The sources of data for the deductions and adjustments relating to U.S. price and NV are discussed in greater detail in the Initiation Checklist.
Petitioners based export price (“EP”) on several sources in order to reflect the various packaging of R-134a.
Petitioners note that, for purposes of the antidumping statute, the Department treats the PRC as a nonmarket economy (“NME”) country.
Petitioners claim that Mexico is an appropriate surrogate country because it is a market economy that is at a level of economic development comparable to that of the PRC, it is a significant producer of comparable merchandise,
Based on the information provided by Petitioners, we consider it appropriate to use Mexico as the surrogate country for initiation purposes. Interested parties will have the opportunity to submit comments regarding surrogate country selection and, pursuant to 19 CFR 351.301(c)(3)(i), will be provided an opportunity to submit publicly available information to value FOPs within 30 days before the scheduled date of the preliminary determination.
Petitioners based the FOPs for materials, labor, and energy on the production experience of a domestic producer of R-134a, as they did not have access to the consumption rates of PRC producers of R-134a.
For direct materials, Petitioners valued these inputs based on publicly available Mexican import data obtained from the Global Trade Atlas (“GTA”) for the period covering June 2015 through November 2015, the most recent POI-contemporaneous data available at the time the Petition was filed.
Petitioners valued labor using data specific to the “manufacture of other chemical products (ISIC-Rev.3)” in Mexico published by the International Labor Organization (“ILO”).
Petitioners valued packing inputs using Mexican GTA import data for the period covering June 2015 to November 2015.
Petitioners calculated consumption rates for electricity based on the production experience of a domestic producer.
Petitioners calculated surrogate financial ratios (
Based on the data provided by Petitioners, there is reason to believe that imports of R-134a from the PRC are being, or are likely to be, sold in the United States at less than fair value. Based on comparisons of EP to NV, in accordance with section 773(c) of the Act, the estimated dumping margins for R-134a from the PRC range from 153.68 to 220.87 percent.
Based upon the examination of the AD Petition on R-134a from the PRC, we find that the Petition meets the requirements of section 732 of the Act. Therefore, we are initiating an AD investigation to determine whether imports of R-134a from the PRC are being, or are likely to be, sold in the United States at less than fair value. In accordance with section 733(b)(1)(A) of the Act and 19 CFR 351.205(b)(1), unless postponed, we will make our preliminary determinations no later than 140 days after the date of this initiation.
On June 29, 2015, the President of the United States signed into law the Trade Preferences Extension Act of 2015, which made certain amendments to the AD and CVD law.
Petitioners named thirty-three companies from the PRC as producers/
Exporters/producers of R-134a from the PRC that do not receive Q&V questionnaires by mail may still submit a response to the Q&V questionnaire and can obtain a copy from the Enforcement and Compliance Web site. The Q&V response must be submitted by the relevant PRC exporters/producers no later than April 6, 2016, which is two weeks from the signature date of this notice. All Q&V responses must be filed electronically via ACCESS.
In order to obtain separate-rate status in an NME investigation, exporters and producers must submit a separate-rate application.
The Department will calculate combination rates for certain respondents that are eligible for a separate rate in an NME investigation. The Separate Rates and Combination Rates Bulletin states:
In accordance with section 732(b)(3)(A) of the Act and 19 CFR 351.202(f), copies of the public version of the Petition have been provided to the government of the PRC via ACCESS. To the extent practicable, we will attempt to provide a copy of the public version of the Petition to each exporter named in the Petition, as provided under 19 CFR 351.203(c)(2).
We will notify the ITC of our initiation, as required by section 732(d) of the Act.
The ITC will preliminarily determine, within 45 days after the date on which the Petition was filed, whether there is a reasonable indication that imports of R-134a from the PRC are materially injuring or threatening material injury to a U.S. industry.
Factual information is defined in 19 CFR 351.102(b)(21) as: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by the Department; and (v) evidence other than factual information described in (i)-(iv). Any party, when submitting factual information, must specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted
Parties may request an extension of time limits before the expiration of a time limit established under 19 CFR 351, or as otherwise specified by the Secretary. In general, an extension request will be considered untimely if it is filed after the expiration of the time limit established under 19 CFR 351 expires. For submissions that are due from multiple parties simultaneously, an extension request will be considered untimely if it is filed after 10:00 a.m. ET on the due date. Under certain circumstances, we may elect to specify a different time limit by which extension requests will be considered untimely for submissions which are due from multiple parties simultaneously. In such a case, we will inform parties in the letter or memorandum setting forth the deadline (including a specified time) by which extension requests must be filed to be considered timely. An extension request must be made in a separate, stand-alone submission; under limited circumstances we will grant untimely-filed requests for the extension of time limits.
Any party submitting factual information in an AD or CVD proceeding must certify to the accuracy and completeness of that information.
Interested parties must submit applications for disclosure under administrative protective order (“APO”) in accordance with 19 CFR 351.305. On January 22, 2008, the Department published
This notice is issued and published pursuant to section 777(i) of the Act.
The product subject to this investigation is 1,1,1,2-Tetrafluoroethane, R-134a, or its chemical equivalent, regardless of form, type, or purity level. The chemical formula for 1,1,1,2-Tetrafluoroethane is CF
Merchandise covered by the scope of this investigation is currently classified in the Harmonized Tariff Schedule of the United States (“HTSUS”) at subheading 2903.39.2020. Although the HTSUS subheading and CAS registry number are provided for convenience and customs purposes, the written description of the scope is dispositive.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; request for comments.
The Assistant Regional Administrator for Sustainable Fisheries, Greater Atlantic Region, NMFS, has made a preliminary determination that an Exempted Fishing Permit application submitted by the Northeast Fisheries Science Center contains all of the required information and warrants further consideration.
Regulations under the Magnuson-Stevens Fishery Conservation and Management Act require publication of this notification to provide interested parties the opportunity to comment on Exempted Fishing Permit applications.
Comments must be received on or before April 18, 2016.
You may submit written comments by any of the following methods:
•
•
Daniel Luers, Fishery Management Specialist, 978-282-8457,
The Northeast Fisheries Science Center (NEFSC) submitted a complete application for an Exempted Fishing Permit (EFP) on March 4, 2016, to enable data collection activities that the regulations on commercial fishing would otherwise restrict. The EFP would exempt 36 federally permitted commercial fishing vessels from the regulations detailed below while participating in the Study Fleet Program and operating under projects managed by the NEFSC. The EFP would exempt participating vessels from: Minimum fish size restrictions; fish possession limits for species not protected under the Endangered Species Act (ESA); gear-specific fish possession restrictions for the purpose of at-sea sampling; and, in limited situations for research purposes only, retaining and landing prohibited fish species.
The NEFSC Study Fleet Program was established in 2002 to more fully characterize commercial fishing operations and to leverage sampling opportunities to augment NMFS data collection programs. Participating vessels are contracted by NEFSC to collect tow-by-tow catch and environmental data, and to fulfill specific biological sampling needs identified by NEFSC. To collect these data, the NEFSC Study Fleet Program has obtained an EFP to secure the necessary waivers needed by the vessels to possess and land fish that would otherwise be prohibited by regulations.
Fishing vessel crews trained by the NEFSC Study Fleet Program would sort, weigh, and measure fish that are to be discarded. In the course of sampling, some discarded species would be on deck slightly longer than under normal sorting procedures, which requires an exemption from the following restrictions: Minimum fish size; fish possession limits; prohibited fish species, not including species protected under the ESA; and gear-specific fish possession restrictions for at-sea sampling.
Participating vessels would also be authorized to retain and land, in limited situations for research purposes only, fish species and/or sizes that are not in compliance with fishing regulations. The vessels would be authorized to retain specific amounts of particular species in whole or round weight condition, which would be delivered upon landing to Study Fleet Program technicians. To ensure that the collection needs of the Study Fleet Program are not exceeded, NEFSC would require participating vessels to obtain a formal Biological Sampling Request from the NEFSC Study Fleet Program prior to landing any sublegal fish. None of the landed biological samples from these trips would be sold for commercial use or utilized for any purpose other than scientific research.
The table below details the regulations from which the participating vessels would be exempt when retaining and landing fish for research purposes. The participating vessels would be obligated to comply with all applicable
As described above, biological samples would only be landed and collected by the Study Fleet Program after a formal request has been issued in writing by the Study Fleet Program. The following are the Study Fleet Program's sampling needs.
If approved, the applicant may request minor modifications and extensions to the EFP throughout the year. EFP modifications and extensions may be granted without further notice if they are deemed essential to facilitate completion of the proposed research and have minimal impact that does not change the scope of the initially approved EFP request. Any fishing activity conducted outside the scope of the exempted fishing activity would be prohibited.
16 U.S.C. 1801
Notice of renewal of the Advisory Committee on Commercial Remote Sensing.
In accordance with the provisions of the Federal Advisory Committee Act, 5 U.S.C. App 2, and the General Services Administration (GSA) rule on Federal Advisory Committee Management, 41 CFR part 101-6, and after consultation with GSA, the Secretary of Commerce has determined that the renewal of the Advisory Committee on Commercial Remote Sensing (ACCRES) is in the public interest in connection with the performance of duties imposed on the Department by law. ACCRES was renewed on March 9, 2016.
The Committee was first established in May 2002, to advise the Under Secretary of Commerce for Oceans and Atmosphere on matters relating to the U.S. commercial remote-sensing industry and NOAA's activities to carry out the responsibilities of the Department of Commerce set forth in the National and Commercial Space Programs Act of 2010 (The Act) Title 51 U.S.C. 60101
ACCRES will have a fairly balanced membership consisting of approximately 9 to 20 members serving in a representative capacity. All members should have expertise in remote sensing, space commerce or a related field. Additionally, ACCRES may include members from government to assist in providing guidance on regulations and space policy. Each candidate member shall be recommended by the Assistant Administrator and shall be appointed by the Under Secretary for a term of two years at the discretion of the Under Secretary.
The Committee will function solely as an advisory body, and in compliance with provisions of the Federal Advisory Committee Act. Copies of the Committee's revised Charter have been filed with the appropriate committees of the Congress and with the Library of Congress.
Samira Patel, Commercial Remote Sensing Regulatory Affairs Office, NOAA Satellite and Information Services, 1335 East-West Highway, Room 8247, Silver Spring, Maryland 20910; telephone (301) 713-7077, email
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Caribbean Fishery Management Council's Scientific and Statistical Committee (SSC) will hold a three-day meeting to discuss the items contained in the following agenda:
The meetings will be held on April 19 through April 21, 2016.
The meetings will be held at the Council' Office, 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico.
Caribbean Fishery Management Council, 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico 00918-1903; telephone: (787) 766-5926.
The Caribbean Fishery Management Council's SSC will hold a three-day meeting to discuss the items contained in the following agenda:
This meeting is physically accessible to people with disabilities. For more information or request for sign language interpretation and other auxiliary aids, please contact Mr. Miguel A. Rolón, Executive Director, Caribbean Fishery Management Council, 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico, 00918-1903, telephone (787) 766-5926, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Gulf of Mexico and South Atlantic Fishery Management Councils will hold a Joint Spiny Lobster Advisory Panel (AP) meeting.
The meeting will convene on Monday, April 25, 2016, 9 a.m. to 5 p.m.
The meeting will take place at the Marriott Key Largo Bay hotel, 103800 Overseas Highway, Mile Marker 103.8, Key Largo, FL 33037; telephone: (305) 453-0000.
Dr. Morgan Kilgour, Fishery Biologist, Gulf of Mexico Fishery Management Council;
The meeting will begin with election of a chair and vice chair for the Gulf advisory panel (AP); the South Atlantic AP will hold elections later in the meeting. The first item on the agenda is to review spiny lobster landings and the
—Meeting Adjourns—
The Agenda is subject to change, and the latest version along with other meeting materials will be posted on the Council's file server. To access the file server, the URL is
The meeting will be webcast over the internet. A link to the webcast will be available on the Council's Web site,
Although other non-emergency issues not on the agenda may come before the Advisory Panel for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, those issues may not be the subject of formal action during this meeting. Actions of the Advisory Panel will be restricted to those issues specifically identified in the agenda and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kathy Pereira at the Gulf Council Office (see
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before May 31, 2016.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Elizabeth Scheimer, Greater Atlantic Regional Fisheries Office, 55 Great Republic Dr., Gloucester, MA 01930, (978) 281-9236,
This request is for extension of a current information collection. Under the Magnuson-Stevens Fishery Conservation and Management Act, the Secretary of Commerce has the responsibility for the conservation and management of marine fishery resources. Much of this responsibility has been delegated to NOAA's National Marine Fisheries Service (NMFS). Under this stewardship role, the Secretary was given certain regulatory authorities to ensure the most beneficial uses of these resources. One of the regulatory steps taken to carry out the conservation and management objectives is to collect information from users of the resources.
The Secretary has enacted rules to issue permits to individuals and organizations participating in federally controlled fisheries. Permits are necessary to: (1) Register fishermen, fishing vessels, fish dealers and processors; (2) list the characteristics of fishing vessels and/or dealer/processor operations; (3) exercise influence over compliance (
This collection also includes the requirement for participants in certain fisheries to use onboard vessel monitoring systems (VMS) and to notify NMFS before fishing trips for the purpose of observer placement. Other permitting in this collection includes the written request to participate in any of the various exemption programs offered in the Greater Atlantic region. Exemption programs may allow a vessel to fish in an area that is limited to vessels of a particular size, using a certain gear type, or fishing for a particular species. This collection also contains paperwork required for vessel owners to request gillnet and lobster trap tags through the Greater Atlantic region permit office.
Lastly, vessel owners that own multiple vessels, but would like to request communication from NMFS be consolidated into one mailing (and not separate mailings for each vessel), may request the single letter vessel owner option to improve efficiency of their business practice.
All vessel permit applications, including permit applications and renewals for vessels, dealers, and vessel operators, as well as gillnet and lobster trap tag purchase, are submitted by signed paper form sent in the mail.
Vessels with VMS requirements are required to declare their intent to fish (
Vessels issued certain permits such as Northeast multispecies, monkfish, scallop, and Atlantic herring permits are
Vessels that would like to request participation in one or more of the Greater Atlantic region fisheries exemption programs must either submit a request electronically using their VMS unit, by declaring into an exempted fishery prior to the start of a trip, or by mailing in a written request to participate in the program(s) of interest.
Vessel owners that own multiple vessels, but would like to receive only a single Greater Atlantic Fisheries Bulletin or small entity compliance guide instead of one for each vessel permit, must submit a written request to NMFS to participate in this program.
Vessel permit application: 45 minutes; vessel permit renewal forms: 30 minutes; initial dealer permit applications: 15 minutes; dealer permit renewal forms: 5 minutes; initial and renewal vessel operator permit applications: 1 hour; obtaining and submitting a dealer or vessel owner email address: 5 minutes; limited access vessel replacement applications: 1.5 hours; and applications for retention of limited access permit history: 1.5 hours.
Installing a VMS unit: 1 hour; confirming VMS connectivity: 5 minutes; VMS certification form: 5 minutes; VMS installation for Canadian herring transport vessels: 1 hour and 20 minutes; email to declare their entrance and departure from U.S. waters: 15 minutes; automatic polling of vessel position using the VMS unit: 0 minutes; area and DAS declarations: 5 minutes; declaration of days-out of the gillnet fishery for monkfish and NE multispecies vessels: 5 minutes; Good Samaritan DAS credit request: 30 minutes; entangled whale DAS credit request: 30 minutes; DAS credit for a canceled trip due to unforeseen circumstances, but have not yet begun fishing: 5 minutes to request via the VMS unit and 10 minutes to request via the paper form; VMS catch reports: 5 minutes; VMS power down exemption: 30 minutes.
Requests for observer coverage are estimated to require either 2 or 10 minutes per request, depending on the program for which observers are requested.
Letter of Authorization (LOA) to participate in any of the exemption programs: 5 minutes; Charter/Party Exemption Certificate for GOM Closed Areas: 5 minutes; limited access sea scallop vessels state waters DAS exemption program or state waters gear exemption program: 2 minutes; withdraw from either state waters exemption program prior to the end of the 7-day designated exemption period requirement: 2 minutes; request for change in permit category designation: 5 minutes; request for transit to another port by a vessel required to remain within the GOM cod trip limit: 2 minutes; gillnet category designation, including initial requests for gillnet tags: 10 minutes; requests for additional tags: 2 minutes; notification of lost tags and requests for replacement tag numbers: 2 minutes; attachment of gillnet tags: 1 minute; initial lobster area designations: 5 minutes; requests for additional tags: 2 minutes; and notification of lost tags: 3 minutes; requests for state quota transfers in the bluefish, summer flounder and scup fisheries: 1 hour; GOM cod trip limit exemption: 5 minutes; vessel owner single letter option: 5 minutes.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed additions to and deletions from the Procurement List.
The Committee is proposing to add services to the Procurement List that will be provided by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes services previously provided by such agencies.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia 22202-4149.
Barry S. Lineback, Telephone: (703) 603-7740, Fax: (703) 603-0655, or email
This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to provide the services listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
The following services are proposed for addition to the Procurement List for provision by the nonprofit agencies listed:
The following services are proposed for deletion from the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to and Deletions from the Procurement List.
This action adds products and a service to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes products from the Procurement List previously furnished by such agencies.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia 22202-4149.
Barry S. Lineback, Telephone: (703) 603-7740, Fax: (703) 603-0655, or email
On 1/29/2016 (81 FR 5009) and 2/26/2016 (81 FR 9811-9812), the Committee for Purchase From People Who Are Blind or Severely Disabled published notices of proposed additions to the Procurement List.
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the products and service and impact of the additions on the current or most recent contractors, the Committee has determined that the products and service listed below are suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products and service to the Government.
2. The action will result in authorizing small entities to furnish the products and service to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the products and service proposed for addition to the Procurement List.
Accordingly, the following products and service are added to the Procurement List:
On 2/26/2016 (81 FR 9811-9812), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed deletions from the Procurement List.
After consideration of the relevant matter presented, the Committee has determined that the products listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to furnish the products to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the products deleted from the Procurement List.
Accordingly, the following products are deleted from the Procurement List:
10:00 a.m., Friday, April 8, 2016.
Three Lafayette Centre, 1155 21st Street NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance, enforcement, and examinations matters. In the event that the time, date, or location of this meeting changes, an announcement of the change, along with the new time, date, and/or place of the meeting will be posted on the Commission's Web site at
Christopher Kirkpatrick, 202-418-5964.
Corporation for National and Community Service.
Notice.
The Corporation for National and Community Service (CNCS) has submitted a public information collection request (ICR) entitled AmeriCorps NCCC Project Sponsor Application for review and approval in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13, (44 U.S.C. Chapter 35). Copies of this ICR, with applicable supporting documentation, may be obtained by calling the Corporation for National and Community Service, Barbara Lane, at 202-606-6867 or email to
Comments may be submitted, identified by the title of the information collection activity, within May 2, 2016.
Comments may be submitted, identified by the title of the information collection activity, to the Office of Information and Regulatory Affairs, Attn: Ms. Sharon Mar, OMB Desk Officer for the Corporation for National and Community Service, by any of the following two methods within 30 days from the date of publication in the
(1)
(2)
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of CNCS, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Propose ways to enhance the quality, utility, and clarity of the information to be collected; and
• Propose ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
A 60-day Notice requesting public comment was published in the
Description: The AmeriCorps NCCC Project Sponsor Application is completed by organizations interested in sponsoring an AmeriCorps NCCC team. The NCCC is a full-time, residential, national service program whose mission is to strengthen communities and develop leaders through team-based national and community service. The AmeriCorps NCCC Project Sponsor Application is completed by organizations interested in sponsoring an AmeriCorps NCCC team. The application will be used in the same manner as the existing application. CNCS also seeks to continue using the current application until the revised application is approved by OMB. The current application is due to expire on March 31, 2016.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by May 2, 2016.
Fred Licari, 571-372-0493.
Comments and recommendations on the proposed information collection should be emailed to Ms. Stephanie Tatham, DoD Desk Officer, at
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
•
Written requests for copies of the information collection proposal should be sent to Mr. Licari at WHS/ESD Directives Division, 4800 Mark Center Drive, East Tower, Suite 02G09, Alexandria, VA 22350-3100.
Department of Defense.
Establishment of Federal Advisory Committee.
The Department of Defense (DoD) is publishing this notice to announce that it is establishing the charter for the Defense Innovation Advisory Board (“the Board”).
Jim Freeman, Advisory Committee Management Officer for the Department of Defense, 703-692-5952.
This committee's charter is being established in accordance with the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended) and 41 CFR 102-3.50(d). The Board's charter and contact information for the Board's Designated Federal Officer (DFO) can be obtained at
The DoD, as necessary and consistent with the Board's mission and DoD policies and procedures, may establish subcommittees, task forces, or working groups to support the Board, and all subcommittees must operate under the provisions of FACA and the Government in the Sunshine Act. Subcommittees will not work independently of the Board and must report all their recommendations and advice solely to the Board for full deliberation and discussion. Subcommittees, task forces, or working groups have no authority to make decisions and recommendations, verbally or in writing, on behalf of the Board. No subcommittee or any of its members can update or report, verbally or in writing, directly to the DoD or any Federal officers or employees. The Board's DFO, pursuant to DoD policy, must be a full-time or permanent part-time DoD employee, and must be in attendance for the duration of each and every Board/subcommittee meeting. The public or interested organizations may submit written statements to the Board membership about the Board's mission and functions. Written statements may be submitted at any time or in response to the stated agenda of planned meeting of the Board. All written statements shall be submitted to the DFO for the Board, and this individual will ensure that the written statements are provided to the membership for their consideration.
Department of the Navy, DoD.
Notice.
Pursuant to the provisions of The Federal Advisory Committee Act (Pub. L. 92-463, as amended), notice is hereby given that the following meeting of the Board of Advisors to the President of the Naval Postgraduate School will be held. This meeting will be open to the public.
The meeting will be held on Wednesday, April 20, 2016 from 8:00 a.m. to 4:00 p.m. and on Thursday, April 21, 2016 from 8:00 a.m. to 12:00 p.m. Pacific Time Zone.
The meeting will be held at the Naval Postgraduate School, Executive Briefing Center, Herrmann Hall, 1 University Circle, Monterey, CA.
Ms. Jaye Panza, Designated Federal Official, 1 University Circle, Code 00H, Monterey, CA 93943-5001, telephone number 831-656-2514.
The purpose of the Board is to advise and assist the President, NPS, in educational and support areas, providing independent advice and recommendations on items such as, but not limited to, organizational management, curricula, methods of instruction, facilities, and other matters of interest. The agenda for the meeting will include the following:
Individuals without a DoD Government Common Access Card require an escort at the meeting location. For access, information, or to send written statements for consideration at the committee meeting contact Ms. Jaye Panza, Designated Federal Officer, Naval Postgraduate School, 1 University Circle, Monterey, CA 93943-5001 or by fax 831-656-2789 by March 31, 2016.
Department of the Navy, DoD.
Notice.
The inventions listed below are assigned to the United States Government, as represented by the Secretary of the Navy and are available for domestic and foreign licensing by the Department of the Navy.
The following patents are available for licensing: Patent No. 8,904,736: VEHICLE AND MAST MOUNTING ASSEMBLY//Patent No. 8,902,801: ARRAY SYSTEM FOR SEGMENTING SIGNALS AND GENERATING A COMPLEX WAVEFORM AT A FOCAL POINT USING RECOMBINATION OF SEGMENTED SIGNALS//Patent No. 9,001,864: USE OF WAVELET TRANSFORMS TO PRODUCE COMPLEX WAVEFORMS FROM A REDUCED NUMBER OF DISCRETE FREQUENCY TRANSMITTERS//Patent No. 9,083,418: VERSATILE ANTENNA RECEIVED SIGNAL STRENGHT MEASUREMENT SYSTEM NOT AFFECTING ANTENNA PATTERN AND RECEIVER PERFORMANCE//Patent No. 8,973, 502: SIMULTANEOUS NONELECTRIC PRIMING ASSEMBLY AND METHOD//Patent No. 8,907,225: STRUCTURES AND METHODS RELATED TO DETECTION, SENSING AND/OR MITIGATING UNDESIREABLE STRUCTURES OR INTRUSION EVENTS ON STRUCTURES//Patent No. 9,080,989 WHISKER MANUFACTURING, DETECTION, RESPONSE, AND COMPOUND MANUFACTURING APPARATUS AND METHOD//Patent No. 9,244,791 FUSION OF MULTIPLE MODALITIES FOR DETERMING A UNIQUE MICROELECTRONIC DEVICE SIGNATURE//Patent No. 9,079,211 INTERGRANULAR CORROSION AND INTERGRANULAR STRESS CORROSION CRACKING RESISTANCE IMPROVEMENT METHOD FOR METALLIC ALLOYS//Patent No. 9,263,139 METHOD AND SYSTEM FOR IMPROVING THE RADIATION TOLERANCE OF FLOATING GATE MEMORIES.
Requests for copies of the patents cited should be directed to Naval Surface Warfare Center, Crane Div, Code OOL, Bldg 2, 300 Highway 361, Crane, IN 47522-5001.
Mr. Christopher Monsey, Naval Surface Warfare Center, Crane Div, Code OOL, Bldg 2, 300 Highway 361, Crane, IN 47522-5001, telephone 812-854-4100.
35 U.S.C. 207, 37 CFR part 404.
Office of Postsecondary Education, Department of Education.
Notice.
For each award year, the Secretary publishes in the
Jacquelyn C. Butler, U.S. Department of Education, 400 Maryland Avenue SW., Room 6W232, Washington, DC 20202. Telephone: (202) 453-6088.
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
Individuals with disabilities can obtain this document in an accessible format (
The Secretary includes on the applicant's Institutional Student Information Record (ISIR) flags that indicate (1) that the applicant has been selected by the Secretary for verification and (2) the
The following chart lists, for the 2017-2018 award year, the FAFSA information that an institution and an applicant and, if appropriate, the applicant's parent(s) or spouse, may be required to verify under 34 CFR 668.56. The chart also lists the acceptable documentation that must, under § 668.57, be provided to an institution for that information to be verified.
We provide a more detailed discussion on the verification process in the following resources:
•
•
•
•
• Program Integrity Information—Questions and Answers on Verification at
These publications are on the Information for Financial Aid Professionals Web site at www.
You may also access documents of the Department published in the
20 U.S.C. 1070a, 1070a-1, 1070b-1070b-4, 1070c-1070c-4, 1070g, 1071-1087-2, 1087a-1087j, and 1087aa-1087ii; 42 U.S.C. 2751-2756b.
Federal Student Aid (FSA), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before May 31, 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 Beth Grebeldinger, 202-377-4018.
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.
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any of the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on March 16, 2016, Dominion Cove Point LNG, L.P. (DCP) submitted a request proposing that DCP be granted a waiver of the requirements of Order No. 561 and 18 CFR part 201, specifically Gas Plant Instruction No. 3(17) in calculating Allowance for Funds Used During Construction (AFUDC) rate. Specifically, DCP proposes to utilize the capital structure of its ultimate parent, Dominion Resources, Inc. (DRI), DRI's actual cost of debt, and the imputed return on equity from DCP's rate settlement, in calculating the AFUDC rate.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on March 8, 2016, Dominion Carolina Gas Transmission, LLC (DCG) submitted a request that DCG be granted any waivers of the requirements of Order No. 561 and 18 CFR part 201, specifically Gas Plant Instruction No. 3(17) in calculating Allowance for Funds Used During Construction (AFUDC) rate deemed necessary to allow its proposed method of AFUDC. Specifically, DCG proposes to use a hypothetical capital structure of 50 percent debt and 50 percent equity, the rate of return on equity from the settlement of DCG's last rate case proceeding, and the actual cost of long-term debt of Dominion Midstream Partners, LP, when calculating AFUDC.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's (Commission) regulations, 18 CFR part 380 (Order No. 486, 52 FR 47897), the Office of Energy Projects has reviewed the application for a new license for the Keowee-Toxaway Hydroelectric Project, located on the Toxaway, Keowee, and Little Rivers in Oconee County and Pickens County, South Carolina and Transylvania County, North Carolina, and has prepared a final Environmental Assessment (EA) for the project. The project does not occupy federal land.
The final EA contains staff's analysis of the potential environmental impacts of the project and concludes that
A copy of the final EA is on file with the Commission and is available for public inspection. The final EA may also be viewed on the Commission's Web site at
For further information, contact Rachel McNamara at (202) 502-8340 or
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 30 days from the issuance date of this notice by the Commission. All documents may be filed electronically via the Internet. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
Please include the project number (P-10504-001) on any comments, motions, or recommendations filed.
k.
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.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency has submitted an information collection request (ICR), “NESHAP for Paints and Allied Products Manufacturing Area Source Category (40 CFR part 63, subpart CCCCCCC) (Renewal)”, (EPA ICR No. 2348.04, OMB Control No. 2060-0633) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before May 2, 2016.
Submit your comments, referencing Docket ID Number EPA-HQ-OECA-2012-0527, to: (1) EPA online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI), or other information whose disclosure is restricted by statute.
Patrick Yellin, Monitoring, Assistance, and Media Programs Division, Office of Compliance, Mail Code 2227A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 564-2970; fax number: (202) 564-0050; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency has submitted an information collection request (ICR), “NESHAP for Area Sources: Asphalt Processing and Asphalt Roofing Manufacturing (40 CFR part 63, subpart AAAAAAA) (Renewal) (EPA ICR No. 2352.04, OMB Control No. 2060-0634), to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before May 2, 2016.
Submit your comments, referencing Docket ID Number EPA EPA-HQ-OECA-2012-0496, to: (1) EPA online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI), or other information whose disclosure is restricted by statute.
Patrick Yellin, Monitoring, Assistance,
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
Federal Deposit Insurance Corporation (FDIC).
Notice and request for comment.
The FDIC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on the renewal of an existing information collection, as required by the Paperwork Reduction Act of 1995. On January 5, 2016, (81 FR 239), the FDIC requested comment for 60 days on a proposal to renew the information collections described below. No comments were received. The FDIC hereby gives notice of its plan to submit to OMB a request to approve the renewal of these collections, and again invites comment on this renewal.
Comments must be submitted on or before May 2, 2016.
Interested parties are invited to submit written comments to the FDIC by any of the following methods:
•
•
•
•
All comments should refer to the relevant OMB control number. A copy of the comments may also be submitted to the OMB desk officer for the FDIC: Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503.
Gary A. Kuiper or Manuel E. Cabeza, at the FDIC address above.
Proposal to renew the following currently-approved collections of information:
1.
Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimates of the burden of the information collection, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology. All comments will become a matter of public record.
NOTICE IS HEREBY GIVEN that the Federal Deposit Insurance Corporation (“FDIC”) as Receiver for The Farmers Bank of Lynchburg, Lynchburg, Tennessee (“the Receiver”) intends to terminate its receivership for said institution. The FDIC was appointed receiver of The Farmers Bank of Lynchburg on June 15, 2012. The liquidation of the receivership assets has been completed. To the extent permitted by available funds and in accordance with law, the Receiver will be making a final dividend payment to proven creditors.
Based upon the foregoing, the Receiver has determined that the continued existence of the receivership will serve no useful purpose. Consequently, notice is given that the receivership shall be terminated, to be effective no sooner than thirty days after the date of this Notice. If any person wishes to comment concerning the termination of the receivership, such comment must be made in writing and sent within thirty days of the date of this Notice to: Federal Deposit Insurance Corporation, Division of Resolutions and Receiverships, Attention: Receivership Oversight Department 32.1, 1601 Bryan Street, Dallas, TX 75201.
No comments concerning the termination of this receivership will be considered which are not sent within this time frame.
The Centers for Disease Control and Prevention (CDC) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The notice for the proposed information collection is published to obtain comments from the public and affected agencies.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address any of the following: (a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) Enhance the quality, utility, and clarity of the information to be collected; (d) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to
A Study of Viral Persistence in Ebola Virus Disease (EVD) Survivors—Existing Information Collection Without an OMB Control Number—National Center for Emerging and Zoonotic Infectious Diseases (NCEZID), Centers for Disease Control and Prevention (CDC).
Much progress has been made in the year since the CDC first responded to the Ebola outbreak in West Africa, but the agency's efforts must continue until there are zero new cases of Ebola virus disease (EVD). As the CDC's 2014 Ebola virus response maintains the international goal of zero new EVD cases in 2015, the agency must intensify its efforts to identify and prevent every potential route of human disease transmission and to understand the most current community barriers to reaching that final goal.
Persistence of Ebola Virus (EBOV) in Body Fluids of EVD Survivors in Sierra Leone is the first systematic examination of the post-recovery persistence of EBOV and the risks of transmission from a cohort of convalescent Ebola survivors during close or intimate contact. It is important to fully understand how long the virus stays active in body fluids other than blood in order to target and refine public health interventions to arrest the ongoing spread of disease.
The research study is comprised of three modules based on the body fluids to be studied: A pilot module of adult males (semen) and two full modules: Module A of adult men and women repeating collections and questionnaires every two weeks (semen, vaginal secretions, and saliva, tears, sweat, urine, rectal swab), and Module B of lactating adult women repeating collections and questionnaires every three days (sweat and breast milk).
Participants for each module will be recruited by trained study staff from Ebola treatment units (ETUs) and survivor registries. Participants will be followed up at study sites in government hospitals.
Specimens will be tested for EBOV ribonucleic acid (RNA) by reverse transcription polymerase chain reaction test (RT-PCR) in Sierra Leone at the CDC laboratory facility in Bo. All positive RT-PCR samples will be sent to CDC Atlanta for virus isolation. Each body fluid will be collected until two negative RT-PCR results are obtained. Participants will be followed until all their studied body fluids are negative. They will receive tokens of appreciation for their participation at the initial visit and again at every subsequent follow-up visit [
Results and analyses are needed to update relevant counseling messages and recommendations from the Sierra Leone Ministry of Health, World Health Organization, and CDC. The study will provide the most current information that is critical to the development of public health measures, such as recommendations about sexual activity, breastfeeding, and other routine activities and approaches to evaluation of survivors to determine whether they can safely resume sexual activity. These approaches in turn are expected to reduce the risk of Ebola resurgence and mitigate stigma for thousands of survivors. The information is likewise critical to reducing the risk that Ebola would be introduced in a location that has not previously been affected.
The total burden hours requested for the research study in Sierra Leone is 2,474 hours incurred by 530 participants. There are no costs to the respondents other than their time.
Centers for Disease Control and Prevention, Department of Health and Human Services (HHS).
Notice of Availability of Final Environmental Assessment and a Finding of No Significant Impact (FONSI) for HHS/CDC Fort Collins Campus Proposed Improvements.
The Centers for Disease Control and Prevention (CDC), within the Department of Health and Human Services (HHS), is issuing this notice to advise the public that HHS/CDC has prepared and approved on March 22, 2016, a Finding of No Significant Impact (FONSI) based on the Final Environmental Assessment for proposed improvements on the HHS/CDC Fort Collins Campus. HHS/CDC prepared the Final EA in accordance with the National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321
The FONSI and Final EA are available as of the publication date of this notice.
Copies of the FONSI and Final EA are available at the following locations:
• Old Town Library, 201 Peterson Street, Fort Collins, Colorado 80524.
• Harmony Library, 4616 South Shields, Fort Collins, Colorado 80526.
Copies of the FONSI and/or Final EA can also be requested from: Robert Lawson, Centers for Disease Control and Prevention, Asset Management Services Office, MS K80, 1600 Clifton Road, Atlanta, GA 30329, 770-488-2447.
The Centers for Disease Control and Prevention (CDC), an Operating Division (OPDIV) of the Department of Health and Human Services (HHS) has prepared a Final EA to assess the potential impacts associated with the undertaking of proposed improvements on the HHS/CDC Fort Collins Campus (CDC Fort Collins Campus) located on the Colorado State University (CSU) Foothills Campus in Fort Collins, Colorado. The Final EA analyzed the effects of the Build Alternative (Proposed Action) and the No Build Alternative. The Build Alternative consists of improvements to the CDC Fort Collins Campus which entails the construction of a new approximately 5,600 gsf building which will house laboratory support freezer space and communal space, upgrades to existing parking areas and additional infrastructure improvements. The No Build Alternative represents the continued operation of the existing facilities at the CDC Fort Collins Campus without any new construction or infrastructure upgrades.
The Final EA evaluated the potential impacts to socioeconomics and environmental justice, land use, zoning, public policy, community facilities and services, transportation, air quality, noise, cultural resources, urban design and visual resources, natural resources, utility service, hazardous materials, greenhouse gases and sustainability, and construction. HHS/CDC assessed the potential impacts of the Build Alternative in the Final EA and as a result issued a FONSI indicating that the proposed action will not have a significant impact on the environment.
Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are require; to publish notice in the
Comments must be received by May 31, 2016.
When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
1.
2.
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786-1326.
Reports Clearance Office at (410) 786-1326.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the PRA (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day notice in the
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4.
In compliance with the requirements of Section 506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 330 C Street SW., Washington DC 20201. Attn: ACF Reports Clearance Officer. Email address:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden 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. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
HHS needs this information in order to carry out federal statutory requirements for administering the LIHEAP leveraging incentive program, to determine accountability and valuation of grantees' leveraged non-federal home energy resources, and to determine grantees' shares of leveraging incentive funds. HHS proposes to request a three-year clearance by OMB for the LIHEAP leveraging report information collection which has received OMB approval in the past. Respondents: State, Local or Tribal Governments.
In compliance with the requirements of Section 506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 330 C Street SW., Washington DC 20201. Attn: ACF Reports Clearance Officer. Email address:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden 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. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is publishing notice that an applicant for a proposed biosimilar product notified FDA that a patent infringement action was filed in connection with the applicant's biologics license application (BLA). Under the Public Health Service Act (PHS Act), an applicant for a proposed biosimilar product or interchangeable product must notify FDA within 30 days after the applicant was served with a complaint in a patent infringement action described under the PHS Act. FDA is required to publish notice of the complaint in the
Daniel Orr, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6208, Silver Spring, MD 20993-0002, 240-402-0979,
The Biologics Price Competition and Innovation Act of 2009 (BPCI Act) was enacted as part of the Patient Protection and Affordable Care Act (Pub. L. 111-148) on March 23, 2010. The BPCI Act amended the PHS Act and created an abbreviated licensure pathway for biological products shown to be biosimilar to, or interchangeable with, an FDA-licensed biological reference product. Section 351(k) of the PHS Act (42 U.S.C. 262(k)), added by the BPCI Act, describes the requirements for a BLA for a proposed biosimilar product or a proposed interchangeable product (351(k) BLA). Section 351(l) of the PHS Act, also added by the BPCI Act, describes certain procedures for exchanging patent information and resolving patent disputes between a 351(k) BLA applicant and the holder of the BLA reference product. If a 351(k) applicant is served with a complaint for a patent infringement described in section 351(l)(6) of the PHS Act, the applicant is required, under section 351(l)(6)(C) of the PHS Act, to provide the FDA with notice and a copy of the complaint within 30 days of service. FDA is required to publish notice of a complaint received under section 351(l)(6)(C) of the PHS Act in the
FDA has received notice of the following complaint under section 351(l)(6)(C) of the PHS Act:
FDA has only a ministerial role in publishing notice of a complaint received under section 351(l)(6)(C) of the PHS Act, and does not perform a substantive review of the complaint.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) 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 either electronic or written comments on the collection of information by May 31, 2016.
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• 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
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE-14526, Silver Spring, MD 20993-0002,
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 requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
Congress passed the CLIA (Pub. L. 100-578) in 1988 to establish quality standards for all laboratory testing. The purpose was to ensure the accuracy, reliability, and timeliness of patient test results regardless of where the test took place. CLIA requires that clinical laboratories obtain a certificate from the Secretary of Health and Human Services (the Secretary), before accepting materials derived from the human body for laboratory tests (42 U.S.C. 263a(b)). Laboratories that perform only tests that are “simple” and that have an “insignificant risk of an erroneous result” may obtain a certificate of waiver (42 U.S.C. 263a(d)(2)). The Secretary has delegated to FDA the authority to determine whether particular tests (waived tests) are “simple” and have “an insignificant risk of an erroneous result” under CLIA (69 FR 22849, April 27, 2004).
On January 30, 2008, FDA published a guidance document entitled “Guidance for Industry and FDA Staff: Recommendations for Clinical Laboratory Improvement Amendments of 1988 (CLIA) Waiver Applications for Manufacturers of In Vitro Diagnostic Devices” (
FDA estimates the burden of this collection of information as follows:
The total number of reporting and recordkeeping hours is 160,000 hours. FDA bases the burden on an Agency analysis of premarket submissions with clinical trials similar to the waived laboratory tests. Based on previous years' experience with CLIA waiver applications, FDA expects 40 manufacturers to submit one CLIA waiver application per year. The time required to prepare and submit a waiver application, including the time needed to assemble supporting data, averages 1,200 hours per waiver application for a total of 48,000 hours for reporting. Based on previous years' experience with CLIA waiver applications, FDA expects that each manufacturer will spend 2,800 hours creating and maintaining the record for a total of 112,000 hours.
The total operating and maintenance cost associated with the waiver application is estimated at $350,000. This cost is largely attributed to clinical study costs incurred, which include site selection and qualification, protocol review, and study execution (initiation, monitoring, closeout, and clinical site/subject compensation—including specimen collection for study as well as shipping and supplies).
Food and Drug Administration, HHS.
Notice; renewal of advisory committee.
The Food and Drug Administration (FDA) is announcing the renewal of the Arthritis Advisory Committee by the Commissioner of Food and Drugs (the Commissioner). The Commissioner has determined that it is in the public interest to renew the Arthritis Advisory Committee for an additional 2 years beyond the charter expiration date. The new charter will be in effect until April 5, 2018.
Authority for the Arthritis Advisory Committee will expire on April 5, 2018, unless the Commissioner formally determines that renewal is in the public interest.
Stephanie L. Begansky, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 31, Rm. 2417, Silver Spring, MD 20993-0002, 301-796-9001,
Pursuant to 41 CFR 102-3.65 and approval by the Department of Health and Human Services pursuant to 45 CFR part 11 and by the General Services Administration, FDA is announcing the renewal of the Arthritis Advisory Committee (the Committee). The Committee is a discretionary Federal advisory committee established to provide advice to the Commissioner. The Committee advises the Commissioner or designee in discharging responsibilities as they relate to helping to ensure safe and effective drugs for human use and, as required, any other product for which FDA has regulatory responsibility. The Committee reviews and evaluates data concerning the safety and effectiveness of marketed and investigational human drug products for use in the treatment of arthritis, rheumatism, and related diseases, and makes appropriate recommendations to the Commissioner.
The Committee shall consist of a core of 11 voting members including the Chair. Members and the Chair are selected by the Commissioner or designee from among authorities knowledgeable in the fields of arthritis, rheumatology, orthopedics, epidemiology or statistics, analgesics, and related specialties. Members will be invited to serve for overlapping terms of up to 4 years. Almost all non-Federal members of this committee serve as Special Government Employees. The core of voting members may include one technically qualified member, selected by the Commissioner or designee, who is identified with consumer interests and is recommended by either a consortium of consumer-oriented organizations or other interested persons. In addition to the voting members, the Committee may include
Further information regarding the most recent charter and other information can be found at
This document is issued under the Federal Advisory Committee Act (5 U.S.C. app.). For general information related to FDA advisory committees, please visit us at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) 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 either electronic or written comments on the collection of information by May 31, 2016.
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• 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
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE-14526, Silver Spring, MD 20993-0002,
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 requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
In the
On June 20, 2000 (65 FR 38191), we published a
Based on a March 1, 2010, estimate provided by the Consumer Healthcare Products Association (75 FR 49495 at 49496, August 13, 2010), we estimated that approximately 900 new OTC drug product stock-keeping units (SKUs) are introduced to the marketplace each year. We estimated that these SKUs are marketed by 300 manufacturers. We estimated that the preparation of labeling for new OTC drug products would require 12 hours to prepare, complete, and review prior to submitting the new labeling to us. Based on this estimate, the annual reporting burden for this type of labeling is approximately 10,800 hours.
All currently marketed sunscreen products are required to be in compliance with the Drug Facts labeling requirements in § 201.66, and thus will incur no further burden under the information collection provisions in the 1999 labeling final rule. However, a new OTC sunscreen drug product, like any new OTC drug product, will be subject to a one-time burden to comply with Drug Facts labeling requirements in § 201.66. We estimate that 60 new SKUs of OTC sunscreen drug products would be marketed each year (77 FR 27234). We estimate that these 60 SKUs would be marketed by 20 manufacturers. We estimate that approximately 12 hours would be spent on each label, based on the most recent estimate used for other OTC drug products to comply with the 1999 Drug Facts labeling final rule, including public comments received on this estimate in 2010 that addressed sunscreens.
In determining the burden for § 201.66, it is also important to consider exemptions or deferrals of the regulation allowed products under § 201.66(e). Since publication of the 1999 labeling final rule, we have received only one request for exemption or deferral. One response over a 10-year period equates to an annual frequency of response equal to 0.1. In the 1999 labeling final rule, we estimated that a request for deferral or exemption would require 24 hours to complete (64 FR 13254 at 13276, March 17, 1999). We continue to estimate that this type of response will require approximately 24 hours. Multiplying the annual frequency of response (0.1) by the number of hour per response (24) gives a total response time for requesting exemption of deferral equal to 3 hours.
FDA estimates the burden of this collection of information as follows:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is publishing a list of information collections that have been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE-14526, Silver Spring, MD 20993-0002,
The following is a list of FDA information collections recently approved by OMB under section 3507 of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507). The OMB control number and expiration date of OMB approval for each information collection are shown in table 1. Copies of the supporting statements for the information collections are available on the Internet at
Health Resources and Services Administration, HHS.
Notice.
In compliance with the requirement for opportunity for public comment on proposed data collection projects (Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995), the Health Resources and Services Administration (HRSA) announces plans to submit an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB). Prior to submitting the ICR to OMB, HRSA seeks comments from the public regarding the burden estimate, below, or any other aspect of the ICR.
Comments on this ICR should be received no later than May 31, 2016.
Submit your comments to
To request more information on the proposed project or to obtain a copy of the data collection plans and draft instruments, email
When submitting comments or requesting information, please include the information request collection title for reference.
On March 23, 2010, the President signed into law the Patient Protection and Affordable Care Act (ACA). Section 2951 of the ACA amended Title V of the Social Security Act by adding a new section, 511, which authorized the creation of the Federal Home Visiting Program. A portion of funding under this program is awarded to participating states and eligible jurisdictions using a funding formula. Formula funding is the main funding mechanism used by HRSA to provide support to eligible entities for the provision of voluntary high-quality home visiting services to families living in at-risk communities.
The information collected will be used to provide guidance to eligible entities on how to prepare and submit applications in response to annual
Failure to collect this information would result in the inability of HRSA to collect information necessary for the determination of the responsiveness and quality of applications and would subject the government to undue risk in awarding formula funds under the Federal Home Visiting Program. Applicants will be required to submit several types of information in addition to the SF-424 Forms which are included under a separate Information Collection Request. These types of information include: (1) Project Abstract, (2) Project Narrative, (3) Budget Justification, (4) Program-Specific Forms and Tables, and (5) Attachments.
Likely Respondents: Eligible entities under the Social Security Act, Title V, Section 511(c) (42 U.S.C., Section 711(c)), as added by Section 2951 of the ACA (Pub. L. 111-148).
HRSA specifically requests comments on (1) the necessity and utility of the proposed information collection for the proper performance of the agency's functions, (2) the accuracy of the estimated burden, (3) ways to enhance the quality, utility, and clarity of the information to be collected, and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, codified at 5 U.S.C. App.), notice is hereby given of the following meeting:
More information on the Advisory Committee is available at
Office of the Secretary, Department of Health and Human Services (HHS).
Notice.
The Department of Health and Human Services, Office of the Secretary is announcing the availability of a final guidance entitled “Guidance for Temporary Reassignment of State, Tribal, and Local Personnel during a Public Health Emergency.” Section 201 of the Pandemic and All-Hazards Preparedness Reauthorization Act of 2013 (PAHPRA), Public Law 113-5, amends section 319 of the Public Health Service (PHS) Act to allow the Secretary of HHS, when she declares a public health emergency under section 319 of the PHS Act, to authorize, upon request by a state or tribal organization or their designee, the temporary reassignment of state, tribal, and local personnel funded through programs authorized under the PHS Act to immediately address a public health emergency in the state or Indian tribe. This final guidance addresses that provision.
Copy of the final guidance may be obtained at
Section 201 of PAHPRA, Public Law 113-5, amends section 319 of the PHS Act to allow the Secretary of HHS, when she declares a public health emergency under section 319 of the PHS Act, to authorize, upon request by a state or tribal organization or their designee, the temporary reassignment of state, tribal, and local personnel funded though programs authorized under the PHS Act to immediately address a public health emergency in the state or Indian tribe.
The PHS Act requires that HHS issue proposed guidance on this provision, to be followed by a 60-day public comment period. Consistent with this requirement, a notice appeared in the
The temporary reassignment provision is applicable to state, tribal, and local public health department or agency personnel whose positions are funded, in full or part, under PHS programs. This authority terminates on September 30, 2018.
This new provision provides an important flexibility to state and local health departments and tribal organizations during an event requiring all the resources at their disposal. The temporary reassignment provision permits state, tribal, and local personnel to be voluntarily reassigned so they can immediately respond to the public health emergency in the affected jurisdiction.
This document was received for publication by the Office of the Federal Register on March 29, 2016.
U.S. Customs and Border Protection, Department of Homeland Security.
Committee management; notice of termination of the Advisory Committee on Commercial Operations to U.S. Customs and Border Protection and establishment of the Commercial Customs Operations Advisory Committee.
This notice announces the termination of the Advisory Committee on Commercial Operations to U.S. Customs and Border Protection and the establishment of the Commercial Customs Operations Advisory Committee.
The COAC members shall be appointed by the Secretary of the Treasury and the Secretary of Homeland Security. The membership is representative of individuals and firms affected by the commercial operations of U.S. Customs and Border Protection (CBP) and without regard to political affiliation. Each individual appointed to the COAC shall be appointed for a term of not more than 3 years, and may be reappointed to subsequent terms, but may not serve more than 2 terms sequentially. The Secretary of the Treasury and the Secretary of Homeland Security may transfer members serving on what is now the Advisory Committee on Commercial Operations, established under section 9503(c) of the Omnibus Budget Reconciliation Act of 1987 (19 U.S.C. 2071 note) on the day before the date of the enactment of the Act to the Commercial Customs Operations Advisory Committee.
The COAC shall advise the Secretaries of the Department of the Treasury and the Department of Homeland Security on all matters involving the commercial operations of CBP, including advising with respect to significant changes that are proposed with respect to regulations, policies, or practices of CBP. The COAC will provide recommendations to the Secretary of the Treasury and the Secretary of Homeland Security on improvements to the commercial operations of CBP.
The COAC shall meet at the call of the Secretary of the Treasury and the Secretary of Homeland Security, or at the call of not less than
Not later than December 31, 2016, and annually thereafter, the COAC shall submit to the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives a report that describes the activities of the COAC during the preceding fiscal year, and sets forth any recommendations of the COAC regarding the commercial operations of CBP.
Effective on the date on which the Advisory Committee is established, section 9503(c) of the Omnibus Budget Reconciliation Act of 1987 (19 U.S.C. 2071 note) is repealed. Any reference in law to the Advisory Committee on Commercial Operations of the United States Customs Service established under section 9503(c) of the Omnibus Budget Reconciliation Act of 1987 (19 U.S.C. 2071 note) made on or after the date on which the Advisory Committee is established, shall be deemed a reference to the Commercial Customs Operations Advisory Committee.
Ms. Wanda Tate, Office of Trade Relations, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW., Room 3.5A, Washington, DC 20229; telephone (202) 344-1661; facsimile (202) 325-4290.
U.S. Customs and Border Protection, Department of Homeland Security.
60-Day Notice and request for comments; extension of an existing collection of information.
U.S. Customs and Border Protection (CBP) of the Department of Homeland Security will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act: Request for Information. CBP is proposing that this information collection be extended with no change to the burden hours or to the information collected. This document is published to obtain comments from the public and affected agencies.
Written comments should be received on or before May 31, 2016 to be assured of consideration.
Written comments may be mailed to U.S. Customs and Border Protection, Attn: Tracey Denning, Regulations and Rulings, Office of International Trade, 90 K Street NE., 10th Floor, Washington, DC 20229-1177.
Requests for additional information should be directed to Tracey Denning, U.S. Customs and Border Protection, Regulations and Rulings, Office of International Trade, 90 K Street NE., 10th Floor, Washington, DC 20229-1177, at 202-325-0265.
CBP invites the general public and other Federal agencies to comment on proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13). The comments should address: (a) Whether the 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 estimates of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden including the use of automated collection techniques or the use of other forms of information technology; and (e) the
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the State of Delaware (FEMA-4265-DR), dated March 16, 2016, and related determinations.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2833.
Notice is hereby given that, in a letter dated March 16, 2016, the President issued a major disaster declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
I have determined that the damage in certain areas of the State of Delaware resulting from a severe winter storm and flooding during the period of January 22-23, 2016, is of sufficient severity and magnitude to warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You are authorized to provide Public Assistance in the designated areas and Hazard Mitigation throughout the State. Consistent with the requirement that Federal assistance be supplemental, any Federal funds provided under the Stafford Act for Hazard Mitigation will be limited to 75 percent of the total eligible costs. Federal funds provided under the Stafford Act for Public Assistance also will be limited to 75 percent of the total eligible costs, with the exception of projects that meet the eligibility criteria for a higher Federal cost-sharing percentage under the Public Assistance Alternative Procedures Pilot Program for Debris Removal implemented pursuant to section 428 of the Stafford Act.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Donald L. Keldsen, of FEMA is appointed to act as the Federal Coordinating Officer for this major disaster.
The following area of the State of Delaware has been designated as adversely affected by this major disaster:
Sussex County for Public Assistance.
All areas within the State of Delaware are eligible for assistance under the Hazard Mitigation Grant Program.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Oregon (FEMA-4258-DR), dated February 17, 2016, and related determinations.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2833.
The notice of a major disaster declaration for the State of Oregon is hereby amended to include the following area among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of February 17, 2016.
Douglas County for Public Assistance.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to
Federal Emergency Management Agency, DHS.
Final notice.
New or modified Base(1-percent annual chance) Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, and/or regulatory floodways (hereinafter referred to as flood hazard determinations) as shown on the indicated Letter of Map Revision (LOMR) for each of the communities listed in the table below are finalized. Each LOMR revises the Flood Insurance Rate Maps (FIRMs), and in some cases the Flood Insurance Study (FIS) reports, currently in effect for the listed communities. The flood hazard determinations modified by each LOMR will be used to calculate flood insurance premium rates for new buildings and their contents.
The effective date for each LOMR is indicated in the table below.
Each LOMR is available for inspection at both the respective Community Map Repository address listed in the table below and online through the FEMA Map Service Center at
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
The Federal Emergency Management Agency (FEMA) makes the final flood hazard determinations as shown in the LOMRs for each community listed in the table below. Notice of these modified flood hazard determinations has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Mitigation has resolved any appeals resulting from this notification.
The modified flood hazard determinations are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The new or modified flood hazard information is the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to remain qualified for participation in the National Flood Insurance Program (NFIP).
This new or modified flood hazard information, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities.
This new or modified flood hazard determinations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings, and for the contents in those buildings. The changes in flood hazard determinations are in accordance with 44 CFR 65.4.
Interested lessees and owners of real property are encouraged to review the final flood hazard information available at the address cited below for each community or online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Texas (FEMA-4255-DR), dated February 9, 2016, and related determinations.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2833.
The notice of a major disaster declaration for the State of Texas is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of February 9, 2016.
Borden, Cass, Collingsworth, Cottle, Crosby, Delta, Donley, Fisher, Floyd, Foard, Franklin, Haskell, Hockley, Jones, Knox, Leon, Motley, Nolan, Scurry, Shackelford, Stonewall, Terry, Trinity, Walker, Wheeler, and Wilbarger Counties for Public Assistance.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050 Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This document provides notice of the availability of the final policy FP 205-081-2, Stafford Act Section 705,
This policy is effective March 31, 2016.
This final policy is available at
William Roche, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, 202-212-2340.
This policy clarifies FEMA's requirements under Section 705 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Act), and establishes the guidelines to determine whether Section 705 applies to prohibit FEMA from recovering payments made under the Public Assistance Program. The substantive change to this final policy from the proposed policy that was published in the
The final policy does not have the force or effect of law.
42 U.S.C. 5205.
Department of Homeland Security.
Committee Management; Notice of Federal Advisory Committee Meeting.
The Homeland Security Academic Advisory Council (HSAAC) will meet on April 20, 2016 in Washington, DC. The meeting will be open to the public.
The HSAAC will meet Wednesday, April 20, 2016, from 10:00 a.m. to 3:30 p.m. Please note that the meeting may close early if the Council has completed its business.
The meeting will be held at the Tomich Conference Center, 111 Massachusetts Ave NW., Washington, DC 20529. All visitors to the Tomich Conference Center must bring a Government-issued photo ID.
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, send an email to
To facilitate public participation, we are inviting public comment on the issues to be considered by the Council prior to the adoption of the recommendations as listed in the
•
• Email:
• Fax: 202-282-1044
• Mail: Academic Engagement; Office of Academic Engagement/Mailstop 385; Department of Homeland Security; 245 Murray Lane SW., Washington, DC 20528-0440.
One thirty-minute public comment period will be held during the meeting on April 20, 2016 after the conclusion of the presentation of draft recommendations, but before the Council deliberates. Speakers will be requested to limit their comments to three minutes. Contact the Office of Academic Engagement as indicated below to register as a speaker.
Lindsay Burton, Office of Academic Engagement/Mailstop 385; Department of Homeland Security; 245 Murray Lane SW., Washington, DC 20528-0440, email:
Notice of this meeting is given under the
The meeting materials will be posted to the Council Web site at:
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for possible use to assist the homeless.
Juanita Perry, Department of Housing and Urban Development, 451 Seventh Street SW., Room 7262, Washington, DC 20410; telephone (202) 402-3970; TTY number for the hearing- and speech-impaired (202) 708-2565, (these telephone numbers are not toll-free), or call the toll-free Title V information line at 800-927-7588.
In accordance with the December 12, 1988 court order in
Fish and Wildlife Service, Interior.
Notice of availability.
We, the U.S. Fish and Wildlife Service, invite the public to comment on the following applications to conduct certain activities with endangered species. With some exceptions, the Endangered Species Act (ESA) prohibits activities with listed species unless a Federal permit is issued that allows such activities. The ESA requires that we invite public comment before issuing these permits.
We must receive written data or comments on the applications at the address given in
Documents and other information submitted with the applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents to the following office within 30 days of the date of publication of this notice: U.S. Fish and Wildlife Service, Ecological Services, 1875 Century Boulevard, Suite 200, Atlanta, GA 30345 (Attn: James Gruhala, Permit Coordinator).
James Gruhala, 10(a)(1)(A) Permit Coordinator, telephone 404-679-7097; facsimile 404-679-7081.
The public is invited to comment on the following applications for permits to conduct certain activities with endangered and threatened species under section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
If you wish to comment, you may submit comments by any one of the following methods. You may mail comments to the Fish and Wildlife Service's Regional Office (see
Before including your address, telephone 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 ask us in your comments to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
The applicant requests a permit to take (enter hibernacula or maternity roost caves; capture with mist-nets, harp traps, or by hand; collect biometric data, tissue, and/or hair; band; and radio-tag) gray bats (
The applicant requests a permit to take (enter hibernacula or maternity roost caves; capture with mist-nets, harp traps, or by hand; collect biometric data, tissue, and/or hair; band; and radio-tag) Indiana bats and northern long-eared bats for presence/absence surveys, population monitoring, and research purposes throughout these species' ranges.
The applicant requests to amend their permit to take (capture with mist-net and harp trap, handle, band, and radio tag) Indiana bat, northern long-eared bat, gray bat, Ozark big-eared bat (
The applicant requests a permit to take (enter hibernacula or maternity roost caves; capture with mist-nets and harp traps; collect biometric data, tissue, and/or hair; band; and radio-tag) gray bats, Indiana bats, northern long-eared bats, and Virginia big-eared bats for presence/absence surveys, population monitoring, and research purposes throughout these species' ranges.
The applicant requests a permit to take (enter hibernacula or maternity roost caves; capture with mist-nets and harp traps; collect biometric data, tissue, and/or hair; band; and radio-tag) gray bats, Indiana bats, northern long-eared bats, and Virginia big-eared bats for presence/absence surveys, population monitoring, and research purposes throughout the Commonwealth of Kentucky.
The applicant requests renewal of their permit to continue flipper-tagging and attaching Passive Integrated Transponders (PIT) tags to Kemps ridley (
The applicant requests an amendment of their current permit, which authorizes the following activities in the State of Georgia alone: Take (enter hibernacula or maternity roost caves, salvage dead bats, capture with mist nets or harp traps, handle, identify, collect hair samples, band, radio-tag, light-tag, and wing-punch) Indiana bats, gray bats, and northern long-eared bats while conducting presence/absence surveys, studies to document habitat use, and population monitoring. The applicant has requested authorization to swab the above-listed bats for white-nose syndrome studies and to conduct all activities in Alabama, North Carolina, South Carolina, and Tennessee, in addition to Georgia.
The applicant requests an amendment of their current permit, which authorizes the following activities in the states of Louisiana and Mississippi: Take (capture with mist nets, handle, identify, and release) Indiana bats and northern long-eared bats for the purpose of conducting presence/absence surveys. The applicant has requested authorization to conduct the above-listed activities in the State of Arkansas as well.
The applicant requests a permit to take (enter hibernacula or maternity roost caves; capture with mist-nets, with harp traps, or by hand; collect biometric data, tissue, and/or hair; band; and radio-tag) gray bats, Indiana bats, northern long-eared bats, and Virginia big-eared bats, for presence/absence surveys, population monitoring, and research purposes throughout the State of Tennessee.
The applicant requests a permit to take (enter hibernacula or maternity roost caves; capture with mist-nets or harp traps; collect biometric data, tissue, and/or hair; band; and radio-tag) Indiana bats and northern long-eared bats, for presence/absence surveys, population monitoring, and research purposes throughout these species' ranges.
The applicant requests a permit to take (capture with mist-net and harp trap; handle; band; and radio tag) Indiana bat, northern long-eared bat, gray bat, Ozark big-eared bat, and Virginia big-eared bat throughout the species' ranges for conducting presence/absence surveys, studies to document habitat use, and population monitoring. The applicant requests additional authorizations to take (capture with mist-net, harp trap, and hand nets; handle; measure; collect hair samples, fecal material, and pollen samples; take wing biopsy tissue samples; and band, radio tag, light tag, and pit tag) the lesser long-nosed bat (
The applicant requests a permit to take (reduce to possession) seeds of the Short's bladderpod (
The applicant requests a permit to take (enter hibernacula or maternity roost caves; capture with mist-nets or harp traps; collect biometric data, tissue, and/or hair; band; and radio-tag) gray bats, Indiana bats, and northern long-eared bats, for presence/absence surveys, population monitoring, and research purposes in the States of Alabama, Georgia, North Carolina, and South Carolina.
The applicant requests a permit to take (capture with mist-nets, band, song
The applicant requests an amendment to their permit to take (capture, handle, release) the federally endangered American burying beetle (
The applicant requests to amend their current permit to take (capture, identify, release) additional species of federally listed mussels for the purpose of conducting presence/absence surveys in the States of Alabama, Florida, Georgia, Mississippi, and Louisiana.
The applicant requests to amend their current permit to take (capture, identify, release) additional species of federally listed mussels for the purpose of conducting presence/absence surveys in the States of Alabama, Florida, Georgia, Mississippi, and Louisiana.
The applicant requests a permit to take (capture with mist-net and harp trap, handle, band, and radio tag) Indiana bat, northern long-eared bat, gray bat, and Virginia big-eared bat throughout the species' ranges for conducting presence/absence surveys, studies to document habitat use, and population monitoring.
The applicant requests to amend their current permit to take (capture with mist nets, handle, identify, and release) Indiana bats and northern long-eared bats for the purpose of conducting presence/absence surveys, population monitoring, and research purposes throughout the species' range.
The applicant requests to amend their permit to take (enter hibernacula or maternity roost caves; capture with mist-nets and harp traps; collect biometric data, tissue, and/or hair; band; and radio-tag) gray bats, Indiana bats, northern long-eared bats, and Virginia big-eared bats for presence/absence surveys, population monitoring, and research purposes throughout the species' range.
The applicant requests a permit to take (capture with mist-net and harp trap, handle, band, and radio tag) Indiana bat, northern long-eared bat, gray bat, Ozark big-eared bat, and Virginia big-eared bat throughout the species' ranges for conducting presence/absence surveys, studies to document habitat use, and population monitoring. The applicant requests additional authorizations to take (capture with electrofishing and seining) the blackside dace (
The applicant requests a permit to take (capture, identify, and release) several species of federally listed mussels for the purpose of conducting presence/absence surveys in the Commonwealth of Kentucky.
Fish and Wildlife Service, Interior.
Notice of availability of documents.
We, the U.S. Fish and Wildlife Service, announce the availability of the final recovery plan for the Behren's silverspot butterfly. The recovery plan includes recovery objectives and criteria, and it includes specific actions necessary to reclassify the species from endangered to threatened, and to achieve removal of the species from the Federal Lists of Endangered and Threatened Wildlife and Plants.
You may obtain copies of the final recovery plan from our Web site at
Bruce Bingham, Field Supervisor, at the above street address or telephone number (see
Recovery of endangered or threatened animals and plants to the point where they are again secure, self-sustaining members of their ecosystems is a primary goal of our endangered species program and the Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531
The purpose of a recovery plan is to provide a framework for the recovery of species so that protection under the Act is no longer necessary. A recovery plan includes scientific information about the species and provides criteria that enable us to gauge whether downlisting or delisting the species may be warranted. Furthermore, recovery plans
Section 4(f) of the Act requires us to provide an opportunity for public review and comment prior to finalization of recovery plans, including revisions to such plans. We made the draft recovery plan for Behren's silverspot butterfly available for public comment from January 20, 2004, through March 22, 2004 (69 FR 2725). We did not receive any comments during the public comment period for the draft recovery plan.
We listed Behren's silverspot butterfly throughout its entire range on December 5, 1997 (62 FR 64306). The species is endemic to the coastal prairie in Mendocino and Sonoma Counties, California. The current known range of the Behren's silverspot butterfly is limited to a small number of sites located from the Point Arena-Manchester State Park area south to the Salt Point area. The best available information on the life history of the Behren's silverspot butterfly comes from studies of a closely related coastal subspecies, the Oregon silverspot butterfly. Those studies found that females lay their eggs in the debris and dried stems of the larval food plant, the early blue violet (
Upon hatching, the caterpillars (larvae) wander a short distance and spin a silk pad upon which they pass the fall and winter in diapause (dormancy). The larvae are dark-colored with many branching, sharp spines on their backs. Upon ending diapause in the spring, the larvae immediately seek out the violet food plant. During the spring and early summer they pass through five instars (stages of development) before forming a pupa within a chamber of leaves that they draw together with silk. The adult butterflies emerge in about two weeks and live for approximately three weeks, during which time they feed on nectar and reproduce. Depending upon environmental conditions, the flight period ranges from about July through August or early September.
Behren's silverspot butterfly flight behavior is moderately erratic and swift in windy places, 0.3 to 1.8 meters (2 to 6 feet) above ground surface. Flights usually occur by late morning when temperatures are above about 60 degrees Fahrenheit. Adults may feed on nectar for as long as 5 minutes, returning to the same plant repeatedly. Butterflies may rest on bare ground, in grasses, or on ferns (bracken) and other foliage.
Adult Behren's silverspot butterflies feed on nectar, which is their only food source, besides internal reserves present when they emerge from the pupae. Observations of nectar feeding are few, but based on observations of this and closely related silverspot subspecies, plants in the sunflower family (Asteraceae) dominate as nectar sources, including thistles (
The ultimate goal of this recovery plan is to recover Behren's silverspot butterfly so that it can be delisted. To meet the recovery goal, the following objectives have been identified:
1. Secure self-sustaining wild metapopulations throughout the historic range of the subspecies.
2. Determine metapopulation and range-wide population numbers and monitor them to determine long-term trends.
3. Reduce and eliminate threats, to the extent possible.
4. Protect, conserve, and restore healthy butterfly ecosystems and their function.
As Behren's silverspot butterfly meets reclassification and recovery criteria, we will review its status and consider it for removal from the Federal Lists of Endangered and Threatened Wildlife and Plants.
We developed our recovery plan under the authority of section 4(f) of the Act, 16 U.S.C. 1533(f). We publish this notice under section 4(f) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Bureau of Indian Affairs, Interior.
Notice of request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Assistant Secretary—Indian Affairs is seeking comments on the renewal of Office of Management and Budget (OMB) approval for the collection of information for grants under the Office of Indian Energy and Economic Development Office's Energy and Mineral Development Program authorized by OMB Control Number 1076-0174. This information collection expires June 30, 2016.
Submit comments on or before May 31, 2016.
You may submit comments on the information collection to Rebecca Naragon, U.S. Department of the Interior, Office of Indian Energy and Economic Development, 1951 Constitution Avenue NW., MS-16-SIB, Washington, DC 20245; email:
Rebecca Naragon, (202) 208-4401.
The Energy Policy Act of 2005, 25 U.S.C. 3503 authorizes the Secretary of the Interior to provide grants to Indian Tribes as defined in 25 U.S.C. 3501(4)(A) and (B). The Office of Indian Energy and Economic Development (IEED) administers and manages the energy resource development grant program under the Energy and Minerals Development Program (EMDP).
Congress may appropriate funds to EMDP on a year-to-year basis. When funding is available, IEED may solicit proposals for energy and mineral resource development projects from Indian Tribes for use on Indian lands as defined in 25 U.S.C. 3501. The projects
The Bureau of Indian Affairs (BIA) requests your comments on this collection concerning: (a) The necessity of this information collection for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) The accuracy of the agency's estimate of the burden (hours and cost) of the collection of information, including the validity of the methodology and assumptions used; (c) Ways we could enhance the quality, utility, and clarity of the information to be collected; and (d) Ways we could minimize the burden of the collection of the information on the respondents.
Please note that an agency may not conduct or sponsor, and an individual need not respond to, a collection of information unless it has a valid OMB Control Number.
It is our policy to make all comments available to the public for review at the location listed in the
Bureau of Land Management, Interior.
Notice.
In accordance with the Federal Land Policy and Management Act, the Federal Advisory Committee Act, and the Federal Lands Recreation Enhancement Act, the Bureau of Land Management's (BLM) Utah Resource Advisory Council (RAC)/Recreation Resource Advisory Council (RecRAC) will meet as indicated below.
The BLM-Utah RAC/RecRAC will meet May 5, 2016, from 8:00 a.m.-3:45 p.m.
The RAC/RecRAC will meet at the BLM-Utah State Office, Monument Conference Room (5th Floor), 440 West 200 South, Salt Lake City, Utah.
Lola Bird, Public Affairs Specialist (RAC Coordinator), Bureau of Land Management, Utah State Office, 440 West 200 South, Suite 500, Salt Lake City, Utah 84101; phone (801) 539-4033; or
Planned agenda topics include the introduction of new members; election of new officers; an overview of BLM-Utah issues; updates on the effort to revise the BLM's planning regulations (Planning 2.0); implementation of the Greater Sage-Grouse land use plan; updates on the St. George Field Office resource management planning process (including the Red Cliffs and Beaver Dam National Conservation Areas); and, updates on the Respect and Protect Anti-Looting Campaign. The RecRAC will be briefed on the BLM's Connecting with Utah Communities Strategy and the Federal Lands Recreation Enhancement Act. The BLM-Henry Mountain Field Station will brief the RecRAC on a recreation fee pilot project that was approved by the RecRAC in November 2014.
A half-hour public comment period will take place from 12:30-1:30 p.m. The meeting is open to the public; however, transportation, lodging, and meals are the responsibility of the participating individuals.
Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to leave a message or question for the above individual. The FIRS is available 24 hours a day, seven days a week. Replies are provided during normal business hours.
43 CFR 1784.4-1.
Bureau of Land Management, Interior.
Interim final supplementary rules.
The Bureau of Land Management (BLM) Oregon/Washington State Director hereby establishes interim final supplementary rules limiting the duration of camping at Bastendorff Beach and the associated headlands
The interim final supplementary rules are effective April 1, 2016. You may submit comments to the BLM at one of the addresses below on or before May 31, 2016. The BLM will not necessarily consider any comments received after that date in reaching decisions on the final supplementary rules.
Bureau of Land Management, Attention: Heather Partipilo, BLM Umpqua Field Office, 1300 Airport Lane, North Bend, OR 97459, or email:
Heather Partipilo, Umpqua Field Office Planning and Environmental Coordinator, at 541-756-0100 or by email at
The BLM is establishing these interim final supplementary rules under the authority of 43 Code of Federal Regulations (CFR) 8365.1-6, which allows state directors to establish supplementary rules for the protection of persons, property, and the public lands and resources. This provision allows the BLM to issue rules of less than national effect without codifying the rules in the CFR. These interim final supplementary rules apply to public lands managed by the Umpqua Field Office.
Maps of the management areas and boundaries can be obtained by contacting the Umpqua Field Office (see
Please submit your comments on issues related to the rules, in writing, in accordance with the
The BLM is not obligated to consider, or include in the Administrative Record for the final supplementary rules, comments delivered to an address other than those listed above (see
The BLM will make your comments, including your name and address, available for public review at the Coos Bay District address listed in
On August 18, 2005, the BLM Oregon/Washington State Office established supplementary rules for all public lands in the states of Oregon and Washington (70 FR 48584). The interim final supplementary rules that are established today revise the first two rules, pertaining to camping and occupancy, only with regard to public lands at Bastendorff Beach and the associated headlands within the Umpqua Field Office, Coos Bay District, Oregon.
The 2005 camping and occupancy rule prohibits camping longer than 14 days in a 28 day period on public land in Oregon or Washington. The rule also requires that campers move at least 25 air miles from a previously occupied site after 14 days of camping.
The interim final supplementary rule that is established today revises the 2005 rule by limiting camping to a single stay of up to 24 hours in any 14-day period within the public lands at Bastendorff Beach and the associated headlands, unless otherwise authorized, and requiring campers to move at least 25 air miles from a previously occupied site after 24 hours of camping.
The BLM will continue to enforce all of the other 2005 supplementary rules, including the prohibition against leaving personal property unattended in a day use area, campground, designated recreation area or on public lands for more than 24 hours. This new camping limit will help the BLM minimize damage to natural resources, maintain public access for recreational uses, and reduce threats to public health, safety, and property.
This action is necessary because an increasing number of users of Bastendorff Beach have established long-term residency under the pretext of camping. Public concern about the effects of this unauthorized occupancy requires the BLM to develop stronger regulations to address this issue. The proliferation of residential camping interferes with legitimate recreational use of public lands; creates sanitation and other health and safety concerns; and damages natural resources because of the attendant increase of open raw sewage, trash dumping, abandoned trailers and vehicles, clearing and trampling of vegetation, brushfires caused by unattended campfires, aggressive panhandling, vehicle burglary, assault, and other law enforcement incidents.
The interim final supplementary rules are consistent with:
• The Bastendorff Beach Cooperative Management Plan approved by the BLM, Oregon Parks and Recreation Department, and Coos County Commissioners (July 20, 2011); and
• The Bastendorff Beach Cooperative Management Plan Environmental Assessment (DOI-BLM-OR-C030-2011-0006-EA) and the Finding Of No Significant Impact (FONSI) (February 27, 2012); and the Decision Record (March 1, 2012).
Since 2011, ongoing efforts to contain the problems at Bastendorff Beach have proved insufficient, and the threats to public health and safety have intensified. The BLM has determined that these rules are necessary to preserve the health and safety of visitors and neighboring residents, to maintain public access to recreation, and to limit damage to the environment. This notice, with detailed maps, will be available at the Coos Bay District Office.
In accordance with section 533(b)(B) of the Administrative Procedure Act
Good cause under section 553(d)(3) of the APA (5 U.S.C. 553(d)(3)), also exists for making these rules effective April 1, 2016 because the Coos County Commissioners, the Coos County Sheriff's Office, Oregon Parks and Recreation Department, adjacent land owners, and concerned citizens are asking the BLM to take immediate and assertive law enforcement action to curtail illegal activities on public lands at Bastendorff Beach. In addition, there is good cause to forgo prior notice and comment regarding the rules in order to provide relief to recreational visitors and nearby residents from the immediate and ongoing health and safety risks identified in the discussion.
The BLM invites public comment on these interim final supplementary rules until May 31, 2016. If we receive any substantive comments in response to this notice, we will determine whether or not to modify these interim final supplementary rules. Regardless of whether or not we receive substantive comments, we will publish a notice establishing final supplementary rules.
These supplementary rules are not significant regulatory actions and are not subject to review by the Office of Management and Budget under Executive Order 12866. The supplementary rules will not have an effect of $100 million or more on the economy. These rules establish a duration for camping visits and will not adversely affect, in a material way, the economy; productivity; competition; jobs; the environment; public health or safety; or state, local, or tribal governments or communities. These supplementary rules will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. These supplementary rules do not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the right or obligations of their recipients, nor do the rules raise novel legal or policy issues. These supplementary rules enable BLM law enforcement personnel to efficiently track occupancy and enforce regulations pertaining to unlawful occupancy in a manner consistent with current Oregon State and county laws, where appropriate on public lands.
Executive Order 12866 requires each agency to write regulations that are simple and easy to understand. The BLM invites your comments on how to make the interim final supplementary rules easier to understand, including answers to questions such as the following:
(1) Are the requirements in these interim final supplementary rules clearly stated?
(2) Do these interim final supplementary rules contain technical language or jargon that interferes with their clarity?
(3) Does the format of these interim final supplementary rules (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity?
(4) Would these interim final supplementary rules be easier to understand if they were divided into more (but shorter) sections?
(5) Is the description of these interim final supplementary rules in the
Please send any comments you have on the clarity of the interim final supplementary rules to the address specified in the
The BLM has prepared an EA and has found that these interim final supplementary rules do not constitute a major Federal action significantly affecting the quality of the human environment under Section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4332(2)(C). These interim final supplementary rules will enable BLM law enforcement personnel to cite persons for unlawful camping and use of public land for residential purposes. The BLM completed an EA to analyze the change in the camping limit in the planning area. The Decision Record for this EA was signed on March 1, 2012. The BLM has placed the EA and the FONSI on file in the BLM Administrative Record at the address specified in the
Congress enacted the Regulatory Flexibility Act of 1980, as amended, 5 U.S.C. 601,
These interim final supplementary rules do not constitute “major rules” as defined at 5 U.S.C. 804(2). These interim final supplementary rules only establish a 24-hour limitation on overnight camping over a 14-day period at Bastendorff Beach and the associated headlands, and require campers to move at least 25 air miles from a previously occupied site after 24 hours of camping. The limitation is necessary to protect the public lands and facilities and those, including small business concessionaires and outfitters, who use them. These interim final supplementary rules will have no effect on business, commercial, or industrial use of the public lands.
These interim final supplementary rules do not impose an unfunded mandate on state, local, or tribal governments or the private sector of more than $100 million per year, nor do these interim final supplementary rules have a significant or unique effect on state, local, or tribal governments or the private sector. The interim final supplementary rules do not require anything of state, local, or tribal governments. Therefore, the BLM is not required to prepare a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531,
These interim final supplementary rules do not represent a Government action capable of interfering with constitutionally protected property rights. The interim final supplementary rules do not address property rights in any form and do not cause the impairment of anyone's property rights. Therefore, the Department of the Interior has determined that these interim final supplementary rules do not cause a taking of private property or require further discussion of takings implications under this Executive Order.
These interim final supplementary rules will not have a substantial, direct effect on the states, on the relationship between the Federal Government and the states, or on the distribution of power and responsibilities among the various levels of government. These interim final supplementary rules apply in only one state, Oregon, and do not address jurisdictional issues involving the Oregon State government. Therefore, in accordance with Executive Order 13132, the BLM has determined that these interim final supplementary rules do not have sufficient Federalism implications to warrant preparation of a Federalism Assessment.
Under Executive Order 12988, the Oregon/Washington State Office of the BLM has determined that these interim final supplementary rules do not unduly burden the judicial system and that the rule meets the requirements of sections 3(a) and 3(b)(2) of the Order.
In accordance with Executive Order 13175, we have found that these interim final supplementary rules do not include policies that have tribal implications. Since these interim final supplementary rules do not change BLM policy and do not involve Indian reservation lands or resources, we have determined that the government-to-government relationships remain unaffected. These interim final supplementary rules only prohibit camping longer than 24 hours in any 14-day period.
Under Executive Order 13352, the Oregon/Washington State Office of the BLM has determined that these interim final supplementary rules will not impede the facilitation of cooperative conservation. These interim final supplementary rules will take appropriate account of and consider the interests of persons with ownership or other legally recognized interests in land or other natural resources; properly accommodate local participation in the Federal decision-making process; and provide that the programs, projects, and activities are consistent with protecting public health and safety.
These interim final supplementary rules do not comprise a significant energy action. These interim final supplementary rules will not have an adverse effect on energy supplies, production, or consumption. The rules only address unauthorized occupancy on public lands and have no connection with energy policy.
These interim final supplementary rules do not contain information collection requirements that the Office of Management and Budget must approve under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3521.
For the reasons stated in the preamble, and under the authority of 43 CFR 8365.1-6, 43 U.S.C. 1740, and 43 U.S.C. 315a, the State Director establishes interim final supplementary rules for public lands managed by the BLM in Coos County, Oregon, subject to the Coos Bay District Resource Management Plan, to read as follows:
Unless otherwise authorized, the Bureau of Land Management will enforce the following rules on public lands at Bastendorff Beach and the associated headlands within the Umpqua Field Office, Coos Bay District, Oregon:
1. You must not camp longer than a single stay of up to 24 hours in a 14-day period on public land.
2. After a single stay of up to 24 hours, you must move at least 25 air miles away from the previously occupied site.
The following persons are exempt from these rules: Any Federal, state, or local officer or employee acting within the scope of his/her duties; members of any organized rescue or firefighting force in performance of an official duty; and any person authorized, in writing, by the BLM.
Any person who violates these interim final supplementary rules may be tried before a United States Magistrate and fined in accordance with 18 U.S.C. 3571, imprisoned no more than 12 months under 43 U.S.C. 1733(a) and 43 CFR 8360.0-7, or both. In accordance with 43 U.S.C. 8365.1-7, state or local officials may also impose penalties for violations of Oregon law.
Bureau of Land Management, Interior.
Notice of public meetings.
In accordance with the Federal Land Policy and Management Act of 1976 and the Federal Advisory Committee Act of 1972, the U.S. Department of the Interior, Bureau of Land Management (BLM) Colorado's Northwest Resource Advisory Council (RAC), Southwest RAC and Front Range RACs will meet as indicated below.
The Northwest, Southwest and Front Range RACs have scheduled a joint meeting for April 25, 26 and 27, 2016. On April 25, the meeting will begin at 12 p.m. and adjourn at 5 p.m.; on April 26, the meeting will begin at 8 a.m. and adjourn at 5 p.m.; on April 27, the meeting will begin at 8 a.m. and adjourn at 12 p.m. On April 27, each RAC will hold individual RAC meetings from 8 a.m. to 12 p.m., with time for public comments from 8 to 8:30 a.m.
The joint Colorado RAC meeting will be held at the Hotel Colorado in Glenwood Springs, 526 Pine St., Glenwood Springs, CO 81601.
Courtney Whiteman, Public Affairs Specialist; BLM Colorado State Office,
The Colorado RACs advise the Secretary of the Interior, through the BLM, on a variety of public land issues in Colorado.
Topics of discussion during the RAC meeting may include recreation, land use planning, energy and minerals management, recreation, sage-grouse habitat management and other issues as appropriate. This meeting is open to the public. The public may present written comments to the RACs. There will also be time, as identified above, allocated for hearing public comments. Depending on the number of people who wish to comment during the public comment period, individual comments may be limited.
National Park Service, Interior.
Notice; request for comments.
We (National Park Service) will ask the Office of Management and Budget (OMB) to approve the information collection (IC) described below. As required by the Paperwork Reduction Act of 1995 and as part of our continuing efforts to reduce paperwork and respondent burden, we invite the general public and other Federal agencies to take this opportunity to comment on this IC. We may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
You must submit comments on or before May 31, 2016.
Send your comments on the IC to Madonna L. Baucum, Information Collection Clearance Officer, National Park Service, 12201 Sunrise Valley Drive (Room 2C114, Mail Stop 242), Reston, VA 20192 (mail); or
To request additional information about this IC, contact Shean Rheams, National Park Service, 1201 Eye Street NW., Washington, DC 20005 (mail); or
The NPS, as delegated by the U.S. Office of Personnel Management (OPM), is authorized to request information to determine suitability of applicants for Federal employment and proposed non-Federal personnel working under contractor and/or agreement who require access to NPS property and/or receive a DOIAccess (personal identity verification (PIV)) badge under Executive Orders 10450 and 10577; sections 3301, 3302, and 9101 of Title 5, United States Code (U.S.C.); and parts 2, 5, 731, and 736 of Title 5, Code of Federal Regulations (CFR), and Federal information processing standards. Section 1104 of Title 5 allows OPM to delegate personnel management functions to other Federal agencies.
In line with new regulations mandated by the OPM and the Department of the Interior (DOI), the NPS Personnel Security Branch is utilizing the Electronic Questionnaires for Investigations Processing (E-QIP) System. As a result, electronic submission of the Standard Form 85, for suitability background investigations (NACI), or the Standard Form 85P, for Public Trust, is now required. The DOI and NPS requires all applicants for Federal employment and non-Federal personnel (contractors, partners, etc.) requiring access to NPS property and/or receive a DOIAccess PIV badge to be processed for a suitability background investigation, in accordance with Executive Order 10450 and the Homeland Security Presidential Directive (HSPD-12).
The National Park Service will utilize Form 10-955, “Background Initiation Request” to create E-QIP accounts necessary to initiate background investigations for all individuals requiring access to NPS property and/or receive a DOIAccess (personal identity verification (PIV)) badge. The OPM and DOI programs initiating background investigations have published notices in the
The information collected via NPS Form 10-955 includes detailed information for each proposed candidate requiring a background clearance, to include:
• Full legal name;
• Social Security Number;
• Date and Place of Birth;
• Country of Citizenship;
• Contact Phone Number;
• Email Address;
• Home Address;
• Whether proposed candidate has ever been investigated by another Federal agency; and
• If they were investigated by another Federal agency, they must provide the name of that agency and the date of the investigation.
Additional information required on Form 10-956 for proposed contractors, partners, and other non-Federal candidates includes:
• Name of Proposed Candidate's Company;
• Contract/Agreement Number; and
• Contract/Agreement Periods of Performance.
We invite comments concerning this information collection on:
• Whether or not the collection of information is necessary, including whether or not the information will have practical utility;
• The accuracy of our estimate of the burden for this collection of information;
• Ways to enhance the quality, utility, and clarity of the information to be collected; and
• Ways to minimize the burden of the collection of information on respondents.
Comments that you submit in response to this notice are a matter of public record. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask OMB in your comment to withhold your personal identifying information from public review, we cannot guarantee that it will be done.
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted a review pursuant to the Tariff Act of 1930 (“the Act”), as amended, to determine whether revocation of the antidumping duty order on raw in-shell pistachios from Iran would be likely to lead to continuation or recurrence of material injury. Pursuant to the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission;
Mary Messer (202-205-3193), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (
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Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and Email address of the certifying official.
(2) A statement indicating whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in this proceeding by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping duty order on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3-5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) the quantity and value of U.S. commercial shipments of the
(d) the quantity and value of U.S. internal consumption/company transfers of the
(e) the value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) the quantity and value (f.o.b. U.S. port, including antidumping duties) of U.S. commercial shipments of
(c) the quantity and value (f.o.b. U.S. port, including antidumping duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm(s) to produce the
(c) the quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (Optional) A statement of whether you agree with the above definitions of the
This proceeding is being conducted under authority of Title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.61 of the Commission's rules.
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted reviews pursuant to the Tariff Act of 1930 (“the Act”), as amended, to determine whether revocation of the antidumping and countervailing duty orders on certain aluminum extrusions other than finished heat sinks from China would be likely to lead to continuation or recurrence of material injury. Pursuant to the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission;
Edward Petronzio (202-205-3176), Office of Investigations, U.S. International Trade Commission, 500 E
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Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation or an earlier review of the same underlying investigation. The Commission's designated agency ethics official has advised that a five-year review is not the same particular matter as the underlying original investigation, and a five-year review is not the same particular matter as an earlier review of the same underlying investigation for purposes of 18 U.S.C. 207, the post employment statute for Federal employees, and Commission rule 201.15(b) (19 CFR 201.15(b)), 79 FR 3246 (Jan. 17, 2014), 73 FR 24609 (May 5, 2008). Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR 201.15, even if the corresponding underlying original investigation or an earlier review of the same underlying investigation was pending when they were Commission employees. For further ethics advice on this matter, contact Carol McCue Verratti, Deputy Agency Ethics Official, at 202-205-3088.
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and Email address of the certifying official.
(2) A statement indicating whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in this proceeding by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping and countervailing duty orders on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3-5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) the quantity and value of U.S. commercial shipments of the
(d) the quantity and value of U.S. internal consumption/company transfers of the
(e) the value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping or countervailing duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. commercial shipments of
(c) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm(s) to produce the
(c) the quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (Optional) A statement of whether you agree with the above definitions of the
This proceeding is being conducted under authority of Title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.61 of the Commission's rules.
By order of the Commission.
On the basis of the record
Pursuant to section 207.18 of the Commission's rules, the Commission also gives notice of the commencement of the final phase of its investigations. The Commission will issue a final phase notice of scheduling, which will be published in the
On February 12, 2016, AK Steel Corp., West Chester, Ohio; Allegheny Ludlum, LLC d/b/a ATI Flat Rolled Products, Pittsburgh, Pennsylvania; North American Stainless, Inc., Ghent, Kentucky; and Outokumpu Stainless USA, LLC, Bannockburn, Illinois filed a petition with the Commission and Commerce, alleging that an industry in the United States is materially injured or threatened with material injury by reason of LTFV and subsidized imports of stainless steel sheet and strip from China. Accordingly, effective February 12, 2016, the Commission, pursuant to sections 703(a) and 733(a) of the Act (19 U.S.C. 1671b(a) and 1673b(a)), instituted countervailing duty investigation No. 701-TA-557 and antidumping duty investigation No. 731-TA-1312 (Preliminary).
Notice of the institution of the Commission's investigations and of a public conference to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission made these determinations pursuant to sections 703(a) and 733(a) of the Act (19 U.S.C. 1671b(a) and 1673b(a)). It completed and filed its determinations in these investigations on March 28, 2016. The views of the Commission are contained in USITC Publication 4603 (April 2016), entitled
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the institution of investigation and commencement of preliminary phase antidumping duty investigation No. 731-TA-1315 (Preliminary) pursuant to the Tariff Act of 1930 (“the Act”) to determine whether there is a reasonable indication that an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of imports of ferrovanadium from Korea, provided for in subheading 7202.92.00 of the Harmonized Tariff Schedule of the United States, that are alleged to be sold in the United States at less than fair value. Unless the Department of Commerce extends the time for initiation, the Commission must reach a preliminary determination in antidumping duty investigations in 45 days, or in this case by May 12, 2016. The Commission's views must be transmitted to Commerce within five business days thereafter, or by May 19, 2016.
Keysha Martinez (202-205-2136), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (
For further information concerning the conduct of this investigation and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A and B (19 CFR part 207).
In accordance with sections 201.16(c) and 207.3 of the rules, each document filed by a party to the investigation must be served on all other parties to the investigation (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
This investigation is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.12 of the Commission's rules.
By order of the Commission.
Notice is hereby given that, on February 10, 2016, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
On September 15, 2004, ASTM filed its original notification pursuant to section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on December 11, 2015. A notice was published in the
Notice is hereby given that, on March 8, 2016, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and NCOIC intends to file additional written notifications disclosing all changes in membership.
On November 19, 2004, NCOIC filed its original notification pursuant to section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on December 21, 2015. A notice was published in the
Notice.
The Department of Labor (DOL) is submitting the Mine Safety and Health Administration (MSHA) sponsored information collection request (ICR) titled, “Underground Coal Mine Fire Protection,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, in accordance with the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501
The OMB will consider all written comments that agency receives on or before May 2, 2016.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the RegInfo.gov Web site at
Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-MSHA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or by email at
This ICR seeks to extend PRA authority for the Underground Coal Mine Fire Protection information collection requirements codified in regulations 30 CFR 75.1502 that requires an underground coal mine operator to submit for MSHA approval a plan for the instruction of miners in firefighting and evacuation procedures to be followed in the event of an emergency. In addition, various sections of part 75 require fire drills to be conducted quarterly, equipment to be tested, and a record to be kept of the drills and testing results. Federal Mine Safety and Health Act of 1977 sections 101(a) and 103(h) authorize this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
OMB authorization for an ICR cannot be for more than three (3) years without renewal, and the current approval for this collection is scheduled to expire on March 31, 2016. The DOL seeks to extend PRA authorization for this information collection for three (3) more years, without any change to existing
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
44 U.S.C. 3507(a)(1)(D).
Notice.
The Department of Labor (DOL) is submitting the Bureau of Labor Statistics (BLS) sponsored information collection request (ICR) titled, “International Training Application,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, in accordance with the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501
The OMB will consider all written comments that agency receives on or before May 2, 2016.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the RegInfo.gov Web site at
Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-BLS, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Contact Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or by email at
44 U.S.C. 3507(a)(1)(D).
This ICR seeks to extend PRA authority for the International Training Application information collection. The BLS is one of the largest labor statistics organizations in the world and has provided international training in labor market information and price indexes since 1945. Each year, the BLS conducts training programs of 1 to 2 weeks duration at its training facilities in Washington, DC Potential participants, their employers, or sponsors complete the Training Application in order to provide information required to determine suitability for the BLS international training and to enroll those deemed suitable. The BLS Authorizing Statue and the Foreign Assistance Act of 1961 authorize this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
OMB authorization for an ICR cannot be for more than three (3) years without renewal, and the current approval for this collection is scheduled to expire on March 31, 2016. The DOL seeks to extend PRA authorization for this information collection for three (3) more years, without any change to existing requirements. The DOL notes that existing information collection requirements submitted to the OMB receive a month-to-month extension while they undergo review. For additional substantive information about this ICR, see the related notice published in the
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Notice.
The Department of Labor (DOL) is submitting the Office of Federal Contract Compliance Programs (OFCCP) sponsored information collection request (ICR) revision titled, “OFCCP Recordkeeping and Reporting Requirements—Supply and Service,” to the Office of Management and Budget (OMB) for review and approval for use in accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501
The OMB will consider all written comments that agency receives on or before May 2, 2016.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the RegInfo.gov Web site at
Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-OFCCP, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or sending an email to
This ICR seeks approval under the PRA for revisions to the OFCCP Recordkeeping and Reporting Requirements—Supply and Service information collection, commonly referred to as the Scheduling Letter, which is used to schedule Federal contractors and subcontractors for compliance evaluations in accordance with Executive Order 11246 section 206, as amended; Rehabilitation Act of 1973 section 503, as amended; and the Vietnam Era Veterans' Readjustment Assistance Act of 1974 section 402, as amended. These mandates prohibit Federal contractors and subcontractors from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or protected veteran's status. They also prohibit these employers from taking adverse employment actions against applicants and employees for asking about, discussing, or sharing information about their pay or, in certain circumstances, the pay of their co-workers. This information collection has been classified as a revision, because of minor clarifying edits to the Scheduling Letter and associated Itemized Listing to ensure contractors understand the information being requested and to strengthen the agency's assurances of confidentiality for the information provided. Executive Order 11246 section 201, Rehabilitation Act of 1973 section 503, and Vietnam Era Veterans' Readjustment Assistance Act section 402 authorize this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
44 U.S.C. 3507(a)(1)(D).
Occupational Safety and Health Administration (OSHA), DOL.
Request for nominations to serve on the Whistleblower Protection Advisory Committee.
The Assistant Secretary of Labor for Occupational Safety and Health requests nominations for membership on the Whistleblower Protection Advisory Committee (WPAC).
Nominations for WPAC must be submitted (postmarked, sent, transmitted, or received) by May 31, 2016.
You may submit nominations for WPAC, identified by the OSHA Docket No. OSHA-2016-0006, by any of the following methods:
Submissions in response to this
Anthony Rosa, OSHA, Directorate of Whistleblower Protection Programs, U.S. Department of Labor, Room N-4618, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-2199; email address
The Assistant Secretary of Labor for Occupational Safety and Health invites interested individuals to submit nominations for membership on WPAC.
• Two management representatives who are or represent employers or employer associations in industries covered by one or more of the whistleblower laws enforced by OSHA;
• Two labor representatives who are or represent workers or worker advocacy organizations in industries covered by one or more of the whistleblower laws enforced by OSHA; and
• Two public representatives from a college, university, non-partisan think tank, or other entity who have extensive knowledge and expertise on whistleblower statutes and issues.
If a vacancy occurs before a term expires, the Secretary may appoint a new member who represents the same interest as the predecessor to serve for the remainder of the unexpired term. The committee meets at least two times a year.
1. The nominee's name, contact information and current occupation or position (required);
2. The nominee's resume or curriculum vitae, including prior membership on WPAC and other relevant organizations, associations and committees (required);
3. Category of membership (management, labor, state plan, or academic/extensive whistleblower knowledge) the nominee is qualified to represent (required);
4. A summary of the nominee's background, experience and qualifications that address the nominee's suitability to serve on WPAC (required);
5. Articles or other documents the nominee has authored that indicate the nominee's knowledge, experience and expertise in whistleblower protections (optional); and
6. A statement that the nominee is aware of the nomination, is willing to regularly attend and participate in WPAC meetings, and has no apparent conflicts of interest that would preclude membership on WPAC (required).
Nominations that do not contain all required information will not be considered.
Before candidates are appointed, the U.S. Department of Labor (Department) conducts a basic background check using publically available, Internet-based sources.
Because of security-related procedures, the use of regular mail may cause a significant delay in the receipt of nominations. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger or courier service, please contact the OSHA Docket Office (see
All submissions in response to this
Electronic copies of this
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, authorized the preparation of this notice under the authority granted by 5 U.S.C. App. 2, 41 CFR part 102-3, chapter 1600 of Department of Labor Management Series 3 (Aug. 15, 2013), 77 FR 3912 (Jan. 25, 2012), and the Secretary of Labor's authority to administer the whistleblower provisions found in 29 U.S.C. 660(c), 49 U.S.C. 31105, 15 U.S.C. 2651, 46 U.S.C. 80507, 42 U.S.C. 300j-9(i), 33 U.S.C. 1367, 15 U.S.C. 2622, 42 U.S.C. 6971, 42 U.S.C. 7622, 42 U.S.C. 9610, 42 U.S.C. 5851, 49 U.S.C. 42121, 18 U.S.C. 1514A, 49 U.S.C. 60129, 49 U.S.C. 20109, 6 U.S.C. 1142, 15 U.S.C. 2087, 29 U.S.C. 218c, 12 U.S.C. 5567, 46 U.S.C. 2114, 21 U.S.C. 399d, and 49 U.S.C. 30171.
Office of Workers' Compensation Programs, Labor.
Announcement of meeting of the Advisory Board on Toxic Substances and Worker Health (Advisory Board) for Part E of the Energy Employees Occupational Illness Compensation Program Act (EEOICPA).
The Advisory Board will meet April 26-28, 2016, in Washington, DC.
Comments, requests to speak, submissions of materials for the record, and requests for special accommodations: You must submit (postmark, send, transmit) comments, requests to address the Advisory Board, speaker presentations, and requests for special accommodations for the meetings by April 19, 2016.
The Advisory Board will meet in Room N-4215 A/B/C, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210.
Submission of comments, requests to speak and submissions of materials for the record: You may submit comments, materials, and requests to speak at the Advisory Board meeting, identified by the Advisory Board name and the meeting date of April 26-28, 2016, by any of the following methods:
•
•
Requests for special accommodations: Please submit requests for special accommodations to attend the Advisory Board meeting by email, telephone, or hard copy to Ms. Carrie Rhoads, OWCP, Room S-3524, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 343-5580; email
OWCP will make available publically, without change, any comments, requests to speak, and speaker presentations, including any personal information that you provide. Therefore, OWCP cautions interested parties against submitting personal information such as Social Security numbers and birthdates.
For press inquiries: Ms. Amanda McClure, Office of Public Affairs, U.S. Department of Labor, Room S-1028, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-4672; email
The Advisory Board is mandated by Section 3687 of EEOICPA. The Secretary of Labor established the Board under this authority and Executive Order 13699 (June 26, 2015). The purpose of the Advisory Board is to advise the Secretary with respect to: (1) The Site Exposure Matrices (SEM) of the Department of Labor; (2) medical guidance for claims examiners for claims with the EEOICPA program, with respect to the weighing of the medical evidence of claimants; (3) evidentiary requirements for claims under Part B of EEOICPA related to lung disease; and (4) the work of industrial hygienists and staff physicians and consulting physicians of the Department of Labor and reports of such hygienists and physicians to ensure quality, objectivity, and consistency. The Advisory Board sunsets on December 19, 2019.
The Advisory Board operates in accordance with the Federal Advisory Committee Act (FACA) (5 U.S.C. App. 2), its implementing regulations (41 CFR part 102-3).
Agenda: The tentative agenda for the Advisory Board meeting includes:
• Welcome remarks from DOL officials;
• New member orientation on FACA and ethics rules;
• Overview of the EEOICPA program;
• Discussion of the Board's authority and recommendations regarding the proposed new regulations (identified by Regulatory Information Number 1240-AA08);
• Presentations from the Department of Energy, the Advisory Board on Radiation and Worker Health, the EEOICPA Ombudsman, and the NIOSH Ombudsman;
• Discussion on the Site Exposure Matrices (SEM) of the Department of Labor;
• Discussion on medical guidance for claims examiners for claims with the EEOICPA program, with respect to the weighing of the medical evidence of claimants;
• Discussion on evidentiary requirements for claims under EEOICPA Part B related to lung disease;
• Discussion on the work of industrial hygienists and staff physicians and consulting physicians of the Department of Labor and reports of such hygienists and physicians to ensure quality, objectivity, and consistency; and
• Public comments.
OWCP transcribes and prepares detailed minutes of Advisory Board meetings. OWCP posts the transcripts and minutes on the Advisory Board Web page,
Advisory Board meetings: All Advisory Board meetings are open to the public. Individuals attending Advisory Board meetings at the U.S. Department of Labor must enter the building at the Visitors' Entrance at 3rd and C Streets NW., and pass through building security. Attendees must have valid government-issued photo identification (
Individuals requesting special accommodations to attend the Advisory Board meeting should contact Ms. Rhoads.
Submission of comments: You may submit comments using one of the methods listed in the
Because of security-related procedures, receipt of submissions by regular mail may experience significant delays.
Requests to speak and speaker presentations: If you want to address the Advisory Board at the meeting you must submit a request to speak, as well as any written or electronic presentation, by April 19, 2016, using one of the methods listed in the
• The amount of time requested to speak;
• The interest you represent (
• A brief outline of the presentation.
PowerPoint presentations and other electronic materials must be compatible
Electronic copies of this
You may contact Antonio Rios, Designated Federal Officer, Advisory Board on Toxic Substances and Worker Health, Office of Workers' Compensation Programs, at
National Archives and Records Administration (NARA).
Notice of availability of proposed records schedules; request for comments.
The National Archives and Records Administration (NARA) publishes notice at least once monthly of certain Federal agency requests for records disposition authority (records schedules). Once approved by NARA, records schedules provide mandatory instructions on what happens to records when no longer needed for current Government business. They authorize agencies to preserve records of continuing value in the National Archives of the United States and to destroy, after a specified period, records lacking administrative, legal, research, or other value. NARA publishes notice for records schedules in which agencies propose to destroy records not previously authorized for disposal or reduce the retention period of records already authorized for disposal. NARA invites public comments on such records schedules, as required by 44 U.S.C. 3303a(a).
NARA must receive requests for copies in writing by May 2, 2016. Once NARA completes appraisal of the records, we will send you a copy of the schedule you requested. We usually prepare appraisal memoranda that contain additional information concerning the records covered by a proposed schedule. You may also request these. If you do, we will also provide them once we have completed the appraisal. You have 30 days after we send these requested documents in which to submit comments.
You may request a copy of any records schedule identified in this notice by contacting Records Management Services (ACNR) using one of the following means:
You must cite the control number, which appears in parentheses after the name of the agency which submitted the schedule, and a mailing address. If you would like an appraisal report, please include that in your request.
Margaret Hawkins, Director, by mail at Records Management Services (ACNR); National Archives and Records Administration; 8601 Adelphi Road; College Park, MD 20740-6001, by phone at 301-837-1799, or by email at
Each year, Federal agencies create billions of records on paper, film, magnetic tape, and other media. To control this accumulation, agency records managers prepare schedules proposing retention periods for records and submit these schedules for NARA's approval. These schedules provide for timely transfer into the National Archives of historically valuable records and authorize the disposal of all other records after the agency no longer needs them to conduct its business. Some schedules are comprehensive and cover all the records of an agency or one of its major subdivisions. Most schedules, however, cover records of only one office or program or a few series of records. Many of these update previously approved schedules, and some include records proposed as permanent.
The schedules listed in this notice are media neutral unless otherwise specified. An item in a schedule is media neutral when an agency may apply the disposition instructions to records regardless of the medium in which it has created or maintains the records. Items included in schedules submitted to NARA on or after December 17, 2007, are media neutral unless the item is limited to a specific medium. (See 36 CFR 1225.12(e).)
No agencies may destroy Federal records without the approval of the Archivist of the United States. The Archivist grants this approval only after a thorough consideration of the records' administrative use by the agency of origin, the rights of the Government and of private people directly affected by the Government's activities, and whether or not the records have historical or other value.
In addition to identifying the Federal agencies and any subdivisions requesting disposition authority, this notice lists the organizational unit(s) accumulating the records or that the schedule has agency-wide applicability (in the case of schedules that cover records that may be accumulated throughout an agency), provides the control number assigned to each schedule, the total number of schedule items, and the number of temporary items (the records proposed for destruction), and includes a brief description of the temporary records. The records schedule itself contains a full description of the records at the file unit level as well as their disposition. If NARA staff has prepared an appraisal memorandum for the schedule, it too includes information about the records. You may request additional information about the disposition process at the addresses above.
1. Department of Agriculture, Farm Service Agency (DAA-0145-2015-0016, 2 items, 2 temporary items). Records related to base acre, yield updates, and agricultural risk and price loss coverage, including case files and rejected/withdrawn applications.
2. Department of Agriculture, Farm Service Agency (DAA-0145-2015-0017, 3 items, 3 temporary items). Records related to the margin protection program for dairy farmers, including case files and rejected/withdrawn applications.
3. Department of Defense, Defense Threat Reduction Agency (DAA-0374-2014-0036, 1 item, 1 temporary item). Records related to packing, boxing, and crating material for preservation or long term storage.
4. Department of Defense, Defense Threat Reduction Agency (DAA-0374-2014-0046, 1 item, 1 temporary item). Index of records related to construction and engineering projects.
5. Department of Defense, Defense Threat Reduction Agency (DAA-0374-2015-0002, 1 item, 1 temporary item). Records related to oversight of human and animal research including proposals, board certifications, and review and approval documentation.
6. Department of Defense, Office of the Secretary of Defense (DAA-0330-2015-0010, 2 items, 2 temporary items). Master files and associated metadata of an electronic information system used to track Equal Employment Opportunity investigations and resolutions.
7. Department of Health and Human Services, Administration for Children and Families (DAA-0292-2016-0002, 2 items, 1 temporary item). Records related to the issuance of press releases, including background papers, news clippings, program activities, and reference materials. Proposed for permanent retention are press releases.
8. Department of Health and Human Services, Administration for Children and Families (DAA-0292-2016-0006, 12 items, 9 temporary items). Records related to Federal grant programs, including penalty determinations and resolutions, regulation files, briefing materials, and court case files. Proposed for permanent retention are final data reports, policy files, policy precedent final reports, and publications.
9. Department of Health and Human Services, Administration for Children and Families (DAA-0292-2016-0009, 2 items, 1 temporary item). Office-level delegations of authority records. Proposed for permanent retention are delegations of authority for senior management staff.
10. Department of Health and Human Services, Administration for Children and Families (DAA-0292-2016-0010, 6 items, 6 temporary items). Child support enforcement records including correspondence, memorandums, agreements, reports, and planning documents.
11. Department of Health and Human Services, Administration for Children and Families (DAA-0292-2016-0011, 4 items, 1 temporary item). Congressional reports related to the evaluation of tribal funding projects. Proposed for permanent retention are tribal consultation reports and paper and audio-visual records documenting Native American languages.
12. Department of Homeland Security, United States Citizenship and Immigration Services (DAA-0566-2016-0003, 1 item, 1 temporary item). Records related to pre-determination review of employer eligibility to file applications for individuals for certain employment-based visas.
13. Department of the Navy, Naval Nuclear Propulsion Program (DAA-0594-2015-0002, 1 item, 1 temporary item). Correspondence records related to the efficient operation of reactors and training and evaluation of personnel.
14. Department of Veterans Affairs, Veterans Health Administration (DAA-0015-2015-0005, 3 items, 3 temporary items). Records related to clinical psychology and mental hygiene including notes, tests, evaluations, and related materials in electronic health records.
15. Department of Veterans Affairs, Veterans Health Administration, (DAA-0015-2016-0002, 2 items, 2 temporary items). Records of studies to diagnose and treat sleep disorders.
16. General Services Administration, Federal Acquisition Service (DAA-0137-2015-0001, 17 items, 17 temporary items). Records related to supply catalog and contract specifications, schedules, and publication development; procurement support, supply, and stores; personal property services; travel, transportation, and motor vehicle services; telecommunication services; and administrative support.
17. General Services Administration, Office of the Inspector General (DAA-0269-2015-0002, 8 items, 7 temporary items). Routine case files, administrative files, working papers, and resource and reference material. Proposed for permanent retention are significant investigation, inspection, and audit case files.
18. Military Compensation and Retirement Modernization Commission, Agency-wide (DAA-0220-2016-0002, 8 items, 1 temporary item). Public Web site records. Proposed for permanent retention are reports, correspondence, congressional hearings, biographical information on the Commissioners, public comments and hearings, press releases and issuances.
19. Selective Service System, Agency-wide (DAA-0147-2015-0002, 4 items, 1 temporary item). Organization and mission-related draft correspondence and background materials. Proposed for permanent retention are planning files, organization charts, and public announcements.
National Endowment for the Arts, National Foundation on the Arts and Humanities.
Notice of meeting.
Pursuant to the Federal Advisory Committee Act, as amended, notice is hereby given that one meeting of the Arts Advisory Panel to the National Council on the Arts will be held by teleconference.
All meetings are Eastern time and ending times are approximate:
National Endowment for the Arts, Constitution Center, 400 7th St. SW., Washington, DC 20506.
Further information with reference to these meetings can be obtained from Ms. Kathy Plowitz-Worden, Office of Guidelines & Panel Operations, National Endowment for the Arts, Washington, DC 20506;
The closed portions of meetings are for the purpose of Panel review, discussion, evaluation, and recommendations on financial assistance under the National Foundation on the Arts and the Humanities Act of 1965, as amended, including information given in confidence to the agency. In accordance with the determination of the Chairman of February 15, 2012, these sessions will be closed to the public pursuant to subsection (c)(6) of section 552b of title 5, United States Code.
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
Please contact Rachel Evans at
The National Science Board's Executive Committee, pursuant to NSF regulations (45 CFR part 614), the National Science Foundation Act, as amended (42 U.S.C. 1862n-5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice of the scheduling of a teleconference for the transaction of National Science Board business, as follows:
Wednesday, April 6, 2016 from 1:00-2:00 p.m. EDT.
(1) Committee Chair's opening remarks; (2) Approval of Executive Committee minutes of January 2016; (3) Review, discuss and approve an agenda for the NSB meeting scheduled for May 5-6, 2016; (4) Review annual Executive Committee report; (5) Timing for delivery of the annual Merit Review report; and (6) Committee Chair's closing remarks.
Open.
This meeting will be held by teleconference at the National Science Foundation, 4201 Wilson Blvd., Arlington, VA 22230. A public listening line will be available. Members of the public must contact the Board Office (call 703-292-7000 or send an email message to
Please refer to the National Science Board Web site
The ACRS Subcommittee on Fukushima will hold a meeting on April 22, 2016, Room T-2B1, 11545 Rockville Pike, Rockville, Maryland 20852.
The meeting will be open to public attendance. The agenda for the subject meeting shall be as follows:
The Subcommittee will discuss the status of guidance published in support of the draft proposed mitigation of beyond-design-basis events rulemaking and public comments received on the draft proposed rulemaking package. The Subcommittee will hear presentations by and hold discussions with the NRC staff and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Mike Snodderly (Telephone: 301-415-2241 or Email:
Detailed meeting agendas and meeting transcripts are available on the NRC Web site at
If attending this meeting, please enter through the One White Flint North building, 11555 Rockville Pike, Rockville, Maryland 20852. After registering with Security, please contact Mr. Theron Brown (Telephone: 240-888-9835) to be escorted to the meeting room.
The ACRS Subcommittee on Fukushima will hold a meeting on April 21, 2016, Room T-2B1, 11545 Rockville Pike, Rockville, Maryland 20852.
The meeting will be open to public attendance.
The agenda for the subject meeting shall be as follows:
The Subcommittee will review Group 3 Fukushima Tier 2 and 3 recommendations regarding other natural hazards screening evaluations. The Subcommittee will hear presentations by and hold discussions with the NRC staff and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Kathy Weaver (Telephone: 301-415-6236 or Email:
Detailed meeting agendas and meeting transcripts are available on the NRC Web site at
If attending this meeting, please enter through the One White Flint North building, 11555 Rockville Pike, Rockville, Maryland 20852. After registering with Security, please contact Mr. Theron Brown (Telephone: 240-888-9835) to be escorted to the meeting room.
The ACRS Subcommittee on APR 1400 will hold a meeting on April 20-21, 2016, Room T-2B1, 11545 Rockville Pike, Rockville, Maryland.
The meeting will be open to public attendance with the exception of portions that may be closed to protect information that is proprietary pursuant to 5 U.S.C. 552b(c)(4). The agenda for the subject meeting shall be as follows:
The Subcommittee will review the APR 1400 introduction and overall design. The Subcommittee will hear presentations by and hold discussions with the NRC staff and Westinghouse regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Christopher Brown (Telephone 301-415-7111 or Email:
Detailed meeting agendas and meeting transcripts are available on the NRC Web site at
If attending this meeting, please enter through the One White Flint North Building, 11555 Rockville Pike, Rockville, MD. After registering with security, please contact Mr. Theron Brown (Telephone 240-888-9835) to be escorted to the meeting room.
The ACRS Subcommittee on Plant License Renewal will hold a meeting on April 19, 2016, Room T-2B3, 11545 Rockville Pike, Rockville, Maryland.
The meeting will be open to public attendance.
The agenda for the subject meeting shall be as follows:
The Subcommittee will review the LaSalle County Station, Units 1 and 2, License Renewal Application. The Subcommittee will hear presentations by and hold discussions with representatives of the NRC staff, Exelon Generation Company, and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Kent Howard (Telephone 301-415-2989 or Email:
Detailed meeting agendas and meeting transcripts are available on the NRC Web site at
If attending this meeting, please enter through the One White Flint North building, 11555 Rockville Pike, Rockville, MD. After registering with security, please contact Mr. Theron Brown (Telephone 240-888-9835) to be escorted to the meeting room.
The ACRS Subcommittee on Fukushima will hold a meeting on April 22, 2016, Room T-2B1, 11545 Rockville Pike, Rockville, Maryland 20852.
The meeting will be open to public attendance.
The agenda for the subject meeting shall be as follows:
The Subcommittee will discuss the NRC staff's reassessment of guidance developed for the Phase 1 integrated assessments as directed in the staff requirements memorandum dated July 28, 2015 for COMSECY-15-0019, “Closure Plan for the Reevaluation of Flooding Hazards for Operating Nuclear Power Plants.” The Subcommittee will hear presentations by and hold discussions with the NRC staff and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Mike Snodderly (Telephone: 301-415-2241 or Email:
Detailed meeting agendas and meeting transcripts are available on the NRC Web site at
If attending this meeting, please enter through the One White Flint North building, 11555 Rockville Pike,
Pursuant to section 19(b)(1)
The Exchange proposes to amend the NYSE Arca Equities Schedule of Fees and Charges for Exchange Services (“Fee Schedule”) to exclude from its average daily volume and certain other calculations any trading day on which the Exchange is not open for the entire trading day and/or a disruption affects an Exchange system that lasts for more than 60 minutes during regular trading hours. The Exchange proposes to implement the fee change effective March 21, 2016. 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 the Fee Schedule to exclude from its average daily volume (“ADV”) and certain other calculations any trading day on which the Exchange is not open for the entire trading day and/or a disruption affects an Exchange system that lasts for more than 60 minutes during regular trading hours.
The Exchange proposes to implement the fee change effective March 21, 2016.
As provided in the Fee Schedule, many of the NYSE Arca Equities' transaction fees and credits are based on trading and liquidity thresholds that ETP Holders and Market Makers must satisfy in order to qualify for the particular rates. The Exchange believes that trading suspensions or disruptions can prevent ETP Holders and Market Makers from engaging in normal trading and liquidity provision in their assigned securities, leading to decreased trading volume compared to ADV. Accordingly, for purposes of determining transaction fees and credits for these market participants based on trading and liquidity thresholds [sic], ADV, and United States consolidated ADV (“US CADV”),
The proposed change would allow the Exchange to exclude days where the Exchange declares a trading halt in all securities or honors a market-wide trading halt declared by another market. The Exchange's proposal would be similar to the current provision in the Fee Schedule whereby trade activity on days when the market closes early and on the date of the annual reconstitution of the Russell Investments Indexes does not count toward volume tiers.
The Exchange believes that artificially low volumes of trading on days when the Exchange is not open for the entire trading day reduces the average daily activity of ETP Holders and Market Makers both daily and monthly. Given the decreased trading volumes, the numerator for the monthly calculation (
Similarly, the Exchange proposes to modify its Fee Schedule to permit the Exchange to exclude from the above calculations any trading day where a disruption affects an Exchange system that lasts for more than 60 minutes during regular trading hours even if such disruption would not be categorized as a complete outage of the Exchange's system. Such a disruption may occur where a [sic] certain securities traded on the Exchange are unavailable for trading due to an Exchange system issue or where, while the Exchange may be able to perform certain functions with respect to accepting and processing orders, the Exchange may be experiencing a failure to another significant process, such as routing to other market centers, that would lead ETP Holders and Market Makers that rely on such process to avoid utilizing the Exchange until the Exchange's entire system was operational. Once again, the Exchange's proposal is consistent with the rules of other self-regulatory organizations.
The Exchange is not proposing any changes to the level of rebates currently being provided on the Exchange, or to the thresholds required to achieve each rebate tier.
The proposed change is also not otherwise intended to address any other issues, and the Exchange is not aware of any problems that ETP Holders and Market Makers would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with section 6(b) of the Act,
The Exchange believes that it is reasonable to permit the Exchange to eliminate from the calculation days on which the market is not open the entire trading day because it preserves the Exchange's intent behind adopting volume-based pricing. Similarly, the Exchange believes that its proposal is reasonable because it will help provide ETP Holders and Market Makers with a greater level of certainty as to their level of rebates and costs for trading in any month where the Exchange experiences such a system disruption on one or more trading days. The Exchange is not proposing to amend the thresholds ETP Holders and Market Makers must achieve to become eligible for, or the dollar value associated with, the tiered rebates or fees. By eliminating the inclusion of a trading day on which a system disruption occurs, the Exchange would almost certainly be excluding a day that would otherwise lower ETP Holders' and Market Makers' trading volume, thereby making it more likely for them to meet the minimum or higher tier thresholds and thus incentivizing ETP Holders and Market Makers to increase their participation on the Exchange in order to meet the next highest tier.
The Exchange further believes that the proposal is reasonable because the proposed exclusion seeks to avoid penalizing ETP Holders and Market Makers that might otherwise qualify for certain tiered pricing but that, because of a significant Exchange system problem, would not participate to the extent that they might have otherwise participated. The Exchange believes that certain systems disruptions could preclude some ETP Holders and Market Makers from submitting orders to the Exchange even if such issue is not actually a complete systems outage.
Finally, the Exchange believes that the proposal is equitable and not unfairly discriminatory because the methodology for the monthly calculations would apply equally to all ETP Holders and Market Makers and to all volume tiers. The Exchange notes that, although unlikely, there is some possibility that a certain small proportion of ETP Holders and Market Makers may have a higher ADV as a percentage of average daily volume with their activity included from days where the Exchange experiences a system disruption. The Exchange believes that the proposal would still be equitable and not unfairly discriminatory given that the impacted universe is potentially quite small and that the proposal would benefit the overwhelming majority of market participants and would make the overall cost of trading on the Exchange more predictable for ETP Holders and Market Makers as a whole.
For the foregoing reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with section 6(b)(8) of the Act,
The Exchange believes that, with respect to monthly calculations for rebates, there are very few instances where the exclusion would be invoked, and if invoked, would have little or no impact on trading decisions or execution quality. On the contrary, the Exchange believes that the proposal fosters competition by avoiding a penalty to ETP Holders and Market Makers for days when trading on the Exchange is disrupted for a significant portion of the day and would result in lower total costs to end users, a positive outcome of competitive markets. Further, other options exchanges have adopted rules that are substantially similar to the change in ADV calculation being proposed by the Exchange.
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
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 delete from the Exchange's rulebook Section 10, Limitations on Dealings, of Chapter VII, Market Participants.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange is proposing to adopt a principles-based approach to prohibit the misuse of material nonpublic information by NOM Options Market Makers (“Market Makers”) by deleting from the Exchange's rulebook Section 10, Limitations on Dealings, of Chapter VII, Market Participants (the “Market Maker Restrictions”). In doing so, the Exchange would harmonize its rules governing Exchange Options Participants,
The Exchange believes that the Market Maker Restrictions are no longer necessary because all Market Makers are subject to the Exchange's general principles-based requirements governing the protection against the misuse of material, non-public information, pursuant to Chapter III, Business Conduct, Section 4, Prevention of the Misuse of Material Nonpublic Information, discussed below, which obviates the need for separately-prescribed requirements for a subset of market participants on the Exchange.
Additionally, there is no separate regulatory purpose served by having separate rules for Market Makers. The Exchange notes that this proposed rule change will not decrease the protections against the misuse of material, non-public information; instead, it is designed to provide more flexibility to market participants. This is a competitive filing that is based on a proposal recently submitted by NYSE
A Market Maker is an Options Participant registered with the Exchange for the purpose of making markets in options contracts traded on the Exchange and that is vested with the rights and responsibilities specified in Chapter VII of the NOM rules.
The Exchange believes that the Market Maker Restrictions are no longer necessary and proposes to delete them. The Exchange also believes that Chapter III, Section 4, governing the misuse of material, non-public information, provides for an appropriate, principles-based approach to prevent the market abuses the Market Maker Restrictions are designed to address.
Specifically, Chapter III, Section 4, provides that every Options Participant shall establish, maintain, and enforce written policies and procedures reasonably designed, taking into consideration the nature of the Participant's business, to prevent the misuse of material nonpublic information by such Participant or persons associated with such Participant in violation of the federal securities laws or the Rules thereunder, and the Rules of the Exchange.
Chapter III, Section 4, provides that misuse of material nonpublic information includes, but is not limited to: (i) Trading in any securities issued by a corporation, or in any related securities or related options or other derivative securities, while in possession of material nonpublic information concerning that corporation; (ii) trading in an underlying security or related options or other derivative securities, while in possession of material nonpublic information concerning imminent transactions in the underlying security or related securities; and (iii) disclosing to another person any material nonpublic information involving a corporation whose shares are publicly traded or disclosing an imminent transaction in an underlying security or related securities for the purpose of facilitating the possible misuse of such material nonpublic information.
Subsection (c) of Chapter III, Section 4, requires each Options Participant to establish, maintain, and enforce certain policies and procedures as appropriate for the nature of each Participant's business.
Finally, subsection (f) of Chapter III, Section 4, specifies that it may be considered conduct inconsistent with just and equitable principles of trade for any Participant or person associated with a Participant who has knowledge of all material terms and conditions of (i) an order and a solicited order, (ii) an order being facilitated or submitted to NOM for price improvement (
For purposes of subsection (f), an order to buy or sell a “related instrument” means, in reference to an index option, an order to buy or sell securities comprising 10% or more of the component securities in the index or an order to buy or sell a futures contract on an economically equivalent index.
Because Options Participants are already subject to the requirements of Chapter III, Section 4, as described above, the Exchange does not believe it necessary to separately require specific limitations on Market Makers. Deleting the Market Maker Restrictions including its requirements for specific procedures would provide Market Makers flexibility to adapt their policies and procedures as appropriate to reflect changes to their business model, business activities, or the securities market in a manner similar to how Options Participants on the Exchange currently operate and consistent with Chapter III, Section 4.
Options Participants registered as Market Makers have certain rights and bear certain responsibilities beyond those of other Options Participants.
The Exchange is not proposing to change what is considered to be material, nonpublic information that an affiliated brokerage business of a Market Maker could share with such Market Maker. In that regard, the proposed rule change will not permit affiliates of a Market Maker to have access to any non-public order or quote information of the Market Maker, including hidden or undisplayed size or price information of such orders or quotes. Affiliates of Market Makers would only have access to orders and quotes that are publicly available to all market participants. Members do not expect to receive any additional order or quote information as a result of this proposed rule change.
The Exchange does not believe that there will be any material change to member information barriers as a result of the removal of the Exchange pre-approval requirement. The Exchange has rules prohibiting Options Participants from disadvantaging their customers or other market participants by improperly capitalizing on the Options Participant's access to or receipt of material, non-public information.
Further, the Exchange does not believe there will be any material change to Market Maker information barriers as a result of removal of the Exchange's pre-approval requirements. In fact, the Exchange anticipates that eliminating the pre-approval requirement should facilitate implementation of changes to Market Maker information barriers as necessary to protect against the misuse of material, non-public information. The Exchange also suggests that the pre-approval requirement is unnecessary because Market Makers do not have agency responsibilities to orders in the book, or time and place information advantages because of their market role.
The Exchange notes that its proposed principles-based approach to protecting against the misuse of material non-public information for all its Options Participants is consistent with recently filed and approved rule changes for NYSE MKT, NYSE Arca Equities, Inc. (“NYSE Arca”), BATS Exchange, Inc. (“BATS”), and New York Stock Exchange LLC (“NYSE”) governing cash equity market makers on those respective exchanges.
Except for prescribed rules relating to floor-based designated market makers on the NYSE, who have access to specified non-public trading information, each of these exchanges have moved to a principles-based approach to protecting against the misuse of material non-public information. In connection with approving those rule changes, the Commission found that, with adequate oversight by the exchanges of their members, eliminating prescriptive information barrier requirements should not reduce the effectiveness of exchange rules requiring members to establish and maintain systems to supervise the activities of members, including written procedures reasonably designed to ensure compliance with applicable federal securities law and regulations, and with the rules of the applicable exchange.
The Exchange believes that a principles-based rule applicable to members of options markets would be equally effective in protecting against the misuse of material non-public information.
The Exchange notes that even with this proposed rule change, pursuant to Chapter III, Section 4, a Market Maker would still be obligated to ensure that its policies and procedures reflect the current state of its business and continue to be reasonably designed to achieve compliance with applicable federal securities law and regulations, including without limitation, Regulation
While information barriers would not specifically be required under the proposal, Chapter III, Section 4, already requires that an Options Participant consider its business model or business activities in structuring its policies and procedures, which may dictate that an information barrier or a functional separation be part of the appropriate set of policies and procedures that would be reasonably designed to achieve compliance with applicable securities law and regulations, and with applicable Exchange rules.
The Exchange believes that the proposed reliance on principles-based Chapter III, Section 4 would ensure that a Market Maker would be required to protect against the misuse of any material non-public information. Chapter III, Section 4 already requires that firms refrain from trading while in possession of material non-public information concerning imminent transactions in the security or related product.
The Exchange believes that moving to a principles-based approach rather than prescribing how and when to wall off a Market Maker from the rest of the firm would provide Market Makers with flexibility when managing risk across a firm, including integrating options positions with other positions of the firm or, as applicable, by the respective independent trading unit.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange notes that the proposed rule change is based on an approved rule of the Exchange to which members and member organizations are subject—Section 4, Prevention of the Misuse of Material Nonpublic Information, of Chapter III, Business Conduct—and harmonizes the rules governing Options Participants. Moreover, Market Makers would continue to be subject to federal and Exchange requirements for protecting material non-public order information.
The Exchange believes that the proposed rule change would remove impediments to and perfect the mechanism of a free and open market because it would harmonize the Exchange's approach to protecting against the misuse of material nonpublic information and no longer subject Market Makers to prescriptive requirements. The Exchange does not believe that the existing prescriptive requirements applicable to Market Makers are narrowly tailored to their roles because Market Makers do not have access to Exchange trading information in a manner different from any other market participant on the Exchange.
The Exchange further believes the proposal is designed to prevent fraudulent and manipulative acts and practices and to promote just and equitable principles of trade because existing rules make clear to members and member organizations the type of conduct that is prohibited by the Exchange. While the proposal eliminates prescriptive requirements relating to the misuse of material non-public information, Market Makers would remain subject to existing Exchange rules requiring them to establish and maintain systems to supervise their activities, and to create, implement, and maintain written procedures that are reasonably designed to comply with applicable securities laws and Exchange rules, including the prohibition on the misuse of material, nonpublic information. Additionally, the policies and procedures of Market Makers, including those relating to information barriers, would be subject to review by FINRA, on behalf of the Exchange.
The Exchange notes that the proposed rule change would still require that Market Makers maintain and enforce policies and procedures reasonably designed to ensure compliance with applicable federal securities laws and regulations and with Exchange rules.
Even though there would no longer be pre-approval of Market Maker information barriers, any Market Maker written policies and procedures would continue to be subject to oversight by the Exchange and therefore the elimination of prescribed restrictions should not reduce the effectiveness of the Exchange rules to protect against the misuse of material non-public information. Rather, Options Participants will be able to utilize a flexible, principles-based approach to modify their policies and procedures as appropriate to reflect changes to their business model, business activities, or to the securities market itself.
Moreover, while specified information barriers may no longer be required, an Options Participant's business model or business activities may dictate that an information barrier or functional separation be part of the appropriate set of policies and procedures that would be reasonably designed to achieve compliance with applicable securities laws and regulations, and with applicable Exchange rules. The Exchange therefore believes that the proposed rule change will maintain the existing protection of investors and the public interest that is currently applicable to Market Makers, while at the same time removing impediments to and perfecting a free and open market by moving to a principles-based approach to protect against the misuse of material non-public information.
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. As indicated above, the rule change is being proposed as a competitive response to a filing
The Exchange believes that the proposal will enhance competition by allowing Market Makers to comply with applicable Exchange rules in a manner best suited to their business models, business activities, and the securities markets, thus reducing regulatory burdens while still ensuring compliance with applicable securities laws and regulations and Exchange rules. The Exchange believes that the proposal will foster a fair and orderly marketplace without being overly burdensome upon Market Makers.
Moreover, the Exchange believes that the proposed rule change would eliminate a burden on competition for Options Participants which currently exists as a result of disparate rule treatment between options and equities markets regarding how to protect against the misuse of material non-public information. For those members and member organizations that are also members of equity exchanges, their respective equity market maker operations are now subject to a principles-based approach to protecting against the misuse of material non-public information.
The Exchange believes it would remove a burden on competition to enable members and member organizations to similarly apply a principles-based approach to protecting against the misuse of material nonpublic information in the options space as ISE has recently done. To this end, the Exchange notes that Chapter III, Section 4, still requires a Market Maker to evaluate its business to assure that its policies and procedures are reasonably designed to protect against the misuse of material nonpublic information. However, with this proposed rule change, an Options Participant that trades equities and options could look at its firm more holistically to structure its operations in a manner that provides it with better tools to manage its risks across multiple security classes, while at the same time protecting against the misuse of material non-public information.
No written comments were either solicited or received.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-4(f)(6) thereunder.
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act normally does not become operative for 30 days after the date of its filing. However, Rule 19b-4(f)(6)(iii) permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange has asked the Commission to waive the 30-day operative delay so that the proposal may become operative immediately upon filing. Waiver of the 30-day operative delay would help facilitate the harmonization of information barrier rules across options exchanges. The Exchange represents that Exchange rules still require a Market Maker to evaluate its business to assure that its policies and procedures are reasonably designed to protect against the misuse of material nonpublic information. Further, the Exchange represents that the proposed rule change will not decrease the protections against the misuse of material, non-public information; instead, it is designed to provide more flexibility to market participants. Based on the foregoing, the Commission believes the waiver of the operative delay is consistent with the protection of investors and the public interest.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly.
All submissions should refer to File Number SR-NASDAQ-2016-040 and should be submitted on or before April 22, 2016.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to delete from the Exchange's rulebook Section 10, Limitations on Dealings, of Chapter VII, Market Participants.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange is proposing to adopt a principles-based approach to prohibit the misuse of material nonpublic information by BX Options Market Makers (“Market Makers”) by deleting from the Exchange's rulebook Section 10, Limitations on Dealings, of Chapter VII, Market Participants (the “Market Maker Restrictions”). In doing so, the Exchange would harmonize its rules governing Exchange Options Participants
A Market Maker is an Options Participant registered with the Exchange for the purpose of making markets in options contracts traded on the Exchange and that is vested with the rights and responsibilities specified in Chapter VII of the BX rules.
The Exchange believes that the Market Maker Restrictions are no longer necessary and proposes to delete them. The Exchange believes that Chapter III, Section 4 governing the misuse of material, non-public information, provides for an appropriate, principles-based approach to prevent the market abuses the Market Maker Restrictions are designed to address. Specifically, Chapter III, Section 4 provides that every Options Participant shall establish, maintain and enforce written policies and procedures reasonably designed, taking into consideration the nature of the Participant's business, to prevent the misuse of material nonpublic information by such Participant or persons associated with such Participant in violation of the federal securities laws or the Rules thereunder, and the Rules of the Exchange. Chapter III, Section 4 provides that misuse of material nonpublic information includes, but is not limited to: (i) Trading in any securities issued by a corporation, or in any related securities or related options or other derivative securities, while in possession of material nonpublic information concerning that corporation; (ii) trading in an underlying security or related options or other derivative securities, while in possession of material nonpublic information concerning imminent transactions in the underlying security or related securities; and (iii) disclosing to another person any material nonpublic information involving a corporation whose shares are publicly traded or disclosing an imminent
Finally, subsection (f) of Chapter III, Section 4 specifies that it may be considered conduct inconsistent with just and equitable principles of trade for any Participant or person associated with a Participant who has knowledge of all material terms and conditions of (i) an order and a solicited order, (ii) an order being facilitated or submitted to BX Options for price improvement, or (iii) orders being crossed; the execution of which are imminent, to enter, based on such knowledge, an order to buy or sell an option for the same underlying security as any option that is the subject of the order, or an order to buy or sell the security underlying such class, or an order to buy or sell any related instrument until (a) the terms and conditions of the order and any changes in the terms and conditions of the order of which the Participant or person associated with the Participant has knowledge are disclosed, or (b) the trade can no longer reasonably be considered imminent in view of the passage of time since the order was received. It states that the terms of an order are “disclosed” to BX Options Participants when the order is entered into the BX Options Book. For purposes of subsection (f), an order to buy or sell a “related instrument” means, in reference to an index option, an order to buy or sell securities comprising 10% or more of the component securities in the index or an order to buy or sell a futures contract on an economically equivalent index.
Because Options Participants are already subject to the requirements of Chapter III, Section 4 as described above, the Exchange does not believe it necessary to separately require specific limitations on Market Makers. Deleting the Market Maker Restrictions including its requirements for specific procedures would provide Market Makers flexibility to adapt their policies and procedures as appropriate to reflect changes to their business model, business activities, or the securities market in a manner similar to how Options Participants on the Exchange currently operate and consistent with Chapter III, Section 4.
Options Participants registered as Market Makers have certain rights and bear certain responsibilities beyond those of other Options Participants.
The Exchange is not proposing to change what is considered to be material, nonpublic information that an affiliated brokerage business of a Market Maker could share with such Market Maker. In that regard, the proposed rule change will not permit affiliates of a Market Maker to have access to any non-public order or quote information of the Market Maker, including hidden or undisplayed size or price information of such orders or quotes. Affiliates of Market Makers would only have access to orders and quotes that are publicly available to all market participants. Members do not expect to receive any additional order or quote information as a result of this proposed rule change. The Exchange does not believe that there will be any material change to member information barriers as a result of the removal of the Exchange pre-approval requirement. The Exchange has rules prohibiting Options Participants from disadvantaging their customers or other market participants by improperly capitalizing on the Options Participant's access to or receipt of material, non-public information.
Further, the Exchange does not believe there will be any material change to Market Maker information barriers as a result of removal of the Exchange's pre-approval requirements. In fact, the Exchange anticipates that eliminating the pre-approval requirement should facilitate implementation of changes to Market Maker information barriers as necessary to protect against the misuse of material, non-public information. The Exchange also suggests that the pre-approval requirement is unnecessary because Market Makers do not have agency responsibilities to orders in the book, or time and place information advantages because of their market role.
The Exchange notes that its proposed principles-based approach to protecting against the misuse of material non-public information for all its Options Participants is consistent with recently filed and approved rule changes for NYSE MKT, NYSE Arca Equities, Inc. (“NYSE Arca”), BATS Exchange, Inc. (“BATS”), and New York Stock Exchange LLC (“NYSE”) governing cash equity market makers on those respective exchanges.
The Exchange believes that a principles based rule applicable to members of options markets would be equally effective in protecting against the misuse of material non-public information.
The Exchange notes that even with this proposed rule change, pursuant to Chapter III, Section 4, a Market Maker would still be obligated to ensure that its policies and procedures reflect the current state of its business and continue to be reasonably designed to achieve compliance with applicable federal securities law and regulations, including without limitation, Regulation SHO
The Exchange believes that the proposed reliance on principles-based Chapter III, Section 4 would ensure that a Market Maker would be required to protect against the misuse of any material non-public information. Chapter III, Section 4 already requires that firms refrain from trading while in possession of material non-public information concerning imminent transactions in the security or related product. The Exchange believes that moving to a principles-based approach rather than prescribing how and when to wall off a Market Maker from the rest of the firm would provide Market Makers with flexibility when managing risk across a firm, including integrating options positions with other positions of the firm or, as applicable, by the respective independent trading unit.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange notes that the proposed rule change is based on an approved rule of the Exchange to which members and member organizations are subject—Section 4, Prevention of the Misuse of Material Nonpublic Information, of Chapter III, Business Conduct—and harmonizes the rules governing Options Participants. Moreover, Market Makers would continue to be subject to federal and Exchange requirements for protecting material non-public order information.
The Exchange further believes the proposal is designed to prevent fraudulent and manipulative acts and practices and to promote just and equitable principles of trade because existing rules make clear to members and member organizations the type of conduct that is prohibited by the Exchange. While the proposal eliminates prescriptive requirements relating to the misuse of material non-public information, Market Makers would remain subject to existing Exchange rules requiring them to establish and maintain systems to supervise their activities, and to create, implement, and maintain written procedures that are reasonably designed to comply with applicable securities laws and Exchange rules, including the prohibition on the misuse of material, nonpublic information. Additionally, the policies and procedures of Market Makers, including those relating to information barriers, would be subject to review by FINRA, on behalf of the Exchange.
The Exchange notes that the proposed rule change would still require that Market Makers maintain and enforce policies and procedures reasonably designed to ensure compliance with applicable federal securities laws and regulations and with Exchange rules. Even though there would no longer be pre-approval of Market Maker information barriers, any Market Maker written policies and procedures would continue to be subject to oversight by the Exchange and therefore the elimination of prescribed restrictions should not reduce the effectiveness of the Exchange rules to protect against the misuse of material non-public information. Rather, Options Participants will be able to utilize a flexible, principles-based approach to modify their policies and procedures as appropriate to reflect changes to their business model, business activities, or to the securities market itself. Moreover, while specified information barriers may no longer be required, an Options Participant's business model or business activities may dictate that an information barrier or functional separation be part of the appropriate set of policies and procedures that would be reasonably designed to achieve compliance with applicable securities laws and regulations, and with applicable Exchange rules. The Exchange therefore believes that the proposed rule change will maintain the existing protection of investors and the public interest that is currently applicable to Market Makers, while at the same time removing impediments to and perfecting a free and open market by moving to a principles-based approach to protect against the misuse of material non-public information.
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. As indicated above, the rule change is being proposed as a competitive response to a filing submitted by NYSE MKT that was recently approved by the Commission. The Exchange believes that the proposal will enhance competition by allowing Market Makers to comply with applicable Exchange rules in a manner best suited to their business models, business activities, and the securities markets, thus reducing regulatory burdens while still ensuring compliance with applicable securities laws and regulations and Exchange rules. The Exchange believes that the proposal will foster a fair and orderly marketplace without being overly burdensome upon Market Makers.
Moreover, the Exchange believes that the proposed rule change would eliminate a burden on competition for Options Participants which currently exists as a result of disparate rule treatment between options and equities markets regarding how to protect against the misuse of material non-public information. For those members and member organizations that are also members of equity exchanges, their respective equity market maker operations are now subject to a principles-based approach to protecting against the misuse of material non-public information. The Exchange believes it would remove a burden on competition to enable members and member organizations to similarly apply a principles-based approach to protecting against the misuse of material nonpublic information in the options space as ISE has recently done. To this end, the Exchange notes that Chapter III, Section 4 still requires a Market Maker to evaluate its business to assure that its policies and procedures are reasonably designed to protect against the misuse of material nonpublic information. However, with this proposed rule change, an Options Participant that trades equities and options could look at its firm more holistically to structure its operations in a manner that provides it with better tools to manage its risks across multiple security classes, while at the same time protecting against the misuse of material non-public information.
No written comments were either solicited or received.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-4(f)(6) thereunder.
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act normally does not become operative for 30 days after the date of its filing. However, Rule 19b-4(f)(6)(iii) permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange has asked the Commission to waive the 30-day operative delay so that the proposal may become operative immediately upon filing. Waiver of the 30-day operative delay would help facilitate the harmonization of information barrier rules across options exchanges. The Exchange represents that Exchange rules still require a Market Maker to evaluate its business to assure that its policies and procedures are reasonably designed to protect against the misuse of material nonpublic information. Further, the Exchange represents that the proposed rule change will not decrease the protections against the misuse of material, non-public information; instead, it is designed to provide more flexibility to market participants. Based on the foregoing, the Commission believes the waiver of the operative delay is consistent with the protection of investors and the public interest.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly.
All submissions should refer to File Number SR-BX-2016-018 and should be submitted on or before April 22, 2016
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Nasdaq proposes to proposal [sic] to modify the maximum number of times an Order on Nasdaq may be updated before the System cancels the Order.
The text of the proposed rule change is available on Nasdaq's Web site at
In its filing with the Commission, Nasdaq included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. Nasdaq has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Nasdaq will cancel an Order if it is updated a certain number of times during any given day. Pursuant to Rule 4702(a), an Order will be cancelled if it is repriced and/or reentered 10,000 times for any reason.
Pursuant to Rule 4702(b)(7)(A), a Market Maker Peg Order will be canceled if it is repriced 1,000 times. Pursuant to Rule 4703(d), an Order with Primary Pegging will be cancelled if it is updated 1,000 times, and an Order with Market Pegging will be cancelled if it is updated 10,000 times.
Nasdaq applies these limits to conserve System resources by limiting the persistence of Orders that update repeatedly without execution. These limits are applied daily to each order entered into the System. Orders that have a Time-in-Force
First, Nasdaq is proposing to eliminate rule text under Rules 4702(a), 4702(b)(7)(A), and 4703(d) concerning cancellation based on Order updates and consolidate the concept under a new Rule 4756(a)(4).
Second, Nasdaq is proposing to no longer state the specific number of times a particular Order Type may be updated before it is canceled in the new rule and is, instead, noting that the number of permissible changes may vary by Order Type or Order Attribute and may change from time to time. Further, the proposed rule will note that Nasdaq will post on its Web site what is considered a change for a particular Order Type and Order Attribute, and the current limits on the number of such changes.
Nasdaq is changing the process by which it counts updates, which will allow it to identify a wider range of updates to an Order. Using the new process, Nasdaq will be able to track the following Order updates: (1) System-generated child orders; (2) display size refreshes from reserve; (3) replaces of System-generated child Orders (which include Orders with a Pegging Attribute); and (4) cancellation requests of System-generated child Orders. Nasdaq notes that all updates identified by the current process will be counted under the new process. Nasdaq believes these changes will provide it with greater flexibility in addressing changes in volume, market participant behavior, and Nasdaq's capacity to handle the message volume caused by Orders that update a significant number of times throughout the trading day.
Nasdaq will provide at least one day's advanced notice to the public of any changes to the number of updates permitted before an Order is canceled. Initially, Nasdaq will keep the number of updates consistent with what is currently noted in the rules; however, Nasdaq may shortly thereafter change the number of updates as needed to address market conditions.
Nasdaq is also making two minor technical corrections to Rule 4703(d) to remove an erroneous quote from the rule text.
Nasdaq believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
Excessive updating of Orders places a burden on Nasdaq's System, which, if left unchecked, could potentially affect overall market quality. Nasdaq will continue canceling Orders that reach a certain number of updates but, instead of the static number of updates stated in the rules, Nasdaq is proposing to provide the number of updates by Order type or Order Attribute on its public Web site. Web site posting will allow Nasdaq to react more quickly to changes in the marketplace by changing the applicable number of updates that will trigger cancellation of an Order. Nasdaq will provide advanced notice to market participants of any changes to the number of updates applied. Thus, the proposed rule change will further promote the protection investors [sic] and the public interest.
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.
These adjustments will not impact competition among market participants because the cancellation parameters will apply equally to all market participants. As is the case now, market participants that have an Order canceled due to the number of updates may enter a new replacement Order. Thus, Nasdaq does not think that the proposed change will place a burden on competition not necessary or appropriate in furtherance of the Act.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section
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.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to a proposal to adopt Exchange Rule 4770 to implement the Regulation NMS Plan to Implement a Tick Size Pilot Program. The proposed rule change is substantially similar to proposed rule changes recently approved or published by the Commission by the Bats BZX Exchange, Inc. f/k/a BATS Exchange, Inc. (“BZX”) to adopt BZX Rule 11.27(b) which also sets forth requirements for the collection and transmission of data pursuant to Appendices B and C of the Plan.
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.
On August 25, 2014, NYSE Group, Inc., on behalf of BATS Exchange, Inc., BATS Y-Exchange, Inc., Chicago Stock Exchange, Inc., EDGA Exchange, Inc., EDGX Exchange, Inc., Financial Industry Regulatory Authority, Inc. (“FINRA”), NASDAQ BX, Inc., NASDAQ PHLX LLC, the Nasdaq Stock Market LLC, New York Stock Exchange LLC (“NYSE”), NYSE MKT LLC, and NYSE Arca, Inc. (collectively “Participants”), filed with the Commission, pursuant to Section 11A of the Act
The Participants filed the Plan to comply with an order issued by the
The Plan is designed to allow the Commission, market participants, and the public to study and assess the impact of increment conventions on the liquidity and trading of the common stocks of small-capitalization companies. Each Participant is required to comply, and to enforce compliance by its member organizations, as applicable, with the provisions of the Plan. As is described more fully below, the proposed rules would require Members
The Pilot will include stocks of companies with $3 billion or less in market capitalization, an average daily trading volume of one million shares or less, and a volume weighted average price of at least $2.00 for every trading day. The Pilot will consist of a control group of approximately 1400 Pilot Securities and three test groups with 400 Pilot Securities in each (selected by a stratified random sampling process).
Pilot Securities in the first test group (“Test Group One”) will be quoted in $0.05 minimum increments but will continue to trade at any price increment that is currently permitted.
In approving the Plan, the Commission noted that the Trading Center data reporting requirements would facilitate an analysis of the effects of the Pilot on liquidity (
The Commission also noted that Market Maker profitability data would assist the Commission in evaluating the effect, if any, of a widened tick increment on market marker profits and any corresponding changes in the liquidity of small-capitalization securities.
The Plan contains requirements for collecting and transmitting data to the Commission and to the public.
Appendix B.I of the Plan also contains additional requirements for market orders and marketable limit orders, including the share-weighted average effective spread for executions of orders; the cumulative number of shares of orders executed with price improvement; and, for shares executed with price improvement, the share-weighted average amount per share that prices were improved.
Appendix B.II of the Plan (Market and Marketable Limit Order Data) requires Trading Centers to submit information relating to market orders and marketable limit orders, including the time of order receipt, order type, the order size, the National Best Bid and National Best Offer (“NBBO”) quoted price, the NBBO quoted depth, the average execution price-share-weighted average, and the average execution time-share-weighted average.
The Plan requires Appendix B.I and B.II data to be submitted by Participants that operate a Trading Center, and by members of the Participants that operate Trading Centers. The Plan provides that each Participant that is the Designated Examining Authority (“DEA”) for a member of the Participant that operates a Trading Center shall collect such data in a pipe delimited format, beginning six months prior to the Pilot Period and ending six months after the end of the Pilot Period. The Plan also requires the Participant, operating as DEA, to transmit this information to the SEC within 30 calendar days following month end.
The Exchange is therefore proposing Rule 4770(b) to set forth the requirements for the collection and transmission of data pursuant to Appendices B and C of the Plan. Proposed Rule 4770(b) is substantially similar to proposed rule changes by BZX that were recently approved or published by the Commission to adopt BZX Rule 11.27(b) which also sets forth requirements for the collection and transmission of data pursuant to Appendices B and C of the Plan.
Proposed Rule 4770(b)(1) requires that a Member that operates a Trading Center shall establish, maintain, and enforce
Proposed Rule 4770(b)(2) provides that the Exchange shall collect and transmit to the SEC the data described in Items I and II of Appendix B of the Plan relating to trading activity in Pre-Pilot Securities and Pilot Securities on a Trading Center operated by the Exchange. The Exchange shall transmit such data to the SEC in a pipe delimited format, on a disaggregated basis by Trading Center, within 30 calendar days following month end for: (i) Each Pre-Pilot Data Collection Security for the period beginning six months prior to the Pilot Period through the trading day immediately preceding the Pilot Period; and (ii) each Pilot Security for the period beginning on the first day of the Pilot Period through six months after the end of the Pilot Period. The Exchange also shall make such data publicly available on the Exchange Web site on a monthly basis at no charge and will not identify the Member that generated the data.
Appendix B.IV (Daily Market Maker Participation Statistics) requires a Participant to collect data related to Market Maker participation from each Market Maker
The proposed rule requires Market Makers to transmit such data in a format required by their DEA, by 12:00 p.m. EST on T + 4 for: (i) Transactions in each Pre-Pilot Data Collection Security for the period beginning six months prior to the Pilot Period through the trading day immediately preceding the Pilot Period; and (ii) for transactions in each Pilot Security for the period beginning on the first day of the Pilot Period through six months after the end of the Pilot Period.
The Exchange understands that some Members may utilize a DEA that is not a Participant to the Plan and that their DEA would not be subject to the Plan's data collection requirements. In such case, a DEA that is not a Participant of the Plan would not have an obligation to collect the data required under subparagraph (b)(3)(A) of Rule 4770 and in accordance with Item IV of Appendix B of the Plan. Therefore, the Exchange proposes to adopt subparagraph (b)(3)(B) to Rule 4770 to require a Member that is a Market Maker whose DEA is not a Participant to the Plan to transmit the data collected pursuant to paragraph (3)(A) of Rule 4770(b) to FINRA, which is a Participant to the Plan and is to collect data relating to Item IV of Appendix B of the Plan on behalf of the Participants. For Market Makers for which it is the DEA, FINRA issued a Market Maker Transaction Data Technical Specification to collect data on Pre-Pilot Data Collection Securities and Pilot Securities from Trading Centers to comply with the Plan's data collection requirements.
Proposed Rule 4770(b)(3)(C) provides that the Exchange shall transmit the data collected by the DEA or FINRA pursuant to Rule 4770(b)(3)(A) and (B) above relating to Market Maker activity on a Trading Center operated by the Exchange to the SEC in a pipe delimited format within 30 calendar days following month end. The Exchange shall also make such data publicly available on the Exchange Web site on a monthly basis at no charge and shall not identify the Trading Center that generated the data.
Appendix C.I (Market Maker Profitability) requires a Participant to collect data related to Market Maker profitability from each Market Maker for which it is the DEA. Specifically, the Participant is required to collect the total number of shares of orders executed by the Market Maker; the raw Market Maker realized trading profits, and the raw Market Maker unrealized trading profits. Data shall be collected for dates starting six months prior to the Pilot Period through six months after the end of the Pilot Period. This data shall be collected on a monthly basis, to be provided in a pipe delimited format to the Participant, as DEA, within 30 calendar days following month end.
Appendix C.II (Aggregated Market Maker Profitability) requires the Participant, as DEA, to aggregate the Appendix C.I data, and to categorize this data by security as well as by the control group and each Test Group. That aggregated data shall contain information relating to total raw Market Maker realized trading profits, volume-weighted average of raw Market Maker realized trading profits, the total raw Market Maker unrealized trading profits, and the volume-weighted average of Market Maker unrealized trading profits.
The Exchange is therefore proposing Rule 4770(b)(4) to set forth the requirements for the collection and transmission of data pursuant to Appendix C.I of the Plan. Proposed Rule 4770(b)(4)(A) requires that a Member that is a Market Maker shall collect and transmit to their DEA the data described in Item I of Appendix C of the Plan with respect to executions in Pilot Securities that have settled or reached settlement date that were executed on any Trading Center.
The proposed rule also requires Members to provide such data in a format required by their DEA by 12 p.m. EST on T+4 for executions during and outside of Regular Trading Hours in each: (i) Pre-Pilot Data Collection Security for the period beginning six months prior to the Pilot Period through the trading day immediately preceding the Pilot Period; and (ii) Pilot Security for the period beginning on the first day of the Pilot Period through six months after the end of the Pilot Period.
For the same reasons set forth above for subparagraph (b)(3)(B) to Rule 4770, the Exchange proposes to adopt subparagraph (b)(4)(B) to Rule 4770 to require a Member that is a Market Maker whose DEA is not a Participant to the Plan to transmit the data collected pursuant to paragraph (4)(A) of Rule 4770(b) to FINRA. As stated above, FINRA is a Participant to the Plan and is to collect data relating to Item I of Appendix C of the Plan on behalf of the Participants. For Market Makers for which it is the DEA, FINRA issued a Market Maker Transaction Data Technical Specification to collect data on Pre-Pilot Data Collection Securities and Pilot Securities from Trading
The Exchange is also adopting a rule setting forth the manner in which Market Maker participation will be calculated. Item III of Appendix B of the Plan requires each Participant that is a national securities exchange to collect daily Market Maker registration statistics categorized by security, including the following information: (i) Ticker symbol; (ii) the Participant exchange; (iii) number of registered market makers; and (iv) the number of other registered liquidity providers.
Therefore, the Exchange proposes to adopt Rule 4770(b)(5) providing that the Exchange shall collect and transmit to the SEC the data described in Item III of Appendix B of the Plan relating to daily Market Maker registration statistics in a pipe delimited format within 30 calendar days following month end for: (i) Transactions in each Pre-Pilot Data Collection Security for the period beginning six months prior to the Pilot Period through the trading day immediately preceding the Pilot Period; and (ii) transactions in each Pilot Security for the period beginning on the first day of the Pilot Period through six months after the end of the Pilot Period.
The Exchange is also proposing, through Commentary, to clarify other aspects of the data collection requirements.
Commentary .03 requires that Members populate a field to identify to their DEA whether an order is affected by the bands in place pursuant to the National Market System Plan to Address Extraordinary Market Volatility.
The Exchange and the other Participants have determined that it is appropriate to create a new flag for reporting orders that are affected by the Limit-Up Limit-Down bands. Accordingly, a Trading Center shall report a value of “Y” to their DEA when the ability of an order to execute has been affected by the Limit-Up Limit-Down bands in effect at the time of order receipt. A Trading Center shall report a value of “N” to their DEA when the ability of an order to execute has not been affected by the Limit-Up Limit-Down bands in effect at the time of order receipt.
Commentary .03 also requires, for securities that may trade in a foreign market, that the Participant indicate whether the order was handled domestically, or routed to a foreign venue. Accordingly, the Participant will indicate, for purposes of Appendix B.I, whether the order was: (1) Fully executed domestically, or (2) fully or partially executed on a foreign market. For purposes of Appendix B.II, the Participant will classify all orders in securities that may trade in a foreign market Pilot and Pre-Pilot Securities as: (1) Directed to a domestic venue for execution; (2) may only be directed to a foreign venue for execution; or (3) was fully or partially directed to a foreign venue at the discretion of the member. The Exchange believes that this proposed flag will better identify orders in securities that may trade in a foreign market, as such orders that were routed to foreign venues would not be subject to the Plan's quoting and trading requirements, and could otherwise compromise the integrity of the data.
Commentary .04 relates to the time ranges specified in Appendix B.I.a(14), B.I.a(15), B.I.a(21) and B.I.a(22).
Commentary .05 relates to the relevant measurement for purposes of Appendix B.I.a(31)-(33) reporting. Currently, the Plan states that this data shall be reported as of the time of order execution. The Exchange and the other Participants believe that this information should more properly be captured at the time of order receipt as evaluating share-weighted average prices at the time of order receipt is more consistent with the goal of observing the effect of the Pilot on the liquidity of Pilot Securities. The Exchange is therefore proposing to make this change through Commentary .05.
Commentary .06 addresses the status of not-held and auction orders for purposes of Appendix B.I reporting. Currently, Appendix B.I sets forth eight categories of orders, including market orders, marketable limit orders, and inside-the-quote resting limit orders, for which daily market quality statistics must be reported. Currently, Appendix B.I does not provide a category for not held orders, clean cross orders, auction orders, or orders received when the NBBO is crossed.
The Exchange and the other Participants have determined that it is appropriate to include separate categories for these orders types for purposes of Appendix B reporting. The Exchange is therefore proposing Commentary .06 to provide that not held orders shall be included as an order type for purposes of Appendix B reporting, and shall be assigned the number (18). Clean cross orders shall be included as an order type for purposes of Appendix B reporting, and shall be assigned the number (19); auction orders shall be included an as order type for purposes of Appendix B reporting, and shall be assigned the number (20); and orders that cannot otherwise be classified, including, for example, orders received when the NBBO is crossed shall be included as an order type for purposes of Appendix B reporting, and shall be assigned the number (21). All of these orders already are included in the scope of Appendix B; however, without this proposed change, these order types would be categorized with other orders, such as regular held orders, that should be able to be fully executed upon receipt, which would compromise the value of this data.
The Exchange is proposing Commentary .07 to clarify the scope of the Plan as it relates to Members that only execute orders limited purposes. Specifically, The Exchange and the other Participants believe that a Member that only executes orders otherwise than on a national securities exchange for the purpose of: (1) Correcting a bona fide error related to the execution of a customer order; (2) purchasing a security from a customer at a nominal price solely for purposes of liquidating the customer's position; or (3) completing the fractional share portion of an order
The Exchange is proposing Commentary .08 to clarify that, for purposes of the Plan, Trading Centers must begin the data collection required pursuant to Appendix B.I.a(1) through B.II.(y) of the Plan and Item I of Appendix C of the Plan on April 4, 2016. While the Exchange or the Member's DEA will provide the information required by Appendix B and C of the Plan during the Pilot Period, the requirement that the Exchange or their DEA provide information to the SEC within 30 days following month end and make such data publicly available on its Web site pursuant to Appendix B and C shall commence six months prior to the beginning of the Pilot Period.
The Exchange is proposing Commentary .09 to address the requirement in Appendix C.I(b) of the Plan that the calculation of raw Market Maker realized trading profits utilize a last in, first out (“LIFO”)-like method to determine which share prices shall be used in that calculation. The Exchange and the other Participants believe that it is more appropriate to utilize a methodology that yields LIFO-like results, rather than utilizing a LIFO-like method, and the Exchange is therefore proposing Commentary .09 to make this change.
The Exchange is proposing that, for purposes of Item I of Appendix C, the Participants shall calculate daily Market Maker realized profitability statistics for each trading day on a daily LIFO basis using reported trade price and shall include only trades executed on the subject trading day. The daily LIFO calculation shall not include any positions carried over from previous trading days. For purposes of Item I.c of Appendix C, the Participants shall calculate daily Market Maker unrealized profitability statistics for each trading day on an average price basis.
Specifically, the Participants must calculate the volume weighted average price of the excess (deficit) of buy volume over sell volume for the current trading day using reported trade price. The gain (loss) of the excess (deficit) of buy volume over sell volume shall be determined by using the volume weighted average price compared to the closing price of the security as reported by the primary listing exchange. In reporting unrealized trading profits, the Participant shall also report the number of excess (deficit) shares held by the Market Maker, the volume weighted average price of that excess (deficit) and the closing price of the security as reported by the primary listing exchange used in reporting unrealized profit.
Finally, the Exchange is proposing Commentary .10 to address the securities that will be used for data collection purposes prior to the commencement of the Pilot. The Exchange and the other Participants have determined that it is appropriate to collect data for a group of securities that is larger, and using different
The Exchange is therefore proposing Commentary .10 to define “Pre-Pilot Data Collection Securities” as the securities designated by the Participants for purposes of the data collection requirements described in Items I, II and IV of Appendix B and Item I of Appendix C of the Plan for the period beginning six months prior to the Pilot Period and ending on the trading day immediately preceding the Pilot Period.
The Participants shall compile the list of Pre-Pilot Data Collection Securities by selecting all NMS stocks with a market capitalization of $5 billion or less, a Consolidated Average Daily Volume (CADV) of 2 million shares or less and a closing price of $1 per share or more. The market capitalization and the closing price thresholds shall be applied to the last day of the Pre-Pilot measurement period, and the CADV threshold shall be applied to the duration of the Pre-Pilot measurement period. The Pre-Pilot measurement period shall be the three calendar months ending on the day when the Pre-Pilot Data Collection Securities are selected. The Pre-Pilot Data Collection Securities shall be selected thirty days prior to the commencement of the six-month Pre-Pilot Period. On the trading day that is the first trading day of the Pilot Period through six months after the end of the Pilot Period, the data collection requirements will become applicable to the Pilot Securities only. A Pilot Security will only be eligible to be included in a Test Group if it was a Pre-Pilot Security.
The proposed rule change will be effective on April 4, 2016.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange believes that this proposal is consistent with the Act because it implements and clarifies the provisions of the Plan, and is designed to assist the Exchange in meeting its regulatory obligations pursuant of the Plan. In approving the Plan, the SEC noted that the Pilot was an appropriate, data-driven test that was designed to evaluate the impact of a wider tick size on trading, liquidity, and the market quality of securities of smaller capitalization companies, and was therefore in furtherance of the purposes of the Act.
The Exchange believes that this proposal is in furtherance of the objectives of the Plan, as identified by the SEC, and is therefore consistent with the Act because the proposal implements and clarifies the requirements of the Plan and applies specific obligations to Members in furtherance of compliance with the Plan.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The Exchange notes that the proposed rule change implements the provisions of the Plan, and is designed to assist the Exchange in meeting its regulatory obligations pursuant of the Plan. The Exchange also notes that the data collection requirements for Members that operate Trading Centers will apply equally to all such Members, as will the data collection requirements for Market Makers.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (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 Brent J. Fields, Secretary, Securities
Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-BX-2016-019 and should be submitted on or before April 22, 2016.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
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”) has submitted to the Office of Management and Budget (“OMB”) a request for extension of the previously approved collection of information discussed below.
Rule 17a-8 (17 CFR 270.17a-8) under the Investment Company Act of 1940 (the “Act”) (15 U.S.C. 80a) is entitled “Mergers of affiliated companies.” Rule 17a-8 exempts certain mergers and similar business combinations (“mergers”) of affiliated registered investment companies (“funds”) from prohibitions under section 17(a) of the Act (15 U.S.C. 80a-17(a)) on purchases and sales between a fund and its affiliates. The rule requires fund directors to consider certain issues and to record their findings in board minutes. The rule requires the directors of any fund merging with an unregistered entity to approve procedures for the valuation of assets received from that entity. These procedures must provide for the preparation of a report by an independent evaluator that sets forth the fair value of each such asset for which market quotations are not readily available. The rule also requires a fund being acquired to obtain approval of the merger transaction by a majority of its outstanding voting securities, except in certain situations, and requires any surviving fund to preserve written records describing the merger and its terms for six years after the merger (the first two in an easily accessible place).
The average annual burden of meeting the requirements of rule 17a-8 is estimated to be 7 hours for each fund. The Commission staff estimates that each year approximately 766 funds rely on the rule. The estimated total average annual burden for all respondents therefore is 5,362 hours.
The average cost burden of preparing a report by an independent evaluator in a merger with an unregistered entity is estimated to be $15,000. The average net cost burden of obtaining approval of a merger transaction by a majority of a fund's outstanding voting securities is estimated to be $100,000. The Commission staff estimates that each year approximately 0 mergers with unregistered entities occur and approximately 15 funds hold shareholder votes that would not otherwise have held a shareholder vote. The total annual cost burden of meeting these requirements is estimated to be $1,500,000.
The estimates of average burden hours and average cost burdens are made solely for the purposes of the Paperwork Reduction Act, and are not derived from a comprehensive or even a representative survey or study. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The public may view the background documentation for this information collection at the following Web site,
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to adopt Exchange Rule 3317 to implement the Regulation NMS Plan to Implement a Tick Size Pilot Program. The proposed rule change is substantially similar to proposed rule changes recently approved or published by the Commission by the Bats BZX Exchange, Inc. f/k/a BATS Exchange, Inc. (“BZX”) to adopt BZX Rule 11.27(b) which also sets forth requirements for the collection and transmission of data pursuant to Appendices B and C of the Plan.
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.
On August 25, 2014, NYSE Group, Inc., on behalf of BATS Exchange, Inc., BATS Y-Exchange, Inc., Chicago Stock Exchange, Inc., EDGA Exchange, Inc., EDGX Exchange, Inc., Financial Industry Regulatory Authority, Inc. (“FINRA”), NASDAQ BX, Inc., NASDAQ PHLX LLC, the Nasdaq Stock Market LLC, New York Stock Exchange LLC (“NYSE”), NYSE MKT LLC, and NYSE Arca, Inc. (collectively “Participants”), filed with the Commission, pursuant to Section 11A of the Act
The Participants filed the Plan to comply with an order issued by the Commission on June 24, 2014.
The Plan is designed to allow the Commission, market participants, and the public to study and assess the impact of increment conventions on the liquidity and trading of the common stocks of small-capitalization companies. Each Participant is required to comply, and to enforce compliance by its member organizations, as applicable, with the provisions of the Plan. As is described more fully below, the proposed rules would require Members
The Pilot will include stocks of companies with $3 billion or less in market capitalization, an average daily trading volume of one million shares or less, and a volume weighted average price of at least $2.00 for every trading day. The Pilot will consist of a control group of approximately 1400 Pilot Securities and three test groups with 400 Pilot Securities in each (selected by a stratified random sampling process).
Pilot Securities in the first test group (“Test Group One”) will be quoted in $0.05 minimum increments but will continue to trade at any price increment that is currently permitted.
In approving the Plan, the Commission noted that the Trading Center data reporting requirements would facilitate an analysis of the effects of the Pilot on liquidity (
The Commission also noted that Market Maker profitability data would assist the Commission in evaluating the effect, if any, of a widened tick increment on market marker profits and any corresponding changes in the liquidity of small-capitalization securities.
The Plan contains requirements for collecting and transmitting data to the Commission and to the public.
Appendix B.I of the Plan also contains additional requirements for market orders and marketable limit orders, including the share-weighted average effective spread for executions of orders; the cumulative number of shares of orders executed with price improvement; and, for shares executed with price improvement, the share-weighted average amount per share that prices were improved.
Appendix B.II of the Plan (Market and Marketable Limit Order Data) requires Trading Centers to submit information relating to market orders and marketable limit orders, including the time of order receipt, order type, the order size, the National Best Bid and National Best Offer (“NBBO”) quoted price, the NBBO quoted depth, the average execution price-share-weighted average, and the average execution time-share-weighted average.
The Plan requires Appendix B.I and B.II data to be submitted by Participants that operate a Trading Center, and by members of the Participants that operate Trading Centers. The Plan provides that each Participant that is the Designated Examining Authority (“DEA”) for a member of the Participant that operates a Trading Center shall collect such data in a pipe delimited format, beginning six months prior to the Pilot Period and ending six months after the end of the Pilot Period. The Plan also requires the Participant, operating as DEA, to transmit this information to the SEC within 30 calendar days following month end.
The Exchange is therefore proposing Rule 3317(b) to set forth the requirements for the collection and transmission of data pursuant to Appendices B and C of the Plan. Proposed Rule 3317(b) is substantially similar to proposed rule changes by BZX that were recently approved or published by the Commission to adopt BZX Rule 11.27(b) which also sets forth requirements for the collection and transmission of data pursuant to Appendices B and C of the Plan.
Proposed Rule 3317(b)(1) requires that a Member that operates a Trading Center shall establish, maintain, and enforce written policies and procedures that are reasonably designed to comply with the data collection and transmission requirements of Items I and II to Appendix B of the Plan, and a Member that is a Market Maker shall establish, maintain, and enforce written policies and procedures that are reasonably designed to comply with the data collection and transmission requirements of Item IV of Appendix B of the Plan and Item I of Appendix C of the Plan.
Proposed Rule 3317(b)(2) provides that the Exchange shall collect and transmit to the SEC the data described in Items I and II of Appendix B of the Plan relating to trading activity in Pre-Pilot Securities and Pilot Securities on a Trading Center operated by the Exchange. The Exchange shall transmit such data to the SEC in a pipe delimited format, on a disaggregated basis by Trading Center, within 30 calendar days following month end for: (i) Each Pre-Pilot Data Collection Security for the period beginning six months prior to the Pilot Period through the trading day immediately preceding the Pilot Period; and (ii) each Pilot Security for the period beginning on the first day of the Pilot Period through six months after the end of the Pilot Period. The Exchange also shall make such data publicly available on the Exchange Web site on a monthly basis at no charge and will not identify the Member that generated the data.
Appendix B.IV (Daily Market Maker Participation Statistics) requires a Participant to collect data related to Market Maker participation from each Market Maker
The proposed rule requires Market Makers to transmit such data in a format required by their DEA, by 12:00 p.m. EST on T + 4 for: (i) Transactions in each Pre-Pilot Data Collection Security for the period beginning six months prior to the Pilot Period through the trading day immediately preceding the Pilot Period; and (ii) for transactions in each Pilot Security for the period beginning on the first day of the Pilot Period through six months after the end of the Pilot Period.
The Exchange understands that some Members may utilize a DEA that is not a Participant to the Plan and that their DEA would not be subject to the Plan's data collection requirements. In such case, a DEA that is not a Participant of the Plan would not have an obligation to collect the data required under subparagraph (b)(3)(A) of Rule 3317 and in accordance with Item IV of Appendix B of the Plan. Therefore, the Exchange proposes to adopt subparagraph (b)(3)(B) to Rule 3317 to require a Member that is a Market Maker whose DEA is not a Participant to the Plan to transmit the data collected pursuant to paragraph (3)(A) of Rule 3317(b) to FINRA, which is a Participant to the Plan and is to collect data relating to Item IV of Appendix B of the Plan on behalf of the Participants. For Market Makers for which it is the DEA, FINRA issued a Market Maker Transaction Data Technical Specification to collect data on Pre-Pilot Data Collection Securities and Pilot Securities from Trading Centers to comply with the Plan's data collection requirements.
Proposed Rule 3317(b)(3)(C) provides that the Exchange shall transmit the data collected by the DEA or FINRA pursuant to Rule 3317(b)(3)(A) and (B) above relating to Market Maker activity on a Trading Center operated by the Exchange to the SEC in a pipe delimited format within 30 calendar days following month end. The Exchange shall also make such data publicly available on the Exchange Web site on a monthly basis at no charge and shall not identify the Trading Center that generated the data.
Appendix C.I (Market Maker Profitability) requires a Participant to collect data related to Market Maker profitability from each Market Maker for
Appendix C.II (Aggregated Market Maker Profitability) requires the Participant, as DEA, to aggregate the Appendix C.I data, and to categorize this data by security as well as by the control group and each Test Group. That aggregated data shall contain information relating to total raw Market Maker realized trading profits, volume-weighted average of raw Market Maker realized trading profits, the total raw Market Maker unrealized trading profits, and the volume-weighted average of Market Maker unrealized trading profits.
The Exchange is therefore proposing Rule 3317(b)(4) to set forth the requirements for the collection and transmission of data pursuant to Appendix C.I of the Plan. Proposed Rule 3317(b)(4)(A) requires that a Member that is a Market Maker shall collect and transmit to their DEA the data described in Item I of Appendix C of the Plan with respect to executions in Pilot Securities that have settled or reached settlement date that were executed on any Trading Center.
The proposed rule also requires Members to provide such data in a format required by their DEA by 12 p.m. EST on T+4 for executions during and outside of Regular Trading Hours in each: (i) Pre-Pilot Data Collection Security for the period beginning six months prior to the Pilot Period through the trading day immediately preceding the Pilot Period; and (ii) Pilot Security for the period beginning on the first day of the Pilot Period through six months after the end of the Pilot Period.
For the same reasons set forth above for subparagraph (b)(3)(B) to Rule 3317, the Exchange proposes to adopt subparagraph (b)(4)(B) to Rule 3317 to require a Member that is a Market Maker whose DEA is not a Participant to the Plan to transmit the data collected pursuant to paragraph (4)(A) of Rule 3317(b) to FINRA. As stated above, FINRA is a Participant to the Plan and is to collect data relating to Item I of Appendix C of the Plan on behalf of the Participants. For Market Makers for which it is the DEA, FINRA issued a Market Maker Transaction Data Technical Specification to collect data on Pre-Pilot Data Collection Securities and Pilot Securities from Trading Centers to comply with the Plan's data collection requirements.
The Exchange is also adopting a rule setting forth the manner in which Market Maker participation will be calculated. Item III of Appendix B of the Plan requires each Participant that is a national securities exchange to collect daily Market Maker registration statistics categorized by security, including the following information: (i) Ticker symbol; (ii) the Participant exchange; (iii) number of registered market makers; and (iv) the number of other registered liquidity providers.
Therefore, the Exchange proposes to adopt Rule 3317(b)(5) providing that the Exchange shall collect and transmit to the SEC the data described in Item III of Appendix B of the Plan relating to daily Market Maker registration statistics in a pipe delimited format within 30 calendar days following month end for: (i) Transactions in each Pre-Pilot Data Collection Security for the period beginning six months prior to the Pilot Period through the trading day immediately preceding the Pilot Period; and (ii) transactions in each Pilot Security for the period beginning on the first day of the Pilot Period through six months after the end of the Pilot Period.
The Exchange is also proposing, through Commentary, to clarify other aspects of the data collection requirements.
Commentary .03 requires that Members populate a field to identify to their DEA whether an order is affected by the bands in place pursuant to the National Market System Plan to Address Extraordinary Market Volatility.
The Exchange and the other Participants have determined that it is appropriate to create a new flag for reporting orders that are affected by the Limit-Up Limit-Down bands. Accordingly, a Trading Center shall report a value of “Y” to their DEA when the ability of an order to execute has been affected by the Limit-Up Limit-Down bands in effect at the time of order receipt. A Trading Center shall report a value of “N” to their DEA when the ability of an order to execute has not been affected by the Limit-Up Limit-Down bands in effect at the time of order receipt.
Commentary .03 also requires, for securities that may trade in a foreign market, that the Participant indicate whether the order was handled
Commentary .04 relates to the time ranges specified in Appendix B.I.a(14), B.I.a(15), B.I.a(21) and B.I.a(22).
Commentary .05 relates to the relevant measurement for purposes of Appendix B.I.a(31)-(33) reporting. Currently, the Plan states that this data shall be reported as of the time of order execution. The Exchange and the other Participants believe that this information should more properly be captured at the time of order receipt as evaluating share-weighted average prices at the time of order receipt is more consistent with the goal of observing the effect of the Pilot on the liquidity of Pilot Securities. The Exchange is therefore proposing to make this change through Commentary .05.
Commentary .06 addresses the status of not-held and auction orders for purposes of Appendix B.I reporting. Currently, Appendix B.I sets forth eight categories of orders, including market orders, marketable limit orders, and inside-the-quote resting limit orders, for which daily market quality statistics must be reported. Currently, Appendix B.I does not provide a category for not held orders, clean cross orders, auction orders, or orders received when the NBBO is crossed.
The Exchange and the other Participants have determined that it is appropriate to include separate categories for these orders types for purposes of Appendix B reporting. The Exchange is therefore proposing Commentary .06 to provide that not held orders shall be included as an order type for purposes of Appendix B reporting, and shall be assigned the number (18). Clean cross orders shall be included as an order type for purposes of Appendix B reporting, and shall be assigned the number (19); auction orders shall be included an as order type for purposes of Appendix B reporting, and shall be assigned the number (20); and orders that cannot otherwise be classified, including, for example, orders received when the NBBO is crossed shall be included as an order type for purposes of Appendix B reporting, and shall be assigned the number (21). All of these orders already are included in the scope of Appendix B; however, without this proposed change, these order types would be categorized with other orders, such as regular held orders, that should be able to be fully executed upon receipt, which would compromise the value of this data.
The Exchange is proposing Commentary .07 to clarify the scope of the Plan as it relates to Members that only execute orders limited purposes. Specifically, The Exchange and the other Participants believe that a Member that only executes orders otherwise than on a national securities exchange for the purpose of: (1) Correcting a bona fide error related to the execution of a customer order; (2) purchasing a security from a customer at a nominal price solely for purposes of liquidating the customer's position; or (3) completing the fractional share portion of an order
The Exchange is proposing Commentary .08 to clarify that, for purposes of the Plan, Trading Centers must begin the data collection required pursuant to Appendix B.I.a(1) through B.II.(y) of the Plan and Item I of Appendix C of the Plan on April 4, 2016. While the Exchange or the Member's DEA will provide the information required by Appendix B and C of the Plan during the Pilot Period, the requirement that the Exchange or their DEA provide information to the SEC within 30 days following month end and make such data publicly available on its Web site pursuant to Appendix B and C shall commence six months prior to the beginning of the Pilot Period.
The Exchange is proposing Commentary .09 to address the requirement in Appendix C.I(b) of the Plan that the calculation of raw Market Maker realized trading profits utilize a
The Exchange is proposing that, for purposes of Item I of Appendix C, the Participants shall calculate daily Market Maker realized profitability statistics for each trading day on a daily LIFO basis using reported trade price and shall include only trades executed on the subject trading day. The daily LIFO calculation shall not include any positions carried over from previous trading days. For purposes of Item I.c of Appendix C, the Participants shall calculate daily Market Maker unrealized profitability statistics for each trading day on an average price basis.
Specifically, the Participants must calculate the volume weighted average price of the excess (deficit) of buy volume over sell volume for the current trading day using reported trade price. The gain (loss) of the excess (deficit) of buy volume over sell volume shall be determined by using the volume weighted average price compared to the closing price of the security as reported by the primary listing exchange. In reporting unrealized trading profits, the Participant shall also report the number of excess (deficit) shares held by the Market Maker, the volume weighted average price of that excess (deficit) and the closing price of the security as reported by the primary listing exchange used in reporting unrealized profit.
Finally, the Exchange is proposing Commentary .10 to address the securities that will be used for data collection purposes prior to the commencement of the Pilot. The Exchange and the other Participants have determined that it is appropriate to collect data for a group of securities that is larger, and using different quantitative thresholds, than the group of securities that will be Pilot Securities.
The Exchange is therefore proposing Commentary .10 to define “Pre-Pilot Data Collection Securities” as the securities designated by the Participants for purposes of the data collection requirements described in Items I, II, and IV of Appendix B and Item I of Appendix C of the Plan for the period beginning six months prior to the Pilot Period and ending on the trading day immediately preceding the Pilot Period.
The Participants shall compile the list of Pre-Pilot Data Collection Securities by selecting all NMS stocks with a market capitalization of $5 billion or less, a Consolidated Average Daily Volume (CADV) of 2 million shares or less and a closing price of $1 per share or more. The market capitalization and the closing price thresholds shall be applied to the last day of the Pre-Pilot measurement period, and the CADV threshold shall be applied to the duration of the Pre-Pilot measurement period. The Pre-Pilot measurement period shall be the three calendar months ending on the day when the Pre-Pilot Data Collection Securities are selected. The Pre-Pilot Data Collection Securities shall be selected thirty days prior to the commencement of the six-month Pre-Pilot Period. On the trading day that is the first trading day of the Pilot Period through six months after the end of the Pilot Period, the data collection requirements will become applicable to the Pilot Securities only. A Pilot Security will only be eligible to be included in a Test Group if it was a Pre-Pilot Security.
The proposed rule change will be effective on April 4, 2016.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange believes that this proposal is consistent with the Act because it implements and clarifies the provisions of the Plan, and is designed to assist the Exchange in meeting its regulatory obligations pursuant of the Plan. In approving the Plan, the SEC noted that the Pilot was an appropriate, data-driven test that was designed to evaluate the impact of a wider tick size on trading, liquidity, and the market quality of securities of smaller capitalization companies, and was therefore in furtherance of the purposes of the Act.
The Exchange believes that this proposal is in furtherance of the objectives of the Plan, as identified by the SEC, and is therefore consistent with the Act because the proposal implements and clarifies the requirements of the Plan and applies specific obligations to Members in furtherance of compliance with the Plan.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The Exchange notes that the proposed rule change implements the provisions of the Plan, and is designed to assist the Exchange in meeting its regulatory obligations pursuant of the Plan. The Exchange also notes that the data collection requirements for Members that operate Trading Centers will apply equally to all such Members, as will the data collection requirements for Market Makers.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (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 Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-Phlx-2016-39 and should be submitted on or before April 22, 2016.
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 a proposal to adopt Exchange Rule 4770 to implement the Regulation NMS Plan to Implement a Tick Size Pilot Program (“Plan”). The proposed rule change is substantially similar to proposed rule changes recently approved or published by the Commission by the Bats BZX Exchange, Inc. f/k/a BATS Exchange, Inc. (“BZX”) to adopt BZX Rule 11.27(b) which also sets forth requirements for the collection and transmission of data pursuant to Appendices B and C of the Plan.
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.
On August 25, 2014, NYSE Group, Inc., on behalf of BATS Exchange, Inc., BATS Y-Exchange, Inc., Chicago Stock Exchange, Inc., EDGA Exchange, Inc., EDGX Exchange, Inc., Financial Industry Regulatory Authority, Inc. (“FINRA”), NASDAQ BX, Inc., NASDAQ PHLX LLC, the Nasdaq Stock Market LLC, New York Stock Exchange LLC (“NYSE”), NYSE MKT LLC, and NYSE Arca, Inc. (collectively “Participants”), filed with the Commission, pursuant to Section 11A of the Act
The Participants filed the Plan to comply with an order issued by the Commission on June 24, 2014.
The Plan is designed to allow the Commission, market participants, and the public to study and assess the impact of increment conventions on the liquidity and trading of the common stocks of small-capitalization companies. Each Participant is required to comply, and to enforce compliance by its member organizations, as applicable, with the provisions of the Plan. As is described more fully below, the proposed rules would require Members
The Pilot will include stocks of companies with $3 billion or less in market capitalization, an average daily trading volume of one million shares or less, and a volume weighted average price of at least $2.00 for every trading day. The Pilot will consist of a control group of approximately 1400 Pilot Securities and three test groups with 400 Pilot Securities in each (selected by a stratified random sampling process).
Pilot Securities in the first test group (“Test Group One”) will be quoted in $0.05 minimum increments but will continue to trade at any price increment that is currently permitted.
In approving the Plan, the Commission noted that the Trading Center data reporting requirements would facilitate an analysis of the effects of the Pilot on liquidity (
The Commission also noted that Market Maker profitability data would assist the Commission in evaluating the effect, if any, of a widened tick increment on market marker profits and any corresponding changes in the liquidity of small-capitalization securities.
The Plan contains requirements for collecting and transmitting data to the Commission and to the public.
Appendix B.II of the Plan (Market and Marketable Limit Order Data) requires Trading Centers to submit information relating to market orders and marketable limit orders, including the time of order receipt, order type, the order size, the National Best Bid and National Best Offer (“NBBO”) quoted price, the NBBO quoted depth, the average execution price-share-weighted average, and the average execution time-share-weighted average.
The Plan requires Appendix B.I and B.II data to be submitted by Participants
The Exchange is therefore proposing Rule 4770(b) to set forth the requirements for the collection and transmission of data pursuant to Appendices B and C of the Plan. Proposed Rule 4770(b) is substantially similar to proposed rule changes by BZX that were recently approved or published by the Commission to adopt BZX Rule 11.27(b) which also sets forth requirements for the collection and transmission of data pursuant to Appendices B and C of the Plan.
Proposed Rule 4770(b)(1) requires that a Member that operates a Trading Center shall establish, maintain, and enforce written policies and procedures that are reasonably designed to comply with the data collection and transmission requirements of Items I and II to Appendix B of the Plan, and a Member that is a Market Maker shall establish, maintain, and enforce written policies and procedures that are reasonably designed to comply with the data collection and transmission requirements of Item IV of Appendix B of the Plan and Item I of Appendix C of the Plan.
Proposed Rule 4770(b)(2) provides that the Exchange shall collect and transmit to the SEC the data described in Items I and II of Appendix B of the Plan relating to trading activity in Pre-Pilot Securities and Pilot Securities on a Trading Center operated by the Exchange. The Exchange shall transmit such data to the SEC in a pipe delimited format, on a disaggregated basis by Trading Center, within 30 calendar days following month end for: (i) Each Pre-Pilot Data Collection Security for the period beginning six months prior to the Pilot Period through the trading day immediately preceding the Pilot Period; and (ii) each Pilot Security for the period beginning on the first day of the Pilot Period through six months after the end of the Pilot Period. The Exchange also shall make such data publicly available on the Exchange Web site on a monthly basis at no charge and will not identify the Member that generated the data.
Appendix B.IV (Daily Market Maker Participation Statistics) requires a Participant to collect data related to Market Maker participation from each Market Maker
The proposed rule requires Market Makers to transmit such data in a format required by their DEA, by 12:00 p.m. EST on T+4 for: (i) Transactions in each Pre-Pilot Data Collection Security for the period beginning six months prior to the Pilot Period through the trading day immediately preceding the Pilot Period; and (ii) for transactions in each Pilot Security for the period beginning on the first day of the Pilot Period through six months after the end of the Pilot Period.
The Exchange understands that some Members may utilize a DEA that is not a Participant to the Plan and that their DEA would not be subject to the Plan's data collection requirements. In such case, a DEA that is not a Participant of the Plan would not have an obligation to collect the data required under subparagraph (b)(3)(A) of Rule 4770 and in accordance with Item IV of Appendix B of the Plan. Therefore, the Exchange proposes to adopt subparagraph (b)(3)(B) to Rule 4770 to require a Member that is a Market Maker whose DEA is not a Participant to the Plan to transmit the data collected pursuant to paragraph (3)(A) of Rule 4770(b) to FINRA, which is a Participant to the Plan and is to collect data relating to Item IV of Appendix B of the Plan on behalf of the Participants. For Market Makers for which it is the DEA, FINRA issued a Market Maker Transaction Data Technical Specification to collect data on Pre-Pilot Data Collection Securities and Pilot Securities from Trading Centers to comply with the Plan's data collection requirements.
Proposed Rule 4770(b)(3)(C) provides that the Exchange shall transmit the data collected by the DEA or FINRA pursuant to Rule 4770(b)(3)(A) and (B) above relating to Market Maker activity on a Trading Center operated by the Exchange to the SEC in a pipe delimited format within 30 calendar days following month end. The Exchange shall also make such data publicly available on the Exchange Web site on a monthly basis at no charge and shall not identify the Trading Center that generated the data.
Appendix C.I (Market Maker Profitability) requires a Participant to collect data related to Market Maker profitability from each Market Maker for which it is the DEA. Specifically, the Participant is required to collect the total number of shares of orders executed by the Market Maker; the raw Market Maker realized trading profits, and the raw Market Maker unrealized trading profits. Data shall be collected for dates starting six months prior to the Pilot Period through six months after the end of the Pilot Period. This data shall be collected on a monthly basis, to be provided in a pipe delimited format to the Participant, as DEA, within 30 calendar days following month end.
Appendix C.II (Aggregated Market Maker Profitability) requires the Participant, as DEA, to aggregate the Appendix C.I data, and to categorize this data by security as well as by the control group and each Test Group. That aggregated data shall contain information relating to total raw Market Maker realized trading profits, volume-weighted average of raw Market Maker realized trading profits, the total raw Market Maker unrealized trading profits, and the volume-weighted average of Market Maker unrealized trading profits.
The Exchange is therefore proposing Rule 4770(b)(4) to set forth the requirements for the collection and transmission of data pursuant to Appendix C.I of the Plan. Proposed Rule 4770(b)(4)(A) requires that a Member that is a Market Maker shall collect and transmit to their DEA the data described in Item I of Appendix C of the Plan with respect to executions in Pilot Securities that have settled or reached settlement date that were executed on any Trading Center.
The proposed rule also requires Members to provide such data in a format required by their DEA by 12 p.m.
For the same reasons set forth above for subparagraph (b)(3)(B) to Rule 4770, the Exchange proposes to adopt subparagraph (b)(4)(B) to Rule 4770 to require a Member that is a Market Maker whose DEA is not a Participant to the Plan to transmit the data collected pursuant to paragraph (4)(A) of Rule 4770(b) to FINRA. As stated above, FINRA is a Participant to the Plan and is to collect data relating to Item I of Appendix C of the Plan on behalf of the Participants. For Market Makers for which it is the DEA, FINRA issued a Market Maker Transaction Data Technical Specification to collect data on Pre-Pilot Data Collection Securities and Pilot Securities from Trading Centers to comply with the Plan's data collection requirements.
The Exchange is also adopting a rule setting forth the manner in which Market Maker participation will be calculated. Item III of Appendix B of the Plan requires each Participant that is a national securities exchange to collect daily Market Maker registration statistics categorized by security, including the following information: (i) Ticker symbol; (ii) the Participant exchange; (iii) number of registered market makers; and (iv) the number of other registered liquidity providers.
Therefore, the Exchange proposes to adopt Rule 4770(b)(5) providing that the Exchange shall collect and transmit to the SEC the data described in Item III of Appendix B of the Plan relating to daily Market Maker registration statistics in a pipe delimited format within 30 calendar days following month end for: (i) Transactions in each Pre-Pilot Data Collection Security for the period beginning six months prior to the Pilot Period through the trading day immediately preceding the Pilot Period; and (ii) transactions in each Pilot Security for the period beginning on the first day of the Pilot Period through six months after the end of the Pilot Period.
The Exchange is also proposing, through Commentary, to clarify other aspects of the data collection requirements.
Commentary .03 requires that Members populate a field to identify to their DEA whether an order is affected by the bands in place pursuant to the National Market System Plan to Address Extraordinary Market Volatility.
The Exchange and the other Participants have determined that it is appropriate to create a new flag for reporting orders that are affected by the Limit-Up Limit-Down bands. Accordingly, a Trading Center shall report a value of “Y” to their DEA when the ability of an order to execute has been affected by the Limit-Up Limit-Down bands in effect at the time of order receipt. A Trading Center shall report a value of “N” to their DEA when the ability of an order to execute has not been affected by the Limit-Up Limit-Down bands in effect at the time of order receipt.
Commentary .03 also requires, for securities that may trade in a foreign market, that the Participant indicate whether the order was handled domestically, or routed to a foreign venue. Accordingly, the Participant will indicate, for purposes of Appendix B.I, whether the order was: (1) Fully executed domestically, or (2) fully or partially executed on a foreign market. For purposes of Appendix B.II, the Participant will classify all orders in securities that may trade in a foreign market Pilot and Pre-Pilot Securities as: (1) Directed to a domestic venue for execution; (2) may only be directed to a foreign venue for execution; or (3) was fully or partially directed to a foreign venue at the discretion of the member. The Exchange believes that this proposed flag will better identify orders in securities that may trade in a foreign market, as such orders that were routed to foreign venues would not be subject to the Plan's quoting and trading requirements, and could otherwise compromise the integrity of the data.
Commentary .04 relates to the time ranges specified in Appendix B.I.a(14), B.I.a(15), B.I.a(21) and B.I.a(22).
Commentary .05 relates to the relevant measurement for purposes of Appendix B.I.a(31)-(33) reporting. Currently, the Plan states that this data shall be reported as of the time of order execution. The Exchange and the other Participants believe that this information should more properly be captured at the time of order receipt as evaluating share-weighted average prices at the time of order receipt is more consistent with the goal of observing the effect of the Pilot on the liquidity of Pilot Securities. The Exchange is therefore proposing to make this change through Commentary .05.
Commentary .06 addresses the status of not-held and auction orders for purposes of Appendix B.I reporting. Currently, Appendix B.I sets forth eight categories of orders, including market orders, marketable limit orders, and inside-the-quote resting limit orders, for which daily market quality statistics must be reported. Currently, Appendix B.I does not provide a category for not held orders, clean cross orders, auction orders, or orders received when the NBBO is crossed.
The Exchange and the other Participants have determined that it is appropriate to include separate categories for these orders types for purposes of Appendix B reporting. The Exchange is therefore proposing Commentary .06 to provide that not held orders shall be included as an order type for purposes of Appendix B reporting, and shall be assigned the number (18). Clean cross orders shall be included as an order type for purposes of Appendix B reporting, and shall be assigned the number (19); auction orders shall be included an as order type for purposes of Appendix B reporting, and shall be assigned the number (20); and orders that cannot otherwise be classified, including, for example, orders received when the NBBO is crossed shall be included as an order type for purposes of Appendix B reporting, and shall be assigned the number (21). All of these orders already are included in the scope of Appendix B; however, without this proposed change, these order types would be categorized with other orders, such as regular held orders, that should be able to be fully executed upon receipt, which would compromise the value of this data.
The Exchange is proposing Commentary .07 to clarify the scope of the Plan as it relates to Members that only execute orders limited purposes. Specifically, The Exchange and the other Participants believe that a Member that only executes orders otherwise than on a national securities exchange for the purpose of: (1) Correcting a bona fide error related to the execution of a customer order; (2) purchasing a security from a customer at a nominal price solely for purposes of liquidating the customer's position; or (3) completing the fractional share portion of an order
The Exchange is proposing Commentary .08 to clarify that, for purposes of the Plan, Trading Centers must begin the data collection required pursuant to Appendix B.I.a(1) through B.II.(y) of the Plan and Item I of Appendix C of the Plan on April 4, 2016. While the Exchange or the Member's DEA will provide the information required by Appendix B and C of the Plan during the Pilot Period, the requirement that the Exchange or their DEA provide information to the SEC within 30 days following month end and make such data publicly available on its Web site pursuant to Appendix B and C shall commence six months prior to the beginning of the Pilot Period.
The Exchange is proposing Commentary .09 to address the requirement in Appendix C.I(b) of the Plan that the calculation of raw Market Maker realized trading profits utilize a last in, first out (“LIFO”)-like method to determine which share prices shall be used in that calculation. The Exchange and the other Participants believe that it is more appropriate to utilize a methodology that yields LIFO-like results, rather than utilizing a LIFO-like method, and the Exchange is therefore proposing Commentary .09 to make this change.
The Exchange is proposing that, for purposes of Item I of Appendix C, the Participants shall calculate daily Market Maker realized profitability statistics for each trading day on a daily LIFO basis using reported trade price and shall include only trades executed on the subject trading day. The daily LIFO calculation shall not include any positions carried over from previous trading days. For purposes of Item I.c of Appendix C, the Participants shall calculate daily Market Maker unrealized profitability statistics for each trading day on an average price basis.
Specifically, the Participants must calculate the volume weighted average price of the excess (deficit) of buy volume over sell volume for the current trading day using reported trade price. The gain (loss) of the excess (deficit) of buy volume over sell volume shall be
Finally, the Exchange is proposing Commentary .10 to address the securities that will be used for data collection purposes prior to the commencement of the Pilot. The Exchange and the other Participants have determined that it is appropriate to collect data for a group of securities that is larger, and using different quantitative thresholds, than the group of securities that will be Pilot Securities.
The Exchange is therefore proposing Commentary .10 to define “Pre-Pilot Data Collection Securities” as the securities designated by the Participants for purposes of the data collection requirements described in Items I, II, and IV of Appendix B and Item I of Appendix C of the Plan for the period beginning six months prior to the Pilot Period and ending on the trading day immediately preceding the Pilot Period.
The Participants shall compile the list of Pre-Pilot Data Collection Securities by selecting all NMS stocks with a market capitalization of $5 billion or less, a Consolidated Average Daily Volume (CADV) of 2 million shares or less and a closing price of $1 per share or more. The market capitalization and the closing price thresholds shall be applied to the last day of the Pre-Pilot measurement period, and the CADV threshold shall be applied to the duration of the Pre-Pilot measurement period. The Pre-Pilot measurement period shall be the three calendar months ending on the day when the Pre-Pilot Data Collection Securities are selected. The Pre-Pilot Data Collection Securities shall be selected thirty days prior to the commencement of the six-month Pre-Pilot Period. On the trading day that is the first trading day of the Pilot Period through six months after the end of the Pilot Period, the data collection requirements will become applicable to the Pilot Securities only. A Pilot Security will only be eligible to be included in a Test Group if it was a Pre-Pilot Security.
The proposed rule change will be effective on April 4, 2016.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange believes that this proposal is consistent with the Act because it implements and clarifies the provisions of the Plan, and is designed to assist the Exchange in meeting its regulatory obligations pursuant of the Plan. In approving the Plan, the SEC noted that the Pilot was an appropriate, data-driven test that was designed to evaluate the impact of a wider tick size on trading, liquidity, and the market quality of securities of smaller capitalization companies, and was therefore in furtherance of the purposes of the Act.
The Exchange believes that this proposal is in furtherance of the objectives of the Plan, as identified by the SEC, and is therefore consistent with the Act because the proposal implements and clarifies the requirements of the Plan and applies specific obligations to Members in furtherance of compliance with the Plan.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The Exchange notes that the proposed rule change implements the provisions of the Plan, and is designed to assist the Exchange in meeting its regulatory obligations pursuant of the Plan. The Exchange also notes that the data collection requirements for Members that operate Trading Centers will apply equally to all such Members, as will the data collection requirements for Market Makers.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in
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.
Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-NASDAQ-2016-043 and should be submitted on or before April 22, 2016.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 17e-1 (17 CFR 270.17e-1) under the Investment Company Act of 1940 (15 U.S.C. 80a-1
Based on an analysis of fund filings, the staff estimates that approximately 320 funds enter into subadvisory agreements each year.
Based on an analysis of fund filings, we estimate that approximately 1,696 funds use at least one affiliated broker. Based on staff experience and conversations with fund representatives, the staff estimates approximately 40 percent of transactions (and thus, 40% of funds) that occur under the rule 17e-
Estimates of the average burden hours are made solely for the purposes of the Paperwork Reduction Act and are not derived from a comprehensive or even a representative survey or study of the costs of Commission rules and forms. The collection of information under rule 17e-1 is mandatory. The information provided under rule 17e-1 will not be kept confidential. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The public may view the background documentation for this information collection at the following Web site,
Based upon a review of the Administrative Record assembled pursuant to Section 219(a)(4)(C) of the Immigration and Nationality Act, as amended (8 U.S.C. 1189(a)(4)(C)) (“INA”), and in consultation with the Attorney General and the Secretary of the Treasury, I conclude that the circumstances that were the basis for the designation of the aforementioned organization as a Foreign Terrorist Organization have not changed in such a manner as to warrant revocation of the designation and that the national security of the United States does not warrant a revocation of the designation.
Therefore, I hereby determine that the designation of the aforementioned organization as a Foreign Terrorist Organization, pursuant to Section 219 of the INA (8 U.S.C. 1189), shall be maintained.
This determination shall be published in the
Southern Switching Company (SSC), a Class III rail carrier, has filed a verified notice of exemption under 49 CFR 1150.41 to operate approximately 3.18 miles of rail line at an industrial park near Big Springs, in Howard County, Tex. (the Line), pursuant to an operating agreement with its sister rail carrier, Lone Star Railroad, Inc. (LSR), the owner of the Line.
According to SSC, the Line connects with a rail line owned and operated by Union Pacific Railroad Company between Dallas and El Paso, Tex.
SSC states that the agreement regarding the subject line does not involve an interchange commitment. SSC also states that its projected annual revenues as a result of this transaction do not exceed those that would qualify it as a Class III rail carrier and will not exceed $5 million.
The transaction may be consummated on or after April 16, 2016, the effective date of the exemption (30 days after the verified notice of exemption was filed).
If the verified notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of the exemption. Petitions for stay must be filed no later than April 8, 2016 (at least seven days before the exemption becomes effective).
An original and 10 copies of all pleadings, referring to Docket No. FD 36013, must be filed with the Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001. In addition, one copy of each pleading must be served on applicant's representative, Thomas F. McFarland, Thomas F. McFarland, P.C., 208 South LaSalle Street, Suite 1890, Chicago, IL 60604.
According to SSC, this action is categorically excluded from environmental review under 49 CFR 1105.6(c).
Board decisions and notices are available on our Web site at
By the Board, Scott M. Zimmerman, Acting Director, Office of Proceedings.
Federal Aviation Administration (FAA), DOT.
Notice of meeting.
The FAA is issuing this notice to advise the public of the Research, Engineering & Development Advisory Committee meeting.
The meeting will be held on April 20, 2016—9:30 a.m. to 4:00 p.m.
The meeting will be held at the Federal Aviation Administration, 800 Independence Avenue SW., Round Room (10th Floor), Washington, DC 20591.
Chinita A. Roundtree-Coleman at (609) 485-7149 or Web site at
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C. App. 2), notice is hereby given of a meeting of the Research, Engineering and Development (RE&D) Advisory Committee. The meeting agenda will include receiving from the Committee guidance for FAA's research and development investments in the areas of air traffic services, airports, aircraft safety, human factors and environment and energy. Attendance is open to the interested public but seating is limited. With the approval of the chairman, members of the public may present oral statements at the meeting. Persons wishing to attend the meeting, present statements, or obtain information should contact the person listed in the
Federal Highway Administration (FHWA), Department of Transportation (DOT).
Notice of limitation on claims for judicial review of actions by FHWA.
This notice announces actions taken by the FHWA that are final within the meaning of 23 U.S.C. 139(l)(1). The actions relate to a proposed highway project, US-95 Thorncreek Road to Moscow in the County of Latah in the State of Idaho, FHWA Project # DHP-NH-4110(156); Idaho Transportation Department (ITD) Key #9294.
By this notice, the FHWA is advising the public of final agency actions subject to 23 U.S.C. 139(l)(1). A claim seeking judicial review of the Federal agency actions on the highway project will be barred unless the claim is filed on or before August 29, 2016. If the Federal law that authorizes judicial review of a claim provides a time period of less than 150 days for filing such claim, then that shorter time period still applies.
For FHWA, contact Kyle Holman, Operations Engineer, FHWA Idaho Division, 3050 Lakeharbor Lane #126, Boise, ID 83703, telephone 208-334-9180, extension 127, or via email at
Notice is hereby given that FHWA has taken final agency actions by issuing approvals for the following highway project in the State of Idaho: US-95 Thorncreek Road to Moscow Project No. DHP-NH-4110 (156), Latah County. The project involves improvements and realignment to section of US-95. The highway will be improved from milepost 337.67 to milepost 344.00 to improve safety and capacity of this section of US-95. The existing two-lane undivided highway from Thorncreek Road to the South Fork Palouse River Bridge will be replaced with a four-lane divided highway with a 34-foot median through the majority of the corridor. A four-lane highway with center turn lane, curb, gutter and sidewalk will be constructed at the northern end of the project. The actions by the Federal agencies, and the laws under which such actions were taken, are described in the Final Environmental Impact Statement (FEIS) and Final Section 4(f) Evaluation US-95 Thorncreek Road to Moscow (FHWA-ID-EIS-12-01-F) for the project, approved on July 28, 2015, in the FHWA Record of Decision (ROD) issued on March 21, 2016, and in other documents in the project records. The FEIS, ROD, and other project records are available by contacting FHWA or the ITD using the contact information provided above. The FEIS and ROD can be viewed and downloaded from the project Web site at
This notice applies to all FHWA decisions that are final as of the issuance date of this notice and all laws and regulations under which such actions were taken, including but not limited to the following;
1. General: National Environmental Policy Act (42 U.S.C. 4321-4370h); Federal-Aid Highway Act (23 U.S.C. 109); and associated regulations (23 CFR).
2. Social and Economic: American Indian Religious Freedom Act (42 U.S.C. 1996); Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. 61); and the Civil Rights Act of 1964 (42 U.S.C. 2000(d)-2000(d)(1)).
3. Air: Clean Air Act (42 U.S.C. 7401-7671q) (transportation conformity).
4. Hazardous Materials: Toxic Substances Control Act (15 U.S.C. 2601-2629); Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. 9601-9675); and the Resource Conservation and Recovery Act (42 U.S.C. 6901-6992(k)).
5. Land: Farmland Protection Policy Act (7 U.S.C. 4201-4209); Section 4(f) of the Department of Transportation Act of 1966 (49 U.S.C. 303); and the Highway Beautification Act of 1965 (23 U.S.C. 131).
6. Wildlife: Endangered Species Act (16 U.S.C. 1531-1544); Fish and Wildlife Coordination Act (16 U.S.C. 661-667(e)); Migratory Bird Treaty Act (16 U.S.C. 703-712); National Forest Management Act (16 U.S.C. 1600-1687); and the Federal Noxious Weed Act of 1974 (7 U.S.C. 2801
7. Historic and Cultural Resources: Section 106 of the National Historic Preservation Act of 1966 (54 U.S.C. 306108); Archeological Resources Protection Act of 1977 (16 U.S.C. 470aa-470mm); Archeological and Historic Preservation Act (16 U.S.C. 469-469c-2); and the Native American Grave Protection and Repatriation Act (25 U.S.C. 3001-3013).
8. Wetlands and Water Resources: Clean Water Act (Sections 319, 401, and 404 404 (33 U.S.C. 1251-1387)); Safe
9. Executive Orders (E.O.): E.O. 11990, Protection of Wetlands; E.O. 11988, Floodplain Management; E.O. 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations; E.O. 11593, Protection and Enhancement of Cultural Resources; E.O. 13007, Indian Sacred Sites; E.O. 13175, Consultation and Coordination with Indian Tribal Governments; E.O. 11514, Protection and Enhancement of Environmental Quality; and E.O. 13112, Invasive Species.
(Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing E.O.12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.)
23 U.S.C. 139 (l)(1).
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Notice; request for information.
NHTSA, on behalf of the Federal Interagency Committee on Emergency Medical Services (FICEMS), is seeking comments from all sources (public, private, governmental, academic, professional, public interest groups, and other interested parties) on the planned revision of the 1996
FICEMS was created (42 U.S.C. 300d-4) by the Secretaries of Transportation, Health and Human Services and Homeland Security to, in part, ensure coordination among the Federal agencies involved with State, local, tribal or regional emergency medical services and 9-1-1 systems. FICEMS has statutory authority to identify State and local Emergency Medical Services (EMS) and 9-1-1 needs, to recommend new or expanded programs and to identify the ways in which Federal agencies can streamline their processes for support of EMS. FICEMS includes representatives from the Department of Defense (DoD) Office of the Assistant Secretary of Defense—Health Affairs, the Department of Health and Human Services (HHS) Office of the Assistant Secretary for Preparedness and Response (ASPR), HHS Indian Health Service (IHS), HHS Centers for Disease Control and Prevention (CDC), HHS Health Resources and Services Administration (HRSA), HHS Centers for Medicare and Medicaid Services (CMS), the Department of Homeland Security (DHS) Office of Health Affairs (OHA), DHS U.S. Fire Administration (USFA), NHTSA, the Federal Communications Commission (FCC) and a State EMS Director appointed by the Secretary of Transportation.
On June 19, 2014, FICEMS unanimously approved a motion to proceed with a revision of the EMS Agenda, with a focus on data-driven approaches to future improvements.
This followed an April 24, 2014 letter in which the National Emergency Medical Services Advisory Council (NEMSAC) issued recommendations to NHTSA regarding revision of the EMS Agenda. NEMSAC's recommendations were as follows:
• A major revision of the
• The revision process should be guided by an external entity (not NEMSAC) that will ensure a consensus- and data-driven process with broad stakeholder representation. The goal should be to replicate the process used to develop the original EMS Agenda for the Future, published in 1996;
• The U.S. Department of Transportation should seek financial support and assistance from members of FICEMS to accomplish this task.
The purpose of this notice is to solicit comments on the planned revision of the EMS Agenda, and to request responses to specific questions provided below. This is neither a request for proposals nor an invitation for bids.
It is requested that comments on this announcement be submitted by June 30, 2016.
You may submit comments [identified by Docket No. NHTSA-2016-0035] through one of the following methods:
•
•
Gamunu Wijetunge, Office of Emergency Medical Services, (202) 493-2793,
In 1996 NHTSA, in partnership with HRSA, published the EMS Agenda (
The EMS Agenda included the following vision statement: “Emergency medical services (EMS) of the future will be community-based health management that is fully integrated with the overall health care system. It will have the ability to identify and modify illness and injury risks, provide acute illness and injury care and follow-up, and contribute to treatment of chronic conditions and community health monitoring. This new entity will be developed from redistribution of existing health care resources and will be integrated with other health care providers and public health and public safety agencies. It will improve community health and result in more appropriate use of acute health care resources. EMS will remain the public's emergency medical safety net.”
Furthermore, the EMS Agenda proposed development of the following 14 EMS attributes:
• Integration of Health Services;
• EMS Research;
• Legislation and Regulation;
• System Finance;
• Human Resources;
• Medical Direction;
• Education Systems;
• Public Education;
• Prevention;
• Public Access;
• Communication Systems;
• Clinical Care;
• Information Systems;
• Evaluation.
In 2014, NEMSAC recommended that NHTSA undertake a major revision of the EMS Agenda. NHTSA, on behalf of FICEMS, intends to work closely with EMS stakeholders in revising the EMS Agenda. It is anticipated the revised EMS Agenda will envision the evolution of EMS systems over the next 30 years.
Responses to the following questions are requested to help plan the revision of the EMS Agenda. Please provide references as appropriate.
1. What are the most critical issues facing EMS systems that should be addressed in the revision of the EMS Agenda? Please be as specific as possible.
2. What progress has been made in implementing the EMS Agenda since its publication in 1996?
3. How have you used the EMS Agenda? Please provide specific examples.
4. As an EMS stakeholder, how might the revised EMS Agenda be most useful to you?
5. What significant changes have occurred in EMS systems at the national, State and local levels since 1996?
6. What significant changes will impact EMS systems over the next 30 years?
7. How might the revised EMS Agenda support the following FICEMS Strategic Plan goals:
a. Coordinated, regionalized, and accountable EMS and 9-1-1 systems that provide safe, high-quality care;
b. data-driven and evidence-based EMS systems that promote improved patient care quality;
c. EMS systems fully integrated into State, territorial, local, tribal, regional, and Federal preparedness planning, response, and recovery;
d. EMS systems that are sustainable, forward looking, and integrated with the evolving health care system;
e. an EMS culture in which safety considerations for patients, providers, and the community permeate the full spectrum of activities; and
f. a well-educated and uniformly credentialed EMS workforce.
8. How could the revised EMS Agenda contribute to enhanced emergency medical services for children?
9. How could the revised EMS Agenda address the future of EMS data collection and information sharing?
10. How could the revised EMS Agenda support data-driven and evidence-based improvements in EMS systems?
11. How could the revised EMS Agenda enhance collaboration among EMS systems, health care providers, hospitals, public safety answering points, public health, insurers, palliative care and others?
12. How will innovative patient care delivery and finance models impact EMS systems over the next 30 years?
13. How could the revised EMS Agenda promote community preparedness and resilience?
14. How could the revised EMS Agenda contribute to improved coordination for mass casualty incident preparedness and response?
15. How could the revised EMS Agenda enhance the exchange of evidence based practices between military and civilian medicine?
16. How could the revised EMS Agenda support the seamless and unimpeded transfer of military EMS personnel to roles as civilian EMS providers?
17. How could the revised EMS Agenda support interstate credentialing of EMS personnel?
18. How could the revised EMS Agenda support improved patient outcomes in rural and frontier communities?
19. How could the revised EMS Agenda contribute to improved EMS education systems at the local, State, and national levels?
20. How could the revised EMS Agenda lead to improved EMS systems in tribal communities?
21. How could the revised EMS Agenda promote a culture of safety among EMS personnel, agencies and organizations?
22. Are there additional EMS attributes that should be included in the revised EMS Agenda? If so, please provide an explanation for why these additional EMS attributes should be included.
23. Are there EMS attributes in the EMS Agenda that should be eliminated from the revised edition? If so, please provide an explanation for why these EMS attributes should be eliminated.
24. What are your suggestions for the process that should be used in revising the EMS Agenda?
25. What specific agencies/organizations/entities are essential to involve, in a revision of the EMS Agenda?
26. Do you have any additional comments regarding the revision of the EMS Agenda?
National Highway Traffic Safety Administration (NHTSA), Department of Transportation.
Request for public comments.
Automotive technology is at a moment of rapid change and may evolve farther in the next decade than in the previous 45-plus year history of the Agency. As the world moves toward autonomous vehicles and innovative mobility solutions, NHTSA is interested in facilitating the rapid advance of technologies that will promote safety. NHTSA is commanded by Congress to protect the safety of the driving public against unreasonable risks of harm that may occur because of the design, construction, or performance of a motor vehicle or motor vehicle equipment, and mitigate risks of harm, including risks that may be emerging or contingent. As NHTSA always has done when evaluating new technologies and solutions, we will be guided by our statutory mission, the laws we are obligated to enforce, and the benefits of the emerging technologies appearing on America's roadways.
NHTSA has broad enforcement authority, under existing statutes and regulations, to address existing and emerging automotive technologies. This proposed Enforcement Guidance Bulletin sets forth NHTSA's current views on emerging automotive technologies—including its view that when vulnerabilities of such technology or equipment pose an unreasonable risk to safety, those vulnerabilities constitute a safety-related defect—and suggests guiding principles and best practices for motor vehicle and equipment manufacturers in this context. This notice solicits comments from the public, motor vehicle and equipment manufacturers, and other interested
Comments must be received on or before May 2, 2016.
You may submit comments by any of the following methods:
•
•
•
•
Regardless of how you submit your comments, please mention the docket number of this document.
You may also call the Docket at (202) 366-9322.
Justine Casselle, Office of the Chief Counsel, National Highway Traffic Safety Administration, or Elizabeth Mykytiuk, Office of the Chief Counsel, National Highway Traffic Safety Administration, at (202) 366-2992.
Recent and continuing advances in automotive technology have great potential to generate significant safety benefits. Today's motor vehicles are increasingly equipped with electronics, sensors, and computing power that enable the deployment of safety technologies and functions, such as forward-collision warning, automatic-emergency braking, and lane keeping assist, which dramatically enhance safety. New technologies may not only prevent drivers from crashing, but may even do some or all of the driving for them. The safety implications of such emerging technologies are vast. Importantly, as these technologies become more widespread, manufacturers must ensure their safe development and implementation.
To facilitate automotive safety innovation, to aid in the successful development and deployment of emerging automotive technologies, and to protect the public from potential flaws or threats associated with emerging automotive technologies, NHTSA is publishing, for guidance and informational purposes, this Enforcement Guidance Bulletin setting forth the Agency's current view of its enforcement authority and principles guiding its exercise of that authority. This includes guiding principles and best practices for use by motor vehicle and equipment manufacturers. NHTSA is not establishing a binding set of rules, nor is the Agency suggesting that one particular set of practices applies in all situations. The Agency recognizes that best practices vary depending on circumstances, and manufacturers remain free to choose the solution that best fits their needs and the demands of automotive safety. However, to address safety concerns associated with emerging technologies in a comprehensive way, and to advise regulated entities of the Agency's present views of certain enforcement subjects and issues, NHTSA submits this proposed Enforcement Guidance Bulletin for public comment. Based on the Agency's review and analysis of that input, it will develop and issue a final “Enforcement Guidance Bulletin” on this topic.
The National Traffic and Motor Vehicle Safety Act, as amended (“Safety Act”), 49 U.S.C. 30101
Under the Safety Act, NHTSA has authority over motor vehicles, equipment included in or on a motor vehicle at the time of delivery to the first purchaser (
With respect to new and emerging technologies, NHTSA considers automated vehicle technologies, systems, and equipment to be motor vehicle equipment, whether they are offered to the public as part of a new motor vehicle (as original equipment) or as an after-market replacement(s) of or improvement(s) to original equipment. NHTSA also considers software (including, but not necessarily limited to, the programs, instructions, code, and data used to operate computers and related devices), and after-market software updates, to be motor vehicle equipment within the meaning of the Safety Act. Software that enables devices not located in or on the motor vehicle to connect to the motor vehicle or its systems could, in some circumstances, also be considered motor vehicle equipment. Accordingly, a manufacturer of new and emerging vehicle technologies and equipment, whether it is the supplier of the equipment or the manufacturer of a motor vehicle on which the equipment is installed, has an obligation to notify NHTSA of any and all safety-related defects.
NHTSA is charged with reducing deaths, injuries, and economic losses resulting from motor vehicle crashes.
Under the Safety Act, a “defect” includes “any defect in performance, construction, a component, or material of a motor vehicle or motor vehicle equipment.” 49 U.S.C. 30102(a)(2). It also includes a defect in design.
Congress intended the Safety Act to represent a “commonsense” approach to safety and courts have followed that approach in determining what constitutes a “defect.”
A “significant number of failures” is merely a “non-de minimus” quantity; it need not be a “substantial percentage of the total.”
It must be noted, however, that in some circumstances, a crash, injury, or death need not occur in order for a vulnerability or safety risk to be considered a defect. The Agency relies on the performance record of a vehicle or component in making a defect determination where the engineering or root cause is unknown.
In order to support a recall, a defect must be related to motor vehicle safety.
In general, for a defect to present an “unreasonable risk,” there must be a likelihood that it will cause or be associated with a “non-negligible” number of crashes, injuries, or deaths in the future.
If the hazard is sufficiently serious, and at least some harm, however small, is expected to occur in the future, the risk may be deemed unreasonable.
Consistent with the foregoing background, NHTSA's enforcement authority concerning safety-related defects in motor vehicles and equipment extends and applies equally to new and emerging automotive technologies. This includes, for example, automation technology and equipment, as well as advanced crash avoidance technologies. Where an autonomous vehicle or other emerging automotive technology causes crashes or injuries, or has a manifested safety-related failure or defect, and a manufacturer fails to act, NHTSA will exercise its enforcement authority to the fullest extent. Similarly, should the Agency determine that an autonomous vehicle or other new automotive technology presents a safety concern, the Agency will evaluate such technology through its investigative authority to determine whether the technology presents an unreasonable risk to safety.
To avoid violating Safety Act requirements and standards, manufacturers of emerging technology and the motor vehicles on which such technology is installed are strongly encouraged to take steps to proactively identify and resolve safety concerns before their products are available for use on public roadways. The Agency recognizes that much emerging automotive technology heavily involves electronic systems (such as hardware, software, sensors, global positioning systems (GPS) and vehicle-to-vehicle (V2V) safety communications systems). The Agency acknowledges that the increased use of electronic systems in motor vehicles and equipment may raise new and different safety concerns. However, the complexities of these systems do not diminish manufacturers' duties under the Safety Act—both motor vehicle manufacturers and equipment manufacturers remain responsible for ensuring that their vehicles or equipment are free of safety-related defects or noncompliances, and do not otherwise pose an unreasonable risk to safety. Manufacturers are also reminded that they remain responsible for promptly reporting to NHTSA any safety-related defects or noncompliances, as well as timely notifying owners and dealers of the same.
In assessing whether a motor vehicle or piece of motor vehicle equipment poses an unreasonable risk to safety, NHTSA considers the likelihood of the occurrence of a harm (
Software installed in or on a motor vehicle—which is motor vehicle equipment—presents its own unique safety risks. Because software often interacts with a motor vehicle's critical safety systems (
In the case of cybersecurity vulnerabilities, NHTSA will weigh several factors in determining whether a vulnerability poses an unreasonable risk to safety (and thus constitutes a safety-related defect), including: (i) The amount of time elapsed since the vulnerability was discovered (
NHTSA uses those factors, and others, to help assess the overall probability of a malicious cybersecurity attack. The probability of an attack includes circumstances in which a vulnerability has been identified, but no actual incidents have been documented or confirmed. Confirmed field incidents may increase the weight NHTSA places on the probability of an attack in its assessment. Even before evidence of an attack, it is foreseeable that hackers will try to exploit cybersecurity vulnerabilities. For instance, if a cybersecurity vulnerability in any of a motor vehicle's entry points (
Manufacturers should consider adopting a life-cycle approach to safety risks when developing automated vehicles, other innovative automotive technologies, and safety compliance programs and other business practices in connection with such technologies. A life-cycle approach would include “elements of assessment, design, implementation, and operations as well as an effective testing and certification program.” National Highway Traffic Safety Administration,
Manufacturers of emerging technologies and the motor vehicles on which such technology is installed have a continuing obligation to proactively identify safety concerns and mitigate the risks of harm. If a manufacturer discovers or is otherwise made aware of any defects, noncompliances, or other unreasonable risks to safety after the vehicle and/or technology has been in safe operation for some time, then it should strongly consider promptly contacting the appropriate NHTSA personnel to determine the necessary next steps. Where a manufacturer fails to adequately address a safety concern, NHTSA, when appropriate, will explicitly address that concern through its enforcement authority.
49 U.S.C. 30101-30103, 30116-30121, 30166; delegation of authority at 49 CFR 1.95 and 49 CFR 501.8.
Office of the Comptroller of the Currency (OCC), Treasury.
Notice and request for comment.
The OCC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on a continuing information collection, as required by the Paperwork Reduction Act of 1995 (PRA).
In accordance with the requirements of the PRA, the OCC may not conduct or sponsor, and respondents are not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number.
The OCC is soliciting comment concerning the renewal of its information collection titled, “Securities Exchange Act Disclosure Rules and Securities of Federal Savings Associations.” The OCC also is giving notice that it has sent the collection to OMB for review.
Comments must be received by May 2, 2016.
Because paper mail in the Washington, DC area and at the OCC is subject to delay, commenters are encouraged to submit comments by email, if possible. Comments may be sent to: Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, Attention: 1557-0106, 400 7th Street SW., suite 3E-218, mail stop 9W-11, Washington, DC 20219. In addition, comments may be sent by fax to (571) 465-4326 or by electronic mail to
All comments received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not include any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure.
Additionally, please send a copy of your comments by mail to: OCC Desk Officer, 1557-0106, U.S. Office of Management and Budget, 725 17th Street NW., #10235, Washington, DC 20503, or by email to:
Shaquita Merritt, Clearance Officer, (202) 649-5490 or, for persons who are deaf or hard of hearing, TTY, (202) 649-5597, Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, 400 7th Street SW., Washington, DC 20219.
The OCC is proposing to extend OMB approval of the following information collection:
The Securities and Exchange Commission (SEC) is required by statute to collect, in accordance with its regulations, certain information and documents from any firm that is required to register its stock with the SEC.
12 CFR part 11 ensures that a national bank or Federal savings association whose securities are subject to registration provides adequate information about its operations to current and potential shareholders, depositors, and the public. The OCC reviews the information to ensure that it complies with Federal law and makes public all information required to be filed under the rule. Investors,
The OCC issued a notice for 60 days of comment regarding this collection on January 20, 2016, 81 FR 3237. No comments were received. Comments continue to be requested on:
(a) Whether the information collections are necessary for the proper performance of the OCC's functions, including whether the information has practical utility;
(b) The accuracy of the OCC's estimates of the burden of the information collections, including the validity of the methodology and assumptions used;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of information collections on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or start up costs and costs of operation, maintenance, and purchase of services to provide information.
Office of the Comptroller of the Currency (OCC), Treasury.
Notice and request for comment.
The OCC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on a continuing information collection, as required by the Paperwork Reduction Act of 1995 (PRA).
In accordance with the requirements of the PRA, the OCC may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number.
The OCC is soliciting comment concerning the renewal of its information collection titled, “Leasing.” The OCC also is giving notice that it has sent the collection to OMB for review.
Comments must be received by May 2, 2016.
Because paper mail in the Washington, DC area and at the OCC is subject to delay, commenters are encouraged to submit comments by email, if possible. Comments may be sent to: Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, Attention: 1557-0206, 400 7th Street SW., suite 3E-218, mail stop 9W-11, Washington, DC 20219. In addition, comments may be sent by fax to (571) 465-4326 or by electronic mail to
All comments received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not include any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure.
Additionally, please send a copy of your comments by mail to: OCC Desk Officer, 1557-0206, U.S. Office of Management and Budget, 725 17th Street NW., #10235, Washington, DC 20503, or by email to:
Shaquita Merritt, Clearance Officer, (202) 649-5490 or, for persons who are deaf or hard of hearing, TTY, (202) 649-5597, Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, 400 7th Street SW., Washington, DC 20219.
The OCC is proposing to extend OMB approval of the following information collection:
Under 12 CFR 23.4(c), national banks must liquidate or release property that is no longer subject to lease (off-lease property) within five years from the date of the lease expiration. If a national bank wishes to extend the five-year holding period for up to an additional five years, it must obtain OCC approval. Permitting a national bank to extend the holding period may result in cost savings. It also may provide flexibility for a national bank that experiences unusual or unforeseen conditions that would make it imprudent to dispose of the off-lease property prior to the expiration of the five-year holding period. Section 23.4(c) requires a national bank seeking an extension to provide a clearly convincing demonstration as to why any additional holding period is necessary. In addition, a national bank must value off-lease property at the lower of current fair market value or book value promptly after the property comes off-lease. These requirements enable the OCC to ensure that a national bank is not holding the property for speculative reasons and that the value of the property is recorded in accordance with generally accepted accounting principles (GAAP).
Under 12 CFR 23.6, leases are subject to the lending limits prescribed by 12 U.S.C. 84, as implemented by 12 CFR part 32, or, if the lessee is an affiliate of the national bank, to the restrictions on transactions with affiliates prescribed by 12 U.S.C. 371c and 371c-1. Twelve U.S.C. 24 contains two separate provisions authorizing a national bank to acquire personal property for purposes of lease financing. Twelve U.S.C. 24(Seventh) authorizes leases of personal property (Section 24(Seventh) Leases) if the lease is a conforming lease as defined in 12 CFR 23.2(d)(2) and represents a noncancelable obligation of the lessee (
National banks use the information to ensure their compliance with applicable
The OCC published a notice for 60 days of comment on January 20, 2016, 81 FR 3236. No comments were received. Comments continue to be requested on:
(a) Whether the information collections are necessary for the proper performance of the OCC's functions, including whether the information has practical utility;
(b) The accuracy of the OCC's estimates of the burden of the information collections, including the validity of the methodology and assumptions used;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of information collections on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or start up costs and costs of operation, maintenance, and purchase of services to provide information.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 5884, Work Opportunity Credit.
Written comments should be received on or before May 31, 2016 to be assured of consideration.
Direct all written comments to Tuawana Pinkston, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Sara Covington, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW., Washington, DC 20224 or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service, Department of the Treasury.
Request for nominations.
The Internal Revenue Service (IRS) requests applications of individuals to be considered for selection as members of the Information Reporting Program Advisory Committee (IRPAC). Nominations should describe and document the proposed member's qualifications for IRPAC membership, including the applicant's past or current affiliations and dealings with the particular tax segment or segments of the community that he or she wishes to represent on the committee. In addition to nominations from interested individuals, the IRS is soliciting nominations from professional and public interest groups that wish to have representatives on the IRPAC. IRPAC will be comprised of 19 members. There are eight positions open for calendar year 2017. It is important that IRPAC continue to represent a diverse taxpayer and stakeholder base. Accordingly, to maintain membership diversity, selection is based on the applicant's qualifications as well as the taxpayer or stakeholder base the applicant represents.
The IRPAC advises the IRS on information reporting issues of mutual concern to the private sector and the federal government. The committee works with the Commissioner of Internal Revenue and other IRS leadership to provide recommendations on a wide range of information reporting administration issues. Membership is balanced to include representation from the tax professional community, small and large businesses, banks, colleges and universities, and industries such as securities, payroll, finance and software.
Written nominations must be received on or before June 2, 2016.
Nominations should be sent to: Michael Deneroff, IRS National Public Liaison, CL:NPL:PSRM, Room 7559, 1111 Constitution Avenue NW., Washington, DC 20224, Attn: IRPAC Nominations. Applications may also be submitted via fax to 855-811-8020 or via email at
Michael Deneroff at 202-317-6851 (not a toll-free number) or
Established in 1991 in response to an administrative recommendation in the final Conference Report of the Omnibus Budget Reconciliation Act of 1989, the IRPAC works closely with the IRS to provide recommendations on a wide range of issues intended to improve the information reporting program and achieve fairness to taxpayers. Conveying the public's perceptions of IRS activities to the Commissioner, the IRPAC is comprised of individuals who bring substantial, disparate experience and diverse backgrounds to the Committee's activities.
Each IRPAC member is nominated by the Commissioner with the concurrence of the Secretary of Treasury to serve a three-year term. Working groups address policies and administrative issues specific to information reporting. Members are not paid for their services. However, travel expenses for working sessions, public meetings and orientation sessions, such as airfare, per diem, and transportation are reimbursed within prescribed federal travel limitations.
Receipt of applications will be acknowledged, and all individuals will be notified when selections have been made. In accordance with Department of Treasury Directive 21-03, a clearance process including fingerprints, annual tax checks, a Federal Bureau of Investigation criminal check and a practitioner check with the Office of Professional Responsibility will be conducted.
Equal opportunity practices will be followed for all appointments to the IRPAC in accordance with the Department of Treasury and IRS policies. The IRS has special interest in assuring that women and men, members of all races and national origins, and individuals with disabilities are welcomed for service on advisory committees and, therefore, extends particular encouragement to nominations from such appropriately qualified candidates.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning golden parachute payments.
Written comments should be received on or before May 31, 2016 to be assured of consideration.
Direct all written comments to Tuawana Pinkston, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the regulations should be directed to Sara Covington at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning losses on small business stock.
Written comments should be received on or before May 31, 2016 to be assured of consideration.
Direct all written comments to Tuawana Pinkston, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the regulation should be directed to Sara Covington, at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW., Washington, DC 20224, or through the Internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13, on or after the date of publication of this notice.
Comments should be received on or before May 2, 2016 to be assured of consideration.
Send comments regarding the burden estimates, or any other aspect of the information collections, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submissions may be obtained by emailing
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13, on or after the date of publication of this notice.
Comments should be received on or before May 2, 2016 to be assured of consideration.
Send comments regarding the burden estimates, or any other aspect of the information collections, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submissions may be obtained by emailing
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act, 5 U.S.C. App. 2, that the annual meeting of the Department of Veterans Affairs Voluntary Service (VAVS) National Advisory Committee (NAC) will be held May 4-6, 2016, at the Albuquerque Marriott, 2101 Louisiana Boulevard NE., Albuquerque, New Mexico. On May 4, the meeting will begin at 8:00 a.m. and end at 11:30 a.m. On May 5, the meeting will begin at 8:30 a.m. and end at 5:00 p.m. On May 6, the meeting will begin at 8:30 a.m. and end at 3:45 p.m. The meeting is open to the public.
The Committee, comprised of fifty-three national voluntary organizations, advises the Secretary, through the Under Secretary for Health, on the coordination and promotion of volunteer activities and strategic partnerships within VA facilities, in the community, and on matters related to volunteerism and charitable giving. The purposes of this meeting are: To recognize the Committee's 70 years of service to our Nation's Veterans; provide for Committee review of volunteer policies and procedures; to accommodate full and open communications between organization representatives and the Voluntary Service Office and field staff; to provide educational opportunities geared towards improving volunteer programs with special emphasis on methods to recruit, retain, place, motivate, and recognize volunteers; and to provide Committee recommendations. The May 4 session will include a National Executive Committee Meeting, Health and Information Fair, and VAVS Representative and Deputy Representative training session. The May 5 business session will include welcoming remarks from local officials, and remarks by VA officials on new and ongoing VA initiatives. The recipients of the American Spirit Recruitment Awards, VAVS Award for Excellence, and the NAC male and female Volunteer of the Year awards will be recognized. Educational workshops will be held in the afternoon and will focus on successful partnering, volunteer manager burnout, social media, and volunteer onboarding. On May 6, the morning business session will include subcommittee reports, the Voluntary Service Report, and the Veterans Health Administration Update. The educational workshops will be repeated in the afternoon. No time will be allocated at this meeting for receiving oral presentations from the public. However, the public may submit written statements for the Committee's review to Ms. Sabrina C. Clark, Designated Federal Officer, Voluntary Service Office (10B2A), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, or by email at
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act, 5 U.S.C. App. 2 that a meeting of the Advisory Committee on Minority Veterans will be held in Jacksonville, Florida from April
On April 12, from 8:45 a.m. to 3:30 p.m., at the Lake City VA Medical Center, Building 100, Room A123 (Director's Conference Room) 619 S. Marion Avenue, Lake City, Florida;
On April 13, from 9:15 a.m. to 11:15 a.m., at the Jacksonville National Cemetery, 4083 Lannie Road, Jacksonville, FL; from 1:45 p.m. to 3:30 p.m., at the Jacksonville Outpatient Clinic, Room 2L 103-106, 1536 N. Jefferson St., Jacksonville, FL; 4:30 p.m. to 6:30 p.m., conducting a Town Hall Meeting at the University of Florida, LRC Auditorium, Learning Resource Center-1st Floor, 653-1 West 8t Street, Jacksonville, FL .
On April 14, from 8:45 a.m. to 4:45 p.m., at the Jacksonville Outpatient Clinic, Room 2L 103-106, 1536 N. Jefferson St., Jacksonville, FL.
The purpose of the Committee is to advise the Secretary on the administration of VA benefits and services to minority Veterans, to assess the needs of minority Veterans and to evaluate whether VA compensation and pension, medical and rehabilitation services, memorial services outreach, and other programs are meeting those needs. The Committee will make recommendations to the Secretary regarding such activities subsequent to the meeting.
On the morning of April 12 from 8:45 a.m. to 11:00 a.m., the Committee will meet in open session with key staff at the Lake City VA Medical Center to discuss services, benefits, delivery challenges, and successes. From 11:00 a.m. to 12:00 p.m., the Committee will convene a closed session in order to protect patient privacy as the Committee tours the VA Medical Center. In the afternoon from 1:30 p.m. to 3:30 p.m., the Committee will reconvene as the Committee is briefed by senior Veterans Benefits Administration staff from the St. Petersburg Regional Benefit Office.
On the morning of April 13 from 9:15 a.m. to 11:15 a.m., the Committee will convene in open session at the Jacksonville National Cemetery followed by a tour of the cemetery. The Committee will meet with key staff to discuss services, benefits, delivery challenges and successes. In the afternoon from 1:45 p.m. to 3:30 p.m., the Committee will reconvene in open session to be briefed and tour the VA Jacksonville Outpatient Clinic. In the evening, the Committee will hold a Veterans Town Hall meeting beginning at 4:30 p.m., at the University of Florida LRC Auditorium.
On the morning of April 14 from 8:45 a.m. to 12:00 p.m., the Committee will convene in open session at the VA Jacksonville Outpatient Clinic to conduct an exit briefing with leadership from the Lake City VA Medical Center, St. Petersburg Regional Benefit Office, and Jacksonville National Cemetery. In the afternoon from 1:30 p.m. to 4:00 p.m., the Committee will work on drafting recommendations for the annual report to the Secretary.
Portions of these visits are closed to the public in accordance with 5 U.S.C. 552b(c)(6). Exemption 6 permits to Committee to close those portions of a meeting that is likely to disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy. During the closed sessions the Committee will discuss VA beneficiary and patient information in which there is a clear unwarranted invasion of the Veteran or beneficiary privacy.
Time will be allocated for receiving public comments on April 14, at 10 a.m. Public comments will be limited to three minutes each. Individuals wishing to make oral statements before the Committee will be accommodated on a first-come first serve basis. Individuals who speak are invited to submit a 1-2 page summaries of their comments at the time of the meeting for inclusion in the official record. The Committee will accept written comments from interested parties on issues outlined in the meeting agenda, as well as other issues affecting minority Veterans. Such comments should be sent to Ms. Juanita Mullen, Advisory Committee on Minority Veterans, Center for Minority Veterans (00M), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, or email at
Departmental Offices, Department of the Treasury.
Notice of proposed rulemaking.
The Department of the Treasury (Treasury) is issuing these proposed rules to implement changes to the Terrorism Risk Insurance Program (TRIP or Program) required by the Terrorism Risk Insurance Program Reauthorization Act of 2015 (2015 Reauthorization Act). In addition, Treasury proposes for the first time a Civil Penalties rule under TRIP, pursuant to authority granted by Congress in the Terrorism Risk Insurance Act of 2002 (TRIA). Treasury also proposes adoption, with certain minor changes, of a previously proposed rule addressing the Final Netting of Payments. Finally, certain other changes are proposed to various sections of the prior rules in order to clarify certain matters, make technical and conforming changes, and to address changes required by the passage of time and other legislation.
Written comments must be submitted on or before May 31, 2016. Early submissions are encouraged.
Submit comments electronically through the Federal eRulemaking Portal:
In general, comments received will be posted on
Richard Ifft, Senior Insurance Regulatory Policy Analyst, Federal Insurance Office, 202-622-2922 (not a toll free number) or Kevin Meehan, Policy Advisor, Federal Insurance Office, 202-622-7009 (not a toll free number).
The Terrorism Risk Insurance Act of 2002 (the Act or TRIA)
To assist insurers, policyholders, and other interested parties in complying with immediately applicable requirements of the Act, Treasury has issued interim guidance to be relied upon by insurers until superseded by regulations. To date, rules establishing general provisions implementing the Program, including key definitions, and requirements for policy disclosures and mandatory availability, are found in Subparts A, B, and C of 31 CFR part 50.
The Program has been reauthorized three times. On December 22, 2005, the Terrorism Risk Insurance Extension Act of 2005 (Pub. L. 109-444, 119 Stat. 2660) (2005 Extension Act) was enacted, which extended the Program through December 31, 2007. In addition to extending the duration of the Program, the 2005 Extension Act also eliminated certain lines of insurance from the Program, revised the insurer deductible, Federal share, and recoupment provisions of the Program, and introduced the “Program Trigger” as a threshold that must be met before any Federal payments can be made. Rules implementing these changes were issued by Treasury.
On December 26, 2007, the Terrorism Risk Insurance Program Reauthorization
Most recently, on January 12, 2015, the President signed into law the Terrorism Risk Insurance Program Reauthorization Act of 2015 (2015 Reauthorization Act),
Additionally, Treasury proposes new regulations respecting civil penalties (as provided for in TRIA) and the final netting of claims for a calendar year,
Finally, Treasury poses several questions regarding the role of self-insurance arrangements and captive insurers in the Program, to which we seek comments to use in formulating a proposed rule in the near future concerning the participation of such arrangements in the Program.
The changes are explained in further detail below in the context of the proposed rules. For the convenience of the reader, Treasury is restating Part 50 in its entirety. However, this preamble addresses only those portions of Part 50 that are being amended. For discussion of Part 50 as previously codified, see the relevant
This proposed rule would strike and replace existing 31 CFR part 50 in its entirety, with the principal changes being to: (1) Generally revise 31 CFR part 50 to incorporate new financial and operational provisions for the Program contained in the 2015 Reauthorization Act; (2) add a new Subpart F to Part 50, which comprises Treasury's regulations concerning data collection; and (3) add a new Subpart G to Part 50, which comprises Treasury's regulations concerning the certification process. The proposed rules also add certain definitions in § 50.4 of Subpart A, a new § 50.76 addressing the previously proposed Final Netting rule, and a new § 50.82 addressing Civil Penalties. Other changes providing further clarification and eliminating redundancies are identified and discussed further below.
The Program was established in 2002, and has been reauthorized and extended on three occasions since then—in 2005, 2007, and most recently in January 2015. Each reauthorization and extension changed the operational provisions of the Program. In prior rulemakings, Treasury has sought to address such changes by incorporating provisions in the rules reflecting the different approaches depending upon the timing of any particular certified act of terrorism. While this approach has captured the relevant changes over time, it has resulted in a set of rules that incorporated numerous exceptions and qualifications. As a result, many existing provisions in the rules have been rendered effectively obsolete given the passage of time. Accordingly, Treasury is taking the opportunity during this rulemaking to propose a more general revision to Part 50, which describes the Program as it currently operates and will operate through 2020, without cumbersome reference to differences that were in effect prior to the effective date of the proposed rules. The revised rules remain subject to the existing savings provision (proposed § 50.6, current § 50.7) which confirms that, to the extent prior applicable regulations or guidance remain relevant for any reason at some point in the future, such provisions will continue to provide the rule of decision, and to provide a safe harbor, for insurers participating in the Program.
In addition to instituting changes to the basic financial terms that define the operation of the Program, the 2015 Reauthorization Act also requires Treasury to prepare certain reports concerning the operation of the Program, based upon data which Treasury shall collect, and to generate rules concerning improvements to the certification process. The proposed rules define a data collection process that will allow Treasury to collect the information necessary to satisfy the reporting requirements contained in the 2015 Reauthorization Act, in a format consistent with the manner in which insurers presently collect and report financial data, including data concerning terrorism risk insurance. These rules, and the specific data collection elements, which remain under development and subject to further refinement, are the result of extensive and ongoing interaction among Treasury, industry stakeholders, and state regulators.
The proposed rules concerning the certification process follow Treasury's October 2015 Certification Report. As set forth in the Certification Report, Treasury has determined that it is not practical to establish detailed rules—and particularly a timeline—governing a process that will necessarily vary from case to case, although Treasury's proposed rules do identify the relevant timing considerations as to when an act is eligible for certification by the
Finally, the proposed rules also include a modified version of a previously proposed Final Netting Rule, which was subject to comment in 2010 but never adopted as a final rule by Treasury, and a rule respecting civil penalties—authorized by TRIA as originally enacted in 2002, but never previously proposed by Treasury.
Treasury seeks comment on all aspects of the proposed rules from interested persons and entities.
The changes to the existing rules as provided for in these proposed rules, on a section by section basis, are as follows:
The proposed change to § 50.1 adds the statutory authority extended under the 2015 Reauthorization Act. The proposed change in § 50.2 implements the provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act authorizing the Federal Insurance Office to assist the Secretary of the Treasury in the administration of TRIP.
There are a number of changes to Program definitions. The proposed change in § 50.4(b) implements Section 105 of the 2015 Reauthorization Act, providing that the Secretary will consult with the Attorney General of the United States and Secretary of Homeland Security prior to certifying an act as an act of terrorism, rather than reaching a certification decision in concurrence with the Secretary of State and the Attorney General.
The proposed change in § 50.4(c)(2) implements the rule of construction in Section 106 of the 2015 Reauthorization Act, which provides that control for purposes of determining if an insurer is an “affiliate” under TRIA is not established solely because an entity acts as an attorney-in-fact for a another entity that is a reciprocal insurer.
The proposed changes in § 50.4(f) (defining “attorney-in-fact”) and § 50.4(x) (defining “reciprocal insurer”) are required in light of the new rule of construction in § 50.4(c)(2) required by Section 106 of the 2015 Reauthorization Act, discussed above. In both cases, Treasury has relied upon state law in developing these definitions.
The proposed change in § 50.4(g) defines “captive insurer” for purposes of implementing TRIA. This definition is being adopted now in order to give effect to the proposed exclusion in § 50.4(z) of captive insurers from the definition of “small insurer,” and because captive insurers might be subject to different data collection protocols than other insurers, both discussed further below. Treasury continues to reserve subpart E of 31 CFR part 50 for further regulations concerning the participation of captive insurers in the Program.
The proposed change in § 50.4(m) incorporates the changes to the insurance marketplace aggregate retention amount over the period from 2015 to 2020, as provided for in Section 104 of the 2015 Reauthorization Act. This section sets the insurance marketplace aggregate retention amount at $27.5 billion, and requires it to increase by $2 billion every calendar year beginning with the year of enactment of the 2015 Reauthorization Act, until the amount reaches $37.5 billion, which will occur in 2019. Section 50.4(m) also specifies the manner in which Treasury proposes to determine the insurance marketplace aggregate retention amount for any calendar year beginning with 2020 and publicize such determinations, in accordance with requirement in Section 104 of the 2015 Reauthorization Act to issue rules for determining and publicizing this amount. The approach follows the direction in the 2015 Reauthorization Act that the insurance marketplace aggregate retention amount for any calendar year after the Program Trigger reaches $37.5 billion should be based upon the average of insurer deductibles during the three prior calendar years. It calculates this figure by reference to the data that Treasury will be collecting concerning insurer participation in the Program under proposed § 50.51.
The proposed change in § 50.4(n) is for clarification purposes only and is not intended to change the prior approach, which was to confirm that outside the United States (as distinguished from inside the United States) insured losses under TRIP involving an air carrier (as defined in 49 U.S.C. 40102) or a United States flag vessel (or a vessel based principally in the United States, on which United States income tax is paid and whose insurance coverage is subject to regulation in the United States) are limited to the insurance coverage provided to the air carrier or vessel.
The proposed change in § 50.4(v) incorporates the changes to the amount of the Program Trigger over the period from 2015 to 2020, and specifies that the Program Trigger is based on all acts of terrorism certified by the Secretary in a particular calendar year (as distinguished from each “Program Year”), as provided for in Section 103 of the 2015 Reauthorization Act.
The proposed change in § 50.4(z) defines “small insurer” as required under Section 112 of the 2015 Reauthorization Act for purposes of a study of small insurers participating in the Program that Treasury must conduct. The purpose of the study is to identify any competitive challenges small insurers face in the terrorism risk insurance marketplace—including whether the increase in amount of the Program Trigger has affected small insurers. Treasury proposes a sliding scale definition of a “small insurer”—which tracks the increasing amount of the Program Trigger in the years from 2015 to 2020—by reference to both the insurer's direct earned premium (for TRIA-eligible lines) and policyholder surplus. Treasury has selected this proposed definition of “small insurer” for purposes of TRIP in light of the manner in which the Program operates.
An insurer's deductible under TRIP is 20 percent of the insurer's direct earned premium in the prior calendar year. Assuming the Program Trigger has been met—an amount of aggregate insured losses in excess of a defined amount in a particular calendar year (starting with $100 million in 2015 and ultimately increasing to $200 million by 2020)—Treasury will make payment of the Federal share for amounts in excess of any particular insurer's deductible.
The Program Trigger is based upon the insured losses of all participants in the Program and, therefore, a particular insurer with losses below the Program Trigger but above its deductible may still be entitled to payments of the Federal share, so long as insured losses of all participating insurers are sufficient to satisfy the Program Trigger. A different situation, however, could be presented if losses arising from a certified act of terrorism are largely or entirely sustained by a single insurer whose deductible is below the Program Trigger. In this situation, an insurer with a deductible of (for example) $20 million, and total losses of $50 million would not be entitled to payments under the Program (notwithstanding satisfaction of its deductible) if total insured losses across all Program
If an insurer's direct earned premium is five times the Program Trigger amount (for example, at $500 million in 2015) that insurer's deductible would at least exceed the Program Trigger, even if all of the insured losses in question (a theoretical if unlikely possibility) resulting from a certified act of terrorism were sustained only by that insurer. Such an insurer would be paid any Federal share above its deductible, since that insurer's deductible would be equal to the Program Trigger for the calendar year in question. If an insurer's direct earned premium is less than five times the Program Trigger amount, however, the possibility remains that an insurer might exceed its deductible but not be entitled to payments of the Federal share because the Program Trigger has not been met. The impact upon such an insurer in this situation, however, would be lessened to the extent the insurer's policyholder surplus was sufficient to satisfy any amounts that would not be reimbursed in such a scenario under the Program.
Since the purpose of studying small insurers under TRIP is to assess competitive challenges small insurers face in the terrorism risk insurance marketplace, the definition should be with reference to the insurer's deductible and policyholder surplus as compared with the Program Trigger threshold. Accordingly, Treasury's proposed definition specifies that a “small insurer” is an insurer with prior-year direct earned premium of less than five times the Program Trigger amount, and with policyholder surplus at the end of the prior calendar year that is also less than five times the Program Trigger amount. Insurers larger than this—whose losses alone could trigger the Program, or whose surplus is well above the Program Trigger threshold—cannot be considered “small” for these purposes.
Finally, captive insurers (as defined in this proposed rule) are exempted from the small insurer definition. Captive insurers typically insure only the exposures of corporate parents or of other related policyholders, and thus while these captives might otherwise meet the proposed definition of “small insurer” the establishment of a captive insurer is a risk management decision that is not compelled by TRIP, and the corporate parent or other source of strength of the captive insurer is ultimately positioned to manage any potential risk presented to the captive by its participation in TRIP. Any issue relating to the size of captive insurers as it relates to TRIP should be assessed in the context of regulations specifically applicable to such captives.
The balance of the proposed changes to Subpart A would delete provisions that are redundant or unnecessary on account of the passage of time, would substitute language to clarify Treasury's intent, or would implement other changes required by the 2015 Reauthorization Act (
The proposed change to § 50.12 clarifies the manner in which the portion or percentage of the annual premium attributable to terrorism risk insurance should be disclosed to policyholders or potential policyholders, to ensure that the actual dollar value of the premium is evident.
The proposed changes to § 50.13 implement Section 106(2)(A) of the 2015 Reauthorization Act, which deleted the previous requirement that the general disclosure requirements respecting insured losses (as found in § 50.10) apply at the time of policy purchase, as well as at the time of offer and renewal.
The proposed change to § 50.15 provides expanded guidance for ensuring compliance with the requirement that the cap disclosure be provided at the time of offer, purchase, and renewal. It clarifies that a cap disclosure at the time of purchase needs only to be provided in the event that terrorism risk coverage is actually purchased, and establishes that the disclosure at that time may refer back to the disclosure made at the time of offer or renewal. This guidance is otherwise consistent with the general approach of the 2015 Reauthorization Act to notification requirements.
The balance of the proposed changes to Subpart B would delete provisions that are redundant or unnecessary on account of the passage of time, substitute language to clarify Treasury's intent, or implement other minor changes that conform the existing regulations to the requirements of the 2015 Reauthorization Act.
The proposed changes to Subpart C would delete provisions that are redundant or unnecessary on account of the passage of time, substitute language to clarify Treasury's intent, or implement other minor changes that conform the existing regulations to the requirements of the 2015 Reauthorization Act, and do not seek to establish any further substantive changes.
No substantive changes have been proposed to Subpart D.
Treasury continues to reserve Subpart E for future additional rules addressing the participation in TRIP of self-insurance arrangements and captive insurers. Comments concerning the participation in the Program of self-insurance arrangements and captive insurers are sought in Section III, below.
Subpart F is new. The proposed rules establish procedures for collection of data as mandated by Section 111 of the 2015 Reauthorization Act, and also address the collection of data by Treasury in connection with the claims process, in the event that an act of terrorism has been certified. A general explanation of each section of new Subpart F follows.
Proposed § 50.50 states that Treasury may generally request information from insurers in connection with the Program, as part of its administration and implementation of the program.
Proposed § 50.51 establishes rules concerning the annual collection of data by Treasury concerning the effectiveness of the Program, as mandated by Section 111 of the 2015 Reauthorization Act. A reporting deadline each year of March 1 is proposed. Treasury has proposed this reporting deadline to provide insurers with sufficient time to compile and provide the necessary information and ensure it is true and correct. A March 1 deadline is also consistent with other annual reporting requirements insurers must meet. The subject matter of the data to be collected is identified consistent with the requirements of Section 111 of the 2015 Reauthorization Act. The rule further specifies that the data will be collected electronically by Treasury, through various forms and web portals identified on Treasury's Web site. The reporting forms and portals, which will identify the specific data elements that insurers will be required to provide on an annual basis, are under development and will be published for comment separately. Given that insurers collect and report data in a variety of ways, the precise data elements, instructions, and methods of reporting may vary by industry segment. Treasury will publish
The proposed rule also permits Treasury to issue supplemental data requests to participating insurers to the extent Treasury determines it requires additional or clarifying information in order to analyze the effectiveness of the Program. Like the potential revision to the annual data element requirements, this is an additional tool for Treasury to manage the information it is collecting to ensure that it is able to evaluate the effectiveness of the Program, as required by the 2015 Reauthorization Act. The timeframe and manner of response to any such supplemental data request will be specified by Treasury in the request.
The proposed rule permits—but does not require—Treasury to exclude small insurers, as defined in proposed § 50.4(z), from the annual data request. Section 111 of the 2015 Reauthorization Act requires the Secretary to collect from insurers participating in the Program such information as the Secretary considers appropriate to analyze the overall effectiveness of the Program. Treasury may gather all of the information appropriate for analyzing the effectiveness of the Program without requiring collection of information from every single participating insurer. The statutory text does not require the Secretary to require all insurers participating in the Program to submit information, nor does it require that all insurers be required to submit the same information. Rather, the statute requires the Secretary to require insurers to submit such information as the Secretary considers appropriate. Therefore, the Secretary may sometimes exempt a small insurer or class of small insurers if such exemption would not interfere with Treasury's ability to analyze the effectiveness of the Program. It would not be appropriate to extend such an exemption to insurers that do not qualify as small insurers, as such an exemption would be more likely to have a negative impact on Treasury's ability to analyze the effectiveness of the program.
Proposed § 50.52 addresses the collection of data relating to small insurers, as defined in proposed § 50.4(z), in support of the studies of small insurers mandated by the 2015 Reauthorization Act. The data elements specified in the proposed § 50.52 are those specified in Section 112 of the 2015 Reauthorization Act.
Proposed § 50.53 establishes rules for the collection of data by Treasury once an act has been certified as an act of terrorism, under Treasury's general authority to under Section 104(a) of the Act to investigate claims under the Program and prescribe regulations to effectively administer the Program and ensure that all insurers that participate in the Program are treated equally. In order to effectively administer the Program, Treasury requires information regarding losses resulting from a certified act of terrorism and has accordingly previously adopted rules requiring the submission of such information. The current rules (§ 50.52) do not require insurers to begin reporting information to Treasury concerning losses resulting from a certified act of terrorism until a particular insurer's paid and incurred losses reach 50 percent of the insurer's TRIA deductible. However, given the size of the deductibles of some participating insurers, this could result in losses being paid and reserved by industry as a whole in an amount far in excess of the $100 million Program Trigger before Treasury has obtained any specific information respecting losses resulting from the act of terrorism as they are incurred. This new section provides for periodic reporting of claims and loss information associated with the act of terrorism in question, so that Treasury may evaluate on a continuing basis the amount of loss associated with the certified act of terrorism, and be prepared in advance to respond to claims for payment of the Federal share of compensation in a timely fashion. The data elements sought under this rule are consistent with those that each participating insurer will be generating in connection with its own establishment, review, and resolution of claims as they are processed. As in other situations involving data collection, the rule specifies that Treasury may also seek loss figures and estimates from other sources in order to inform its analysis and projections.
Finally, proposed § 50.54 implements the requirements found in Section 111 of the 2015 Reauthorization Act, which recognize that the data that Treasury will need to collect from participating insurers may constitute proprietary information that is highly sensitive to the individual companies (and, potentially, underlying policyholders and claimants) from which it is obtained. The proposed rule provides for protection of such data from disclosure, although it does permit—pursuant to appropriate agreements—for the sharing of such information with other Federal agencies or state insurance regulatory authorities.
Subpart G is new. The proposed rules establish procedures applicable when Treasury is considering whether an act constitutes an “act of terrorism” within the meaning of TRIA.
The 2015 Reauthorization Act includes a requirement for Treasury to conduct and complete a study on the certification process, including examination of whether a timeline governing the certification process could be established, information that the Secretary would evaluate during the certification process, and the ability of the Secretary to provide guidance and updates to the public during the certification process. In the Certification Report, Treasury concluded that it would be impractical to establish very specific rules to define a process that will likely vary greatly in material respects depending upon the act and its consequences. Treasury determined, however, that the certification process could be improved by periodic reporting to the public during the pendency of that process, which Treasury concluded should permit relevant stakeholders and the public at large to assess their positions as they might be affected by the Secretary's decision whether to certify an act as an act of terrorism. Treasury also addressed in the Certification Report the types of information that it might need to evaluate during the certification process. Under the 2015 Reauthorization Act, Treasury must issue final rules governing the certification process within 9 months after the Certification Report, including a timeline for when an act is eligible for certification by the Secretary as an act of terrorism. These proposed rules implement Treasury's recommendations in its Certification Report and the requirements of the 2015 Reauthorization Act.
Proposed § 50.60 sets forth the general parameters of the certification process, as required under TRIA, and as modified by the 2015 Reauthorization Act, including the requirement in paragraph (b) that from a timing standpoint an act is eligible for certification once the Secretary has consulted with the Attorney General of the United States and the Secretary of Homeland Security.
Proposed § 50.61 addresses the commencement of the certification
Proposed § 50.62 establishes rules for the collection of data by Treasury in aid of the certification process. As explained in the Certification Report, Treasury may need to collect data from insurers, as well as from other entities in the insurance industry, in connection with its analysis of whether the insurance losses resulting from an act under consideration for certification as an act of terrorism meet the $5 million loss threshold under TRIA, which must be met before any act is eligible for certification as an act of terrorism.
Proposed § 50.63 provides for
The proposed changes to § 50.70 (formerly § 50.50) implement the changes to the Federal share of compensation and Program Trigger amounts in the years from 2015 through 2020, as provided for in the 2015 Reauthorization Act.
Proposed § 50.76 addresses final netting. This rule was originally proposed by Treasury in 2010 and subject to comment but was not adopted by Treasury. See generally 75 FR 45563 (August 3, 2010). The intent of the proposed rule is to provide a process by which Treasury would close out its claims operation for insured losses from a particular calendar year. The proposed rule provides for some flexibility in how and when steps are taken to accomplish this in order to be able to effectively address future circumstances. Treasury has addressed certain of the comments that were received during the prior comment period by modifications to the proposed rule, and responds to certain of the comments that are not addressed by revisions to the proposed rule. Interested parties are invited to provide further comments respecting the proposed final netting rule during the current comment period.
Section 103(e)(4) of TRIA provides the Secretary with the sole discretion to determine the time at which claims relating to any insured loss or act of terrorism shall be accomplished. Based on that authority, the final netting rule provides the mechanism for final payments to be made by Treasury to insurers, or by insurers to Treasury, such that Treasury can close out its claims operation for insured losses for a given calendar year, once the Secretary has determined that claims for the Federal share of compensation shall be considered final.
The substantive modifications to the proposed rule as originally proposed in 2010 are to paragraph (b)(1)(v) (identifying the manner in which the Federal courts have been applying tort and contract statute of limitations as such decisions may be relevant to the final netting analysis) and paragraph (b)(1)(ix) (expressly requiring that if it is projected that the cap on annual liability will be reached, consideration shall be given as to whether any Final Netting Date should be set) are based on the comments that were previously received. Treasury concurs with the commenters that these are appropriate considerations for Final Netting. Treasury has not, however, revised the proposed rule in response to comments recommending that Treasury should not impose a commutation over the objection of the relevant insurer, or that Treasury should expressly obligate itself to reopen and/or extend the insurer's claim for the Federal share of compensation if the 20 percent exception threshold of increased compensation is met. Treasury makes payment of the Federal share of compensation pursuant to the terms of TRIA and not as a matter of contract, and TRIA leaves to the sole discretion of the Secretary—who must consider the impact of the Program upon taxpayers as well as upon the participating insurers—when claims shall become final. The considerations identified in the proposed rule as to whether and when a Final Netting Date should be set are appropriate and sufficiently identify the relevant considerations.
The balance of the proposed changes to the previously proposed Final Netting Rule text revise certain terminology previously used in the regulations, in order to distinguish the provisions from the new proposed rule, or to implement other technical changes that conform the existing regulations to the requirements of the 2015 Reauthorization Act, and do not seek to establish any substantive changes.
The only substantive change to Subpart I (formerly Subpart G) is new § 50.82, addressing civil penalties in connection with TRIA. The authority for Treasury to impose civil penalties against an insurer in connection with the administration of TRIA is provided under Section 104(e) of the Act. The proposed rule tracks the statutory language as to the situations in which a civil penalty may be assessed, and provides (as required by the Act) for any penalty to be assessed only after proceedings on the record and after an opportunity is extended to the insurer in question for a hearing. Treasury previously considered a different penalty rule, addressing only certain conduct in connection with the Program; that proposed rule was withdrawn in light of comments that the authority generally available under Section 104(e) of the Act “cover[s] the landscape of potential offenses.” 69 FR 39296, 39299-300 (June 29, 2004). This proposed rule is consistent with the statutory authority provided to Treasury under the Act.
The only substantive change from the civil penalty authority as identified in Section 104(e) of TRIA is with respect to the amount, which has been increased from not more than $1,000,000 as provided for in TRIA to not more than $1,325,000. This increase
The principal changes in Subpart J are in connection with proposed § 50.90 (formerly § 50.70), and are based upon changes to the Program adopted in the 2015 Reauthorization Act—
The proposed Rule incorporates certain changes and clarifications to Subpart K, involving the Federal Cause of Action and Approval of Settlements by Treasury. These changes are designed to enhance Treasury's ability to evaluate and manage significant claims that could have a material impact upon Treasury's payment of the Federal share of compensation.
Proposed § 50.100(b) is proposed for the sake of completeness and tracks the existing requirement identified in TRIA that once the Secretary certifies an act of terrorism the Judicial Panel on Multidistrict Litigation shall designate one or more district courts to exercise exclusive jurisdiction of claims arising out of the certified act of terrorism. See TRIA, Section 107(a)(4).
Proposed § 50.102 (formerly § 50.82) includes certain clarifying language confirming that the advance settlement approval requirement extends to claims that may ultimately be determined to fall within an insurer's deductible. Insured losses are ultimately submitted to Treasury as the basis for payment of the Federal share on an aggregate basis and, therefore, Treasury has previously recognized that the advance settlement approval requirement logically extends to such cases. See 69 FR 44932, 44936 (July 29, 2004). This proposed change thus only clarifies existing guidance.
Proposed § 50.103 (formerly 50.83) contains certain clarifying language respecting the submission of information Treasury seeks in support of settlement approval.
Proposed § 50.104 (formerly § 50.84) adds a provision recognizing that while the Government's subrogation rights arising from TRIP payments may not be waived by a participating insurer, those rights might not be enforced by the Government in an appropriate situation. While the general regulatory prohibition against impairing the subrogation rights of the United States remains in place, Treasury recognizes that there may be litigation situations—for example, when all parties involved may ultimately be seeking to have their losses reimbursed through claims for the Federal share of compensation—where a sensible resolution of the matter would be for the United States to forbear from exercising those rights as part of a prudent global settlement agreement that resolves the matter in question as to all parties. The proposed change provides the flexibility to consider such an approach in an appropriate case.
The balance of the proposed changes to Subpart K make certain clarifying changes or delete material that is now redundant or unnecessary, and do not seek to establish any substantive changes.
The proposed changes in Subpart L incorporate language required by the 2015 Reauthorization Act, or conform the provisions to Treasury's other data collection authorities under Part 50.
Under Section 103(f) of TRIA, the Secretary “may apply the provisions of this title, as appropriate, to other classes or types of captive insurers and other self-insurance arrangements by municipalities and other entities. . . .” Treasury has previously advised that state-licensed captive insurers participate in the Program by virtue of their status as licensed insurance entities, and has issued some guidance concerning that participation; however, Treasury has not issued any rules specifically concerning the participation of captive insurers in the Program. Treasury also has not issued any rules concerning the participation of “other self-insurance arrangements by municipalities and other entities” in the Program.
In anticipation of the development of rules concerning the participation of captive insurers and, potentially, other self-insurance arrangements in the Program, Treasury invites interested parties to provide comments concerning these issues. While interested parties are invited to address these matters generally, Treasury particularly invites responses to the following questions:
(1) What is the current role of captive insurers (both state-licensed entities and otherwise) in providing insurance in TRIP-eligible lines?
(2) Should captive arrangements that insure U.S.-based risks, other than those involving state-licensed insurers, participate in the Program? Upon what basis should such participation take place?
(3) Should separate rules address the criteria for which captives, of any type, qualify for reimbursement under the Program? In response to this question, please address whether and/or how the relatively small TRIP-eligible premiums of such insurers should affect their insurer deductible.
(4) Given the relatively small size of some captive insurers, should some assessment be made of their capital and claims paying ability in connection with their participation in the Program? If so, how should Treasury consider and address such issues?
(5) To what extent are captives being relied upon to insure so-called “trophy risks” that might be deemed to be subject to a heightened risk of terrorism?
(6) What is the current role of self-insurance arrangements in providing workers' compensation reimbursement for losses that could be subject to the Program?
(7) What is the current extent of self-insurance arrangements in other TRIA-eligible lines apart from workers' compensation insurance?
(8) Should self-insurance arrangements, apart from state-licensed captives, qualify for participation in the Program? Do self-insurers wish to participate in the Program? If self-insurers were to participate in the Program, how would such participation be structured, including in terms of
Treasury has previously determined that regulations issued in connection with the Program do not have a significant economic impact on a substantial number of small entities. As noted previously, TRIA requires all insurers, regardless of size or sophistication, which receive direct earned premiums for commercial property and casualty insurance, to participate in the Program. The Act also defines property and casualty insurance to mean commercial lines of insurance, with certain specific exclusions, without any reference to the size or scope of the insurer. Thus, the economic impacts associated with the Program regulations flow from TRIA, and not from the prior regulations. Furthermore, the regulations that have been proposed and adopted in the past have sought to be consistent with the manner in which insurers already conduct their business, in an effort to minimize the impact of the Program's operation upon participants. All of these considerations apply with equal force in connection with the Proposed Rule.
This Proposed Rule may affect a substantial number of small entities. Existing Small Business Administration size regulations (see 13 CFR 121.201) define small entities within the direct property and casualty insurance sector as those with 1500 employees or less; however, this Proposed Rule (see proposed 31 CFR 50.4(z)) contains a definition of “small insurer” for purposes of the Program that is based upon the size of the insurer's policyholder surplus and direct earned premiums. Based upon either measurement, some “small entities” or “small insurers” will be subject to the Proposed Rule—just as such insurers are subject to the requirements of TRIA as enacted. For purposes of its Paperwork Reduction Analysis, below, Treasury has estimated that perhaps about 500 insurers will have lesser reporting burdens because they are “small insurers” that, although they write some amount of TRIP-eligible lines premium, will likely have less information to report because of the reduced scope of their operations (either geographically or in terms of lines of business, or both), or may otherwise be excused from more detailed requirements under the Proposed Rule.
Treasury has sought to tailor the Proposed Rule, including the aspects of the rule respecting data collection, to the manner in which insurance companies (including small insurers) typically operate, such that the Proposed Rule should not have a significant economic impact. This Proposed Rule would implement the reforms in the 2015 Reauthorization Act. The aspects of the rule respecting data collection address data that the Secretary has been charged under the 2015 Reauthorization Act to collect, including data that must be collected and analyzed to determine whether small insurers face competitive challenges in the terrorism risk insurance marketplace.
As discussed in the preamble, the Proposed Rule imposes certain requirements respecting the production of data that could affect the manner in which insurers, including small insurers, presently collect and maintain information. The rule has been proposed in a way that most insurers, including small insurers, should already be collecting and maintaining the data in question as part of their ordinary course of business, such that any additional costs will be occasioned by some reprogramming costs to permit the more efficient reporting of the requested data. Given the character of the information that is sought, Treasury believes that any such costs should be nominal, in light of existing obligations all insurers have to record and retain the information sought by Treasury. Nonetheless, and recognizing that the provisions of the Proposed Rule respecting data collection may impose some additional costs and burdens on small insurers, the Proposed Rule provides Treasury with the authority to excuse or modify the data collection requirements as applicable to small insurers. Treasury seeks information and comments on any costs, compliance requirements, or changes in operating procedures arising from application of the Proposed Rule on small entities or insurers, the size and characteristics of any small entity or insurer that you believe may be subject to that impact, and any ways in which you believe—consistent with the requirements of the 2015 Reauthorization Act—these aspects of the Proposed Rule could be modified to avoid or mitigate the impact that you identify.
Treasury seeks information and comments on the extent to which the Proposed Rule will affect small entities or insurers, the size and characteristics of any small entity or insurer that you believe may be subject to that impact, and any ways in which you believe—consistent with the requirements of the 2015 Reauthorization Act—these aspects of the Proposed Rule could be modified to avoid or mitigate the impact that you identify.
After reviewing the comments received during the public comment period, Treasury will consider whether to conduct additional regulatory flexibility analysis.
Treasury specifically invites comments on:
(a) Whether the proposed collection of information is necessary for the proper performance of the mission of Treasury, and whether the information will have practical utility;
(b) the accuracy of the estimate of the burden of the collections of information, including the validity of the assumptions and the methods used (
(c) ways to enhance the quality, utility, and clarity of the information collection;
(d) ways to minimize the burden of the information collection, including the use of automated collection techniques or other forms of information technology; and
(e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to maintain the information.
Comments are being sought with respect to new collection of information in connection with (1) annual data requests; (2) claims data; (3) certification; and (4) final netting. As respects civil penalties, there is no data collection that would be generally applicable to responding parties in general, given the individual nature of the inquiry as respects an insurer that might be in violation of some aspect of the Program.
Beginning in 2017, with respect to 2016 data, insurers would be required to submit annual data regarding their participation in the Program, pursuant to Section 111 of the 2015 Reauthorization Act and proposed 31 CFR 50.51. The proposed rule requires an annual data collection process which will continue from year to year as long as the Program remains in effect. The information sought by Treasury will comprise data elements that insurers currently collect or generate, although not necessarily grouped together the way in which insurers currently collect and evaluate the data. Annual data collections could involve as many as about 2,000 Program participants, although the data to be collected from at least some of the insurers could be more limited. For insurers reporting standard information, Treasury anticipates approximately 50 hours to collect, process and report the data, and approximately 25 hours for collection, processing and reporting data where more limited information is sought or available. The precise breakdown between these categories will likely vary depending upon the year in question and issues presented. For illustrative purposes, Treasury assumes that approximately 1,500 insurers may be subject to the standard information request, with perhaps 500 subject to a more limited request. Assuming this breakdown, the estimated annual burden would be 87,500 hours (1,500 insurers × 50 hours + 500 insurers × 25 hours).
This data collection burden is imposed by the 2015 Reauthorization Act which requires the Secretary to require insurers participating in the Program to submit information regarding insurance coverage for terrorism losses.
The data collection rules also propose reporting of claims data by insurers as losses are sustained by insurers in the ordinary course once there has been a certified act of terrorism. The claims data sought is in a form that will be generated by insurers in the ordinary course of their operations. Accordingly, the burden associated with the requirement should consist of generating monthly reports of losses from existing data as generated and maintained by insurers. The number of insurers with insured losses in connection with any act of terrorism will vary depending upon the size and nature of the certified act of terrorism, as will the time period during which claims information will need to be reported to Treasury. Accordingly, Treasury can only make a “best estimate” as to the burden presented, which is based upon the estimate that 100 insurers will have insured losses, and will need to report information on a monthly basis over, on average, a four-year period. It is anticipated that the reporting will require no more than 2 hours per month per insurer to generate the required report from existing data and submit it to Treasury. This results in an estimated burden for each certified act of terrorism of 9,600 hours (100 insurers × 2 hours × 48 months).
The proposed rules associated with the certification process contemplate that if the Secretary is considering an act for certification as an act of terrorism Treasury may need to collect loss information and estimates directly from insurers in order to confirm that losses are above relevant loss thresholds. It is uncertain that this process would ever require reporting from more than 10 entities, which is the threshold under the Paperwork Reduction Act. Depending upon the circumstances, however, Treasury estimates that it is possible that it could seek loss information from as many as 20 insurers in connection with any individual certification process. The information that Treasury would seek would be generated by insurers during the ordinary course of their operations, although given the time-sensitive nature of the certification process the information sought from individual insurers could impose additional burdens on account of the need to generate the information in a more expedited fashion. Treasury estimates that the burden upon each insurer from which data is sought could amount to 15 hours per insurer. This results in an estimated burden for each act under consideration for certification as an act of terrorism of 300 hours (20 insurers × 15 hours).
Treasury previously analyzed the potential burdens associated with the proposed Final Netting Rule. See 75 FR 45563, 45566 (August 3, 2010). As explained previously, the collection of
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by OMB.
Insurance, Terrorism.
For the reasons stated in the preamble, the Department of the Treasury proposes to revise 31 CFR part 50 to read as follows:
5 U.S.C. 301; 31 U.S.C. 321; Title I, Pub. L. 107-297, 116 Stat. 2322, as amended by Public Law 109-144, 119 Stat. 2660, Pub. L. 110-160, 121 Stat. 1839 and Public Law 114-1, 129 Stat. 3 (15 U.S.C. 6701 note).
(a)
(b)
(c)
The office responsible for the administration of the Terrorism Risk Insurance Act in the Department of the Treasury is the Terrorism Risk Insurance Program Office within the Federal Insurance Office. The Treasury Assistant Secretary for Financial Institutions prescribes the regulations under the Act.
Any entity that meets the definition of an insurer under the Act is required to participate in the Program.
For purposes of this part:
(a)
(b)
(i) To be an act of terrorism;
(ii) To be a violent act or an act that is dangerous to human life, property, or infrastructure;
(iii) To have resulted in damage within the United States, or outside of the United States in the case of:
(A) An air carrier (as defined in 49 U.S.C. 40102) or a United States flag vessel (or a vessel based principally in the United States, on which United States income tax is paid and whose insurance coverage is subject to regulation in the United States); or
(B) The premises of a United States mission; and
(iv) To have been committed by an individual or individuals as part of an effort to coerce the civilian population of the United States or to influence the policy or affect the conduct of the United States Government by coercion.
(2)
(i) The act is committed as part of the course of a war declared by the Congress (except with respect to any coverage for workers' compensation); or
(ii) Property and casualty insurance losses resulting from the act, in the aggregate, do not exceed $5,000,000.
(3)
(c)(1)
(2)(i) For purposes of paragraph (c)(1) of this section, an insurer has control over another insurer for purposes of the Program if:
(A) The insurer directly or indirectly or acting through one or more other persons owns, controls, or has power to vote 25 percent or more of any class of voting securities of the other insurer;
(B) The insurer controls in any manner the election of a majority of the directors or trustees of the other insurer; or
(C) The Secretary determines, after notice and opportunity for hearing, that an insurer directly or indirectly exercises a controlling influence over the management or policies of the other insurer, even if there is no control as defined in paragraph (c)(2)(i) or (ii) of this section.
(ii) An entity, including any affiliate thereof, does not have control or exercise controlling influence over a reciprocal insurer under this section if, as of January 12, 2015, the entity was acting as an attorney-in-fact for the reciprocal insurer, provided that the entity does not, for reasons other than activities it may perform under the attorney-in-fact relationship, have control over the reciprocal insurer as otherwise defined under this section.
(3) An insurer described in paragraph (c)(2)(i)(A) or (B) of this section is conclusively deemed to have control.
(4) For purposes of a determination of controlling influence under paragraph (c)(2)(i)(C) of this section, if an insurer is not described in paragraph (c)(2)(i)(A) or (B) of this section, the following rebuttable presumptions will apply:
(i) If an insurer controls another insurer under the laws of a state, and at least one of the factors listed in paragraph (c)(4)(iv) of this section applies, there is a rebuttable presumption that the insurer that has control under state law exercises a controlling influence over the management or policies of the other insurer for purposes of paragraph (c)(2)(i)(C) of this section.
(ii) If an insurer provides 25 percent or more of another insurer's capital (in the case of a stock insurer), policyholder surplus (in the case of a mutual insurer), or corporate capital (in the case of other entities that qualify as insurers), and at least one of the factors listed in paragraph (c)(4)(iv) of this section applies, there is a rebuttable presumption that the insurer providing such capital, policyholder surplus, or corporate capital exercises a controlling influence over the management or policies of the receiving insurer for purposes of paragraph (c)(2)(i)(C) of this section.
(iii) If an insurer, at any time during a calendar year, supplies 25 percent or more of the underwriting capacity for that year to an insurer that is a syndicate consisting of one or more incorporated or individual unincorporated underwriters, and at least one of the factors in paragraph (c)(4)(iv) of this section applies, there is a rebuttable presumption that the insurer exercises a controlling influence over the syndicate for purposes of paragraph (c)(2)(i)(C) of this section.
(iv) If paragraphs (c)(4)(i) through (iii) of this section are not applicable, but two or more of the following factors apply to an insurer, with respect to another insurer, there is a rebuttable presumption that the insurer exercises a controlling influence over the management or policies of the other insurer for purposes of paragraph (c)(2)(i)(C) of this section:
(A) The insurer is one of the two largest shareholders of any class of voting stock;
(B) The insurer holds more than 35 percent of the combined debt securities and equity of the other insurer;
(C) The insurer is party to an agreement pursuant to which the insurer possesses a material economic stake in the other insurer resulting from a profit-sharing arrangement, use of common names, facilities or personnel, or the provision of essential services to the other insurer;
(D) The insurer is party to an agreement that enables the insurer to influence a material aspect of the management or policies of the other insurer;
(E) The insurer would have the ability, other than through the holding of revocable proxies, to direct the votes of more than 25 percent of the other insurer's voting stock in the future upon the occurrence of an event;
(F) The insurer has the power to direct the disposition of more than 25 percent of a class of voting stock of the other insurer in a manner other than a widely dispersed or public offering;
(G) The insurer and/or the insurer's representative or nominee constitute more than one member of the other insurer's board of directors; or
(H) The insurer or its nominee or an officer of the insurer serves as the chairman of the board, chairman of the executive committee, chief executive officer, chief operating officer, chief financial officer or in any position with similar policymaking authority in the other insurer.
(5) An insurer that is not described in paragraph (c)(2)(i) or (ii) of this section may request a hearing in which the insurer may rebut a presumption of controlling influence under paragraph (c)(4)(i) through (iv) of this section or otherwise request a determination of controlling influence by presenting and supporting its position through written submissions to Treasury, and in Treasury's discretion, through informal oral presentations, in accordance with the procedure in § 50.7.
(6) An insurer's affiliates for a calendar year, for purposes of subpart H
(d)
(e)
(f)
(g)
(h)
(1)
(i) Premium information as reported to state regulators through the NAIC should be included in the calculation of direct earned premiums for purposes of the Program only to the extent it reflects premiums for property and casualty insurance issued by the insurer against losses occurring at the locations described in section 102(5)(A) and (B) of the Act.
(ii) Premiums for personal property and casualty lines of insurance (insurance primarily designed to cover personal, family or household risk exposures, with the exception of insurance written to insure 1 to 4 family rental dwellings owned for the business purpose of generating income for the property owner), or premiums for any other insurance coverage that does not meet the definition of property and casualty insurance, should be excluded in the calculation of direct earned premiums for purposes of the Program.
(iii) Personal property and casualty lines of insurance coverage that includes incidental coverage for commercial purposes are primarily personal coverage, and therefore premiums may be fully excluded by an insurer from the calculation of direct earned premium. For purposes of this section, commercial coverage is incidental if less than 25 percent of the total direct earned premium is attributable to commercial coverage. Property and casualty insurance against losses occurring at locations other than the locations described in section 102(5)(A) and (B) of the Act, or other insurance coverage that does not meet the definition of property and casualty insurance, but that includes incidental coverage for commercial risk exposures at such locations, is primarily not commercial, and therefore premiums for such insurance may also be fully excluded by an insurer from the calculation of direct earned premium. For purposes of this section, property and casualty insurance for losses occurring at the locations described in section 102(5)(A) and (B) of the Act is incidental if less than 25 percent of the total direct earned premium for the insurance policy is attributable to coverage at such locations. Also for purposes of this section, coverage for commercial risk exposures is incidental if it is combined with coverages that otherwise do not meet the definition of property and casualty insurance and less than 25 percent of the total direct earned premium for the insurance policy is attributable to the coverage for commercial risk exposures.
(iv) If an insurance policy covers both commercial and personal property and casualty exposures, insurers may allocate the premiums in accordance with the proportion of risk between commercial and personal components in order to ascertain direct earned premium. If a policy includes insurance coverage that meets the definition of property and casualty insurance for losses occurring at the locations described in section 102(5)(A) and (B) of the Act, but also includes other coverage, insurers may allocate the premiums in accordance with the proportion of risk attributable to the components in order to ascertain direct earned premium.
(2)
(i) Direct earned premium may be ascertained by adjusting data maintained by such insurer or reported by such insurer to its state regulator to reflect a breakdown of premiums for commercial and personal property and casualty exposure risk as described in paragraph (h)(1) of this section and, if necessary, re-stated to reflect the accrual method of determining direct earned premium versus direct premium.
(ii) Such an insurer should consider other types of payments that compensate the insurer for risk of loss (contributions, assessments, etc.) as part of its direct earned premium.
(3)
(4)
(i)
(j)
(k)
(l)
(m)
(1) For calendar years beginning with 2015 through 2019, such amount is the lesser of the aggregate amount, for all insurers, of insured losses once there has been a Program Trigger Event during the calendar year and:
(i) For calendar year 2015: $29,500,000,000;
(ii) For calendar year 2016: $31,500,000,000;
(iii) For calendar year 2017: $33,500,000,000;
(iv) For calendar year 2018: $35,500,000,000; and
(v) For calendar year 2019: $37,500,000,000.
(2) For calendar years beginning with 2020 and any calendar year thereafter as may be necessary, such amount is the lesser of the aggregate amount, for all insurers, of insured losses once there has been a Program Trigger Event during the calendar year and the annual average of the sum of insurer deductibles for all insurers for the prior 3 years, to be calculated by taking
(i) the total amount of direct earned premium reported by insurers to Treasury pursuant to section 50.51 for the three calendar years prior to the calendar year in question, and then dividing that figure by three; and
(ii) Multiplying the resulting three-year average figure by 20%.
(3) Beginning in 2020, Treasury shall publish in the
(n)
(i) Occurs within the United States;
(ii) Occurs to an air carrier (as defined in 49 U.S.C. 40102), or to a United States flag vessel (or a vessel based principally in the United States, on which United States income tax is paid and whose insurance coverage is subject to regulation in the United States), regardless of where the loss occurs; however, to the extent a loss occurs to such an air carrier or vessel outside the United States, the insured loss does not include losses covered by third party insurance contracts that are separate from the insurance coverage provided to the air carrier or vessel; or
(iii) Occurs at the premises of any United States mission.
(2) The term insured loss includes reasonable loss adjustment expenses, incurred by an insurer in connection with insured losses, that are allocated and identified by claim file in insurer records, including expenses incurred in the investigation, adjustment, and defense of claims, but excluding staff salaries, overhead, and other insurer expenses that would have been incurred notwithstanding the insured loss.
(3) The term insured loss does not include:
(i) Punitive or exemplary damages awarded or paid in connection with the Federal cause of action specified in section 107(a)(1) of the Act. The term “punitive or exemplary damages” means damages that are not compensatory but are an award of money made to a claimant solely to punish or deter; or
(ii) Extra-contractual damages awarded against, or paid by, an insurer; or
(iii) Payments by an insurer in excess of policy limits.
(o)
(1)(i) The entity must fall within at least one of the following categories:
(A) It is licensed or admitted to engage in the business of providing primary or excess insurance in any state (including, but not limited to, state licensed captive insurance companies, state licensed or admitted risk retention groups, and state licensed or admitted farm and county mutuals) and, if a joint underwriting association, pooling arrangement, or other similar entity, then the entity must:
(
(
(
(B) It is not licensed or admitted to engage in the business of providing primary or excess insurance in any state, but is an eligible surplus line carrier listed on the NAIC Quarterly Listing of Alien Insurers;
(C) It is approved or accepted for the purpose of offering property and casualty insurance by a Federal agency in connection with maritime, energy, or aviation activity, but only to the extent of such Federal approval of property and casualty insurance coverage offered by the insurer in connection with maritime, energy, or aviation activity;
(D) It is a state residual market insurance entity or state workers' compensation fund; or
(E) As determined by the Secretary, it falls within any of the classes or types of captive insurers or other self-insurance arrangements by municipalities and other entities.
(ii) If an entity falls within more than one category described in paragraph (o)(1)(i) of this section, the entity is considered to fall within the first category within which it falls for purposes of the program.
(2) The entity must receive direct earned premium, except in the case of:
(i) State residual market insurance entities and state workers' compensation funds, to the extent provided in subpart D of this part; and
(ii) Other classes or types of captive insurers and other self-insurance arrangements by municipalities and other entities to the extent provided for in subpart E of this part.
(3) The entity must meet any other criteria as prescribed by Treasury.
(p)
(1) For an insurer that has had a full year of operations during the calendar year immediately preceding the applicable calendar year, the value of an insurer's direct earned premiums during the immediately preceding calendar year, multiplied by 20 percent; and
(2) For an insurer that has not had a full year of operations during the immediately preceding calendar year, the insurer deductible will be based on data for direct earned premiums for the applicable calendar year multiplied by 20 percent. If the insurer does not have a full year of operations during the applicable calendar year, the direct earned premiums for the applicable calendar year will be annualized to determine the insurer deductible.
(q)
(r)
(s)
(t)
(u)
(v)
(1) $100,000,000 with respect to calendar year 2015 insured losses;
(2) $120,000,000 with respect to calendar year 2016 insured losses;
(3) $140,000,000 with respect to calendar year 2017 insured losses;
(4) $160,000,000 with respect to calendar year 2018 insured losses;
(5) $180,000,000 with respect to calendar year 2019 insured losses; or
(6) $200,000,000 with respect to calendar year 2020 insured losses and with respect to any calendar year thereafter.
(w)
(1) Means commercial lines within only the following lines of insurance from the NAIC's Exhibit of Premiums and Losses (commonly known as Statutory Page 14): Line 1—Fire; Line 2.1—Allied Lines; Line 5.1—Commercial Multiple Peril (non-liability portion); Line 5.2—Commercial Multiple Peril (liability portion); Line 8—Ocean Marine; Line 9—Inland Marine; Line 16—Workers' Compensation; Line 17—Other Liability; Line 18—Products Liability; Line 22—Aircraft (all perils); and Line 27—Boiler and Machinery; and
(2) Does not include:
(i) Federal crop insurance issued or reinsured under the Federal Crop Insurance Act (7 U.S.C. 1501
(ii) Private mortgage insurance (as defined in section 2 of the Homeowners Protection Act of 1998) (12 U.S.C. 4901) or title insurance;
(iii) Financial guaranty insurance issued by monoline financial guaranty insurance corporations;
(iv) Insurance for medical malpractice;
(v) Health or life insurance, including group life insurance;
(vi) Flood insurance provided under the National Flood Insurance Act of 1968 (42 U.S.C. 4001
(vii) Reinsurance or retrocessional reinsurance;
(viii) Commercial automobile insurance, including insurance reported under Lines 19.3 (Commercial Auto No-Fault (personal injury protection)), 19.4 (Other Commercial Auto Liability) and 21.2 (Commercial Auto Physical Damage) of the NAIC's Exhibit of Premiums and Losses (commonly known as Statutory Page 14);
(ix) Burglary and theft insurance, including insurance reported under Line 26 (Burglary and Theft) of the NAIC's Exhibit of Premiums and Losses (commonly known as Statutory Page 14);
(x) Surety insurance, including insurance reported under Line 24 (Surety) of the NAIC's Exhibit of Premiums and Losses (commonly known as Statutory Page 14);
(xi) Professional liability insurance as defined in paragraph (t) of this section; or
(xii) Farm owners multiple peril insurance, including insurance reported under Line 3 (Farmowners Multiple Peril) of the NAIC's Exhibit of Premiums and Losses (commonly known as Statutory Page 14).
(x)
(y)
(z)
(aa)
(bb)
(cc)
(dd)
(ee)
(1) Are within the insurer deductibles of insurers, or
(2) Are within the portions of losses in excess of insurer deductibles that are not compensated through payments made as a result of claims for the Federal share of compensation.
(ff)
Unless otherwise expressly provided in the regulation, any date in these regulations is intended to be applied so that the day begins at 12:01 a.m. and ends at midnight on that date.
(a) An insurer will be deemed to be in compliance with the requirements of the Act to the extent the insurer reasonably relied on Interim Guidance prior to the effective date of applicable regulations.
(b) For purposes of this section, Interim Guidance means the following documents, which are also available from Treasury at
(1) Interim Guidance I issued by Treasury on December 3, 2002, and published at 67 FR 76206 (December 11, 2002);
(2) Interim Guidance II issued by Treasury on December 18, 2002, and published at 67 FR 78864 (December 26, 2002);
(3) Interim Guidance III issued by Treasury on January 22, 2003, and published at 68 FR 4544 (January 29, 2003);
(4) Interim Guidance IV issued by Treasury on December 29, 2005, and published at 71 FR 648 (January 5, 2006);
(5) Interim Guidance V issued by Treasury on December 31, 2007, and published at 73 FR 5264 (Jan. 29, 2008).
(6) Interim Guidance VI issued by Treasury on February 4, 2015, and published at 80 FR 6656 (February 6, 2015).
(a) An insurer or insurers not having control over another insurer under § 50.4(c)(2)(i) or (ii) may make a written submission to Treasury to rebut a presumption of controlling influence under § 50.4(c)(4)(i) through (iv) or otherwise to request a determination of controlling influence. Such submissions shall be made to the Terrorism Risk Insurance Program Office, Department of the Treasury, Room 1410, 1500 Pennsylvania Ave. NW., Washington, DC 20220. The submission should be entitled, “Controlling Influence Submission,” and should provide the full name and address of the submitting insurer(s) and the name, title, address and telephone number of the designated contact person(s) for such insurer(s).
(b) Treasury will review submissions and determine whether Treasury needs additional written or orally presented information. In its discretion, Treasury may schedule a date, time, and place for an oral presentation by the insurer(s).
(c) An insurer or insurers must provide all relevant facts and circumstances concerning the relationship(s) between or among the affected insurers and the control factors in § 50.4(c)(4)(i) through (iv); and must explain in detail any basis for why the insurer believes that no controlling influence exists (if a presumption is being rebutted) in light of the particular facts and circumstances, as well as the Act's language, structure and purpose. Any confidential business or trade secret information submitted to Treasury should be clearly marked. Treasury will handle any subsequent request for information designated by an insurer as confidential business or trade secret information in accordance with Treasury's Freedom of Information Act regulations at 31 CFR part 1.
(d) Treasury will review and consider the insurer submission and other relevant facts and circumstances. Unless otherwise extended by Treasury, within 60 days after receipt of a complete submission, including any additional information requested by Treasury, and including any oral presentation, Treasury will issue a final determination of whether one insurer has a controlling influence over another insurer for purposes of the Program. The determination shall set forth Treasury's basis for its determination.
(Approved by the Office of Management & Budget under control number 1505-0190.)
Persons actually or potentially affected by the Act or regulations in this Part may request an interpretation of the Act or regulations by writing to the Terrorism Risk Insurance Program Office, Room 1410, Department of the Treasury, 1500 Pennsylvania Ave. NW., Washington, DC 20220, giving a detailed explanation of the facts and circumstances and the reason why an interpretation is needed. A requester should segregate and mark any confidential business or trade secret information clearly. Treasury in its discretion will provide written responses to requests for interpretation. Treasury reserves the right to decline to provide a response in any case. Except in the case of any confidential business or trade secret information, Treasury will make written requests for interpretations and responses publicly available at the Treasury Department Library, on the Treasury Web site, or through other means as soon as practicable after the response has been provided. Treasury will handle any subsequent request for information that had been designated by a requester as confidential business or trade secret information in accordance with Treasury's Freedom of Information Act regulations at 31 CFR part 1.
(a)
(1) The premium charged for insured losses covered by the Program; and
(2) The Federal share of compensation for insured losses under the Program.
(b)
For purposes of this Subpart, unless the context indicates otherwise, the term “disclosure” or “disclosures” refers to the disclosure described in section 103(b)(2) of the Act and § 50.10. The term “cap disclosure” refers to the disclosure required by section 103(b)(3) of the Act and § 50.15.
(a)
(b)
(c)
(d)
(e)
(f)
An insurer is deemed to be in compliance with the requirement of providing disclosure “at the time of offer and of renewal of the policy” under § 50.10(b) if the insurer makes the disclosure no later than the time the insurer first formally offers to provide insurance coverage or renew a policy for a current policyholder.
An insurer is deemed to be in compliance with the requirement of providing disclosure on a “separate line item in the policy” under § 50.10(b) if the insurer makes the disclosure:
(a) On the declarations page of the policy;
(b) Elsewhere within the policy itself; or
(c) In any rider or endorsement, or other document that is made a part of the policy.
(a)
(b)
(c)
(1) Makes the disclosure no later than the time the insurer first formally offers to provide insurance coverage or renew a policy for a current policyholder; and
(2) If terrorism risk coverage is purchased, the insurer makes clear and conspicuous reference back to that disclosure, as well as the final terms of terrorism insurance coverage, at the time the transaction is completed.
(d)
(a)
(b)
(c)
(a)
(b)
(a)
(1) Make available, in all of its property and casualty insurance policies, coverage for insured losses; and
(2) Make available property and casualty insurance coverage for insured losses that does not differ materially from the terms, amounts, and other coverage limitations applicable to losses arising from events other than acts of terrorism.
(b)
(c)
(a)
(b)
(c)
(d)
(a)
(b)
(a)
(b)
(2) If an insurer subject to state regulation first makes available coverage in accordance with § 50.20 and the state permits certain exclusions or allows for other limitations, or an insurance policy is not governed by state law requirements, then the insurer may subsequently offer limited coverage or coverage with exclusions.
(a)
(b)
(c)
(a)
(b)
(a)
(b)
(a)
(b)
Treasury may request from insurers such data and information as may be reasonably required in support of Treasury's administration of the Program.
(a)
(b)
(c)
(2) The data and information required to be provided under this subsection may be modified annually by Treasury. Any modification shall be made during the prior calendar year, and Treasury shall provide insurers at least 90 days before requiring collection of any newly specified data or information.
(d)
(e)
(a)
(b)
(1) Changes to the market share, premium volume, and policyholder surplus of small insurers relative to large insurers;
(2) How the property and casualty insurance market for terrorism risk differs between small and large insurers, and whether such a difference exists within other perils;
(3) The impact on small insurers of the Program's mandatory availability requirement under section 103(c) of the Act;
(4) The effect on small insurers of increasing the trigger amount for the Program under section 103(e)(1)(B) of the Act;
(5) The availability and cost of private reinsurance for small insurers; and
(6) The impact that state workers compensation laws have on small insurers and workers compensation carriers in the terrorism risk insurance marketplace.
(a)
(b)
(1) A listing of each claim by name of insured, catastrophe code, line of business, and in the case of an affiliated group of insurers, the particular insurer or insurers within the group associated with each claim;
(2) Amounts paid, both loss and loss adjustment expenses, in connection with the claim as of the effective date of the report; and
(3) Amounts reserved, both loss and loss adjustment expenses, in connection with the claim as of the effective date of the report.
(c)
(d)
(e)
(a)
(1) Be handled and stored by Treasury in an appropriately secure manner;
(2) Be considered, where appropriate, to be trade secrets or commercial or financial information obtained from a person and privileged or confidential; and
(3) Not be publicly released in any unaggregated form in which a consumer, policyholder, or insurer is identifiable.
(b)
(2) Any requirement under Federal or state law to the extent otherwise applicable, or any requirement pursuant to a written agreement in effect between the original source of any non-publicly available data or information and the source of such data or information to the
(3) Any data or information obtained by the Secretary under subparts F or G of this part may be made available to state insurance regulatory authorities, individually or collectively through an information-sharing agreement that:
(i) Shall comply with applicable Federal law; and
(ii) Shall not constitute a waiver of, or otherwise affect, any privilege or immunity under Federal or state law (including any privilege referred to in paragraph (b)(1) of this section and the rules of any Federal or State court) to which the data or information is otherwise subject.
(4) Section 552 of title 5, United States Code, including any exceptions thereunder, shall apply to any data or information submitted under this Subpart by an insurer or affiliate of an insurer.
(a)
(b)
(c)
(d)
(a)
(b)
(c)
(d)
(e)
(a)
(2) An insurer not required by Treasury to submit information under paragraph (a)(1) of this section may voluntarily submit information to the Secretary as specified in public notifications issued by Treasury.
(b)
(a)
(b)
(c)
(d)
(a)
(i) 85 percent of that portion of the insurer's aggregate insured losses that exceeds its insurer deductible during calendar year 2015;
(ii) 84 percent of that portion of the insurer's aggregate insured losses that exceeds its insurer deductible during calendar year 2016;
(iii) 83 percent of that portion of the insurer's aggregate insured losses that exceeds its insurer deductible during calendar year 2017;
(iv) 82 percent of that portion of the insurer's aggregate insured losses that exceeds its insurer deductible during calendar year 2018;
(v) 81 percent of that portion of the insurer's aggregate insured losses that exceeds its insurer deductible during calendar year 2019; and
(vi) 80 percent of that portion of the insurer's aggregate insured losses that exceeds its insurer deductible during calendar year 2020 and any calendar year thereafter.
(2) The percentages in paragraph (a)(1) of this section are subject to any adjustments described in § 50.71 and to the cap of $100 billion as provided in section 103(e)(2) of the Act.
(b)
(1) For insured losses resulting from acts of terrorism taking place in calendar year 2015: $100 million;
(2) For insured losses resulting from acts of terrorism taking place in calendar year 2016: $120 million;
(3) For insured losses resulting from acts of terrorism taking place in calendar year 2017: $140 million;
(4) For insured losses resulting from acts of terrorism taking place in calendar year 2018: $160 million;
(5) For insured losses resulting from acts of terrorism taking place in calendar year 2019: $180 million;
(6) For insured losses resulting from acts of terrorism taking place in calendar year 2020 and any calendar year thereafter: $200 million.
(c)
(1) The insurer is an entity, including an affiliate thereof, that meets the requirements of § 50.4(o);
(2) The insurer's insured losses, as defined in § 50.4(n) and limited by paragraph (d) of this section (including the allocated dollar value of the insurer's proportionate share of insured losses from a state residual market insurance entity or a state workers' compensation fund as described in § 50.33), have exceeded its insurer deductible as defined in § 50.4(p);
(3) The insurer has paid or is prepared to pay an insured loss, based on a filed claim for the insured loss;
(4) Neither the insurer's claim for Federal payment nor any underlying claim for an insured loss is fraudulent, collusive, made in bad faith, dishonest or otherwise designed to circumvent the purposes of the Act and regulations;
(5) The insurer has provided a clear and conspicuous disclosure as required by §§ 50.10 through 50.14 and a cap disclosure as required by § 50.15;
(6) The insurer offered coverage for insured losses and the offer was accepted by the insured prior to the act which results in the insured loss;
(7) The insurer took all steps reasonably necessary to properly and carefully investigate the insured loss and otherwise processed the insured loss using practices appropriate for the business of insurance;
(8) The insured loss is within the scope of coverage issued by the insurer under the terms and conditions of one or more policies for commercial property and casualty insurance as defined in § 50.4(w); and
(9) The procedures specified in this Subpart have been followed and all conditions for payment have been met.
(d)
(e)
(f)
(a)
(b)
(1)
(2)
(i)
(ii)
Each insurer shall submit to Treasury a Notice on a form prescribed by Treasury whenever the insurer's aggregate insured losses (including reserves for “incurred but not reported” losses) within a calendar year exceed an amount equal to 50 percent of the insurer's deductible as specified in § 50.4(p). Insurers are advised that the form for the Notice of Deductible Erosion will include an initial estimate of aggregate insured losses for the calendar year, the amount of the insurer deductible, and an estimate of the Federal share of compensation for the insurer's aggregate insured losses. In the case of an affiliated group of insurers, the Notice will include the name and address of a single designated insurer within the affiliated group that will serve as the single point of contact for the purpose of providing loss and compliance certifications as required in § 50.73 and for receiving, disbursing, and distributing payments of the Federal share of compensation in accordance with § 50.74. An insurer, at its option, may elect to include with its Notice of Deductible Erosion the certification of direct earned premium required by § 50.73(b)(3).
(a)
(b)
(1) Basic information, on a form prescribed by Treasury, about each insured loss paid (or to be paid pursuant to § 50.73(b)(2)(i)) by the insurer. The form will include:
(i) A listing of each insured loss paid (or to be paid pursuant to § 50.73(b)(2)(i)) by the insurer by catastrophe code and line of business;
(ii) The total amount of reinsurance recovered from other sources;
(iii) A calculation of the aggregate insured losses sustained by the insurer above its insurer deductible for the calendar year; and
(iv) The amount the insurer claims as the Federal share of compensation for its aggregate insured losses.
(2) A certification that the insurer is in compliance with the provisions of section 103(b) of the Act and this part, including certifications that:
(i) The underlying insured losses reported pursuant to § 50.73(b)(1) either: Have been paid by the insurer; or will be paid by the insurer upon receipt of an advance payment of the Federal share of compensation as soon as possible, consistent with the insurer's normal business practices, but not longer than five business days after receipt of the Federal share of compensation;
(ii) The underlying claims for insured losses were filed by persons who suffered an insured loss, or by persons acting on behalf of such persons;
(iii) The underlying claims for insured losses were processed in accordance with appropriate business practices and the procedures specified in this subpart;
(iv) The insurer has complied with the disclosure requirements of §§ 50.10 through 50.14, and the cap disclosure requirement of § 50.15, for each underlying insured loss that is included in the amount of the insurer's aggregate insured losses; and
(v) The insurer has complied with the mandatory availability requirements of subpart C of this part.
(3) A certification of the amount of the insurer's direct earned premium, together with the calculation of its insurer deductible (provided this certification was not submitted previously with the Notice of Deductible Erosion).
(4) A certification that the insurer will disburse payment of the Federal share of compensation in accordance with this Subpart.
(5) A certification that if Treasury has determined a
(c)
(1) A form as described in § 50.73(b)(1); and
(2) A certification as described in § 50.73(b)(2).
(d)
(e)
(a)
(b)
(c)
(d)
(1)
(i) Receiving payments of the Federal share of compensation;
(ii) Disbursing payments to insureds and claimants; and
(iii) Transferring payments to the insurer or affiliated insurers for insured losses reported as already paid.
(2)
(e)
(f)
For the purposes of this subpart, an insurer's affiliates for any calendar year shall be determined by the circumstances existing on the date of the act which is the Program Trigger Event for that calendar year.
(a)
(b)
(1)
(i) Amounts of case reserves reported by insurers to Treasury for open underlying insured losses;
(ii) The rate at which claims for the Federal share of compensation for insured losses are being made by insurers to Treasury;
(iii) The rate at which new underlying insured losses are being added by insurers to their Supplementary Certifications of Loss and reported;
(iv) The predominant lines of business for which underlying insured losses are being reported;
(v) Tort and contract statutes of limitations relevant to insured losses and the manner in which they are being applied by the Federal courts;
(vi) Common business practices;
(vii) Issues that are delaying final resolution of insured losses;
(viii) The application of the liability limitations and procedures under the Support Anti-terrorism by Fostering Effective Technologies Act of 2002 (6 U.S.C. 441
(ix) Issues related to the cap on annual liability for insurer losses, including whether a projection that the cap on annual liability will be reached in connection with any calendar year indicates that no Final Netting Date should be set for that calendar year;
(x) Treasury's claims administration costs; and
(xii) Such other factors as the Secretary considers appropriate to take into account.
(2)
(c)
(d)
(1) In lieu of continued submission of Supplemental Certifications of Loss after the Final Netting Date as provided in paragraph (c) of this section, Treasury may require, or consider an insurer's request for, a commutation of an insurer's future claims for the Federal share of compensation based on estimates for the underlying insured losses reported to Treasury on or before the Final Netting Date. The payment by Treasury of a final commuted amount to an insurer will discharge Treasury from
(2) If future claims are to be commuted, Treasury may require additional information from the insurer, including an insurer's justification for a final payment amount with necessary actuarial factors and methodology, and pertinent information regarding the insurer's business relationships and other reinsurance recoverables. Insurers will be required to justify discount and other factors from which final payment amounts are derived. If Treasury notifies an insurer of a requirement to submit additional information to inform its commutation decision, the insurer will be provided (depending upon the complexity of the material sought) no less than 90 days from the date of notification to submit material required in the notice. If the insurer fails to provide the requested information, it will forfeit the right to future payments from Treasury. Treasury will evaluate such information in order to determine a final payment amount or (if applicable) an amount to be repaid to Treasury. Treasury may determine that it will not consider commutation until it has completed an audit of an insurer's insured losses pursuant to the authority set forth in Subpart I of these regulations.
(3) Payments of commuted amounts are not considered to be advance payments requiring a segregated account as described in § 50.74(d).
(4) Notwithstanding § 50.70(d), a payment by Treasury of a final commuted amount to an insurer is final unless:
(i) Treasury is put on notice that an insurer's claim was fraudulent or that other conditions for Federal payment were not met, in which case the insurer will be required to repay amounts that were not due; or
(ii) The exception in paragraph (e) of this section applies, in which case Treasury may make additional payments for insured losses, but only under the conditions described in paragraph (e).
(e)
The Secretary of the Treasury, or an authorized representative, shall have, upon reasonable notice, access to all books, documents, papers and records of an insurer that are pertinent to amounts paid to the insurer as the Federal share of compensation for insured losses, or pertinent to any Federal terrorism policy surcharge that is imposed pursuant to subpart J of this part, for the purposes of investigation, confirmation, audit, and examination.
(a) Each insurer that seeks payment of a Federal share of compensation under subpart H of this part shall retain such records as are necessary to fully disclose all material matters pertinent to insured losses and the Federal share of compensation sought under the Program, including, but not limited to, records regarding premiums and insured losses for all commercial property and casualty insurance issued by the insurer and information relating to any adjustment in the amount of the Federal share of compensation payable. Insurers shall maintain detailed records for not less than five (5) years from the termination dates of all reinsurance agreements involving property and casualty insurance subject to the Act. Records relating to premiums shall be retained and available for review for not less than three (3) years following the conclusion of the policy year. Records relating to underlying claims shall be retained for not less than five (5) years following the final adjustment of the claim.
(b) Each insurer that collects a Federal terrorism policy surcharge as required by Subpart J of this part shall retain records related to such surcharge, including records of the property and casualty insurance premiums subject to the surcharge, the amount of the surcharge imposed on each policy, aggregate Federal terrorism policy surcharges collected, and aggregate Federal terrorism policy surcharges remitted to Treasury during each assessment period. Such records shall be retained and kept available for review for not less than three (3) years following the conclusion of the assessment period or settlement of accounts with Treasury, whichever is later.
(a)
(1) Has failed to charge, collect, or remit the Federal terrorism policy surcharge under Subpart J;
(2) Has intentionally provided to Treasury erroneous information regarding premium or loss amounts;
(3) Submits to Treasury fraudulent claims under the Program for insured losses;
(4) Has failed to provide any disclosures or other information required by Treasury; or
(5) Has otherwise failed to comply with provisions of the Act or these regulations.
(b)
(c)
(d)
(1) The opportunity for a written submission by the insurer that provides all relevant facts and circumstances concerning the alleged conduct, including any information that the insurer wishes Treasury to consider in connection with the alleged conduct; and
(2) A hearing on the record, unless waived by the insurer, during which Treasury and the insurer may present
(e)
(a) Pursuant to section 103(e) of the Act, the Secretary shall impose, and insurers shall collect, such Federal terrorism policy surcharges as needed to recover 140 percent of the mandatory recoupment amount for any calendar year.
(b) In the Secretary's discretion, the Secretary may recover any portion of the aggregate Federal share of compensation that exceeds the mandatory recoupment amount through a Federal terrorism policy surcharge based on the factors set forth in section 103(e)(7)(D) of the Act.
(c) If the Secretary imposes a Federal terrorism policy surcharge as provided in paragraph (a) of this section, then the required amounts, based on the extent to which payments for the Federal share of compensation have been made by the collection deadlines in section 103(e)(7)(E) of the Act, shall be collected in accordance with such deadlines:
(1) For any act of terrorism that occurs on or before December 31, 2017, the Secretary shall collect all required amounts by September 30, 2019;
(2) For any act of terrorism that occurs between January 1 and December 31, 2018, the Secretary shall collect 35 percent of any required amounts by September 30, 2019, and the remainder by September 30, 2024; and
(3) For any act of terrorism that occurs on or after January 1, 2019, the Secretary shall collect all required amounts by September 30, 2024.
(a) If payments for the Federal share of compensation have been made for a calendar year, and Treasury determines that insured loss information is sufficiently developed and credible to serve as a basis for calculating recoupment amounts, Treasury will make an initial determination of any mandatory or discretionary recoupment amounts for that calendar year.
(b)(1) Within 90 days after certification of an act of terrorism, the Secretary shall publish in the
(2) If at any time Treasury projects that payments for the Federal share of compensation will be made for a calendar year, and that in order to meet the collection timing requirements of section 103(e)(7)(E) of the Act it is necessary to use an estimate of such payments as a basis for calculating recoupment amounts, Treasury will make an initial determination of any mandatory recoupment amounts for that calendar year.
(c) Following the initial determination of recoupment amounts for a calendar year, Treasury will recalculate any mandatory or discretionary recoupment amount as necessary and appropriate, and at least annually, until a final recoupment amount for the calendar year is determined. Treasury will compare any recalculated recoupment amount to amounts already remitted and/or to be remitted to Treasury for a Federal terrorism policy surcharge previously established to determine whether any additional amount will be recouped by Treasury.
(d) For the purpose of determining initial or recalculated recoupment amounts, Treasury may issue a data call to insurers for insurer deductible and insured loss information by calendar year. Treasury's determination of the aggregate amount of insured losses from Program Trigger Events of all insurers for a calendar year will be based on the amounts reported in response to a data call and any other information Treasury in its discretion considers appropriate. Submission of data in response to a data call shall be on a form promulgated by Treasury.
(a) Treasury will establish the Federal terrorism policy surcharge based on the following factors and considerations:
(1) In the case of a mandatory recoupment amount, the requirement to collect 140 percent of that amount;
(2) The total dollar amount to be recouped as a percentage of the latest available annual aggregate industry direct written premium information;
(3) The adjustment factors for terrorism loss risk-spreading premiums described in section 103(e)(8)(D) of the Act;
(4) The annual 3 percent limitation on terrorism loss risk-spreading premiums collected on a discretionary basis as provided in section 103(e)(8)(C) of the Act;
(5) A preferred minimum initial assessment period of one full year and subsequent extension periods in full year increments;
(6) The collection timing requirements of section 103(e)(8)(E) of the Act;
(7) The likelihood that the amount of the Federal terrorism policy surcharge may result in the collection of an aggregate recoupment amount in excess of the planned recoupment amount; and
(8) Such other factors as the Secretary considers appropriate to take into account.
(b) The Federal terrorism policy surcharge shall be the obligation of the policyholder and is payable to the insurer with the premium for a property and casualty insurance policy in effect during the assessment period established by Treasury. See § 50.94(c).
(a) Treasury will provide notifications of recoupment through publication of notices in the
(b) Treasury will provide reasonable advance notice to insurers of any initial Federal terrorism policy surcharge effective date. This effective date shall be January 1 of the calendar year following publication of the notice, unless such date would not provide for sufficient notice of implementation while meeting the collection timing requirements of section 103(e)(8)(E) of the Act.
(c) Treasury will provide reasonable advance notice to insurers of any modification or cessation of the Federal terrorism policy surcharge.
(d) Treasury will provide notification to insurers annually as to the continuation of the Federal terrorism policy surcharge.
(a) Insurers shall collect a Federal terrorism policy surcharge from policyholders as required by Treasury.
(b) Policies subject to the Federal terrorism policy surcharge are those for which direct written premium is reported on commercial lines of business on the NAIC's Exhibit of Premiums and Losses of the NAIC Annual Statement (commonly known as Statutory Page 14) as provided in § 50.4(w)(1), or equivalently reported.
(c) For policies subject to the Federal terrorism policy surcharge, the surcharge shall be imposed and
(1) Written premium basis means the premium amount charged a policyholder by an insurer for property and casualty insurance, including all premiums, policy expense constants and fees defined as premium pursuant to the Statements of Statutory Accounting Principles established by the NAIC, as adopted by the state for which the premium will be reported.
(2) In the case of a policy providing multiple insurance coverages, if an insurer cannot identify the premium amount charged a policyholder specifically for property and casualty insurance under the policy, then:
(i) If the insurer estimates that the portion of the premium amount charged for coverage other than property and casualty insurance is
(ii) If the insurer estimates that the portion of the premium amount charged for coverage other than property and casualty insurance is not
(3) The Federal terrorism policy surcharge is not considered premium.
(d) A policyholder must pay the applicable Federal terrorism policy surcharge when due. The insurer shall have such rights and remedies to enforce the collection of the surcharge that are the equivalent to those that exist under applicable state or other law for nonpayment of premium.
(e) When an insurer returns an unearned premium, or otherwise refunds premium to a policyholder, it shall also return any Federal terrorism policy surcharge collected that is attributable to the refunded unearned premium. Notwithstanding this paragraph, if the written premium for a policy is revised and refunded after the end of the reporting period described in § 50.95(e), then the insurer is not required to refund any Surcharge that is attributable to the refunded premium.
(f) Notwithstanding paragraphs (a), (b), and (c) of this section, if the expense of collecting the Federal terrorism policy surcharge from all policyholders of an insurer during an assessment period exceeds the amount of the Surcharges anticipated to be collected, such insurer may satisfy its obligation to collect by omitting actual collection and instead remitting to Treasury the amount otherwise due.
(g) The Federal terrorism policy surcharge is repayment of Federal financial assistance in an amount required by law. No fee or commission shall be charged on the Federal terrorism policy surcharge.
(a) Each insurer shall report direct written premium and Federal terrorism policy surcharges to Treasury on a monthly and annual basis during the assessment period. Reporting will be on a form prescribed by Treasury and will be due according to the following schedule:
(1)
(2)
(b) The monthly statements provided to Treasury will include the following:
(1) Cumulative calendar year direct written premium adjusted for premium not subject to the Federal terrorism policy surcharge, summarized by policy year.
(2) The aggregate Federal terrorism policy surcharge amount calculated by applying the established surcharge percentage to the insurer's adjusted direct written premium by policy year.
(3) Insurer certification of the submission.
(c) The annual statements to be provided to Treasury will include the following:
(1) Direct written premium, adjusted for premium not subject to the Federal terrorism policy surcharge, summarized by policy year and by commercial line of insurance as specified in § 50.4(w).
(2) The aggregate Federal terrorism policy surcharge amount calculated by applying the established surcharge percentage to the insurer's adjusted direct written premium by policy year.
(3) In the case of an insurer that has chosen not to collect the Federal terrorism policy surcharge from its policyholders as provided in § 50.94(f), a certification that the expense of collecting the Surcharge during the assessment period would have exceeded the amount of the surcharges collected over the assessment period.
(4) Insurer certification of the submission.
(d) The calculated aggregate Federal terrorism policy surcharge amount, as described in paragraphs (b)(2) and (c)(2) of this section, shall be remitted to Treasury upon submission of each monthly and annual statement. Through its submitted statements, an insurer obtains credit for a refund of any Federal terrorism policy surcharge previously remitted to Treasury that was subsequently returned by the insurer to a policyholder as attributable to refunded premium under § 50.94(e). A negative calculated amount in a monthly or annual statement indicates payment from Treasury is due to the insurer.
(e) Reporting shall continue for the one-year period following the end of the assessment period established by Treasury, unless otherwise permitted by Treasury.
Notwithstanding § 50.4(o), for purposes of the collection, reporting and remittance of Federal terrorism policy surcharges to Treasury, the definition of insurer shall not include any affiliate of the insurer.
(a)
(b)
(c)
(d)
(1) Limit the liability of any government, organization, or person who knowingly participates in, conspires to commit, aids and abets, or commits any act of terrorism;
(2) Affect any party's contractual right to arbitrate a dispute; or
(3) Affect any provision of the Air Transportation Safety and System Stabilization Act (Pub. L. 107-42; 49 U.S.C. 40101 note).
All State causes of action of any kind for property damage, personal injury, or death arising out of or resulting from an act of terrorism that are otherwise available under state law are preempted, except that, pursuant to section 107(b) of the Act, nothing in this section shall limit in any way the liability of any government, organization, or person who knowingly participates in, conspires to commit, aids and abets, or commits the act of terrorism certified by the Secretary.
(a)
(1) Any portion of the proposed settlement amount that is attributable to an insured loss or losses involving personal injury or death in the aggregate is $2 million or more per third-party claimant, regardless of the number of causes of action or insured losses being settled; or
(2) Any portion of the proposed settlement amount that is attributable to an insured loss or losses involving property damage (including loss of use) in the aggregate is $10 million or more per third-party claimant, regardless of the number of causes of action or insured losses being settled.
(b)
(c)
(1) The proposed settlement compensates for a third-party's loss, the liability for which is an insured loss under the terms and conditions of the underlying commercial property and casualty insurance policy, as certified by the insurer pursuant to § 50.103(d)(2);
(2) Any amount of the proposed settlement is attributable to punitive or exemplary damages intended to punish or deter (whether or not specifically so described as such damages);
(3) The settlement amount offsets amounts received from the United States pursuant to any other Federal program;
(4) The settlement amount does not include any items such as fees and expenses of attorneys, experts, and other professionals that have caused the insured losses under the underlying commercial property and casualty insurance policy to be overstated; and
(5) Any other criteria that Treasury may consider appropriate, depending on the facts and circumstances surrounding the settlement, including the information contained in § 50.103.
(d)
(a)
(b)
(c)
(d)
(1) A brief description of the claim against the insured, the amount of the claim, the operative policy terms, and defenses to coverage;
(2) A certification by the insurer that the settlement is for a third-party's loss, the liability for which is an insured loss under the terms and conditions of the underlying commercial property and casualty insurance policy;
(3) A brief description of all damages allegedly sustained and an itemized statement of all damages by category (
(4) A statement from the insurer or its attorney in support of the settlement;
(5) The total dollar amount of the proposed settlement and the amount of the proposed settlement which is an insured loss;
(6) Indication as to whether the settlement was negotiated by counsel;
(7) The amount to be paid that will compensate for any items such as fees and expenses of attorneys, experts, and other professionals for their services and expenses related to the insured loss and/or settlement and the net amount to be received by the third-party after such payment;
(8) The amount(s) received from the United States pursuant to any other Federal program(s) for compensation of insured losses related to an act of terrorism;
(9) The proposed terms of the written settlement agreement, including release language and subrogation terms;
(10) Other relevant agreements, including:
(i) Admissions of liability or insurance coverage;
(ii) Determinations of the number of occurrences under a commercial property and casualty insurance policy;
(iii) The allocation of paid amounts or amounts to be paid to certain policies, or to a specific policy, coverage and/or aggregate limits;
(iv) Any other agreement that may affect the payment or amount of the Federal share of compensation to be paid to the insurer; and
(v) Any other relevant agreement requested by Treasury.
(11) A statement indicating whether the proposed settlement has been approved by the Federal court or is subject to such approval and whether such approval is expected or likely; and
(12) Such other information that is related to the insured loss as may be requested by Treasury that it deems necessary to evaluate the proposed settlement.
An insurer shall not waive its rights of subrogation under its property and casualty insurance policy with respect to any losses the payment of which the insurer intends to include in its insurer deductible or the aggregate insured losses for purposes of calculating the Federal share of compensation of its insured losses and shall, unless upon request the United States agrees in writing to forbear from exercising such right, preserve the subrogation right of the United States as provided by section 107(c) of the Act by not taking any action that would prejudice the subrogation right of the United States.
Pursuant to section 103 of the Act, if the aggregate insured losses exceed $100,000,000,000 during a calendar year:
(a) The Secretary shall not make any payment for any portion of the amount of such losses that exceeds $100,000,000,000;
(b) An insurer that has met its insurer deductible shall not be liable for the payment of any portion of the amount of such losses that exceeds $100,000,000,000; and
(c) The Secretary shall determine the
Pursuant to section 103(e)(3) of the Act, the Secretary shall provide an initial notice to Congress within 15 days of the certification of an act of terrorism, stating whether the Secretary estimates that aggregate insured losses will exceed $100,000,000,000 for the calendar year in which the event occurs. Such initial estimate may be based on insured loss amounts as compiled by insurance industry statistical organizations, data previously collected by the Secretary, and any other information the Secretary in his or her discretion considers appropriate. The Secretary shall also notify Congress if estimated or actual aggregate insured losses exceed $100,000,000,000 during any calendar year.
(a)
(b) Except as provided in paragraph (e) of this section, if Treasury estimates that aggregate insured losses may exceed the cap on annual liability for a calendar year, then Treasury will determine a PRLP. The PRLP applies to insured loss payments by insurers for insured losses incurred in the subject calendar year, as specified in § 50.113, from the effective date of the PRLP, as established by Treasury, until such time as Treasury provides notice that the PRLP is revised. Treasury will determine the PRLP based on the following considerations:
(1) Estimates of insured losses from insurance industry statistical organizations;
(2) Any data calls issued by Treasury (see § 50.114);
(3) Expected reliability and accuracy of insured loss estimates and likelihood that insured loss estimates could increase;
(4) Estimates of insured losses and expenses not included in available statistical reporting;
(5) Such other factors as the Secretary considers important.
(c) Treasury shall provide notice of the determination of the PRLP through publication in the
(d) As appropriate, Treasury will determine any revision to a PRLP based on the same considerations listed in paragraph (b) of this section, and will provide notice for its application to insured loss payments.
(e) If Treasury estimates based on an initial act of terrorism or subsequent act of terrorism within a calendar year that aggregate insured losses may exceed the cap on annual liability, but an appropriate PRLP cannot yet be determined, Treasury will provide notification advising insurers of this circumstance and, after consulting with the relevant state authorities, may initiate the action described in either paragraph (e)(1) or (2) of this section.
(1)
(2)
(ii) In such a circumstance, Treasury will determine a PRLP to replace the interim PRLP as quickly as possible. The PRLP, as later determined, will be
An insurer shall apply the PRLP to determine the
(a) The
(b)
(c)
(d) If an insurer has not yet made payments in excess of its insurer deductible, the rules in this paragraph apply.
(1) If the insurer estimates that it will exceed its insurer deductible making payments based on the application of the PRLP to its insured losses, then the insurer shall apply the PRLP as of the effective date specified in § 50.112(b).
(2)(i) If the insurer estimates that it will not exceed its insurer deductible making payments based on the application of the PRLP to its insured losses, then the insurer may make payments on the same basis as prior to the effective date of the PRLP. The insurer may also make payments on the basis of applying some other
(ii) If an insurer estimates that it will not exceed its insurer deductible and has made payments on the basis provided in paragraph (d)(2)(i) of this section, but thereafter reaches its insurer deductible, then the insurer shall apply the PRLP to any remaining insured losses. When such an insurer submits a claim for the Federal share of compensation, the amount of the insurer's losses will be deemed to be the amount it would have paid if it had applied the PRLP as of the effective date, and the Federal share of compensation will be calculated on that amount. However, an insurer may request an exception if it can demonstrate that its estimate was invalidated as a result of insured losses from a subsequent act of terrorism.
For the purpose of determining initial or recalculated PRLPs, Treasury may issue a data call to insurers for insured loss information, seeking information in addition to any information provided to Treasury under subparts F and H of this part.
(a) Treasury shall determine if, as a final proration, remaining insured loss payments, as well as adjustments to previous insured loss payments, can be made by insurers based on an adjusted PLRP, and aggregate insured losses still remain within the cap on annual liability. In such a circumstance, Treasury will notify insurers as to the final PRLP and its application to insured losses.
(b) If paragraph (a) of this section applies, Treasury may require, as part of the insurer submission for the Federal share of compensation for insured losses, a supplementary explanation regarding how additional payments will be provided on previously settled insured losses.
(c) An insurer that has prorated its insured losses, but that has not met its insurer deductible, remains liable for loss payments that in the aggregate bring the insurer's total insured loss payments up to an amount equal to the lesser of its insured losses without proration or its insurer deductible.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of 12-month finding and availability of status review report.
NMFS has completed comprehensive status reviews under the Endangered Species Act (ESA) for two species of thresher shark in response to petitions to list those species. These species are the common thresher shark (
This finding was made on April 1, 2016.
The status review report for common and bigeye thresher sharks is available electronically at:
Chelsey Young, NMFS, Office of Protected Resources, (301) 427-8491.
On August 26, 2014, we received a petition from Friends of Animals to list the common thresher shark (
We are responsible for determining whether the common and bigeye thresher sharks are threatened or endangered under the ESA (16 U.S.C. 1531
Section 3 of the ESA defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range” and a threatened species as one “which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Thus, in the context of the ESA, the Services interpret an “endangered species” to be one that is presently at risk of extinction. A “threatened species,” on the other hand, is not currently at risk of extinction, but is likely to become so in the foreseeable future. In other words, a key statutory difference between a threatened and endangered species is the timing of when a species may be in danger of extinction, either now (endangered) or in the foreseeable future (threatened). The statute also requires us to determine whether any species is endangered or threatened as a result of any of the following five factors: The present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; or other natural or manmade factors affecting its continued existence (ESA, section 4(a)(1)(A)-(E)). Section 4(b)(1)(A) of the ESA requires us to make listing determinations based solely on the best scientific and commercial data available after conducting a review of the status of the species and after taking into account efforts being made by any State or foreign nation or political subdivision thereof to protect the species. In evaluating the efficacy of existing protective efforts, we rely on the Services' joint
We convened a team of agency scientists to conduct the status review for the common and bigeye thresher sharks and prepare a report. The status review report of common and bigeye thresher sharks (Young
The status review report was subjected to independent peer review as required by the Office of Management and Budget Final Information Quality Bulletin for Peer Review (M-05-03; December 16, 2004). The status review report was peer reviewed by three independent specialists selected from the academic and scientific community, with expertise in shark biology, conservation and management, and knowledge of thresher sharks. The peer reviewers were asked to evaluate the adequacy, appropriateness, and application of data used in the status review as well as the findings made in the “Assessment of Extinction Risk” section of the report. All peer reviewer comments were addressed prior to finalizing the status review report.
We subsequently reviewed the status review report, its cited references, and peer review comments, and believe the status review report, upon which this 12-month finding is based, provides the best available scientific and commercial information on the common and bigeye thresher sharks. Much of the information discussed below on thresher shark biology, distribution, abundance, threats, and extinction risk is attributable to the status review report. However, we have independently applied the statutory provisions of the ESA, including evaluation of the factors set forth in Section 4(a)(1)(A)-(E), our regulations regarding listing determinations, and our DPS policy in making the 12-month finding determination.
All thresher sharks belong to the family Alopiidae, genus
The common thresher shark is found throughout the world in temperate and tropical seas, with a noted tolerance for cold waters as well; however, highest concentrations tend to occur in coastal, temperate waters (Moreno
The common thresher shark is a highly migratory, pelagic species of shark that is both coastal, ranging over continental and insular shelves, and epipelagic, ranging far from land, though they are most abundant near land approximately 40-50 nautical miles (74-93 km) from shore (Strasburg,
Several studies have shown that common thresher sharks make daily vertical migrations, moving to deeper water during the day, with a maximum depth reported to 640 m in Australia. In the Marshall Islands, common thresher sharks showed a preference for an optimum swimming depth, water temperature, salinity and dissolved oxygen range of 160-240 m, 18-20 °C, 34.5-34.8 ppt and 1.0-1.5 ml/l, respectively, during daytime (Cao
Common thresher sharks feed at mid-trophic levels on a mix of small pelagic fish and cephalopods (Cortés, 1999; Bowman
Compared to the other
Historical records indicate the common thresher can reach maximum lengths of 690-760 cm TL (Bigelow and Schroeder, 1948; Hart, 1973). More recent studies report
Common thresher sharks can be found worldwide, with no present indication of a range contraction. Although potentially rare in a large portion of its range and generally not targeted, they are caught as bycatch in many global fisheries, including bottom and pelagic longline tuna and swordfish fisheries, purse seine fisheries, coastal gillnet fisheries, and artisanal fisheries. Common thresher sharks are more commonly utilized for their meat than fins, as they are a preferred species for human consumption; however, they are also valuable as incidental catch for the international shark fin trade.
In 2009, the International Union for Conservation of Nature (IUCN) considered the common thresher shark to be Vulnerable globally, based on an assessment by Goldman
As described above, the ESA's definition of “species” includes “any subspecies of fish or wildlife or plants, and any distinct population segment (DPS) of any species of vertebrate fish or wildlife which interbreeds when mature.” As stated in the joint DPS policy, Congress expressed its expectation that the Services would exercise authority with regard to DPSs sparingly and only when the biological evidence indicates such action is warranted. NMFS determined at the 90-day finding stage that the petition to list the common thresher shark as six DPSs (Eastern Central Pacific, Indo-West Pacific, Northwest and Western Central Atlantic, Southwest Atlantic, Mediterranean, and Northeast Atlantic) did not present substantial scientific or commercial information to support the identification of these particular DPSs. As such, we conducted the extinction risk analysis on the global common thresher shark population.
The ESA (Section 3) defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range.” A threatened species is defined as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Neither we nor the USFWS have developed formal policy guidance about how to interpret the definitions of threatened and endangered with respect to what it means to be “in danger of extinction.” We consider the best available information and apply professional judgment in evaluating the level of risk faced by a species in deciding whether the species is threatened or endangered. We evaluate both demographic risks, such as low abundance and productivity, and threats to the species, including those related to the factors specified in ESA section 4(a)(1)(A)-(E).
As we described previously, we convened an ERA team to evaluate extinction risk to the species. This section discusses the methods used to evaluate threats and the overall extinction risk to the species. For purposes of the risk assessment, an ERA team comprised of fishery biologists and shark experts was convened to review the best available information on the species and evaluate the overall risk of extinction facing the common thresher shark now and in the foreseeable future. The term “foreseeable future” was defined as the timeframe over which threats could be reliably predicted to impact the biological status of the species. After considering the life history of the common thresher shark, availability of data, and type of threats, the ERA team decided that the foreseeable future should be defined as approximately 3 generation times for the common thresher shark, or 30 years. A generation time is defined as the time it takes, on average, for a sexually mature female common thresher shark to be replaced by offspring with the same spawning capacity. This timeframe (3 generation times) takes into account the time necessary to provide for the conservation and recovery of the species. As a late-maturing species, with slow growth rate and relatively low productivity, it would likely take more than a generation time for any conservative management action to be realized and reflected in population abundance indices. This is supported by the fact that we have a well-documented example of how this species responds to intense fishing pressure, and the time required for the initial implementation of regulatory measures to be reflected in population abundance indices. For the northeastern Pacific stock of common thresher, the time period from being in an overfished state (
In addition, the foreseeable future timeframe is also a function of the reliability of available data regarding the identified threats and extends only as far as the data allow for making reasonable predictions about the species' response to those threats. Since the main threats to the species were identified as fisheries and the inadequacy of existing regulatory measures that manage these fisheries, the ERA team felt that they had the background knowledge in fisheries management and expertise to confidently predict the impact of these threats on the biological status of the species within this timeframe.
Often the ability to measure or document risk factors is limited, and information is not quantitative or is lacking altogether. Therefore, in assessing risk, it is important to include both qualitative and quantitative information. In assessing extinction risk to the species, the ERA team considered the demographic viability factors developed by McElhany
Using these concepts, the ERA team evaluated demographic risks by assigning a risk score to each of the four demographic risk factors. The scoring for these demographic risk criteria correspond to the following values: 0—unknown risk, 1—low risk, 2—moderate risk, and 3—high risk. Detailed definitions of the risk scores can be found in the status review report. The ERA team also performed a threats assessment for the common thresher shark by evaluating the effect that the threat was currently having on the extinction risk of the species. The levels included “low effect,” “moderate
Guided by the results from the demographic risk analysis and the threats assessment, the ERA team members were asked to use their informed professional judgment to make an overall extinction risk determination for the common thresher shark. For this analysis, the ERA team defined three levels of extinction risk: 1—low risk, 2—moderate risk, and 3—high risk, which are all temporally connected. Detailed definitions of these risk levels are as follows: 1 = Low risk: A species may be at a low risk of extinction if it exhibits a trajectory indicating that it is not currently experiencing a moderate risk of extinction now, nor is it likely to have a high risk of extinction in the foreseeable future (see definitions of “Moderate Risk” and “High Risk” below). More specifically, a species may be at low risk of extinction due to projected threats and its likely response to those threats (
Finally, the ERA team did not make recommendations as to whether the species should be listed as threatened or endangered. Rather, the ERA team drew scientific conclusions about the overall risk of extinction faced by the common thresher shark under present conditions and in the foreseeable future based on an evaluation of the species' demographic risks and assessment of threats.
There is currently a lack of reliable estimates of global population size for the common thresher shark, with most of the available information indicating that the species is naturally rare in a large portion of its range. The ERA team expressed some concern regarding the common thresher shark's global abundance, particularly given that the species likely experienced localized population declines over the past few decades. Given the lack of data, and the fact that most of these assessments are not specific to common thresher, the extent of the decline and current status of the global population are unclear. However, some information, including a recent stock assessment and a species-specific analysis of observer data provide some insight into current abundance levels of the species.
In the eastern North Pacific, the NMFS SWFSC conducted the only species-specific stock assessment of the common thresher shark to date, which incorporates data from the United States and Mexico for the period 1969-2014. The U.S. fisheries included the swordfish/shark drift gillnet, recreational, nearshore setnet and small-mesh drift gillnet, and miscellaneous fisheries. The Mexican fisheries included the swordfish/shark drift gillnet, pelagic longline, and artisanal (panga) fisheries. This assessment incorporated fisheries-dependent data (including estimated removals, size compositions, indices of relative abundance, and conditional age-at-length) as well as fisheries-independent data (
In the Northwest Atlantic, several studies have been conducted to determine trends in abundance of various shark species, including the common thresher shark. In the Northwest Atlantic longline fisheries, thresher sharks (both common and bigeye threshers) are typically recorded at the genus level by observers as well as in logbooks, with the bigeye thresher shark typically dominant in the catches. Baum
In other areas of the common thresher shark range, species-specific abundance data are absent, rare, or presented as a thresher complex. In the Northeast Atlantic and Mediterranean, only one study provided a time-series analysis of fishery data specific to common thresher sharks (Ferretti
Based on the very limited abundance information available, from both fishery-independent and -dependent surveys, and its general rarity in fisheries catch in a large portion of its range, the ERA team concluded that the common thresher shark has likely declined from historical numbers as a result of fishing mortality; however, based on the best available information, current common thresher abundance is either stable, recovered, or shows no clear trend for most areas. While the level of decline in the Mediterranean is concerning, the ERA team concluded, and we agree, that the Mediterranean represents a small portion of the common thresher shark's global range and likely does not affect the global population, particularly given the lack of evidence for trans-Atlantic migrations from the Mediterranean to other portions of the species' range. Therefore, we conclude that there is no evidence to suggest that the species is at a high risk of extinction throughout its range, now or in the foreseeable future, due to environmental variation, anthropogenic perturbations, or depensatory processes based on its current abundance levels.
Similar to abundance, the ERA team expressed some concern regarding the effect of the common thresher shark's growth rate and productivity on its risk of extinction. Sharks, in general, have lower reproductive and growth rates compared to bony fishes; however, common thresher sharks exhibit life-history traits and population parameters that are intermediary among other shark species. As previously noted, common thresher shark productivity, determined as intrinsic rate of population increase (
The ERA team did not identify habitat structure or connectivity as a potential risk to the common thresher shark. Habitat characteristics that are important to the common thresher shark are largely unknown, as are nursery areas. The common thresher is a relatively widespread species, with multiple stocks in the Pacific, Indian, and Atlantic oceans. The population exchange between these stocks is unknown but probably low, so loss of a single stock would not constitute a risk to the entire species. Additionally, there is currently no evidence of female philopatry, the species is highly mobile, and there is little known about specific migration routes. It is also unknown if there are source-sink dynamics at work that may affect population growth or species' decline. Finally, there is no information on critical source
The ERA team concluded that the current level of information regarding the common thresher's diversity is either unavailable or unknown, such that the contribution of this factor to the extinction risk of the species cannot be determined at this time. There is no evidence that the species is at risk due to a substantial change or loss of variation in genetic characteristics or gene flow among populations. This species is found in a broad range of habitats and appears to be well-adapted and opportunistic. Additionally, there are no restrictions to the species' ability to disperse and contribute to gene flow throughout its range, nor is there evidence of a substantial change or loss of variation in life-history traits, population demography, morphology, behavior, or genetic characteristics. Based on this information, the ERA team concluded, and we agree, that there is insufficient information to support the conclusion that diversity poses significant risks to this species' continued existence.
As described above, section 4(a)(1) of the ESA and NMFS' implementing regulations (50 CFR 424.11(c)) state that we must determine whether a species is endangered or threatened because of any one or a combination of the following factors: The present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; or other natural or manmade factors affecting its continued existence. The ERA team evaluated whether and the extent to which each of the foregoing factors contributed to the overall extinction risk of the global common thresher shark population. This section briefly summarizes the ERA team's findings and our conclusions regarding threats to the common thresher shark. More details can be found in the status review report (Young
The ERA team did not identify habitat destruction as a potential threat to the common thresher shark. As described earlier (see
In the U.S. exclusive economic zone (EEZ), the Magnuson-Stevens Fishery Conservation and Management Act (MSA) (16 U.S.C. 1801
On the U.S. West Coast, common thresher pups are found in near-shore waters of the Southern California Bight. Essential fish habitat is described for three age classes in this area: Neonate/early juveniles, late juveniles/subadults, and adults. For neonate/early juveniles (<102 cm FL), EFH includes epipelagic, neritic and oceanic waters off beaches, in shallow bays, in near surface waters from the U.S.-Mexico EEZ border north to off Santa Cruz, over bottom depths of 6 to 400 fathoms (fm; 11-732 m), particularly in water less than 100 fm (183 m) deep and to a lesser extent farther offshore between 200-300 fm (366-549 m). For late juveniles/subadults (>101 cm FL and <167 cm FL), EFH is described as epipelagic, neritic and oceanic waters off beaches and open coast bays and offshore, in near-surface waters from the U.S.-Mexico EEZ border north to off Pigeon Point, California, from the 6 to 1,400 fm (11-2,560 m) isobaths. For adults (>166 cm FL), EFH is described as epipelagic, neritic and oceanic waters off beaches and open coast bays, in near surface waters from the U.S.-Mexico EEZ border north seasonally to Cape Flattery, WA, from the 40 fm (73 m) isobath westward to approximately north of the Mendocino Escarpment and from the 40 to 1,900 fm (73-3,474 m) isobaths south of the Mendocino Escarpment. In the U.S. Western Pacific, including Hawaii, American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands, EFH for common thresher sharks is broadly defined as the water column down to a depth of 1,000 m (547 fm) from the shoreline to the outer limit of the EEZ (WPFMC, 2009).
Common thresher shark habitat in other parts of its range is assumed to be similar to that in the Northwest Atlantic and Gulf of Mexico, comprised of open ocean environments occurring over broad geographic ranges and characterized primarily by the water column attributes. As such, large-scale impacts, such as global climate change, that affect ocean temperatures, currents, and potentially food chain dynamics, may pose a threat to this species. Studies on the impacts of climate change specific to thresher sharks have not been conducted; however, there are a couple of studies on other pelagic shark species that occur in the range of the common thresher shark. For example, Chin
Overall, the common thresher shark is highly mobile throughout its range, and although very little information is known on habitat use or pupping and nursery areas, there is no evidence to suggest its access to suitable habitat is restricted. The ERA team noted that common threshers are not reliant on estuarine habitats, which are thought to be one of the most vulnerable habitat types to climate change. Additionally, common threshers are likely more confined by temperature and prey distributions than a particular habitat type. The highly migratory nature of the common thresher shark gives it the ability to shift its range or distribution to remain in an environment conducive to its physiological and ecological needs. Therefore, while effects from climate change have the potential to pose a threat to sharks in general, including habitat changes (
The common thresher shark is considered desirable for human consumption and a highly prized game fish; thus, it is a valuable bycatch and target species, which increases its susceptibility to being overfished. The ERA team assessed three different factors that may contribute to the overutilization of the common thresher shark: Bycatch in commercial fisheries (including at-vessel and post-release mortality rates), targeting in recreational fisheries, and the global shark trade (including the trade of both common thresher fins and meat). Common thresher sharks are caught as bycatch in many global fisheries, including bottom and pelagic longline fisheries, purse seine fisheries, coastal gillnet fisheries, and artisanal fisheries. As a primarily coastal and temperate species, the common thresher shark is relatively rare in catches of tropical fisheries, particularly in the Western and Central Pacific and Indian Oceans. They are also rare in catches of fisheries operating in the South Atlantic. Though it is generally not a target species in commercial fisheries, it is valued for both its meat and fins, and is therefore valued as incidental catch for the international shark trade (Clarke
As noted previously in the
In the eastern North Pacific, common thresher sharks were historically targeted and caught in the California drift gillnet swordfish/pelagic shark fishery beginning in the late 1970s. The California fishery for common threshers peaked in 1982 with estimated landings of approximately 1,800 mt, and then sharply declined in 1986, when all subadults were virtually eliminated from the population due to overfishing (Camhi
Overall, the California drift gill net fishery serves as a well-documented case of marked population depletion of a small, localized stock of common thresher shark over a short time period (less than a decade) followed by a gradual recovery after the implementation of regulatory measures. Based on the recent stock assessment results of Teo
In other areas of the Eastern Pacific, the level of utilization of common thresher is unclear. Common threshers are taken in artisanal, pelagic longline and gillnet fisheries targeting pelagic sharks off Mexico's Pacific Coast (Sosa-Nishizaki
In the Western and Central Pacific Ocean, all three thresher shark species interact with longline fisheries, with recent catch estimates from 1992-2009 indicating that the genus
Further, in several analyses of fisheries data from the Western and Central Pacific (based on data holdings of the Secretariat of the Pacific Community (SPC)) common thresher sharks were characterized as “rare” or “not frequently encountered” with the exception of the more temperate waters of Australia and New Zealand. For example, in analyses of Japanese longline data, where thresher sharks comprise approximately 3.44 percent of the total shark catch, the bigeye thresher was the dominant thresher species encountered. In order to determine the stock status of key shark species in the Western and Central Pacific Ocean (including thresher sharks) Clarke
As mentioned previously, common thresher sharks are more prevalent in temperate waters, and are more commonly encountered in Australian and New Zealand fisheries. Common thresher sharks are caught in a number of fisheries operating off the eastern and western coasts of Australia, including the Eastern Tuna and Billfish Fishery (ETBF), Southern and Eastern Scale Fish
In the Northwest Atlantic, common threshers are taken predominantly in the U.S. pelagic longline (PLL) fishery. Based on the best available data, the common thresher population size has likely declined in this region due to historical exploitation of the species (see
In the Northeast Atlantic and Mediterranean, fisheries data for thresher shark landings are scarce and unreliable because they are reported irregularly and variably, and it is likely that the two thresher species (
In the Southwest Atlantic, there is little information on the catch rates or trends of thresher sharks. Some countries still fail to collect shark data while others collect it but fail to report (Frédou
In an effort to evaluate the vulnerability of specific shark stocks to pelagic longline fisheries in the Atlantic Ocean, Cortés
There are currently no quantitative stock assessments or basic fishery indicators available for common thresher sharks or even thresher sharks in general in the Indian Ocean. Thus, the level of common thresher shark utilization in this region is highly uncertain. Both common and bigeye thresher sharks have been reported as bycatch in Indian Ocean longline and gillnet fisheries, with thresher sharks as a genus comprising an estimated 16 percent of the total shark catch in the Indian Ocean, and having reportedly high hooking mortality (Murua
In addition to overutilization in commercial fisheries, the ERA team also assessed whether recreational fisheries could be a threat driving overutilization of the common thresher shark. Common thresher sharks are highly prized game fish in recreational fisheries due to their large size and fighting abilities. Information regarding recreational fisheries data for common threshers is severely lacking, with the exception of the United States, where common threshers are popular in both East and West Coast recreational fisheries. In particular, the common thresher shark is the focus of a popular southern California recreational fishery that targets individuals using multiple fishing gears and techniques. Of concern are the high post-release mortality rates reported for common threshers after being foul-hooked in the tail and hauled in backwards. Because the common thresher shark is an obligate ram-ventilator, which means it requires forward motion to ventilate the gills, the reduced ability to extract oxygen from the water during capture, as well as the stress induced from these capture methods, may influence recovery following release. In fact, results from Heberer (2010) revealed that large tail-hooked common thresher sharks with prolonged fight times (≥85 min) experienced 100 percent mortality. However, the recent stock assessment for the eastern North Pacific common thresher population includes removals from this recreational fishery, and shows that the current amount of recreational fishing pressure and associated post-release mortality is sustainable. In the Northwest Atlantic, common thresher sharks have increased in popularity in U.S. shark fishing tournaments in recent years. For example, an estimated 17,834 common thresher sharks were caught in the rod and reel fishery in the U.S. Northwest Atlantic from 2004-2013, with approximately 70 percent retained. In order to glean information on the relative abundance of common thresher sharks in the Northwest Atlantic using recreational fisheries data, the ERA team analyzed data collected by the NMFS Northeast Fisheries Science Center (NEFSC) at five recreational fishing tournaments from 1978 through 2014. These shark tournament data from the Northwest Atlantic (including several tournaments in New York and New Jersey), accounting for changes in effort, show a fairly stable trend in relative abundance through the 1990s followed by an increasing trend through the end of the time series. The ERA team acknowledged that due to the high
Finally, the ERA team also assessed whether the shark trade could be a threat driving overutilization of the common thresher shark. Based on Hong Kong fin trade auction data from 1999-2001 and fin weights and genetic information, Clarke
Overall, based on the best available information, the ERA team concluded that overutilization is not likely significantly contributing to the common thresher's risk of global extinction, now or in the foreseeable future. However, due to the paucity of available data, the ERA team acknowledged that there are some uncertainties in assessing the contribution of the threat of overutilization to the extinction risk of the common thresher shark. As results from the Cortés
The ERA team did not identify disease or predation as potential threats to the common thresher shark, as they could not find any evidence to suggest that either is presently contributing significantly to the species' risk of extinction. Common thresher sharks likely carry a range of parasites, including copepods and cestodes (Love and Moser, 1983). Specifically, nine species of copepods, genus
Predation is also not thought to be a factor influencing common thresher numbers. The most significant predator on thresher sharks is likely humans; however, a study from New Zealand documented predation of
Therefore, based on the best available information, the ERA team concluded, and we agree, that neither disease nor predation is currently placing the species in danger of extinction throughout its global range, now or in the foreseeable future.
The ERA team evaluated existing regulatory mechanisms to determine whether they may be inadequate to address threats to the common thresher shark. Existing regulatory mechanisms may include Federal, state, and international regulations for commercial and recreational fisheries, as well as the shark trade. Below is a brief description and evaluation of current and relevant domestic and international management measures that may affect the common thresher shark. More information on these domestic and international management measures can be found in the status review report (Young
In the U.S. Pacific, HMS fishery management is the responsibility of adjacent states and three regional management councils that were established by the Magnuson-Stevens Act: The Pacific Fishery Management Council (PFMC), the North Pacific Fishery Management Council (NPFMC), and the Western Pacific Fishery Management Council (WPFMC). On the U.S. West Coast, common thresher sharks are managed by the PFMC, under the Pacific HMS FMP, as well as the states of California, Oregon, and Washington. As a result of declining abundance, and because common threshers are considered vulnerable to overexploitation due to their low fecundity, long gestation periods, and relatively high age at maturation, the HMS FMP proposed a precautionary annual harvest guideline of 340 mt for common thresher sharks to prevent localized depletion. This guideline was implemented in 2004. Additionally, specific measures implemented for the California drift gillnet fishery for the purposes of protecting other species also help to protect common thresher sharks. Both participation and fishing effort (measured by the number of sets) have declined over the years, and industry representatives attribute the decline in vessel participation and annual effort to regulations implemented to protect marine mammals, endangered sea turtles, and seabirds. For example, in 2001, NMFS implemented two Pacific sea turtle conservation areas on the West Coast with seasonal drift gillnet restrictions to protect endangered leatherback and loggerhead turtles. In the larger of the two closures (which spans the EEZ north of Point Conception, California (34°27′ N. latitude) to mid-Oregon (45° N. latitude) and west to 129° W. longitude), drift gillnet fishing is prohibited annually within this conservation area from August 15 to November 15 to protect leatherback sea turtles. The smaller closure was implemented to protect Pacific loggerhead turtles from drift gillnet gear during a forecasted or concurrent El Niño event and is located south of Point Conception, California and west of 120° W. longitude from June 1 to August 31 (72 FR 31756). Since the leatherback closure was enacted, the number of active participants in the drift gillnet fishery declined by nearly half, from 78 vessels in 2000 to 40 in 2004, and has remained under 50 vessels since then. Although implemented for sea turtle protection, these closures help protect common thresher sharks from fishing pressures related to gillnet fishing (PFMC, 2015). The drift gillnet fishery is also managed by a limited entry permit system, with mandatory gear standards. The permit is linked to an individual fisherman, not a vessel, and is only transferable under very restrictive conditions; thus, the value of the vessel does not become artificially inflated. To keep a permit active, current permittees are required to purchase a permit from one consecutive year to the next; however, they are not required to make landings using drift gillnet gear. In addition, a general resident or non-resident commercial fishing license and a current vessel registration are required to catch and land fish caught in drift gillnet gear. A logbook is also required. The HMS FMP requires a Federal permit with a drift gillnet gear endorsement for all U.S. vessels that fish for HMS within the West Coast EEZ and for U.S. vessels that pursue HMS on the high seas (seaward of the EEZ) and land their catch in California, Oregon, or Washington. In Washington, drift gillnet fishing gear is prohibited and landings of thresher sharks are restricted under Washington Administrative Code 220-44-050. As previously mentioned, the recovery of the eastern North Pacific stock of common thresher is largely attributed to these regulatory mechanisms.
The WPFMC has jurisdiction over the EEZs of Hawaii, Territories of American Samoa, Guam, Commonwealth of the Northern Mariana Islands, and the Pacific Remote Island Areas, as well as the domestic fisheries that occur on the adjacent high seas. The WPFMC developed the Pelagics Fishery Ecosystem Plan (FEP; formerly the Fishery Management Plan for the Pelagic Fisheries of the Western Pacific Region) in 1986 and NMFS, on behalf of the U.S. Secretary of Commerce, approved the Plan in 1987. Under the FEP, thresher sharks are designated as Pelagic Management Unit Species and are subject to regulations. These regulations are intended to minimize impacts to targeted stocks as well as protected species. Fishery data are also analyzed in annual reports and used to amend the FEP as necessary. In Hawaii and American Samoa, thresher sharks are predominantly caught in longline fisheries that operate under extensive
In the Northwest Atlantic, the U.S. Atlantic HMS Management Division within NMFS develops regulations for Atlantic HMS fisheries, and primarily coordinates the management of Atlantic HMS fisheries in Federal waters (domestic) and the high seas (international), while individual states establish regulations for HMS in state waters. The NMFS Atlantic HMS Management Division currently manages 42 species of sharks (excluding spiny dogfish) under the Consolidated HMS FMP (NMFS, 2006). The management of these sharks is divided into five species groups: Large coastal sharks, small coastal sharks, pelagic sharks, smoothhound sharks, and prohibited sharks. Thresher sharks are managed under the pelagic sharks group, which includes both common and bigeye thresher sharks. One way that the HMS Management Division controls and monitors this commercial harvest is by requiring U.S. commercial Atlantic HMS fishermen who fish for or sell common thresher sharks to have a Federal Atlantic Directed or Incidental shark limited access permit. These permits are administered under a limited access program, and the HMS Management Division is no longer issuing new shark permits. As of October 2015, 224 U.S. fishermen are permitted to target sharks managed by the HMS Management Division in the Atlantic Ocean and Gulf of Mexico, and an additional 275 fishermen are permitted to land sharks incidentally (NMFS, 2015). Under a directed shark permit, there is no directed numeric retention limit for pelagic sharks, subject to quota limitations. An incidental permit allows fishers to keep up to a total of 16 pelagic or small coastal sharks (all species combined) per vessel per trip. Authorized gear types include: Pelagic or bottom longline, gillnet, rod and reel, handline, or bandit gear. There are no restrictions on the types of hooks that may be used to catch common thresher sharks, and there is no commercial minimum size limit. The annual quota for pelagic sharks (other than blue sharks or porbeagle sharks) is currently 488 mt dressed weight. In addition to permitting and trip limit requirements, logbook reporting or carrying an observer onboard may be required for selected commercial fishermen. The head may be removed and the shark may be gutted and bled, but the shark cannot be filleted or cut into pieces while onboard the vessel and all fins, including the tail, must remain naturally attached to the carcass through offloading.
In addition to Federal regulations, individual state fishery management agencies have authority for managing fishing activity in state waters, which usually extends from 0-3 nmi (5.6 km) off the coast in most cases, and 0-9 nmi (16.7 km) off Texas and the Gulf coast of Florida. Federally permitted shark fishermen along the Atlantic coast and in the Gulf of Mexico and Caribbean are required to follow Federal regulations in all waters, including state waters. To aid in enforcement and reduce confusion among fishermen, in 2010, the Atlantic States Marine Fisheries Commission, which regulates fisheries in state waters from Maine to Florida, implemented a Coastal Shark Fishery Management Plan that mostly mirrors the Federal regulations for sharks, including common thresher sharks.
Overall, regulations to control for overutilization of common threshers in U.S. Atlantic commercial fisheries, including quotas and trip limits, are seemingly adequate, as evidenced by stable CPUE trends for the species since the 1990s, which corresponds with the implementation of management measures for pelagic sharks under the U.S. HMS FMP. From 2009 through 2014, commercial landings of common thresher sharks have ranged from approximately 15 mt dw to 53 mt dw, and the population has seemingly stabilized under existing regulatory mechanisms in this region.
In other parts of the common thresher shark's range, the ERA team noted that effective international regulations specific to common thresher sharks are lacking, particularly in the Mediterranean. Despite several laws and regulatory mechanisms within the region (
In Indian Ocean waters, the main regulatory body is the IOTC, which has management measures in place specifically for thresher sharks that prohibit the landing of all
On the U.S. West Coast, recreational fisheries primarily occur in non-federal waters (0-3 nmi off the coast) and are managed by the states of Washington, Oregon, and California, with inter-state coordination facilitated through the Pacific States Marine Fisheries Commission. Common thresher sharks may be retained recreationally, except in Washington State, where any fishing for
In the U.S. Atlantic, an HMS permit (either Angling or Charter/Headboat) is required for recreational fishing for sharks in Federal waters. Common thresher sharks may be retained recreationally using authorized fishing gear, including rod and reel and handline. There are no restrictions on the types of hooks that may be used to catch Atlantic sharks on these gear types. Common thresher sharks that are kept must have a minimum size of 54 inches (4.5 feet; 137 cm) FL. Sharks that are under the minimum size must be released, and only one shark, which could be a common thresher shark, may be kept per vessel per trip (note, there are exceptions to the retention limit and size limit for Atlantic sharpnose, bonnethead, and smoothhound sharks). Since 2008, recreational fishermen have been required to land all sharks with their head, fins, and tail naturally attached. Thus, there are some management measures in place to regulate recreational catches of common thresher sharks, including bag and size limits. As described previously, an estimated 17,834 common thresher sharks were caught in the rod and reef fishery in the U.S. Northwest Atlantic from 2004-2013, with approximately 70 percent retained. Additionally, size limits for common thresher sharks imposed by the various states under the ASMFC may not be helpful for reducing recreational fishing pressure because the size limit (137 cm FL) is significantly lower than the reported size of maturity in the Northwest Atlantic, and thus, allows for sexually immature juveniles to be caught and landed. However, recreational fisheries, and in particular tournaments, may have their own size limits that are larger than 137 cm FL because they typically tend to target the largest sharks. Despite the increases in popularity and targeting of common thresher sharks in recreational fisheries in the Northeast United States, standardized tournament data that account for changes in effort show increasing relative abundance of common thresher sharks in recent years. This information, combined with a stable CPUE trend from commercial fisheries, indicates that the population is stable and removals via recreational fisheries are likely sustainable.
In addition to commercial and recreational fishing regulations, the United States has implemented a couple of significant laws for the conservation and management of sharks: the Shark Finning Prohibition Act and the Shark Conservation Act. The Shark Finning Prohibition Act was enacted in December 2000 and implemented by final rule on February 11, 2002 (67 FR 6194), and prohibited any person under U.S. jurisdiction from: (i) Engaging in the finning of sharks; (ii) possessing shark fins aboard a fishing vessel without the corresponding carcass; and (iii) landing shark fins without the corresponding carcass. It also implemented a five percent fin to carcass ratio, creating a rebuttable presumption that fins landed from a fishing vessel or found on board a fishing vessel were taken, held, or landed in violation of the Act if the total weight of fins landed or found on board the vessel exceeded five percent of the total weight of carcasses landed or found on board the vessel. The Shark Conservation Act was signed into law on January 4, 2011, and, with a limited exception for smooth dogfish (
After the passage of the Shark Finning Prohibition Act, U.S. exports of dried shark fins significantly dropped, which was expected. In 2011, with the passage of the U.S. Shark Conservation Act, exports of dried shark fins dropped again, by 58 percent, to 15 mt, the second lowest export amount since 2001. This is in contrast to the price per kg of shark fin, which was at its highest price of ~$100/kg, and suggests that existing regulations have likely been effective at discouraging fishing for sharks solely for the purpose of the fin trade. Thus, although the international shark fin trade is likely a driving force behind the overutilization of many global shark species, the U.S. participation in this trade appears to be diminishing. In 2012, the value of fins also decreased, suggesting that the
Internationally, the RFMOs that cover the Atlantic, Indian and Pacific Oceans, including ICCAT, IOTC, the Western and Central Pacific Fisheries Commission (WCPFC), and the Inter-American Tropical Tuna Commission (IATTC), require the full utilization of any retained catches of sharks, with a regulation that onboard fins cannot weigh more than five percent of the weight of the sharks (
While the ERA team initially expressed some concern regarding finning of common thresher sharks for the international shark fin trade, they noted that the situation appears to be improving due to current regulations (
In addition to these finning bans, there has been a recent push to decrease the demand of shark fins, especially for shark fin soup. For example, in a recent report from WildAid, Whitcraft
Based on the above review of regulatory measures (in addition to the regulations described in Young
As previously described, the ERA team assessed the effects of climate change as a potential threat to common thresher sharks; however, since most of the studied impacts from climate change are habitat-focused, the threat of climate change is addressed in the
Guided by the results from the demographic risk analysis and threats assessment, the ERA team members used their informed professional judgment to make an overall extinction risk determination for the common thresher shark now and in the foreseeable future. The ERA team concluded that the common thresher shark currently has a low risk of extinction. However, due to the lack of abundance trends and catch data for a large portion of the species' range (
The available information indicates that most of the observed declines occurred in the 1980s, before any significant management regulations. Since then, current regulatory measures in some parts of the common thresher shark's range are minimizing the threat of overutilization. For example, the recovery of the common thresher population on the U.S. West Coast is largely attributed to the conservative management regulations implemented for the California swordfish/shark gillnet fishery. Additionally, the comprehensive science-based management and enforceable and effective regulatory structure within the U.S. Northwest Atlantic will help monitor and prevent further declines of common thresher sharks while in these waters, and the implementation of Spain's regulation on the prohibition of landing or selling all
If we find that the common thresher shark is not in danger of extinction now or in the foreseeable future throughout its range, under the Significant Portion of its Range (SPR) Policy, we must go on to evaluate whether the species is in danger of extinction, or likely to become so in the foreseeable future, in a “significant portion of its range” (79 FR 37578; July 1, 2014).
The SPR Policy explains that it is necessary to fully evaluate a particular portion for potential listing under the “significant portion of its range” authority only if substantial information indicates that the members of the species in a particular area are likely
Thus, the preliminary determination that a portion may be both significant and endangered or threatened merely requires NMFS to engage in a more detailed analysis to determine whether the standards are actually met (79 FR 37578, at 37587). Unless both standards are met, listing is not warranted. The SPR policy further explains that, depending on the particular facts of each situation, NMFS may find it is more efficient to address the significance issue first, but in other cases it will make more sense to examine the status of the species in the potentially significant portions first. Whichever question is asked first, an affirmative answer is required to proceed to the second question.
As defined in the SPR Policy, a portion of a species' range is “significant” “if the species is not currently endangered or threatened throughout its range, but the portion's contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range” (79 FR 37578, at 37609). For purposes of the SPR Policy, “[t]he range of a species is considered to be the general geographical area within which that species can be found at the time FWS or NMFS makes any particular status determination. This range includes those areas used throughout all or part of the species' life cycle, even if they are not used regularly (
Applying the SPR policy to the common thresher shark, we first evaluated whether there is substantial information indicating that the species may be threatened or endangered in any portion of its range. After a review of the best available information, the ERA team concluded, and we agree, that the Mediterranean region likely has more concentrated threats than other regions of the common thresher's range, placing the species at an increased risk of extinction within this portion. However, in determining whether this portion of the species' range also meets the “significance” test under the SPR Policy, the ERA team concluded that the Mediterranean represents a small portion of the global range of the common thresher shark, and the loss of that portion would not result in the remainder of the species being endangered or threatened, particularly given the fact that there is no evidence to suggest the species makes trans-Atlantic migrations, and thus that other portions of the species' global population would be at risk from threats in the Mediterranean region. In particular, we did not find substantial evidence to indicate that the loss of this portion would result in a level of abundance for the remainder of the species to be so low or variable, that it would cause the species to be at a moderate or high risk of extinction due to environmental variation, anthropogenic perturbations, or depensatory processes. We also could not find any substantial evidence to suggest that the loss of the Mediterranean portion of its range would isolate the species to the point where the remaining populations would be at risk of extinction from demographic processes. We also found no evidence to suggest that the loss of genetic diversity from this portion would result in the remaining population lacking enough genetic diversity to allow for adaptations to changing environmental conditions. Although there is preliminary evidence of possible genetic partitioning between ocean basins, this was based on one study with a limited sample size (see Trejo, 2005_ENREF_224). Since common thresher sharks are globally distributed and highly mobile, we did not find that the loss of the Mediterranean portion would severely fragment and isolate the common thresher population to the point where individuals would be precluded from moving to suitable habitats or have an increased vulnerability to threats. Areas exhibiting source-sink dynamics, which could affect the survival of the species, were not evident in any part of the common thresher shark range. There is also no evidence that the Mediterranean portion of the range encompasses aspects that are important to specific life history events that other portions do not, where loss of the former portion would severely impact the growth, reproduction, or survival of the entire species. There is also little to no information regarding nursery grounds or other important habitats utilized by the species that could be considered limiting factors for the species' survival. In fact, we found evidence that there are likely reproductive grounds and nursery areas in all three major ocean basins. In other words, the viability of the species does not appear to depend on the productivity of the population or the environmental characteristics in the Mediterranean portion of the range. Overall, we did not find any evidence to suggest that this specific portion of the species' range has increased importance over any other with respect to the species' survival. As such, the Mediterranean region does not meet the significance criteria under the SPR policy. We could not identify any other portions of the common thresher shark range in which the species is in danger of extinction, or likely to become so in the foreseeable future, and thus our SPR analysis ends.
Section 4(b)(1) of the ESA requires that NMFS make listing determinations based solely on the best scientific and commercial data available after conducting a review of the status of the species and taking into account those efforts, if any, being made by any state or foreign nation, or political subdivisions thereof, to protect and conserve the species. We have independently reviewed the best available scientific and commercial
We conclude that the common thresher shark is not presently in danger of extinction, nor is it likely to become so in the foreseeable future, throughout all of its range. We summarize the factors supporting this conclusion as follows: (1) The species is broadly distributed over a large geographic range, with no barrier to dispersal; (2) there is no evidence of a range contraction and there is no evidence of habitat loss or destruction; (3) while the species possesses life history characteristics that increase its vulnerability to harvest, it has been found to be less susceptible to pelagic longline fisheries compared to other shark species (based on results from Ecological Risk Assessments), decreasing the chance of substantial fishing mortality from this fishery that operates throughout its range; (4) the best available information indicates that abundance is variable across the species' range, with reports of localized population declines but also evidence of stable and/or increasing abundance estimates; (5) based on the ERA team's assessment, while the current population size has likely declined from historical numbers, it is sufficient to maintain population viability into the foreseeable future; (6) the main threat to the species is fishery-related mortality from global fisheries; however, information on harvest rates is inconclusive due to poor species discrimination and significant uncertainties in the data, with the best available information indicating low utilization of the species (rare in tropical fisheries records in both the Western and Central Pacific and Indian Oceans as well as the South Atlantic, and rarely identified as present in several genetic tests of shark fins from markets throughout its range); (7) there is no evidence that disease or predation is contributing to increasing the risk of extinction of the species; (8) existing regulatory mechanisms throughout a large portion of the species' range appear effective in addressing the most important threats to the species (harvest); (9) there is no evidence that other natural or manmade factors are contributing to increasing the risk of extinction of the species; and, (10) while the global population has likely declined from historical numbers, there is no evidence that the species is currently suffering from depensatory processes (such as reduced likelihood of finding a mate or mate choice or diminished fertilization and recruitment success) or is at risk of extinction due to environmental variation or anthropogenic perturbations. Finally, and as previously described in the SPR analysis above, we determined that the species is not threatened or endangered in a significant portion of its range.
Based on these findings, we conclude that the common thresher shark is not currently in danger of extinction throughout all or a significant portion of its range, nor is it likely to become so within the foreseeable future. Accordingly, the common thresher shark does not meet the definition of a threatened or endangered species, and thus, the common thresher shark does not warrant listing as threatened or endangered at this time.
The bigeye thresher shark (
The bigeye thresher shark is a large, highly migratory oceanic and coastal species of shark found throughout the world in tropical and temperate seas. In the western Atlantic (including the Gulf of Mexico), bigeye threshers can be found off the Atlantic coast of the United States (from New York to Florida), and in the Gulf of Mexico off Florida, Mississippi and Texas. They can also be found in Mexico (from Veracruz to Yucatan), Bahamas, Cuba, Venezuela, as well as central and southern Brazil. In the eastern Atlantic, bigeye threshers are found from Portugal to the Western Cape of South Africa, including the western and central Mediterranean Sea. In the Indian Ocean, bigeye threshers are found in South Africa (Eastern Cape and KwaZulu-Natal), Madagascar, Arabian Sea (Somalia), Gulf of Aden, Maldives, and Sri Lanka. In the Pacific Ocean, from west to east, bigeye threshers are known from southern Japan (including Okinawa), Taiwan (Province of China), Vietnam, between the Northern Mariana Islands and Wake Island, down to the northwestern coast of Australia and New Zealand, as well as American Samoa. Moving to the Central Pacific, bigeye threshers are known from the waters surrounding Wake, Marshall, Howland and Baker, Palmyra, Johnston, Hawaiian Islands, Line Islands, and between Marquesas and Galapagos Islands. Finally, in the Eastern Pacific, bigeye threshers occur from Canada to Mexico (Gulf of California) and west of Galapagos Islands (Ecuador). They are also possibly found off Peru and northern Chile (Compagno, 2001; Ebert
Bigeye thresher sharks are found in a diverse spectrum of locations, including in coastal waters over continental shelves, on the high seas in the epipelagic zone far from land, in deep
In the Atlantic, mark/recapture data (number tagged = 400 and number recaptured = 12) from the NMFS CSTP between 1963 and 2013 showed that the range of movement for the bigeye thresher was much larger than for the common thresher (Kohler, 1998; Kohler and Turner, 2001; NMFS, unpublished data), with a maximum straight-line distance travelled of 2,067 nmi (3,828 km; NMFS, unpublished data). This transatlantic movement was from a shark tagged in 1984 by a NMFS shark biologist 565 nmi (1046 km) southwest of the Cape Verde Islands off the west coast of Africa and recaptured in 1994 by a commercial longliner 19 nmi (35 km) off the Venezuelan coast (NMFS, unpublished data), confirming that this species is highly migratory.
Bigeye threshers have larger teeth than common threshers and feed on a wider variety of prey, including small to medium sized pelagic fishes (
The bigeye thresher has the slowest growth rate and is the least productive compared to the other
Bigeye threshers have a maximum estimated age of about 20 years, and can grow to a maximum total length of 504 cm (TL) depending on sex and geographic location. Growth rates are also different depending on geographic location. Male bigeye thresher sharks are thought to grow slightly faster than females (with a growth coefficient, k, of 0.088/year for males and 0.092/year for females in the Northwest Pacific and 0.18/year for males and 0.06/year for females in the eastern Atlantic) but reach a smaller asymptotic size (206 cm FL for males versus 293 cm FL for females) (Liu
Bigeye thresher sharks can be found worldwide, with no present indication of a range contraction. Although they
In 2009, the IUCN considered the bigeye thresher shark to be Vulnerable globally, based on an assessment by Amorim
The petition to list the bigeye thresher shark requested NMFS to list it throughout its range, or alternatively, as DPSs should NMFS find they exist. The ERA team was asked to examine the best available data to determine whether DPSs may exist for this species. The petition, itself, did not provide any information regarding potential DPSs of bigeye thresher shark, aside from requesting that NMFS consider using the regions/populations as outlined and delimited in the petition (
Please refer back to the
Currently, there is a lack of reliable species-specific global population size estimates, population assessments, and trends in abundance for the bigeye thresher shark. As previously noted, using a thresher complex or other thresher species as a proxy for bigeye thresher abundance could be erroneous because of the differences in the species'
Bigeye thresher shark populations have likely exhibited historical declines in abundance relative to virgin biomass levels, but information regarding the magnitude of these declines is poor. In areas where more recent indicators of abundance for bigeye thresher are available (
In the Western and Central Pacific, where bigeye threshers are most commonly observed and likely most abundant, trends in abundance are variable. As described earlier in the common thresher
Abundance information from other portions of the species' range is relatively poor and unreliable or lacking altogether. In areas where data are lacking (
In the South Atlantic, standardized CPUE data indicate that bigeye thresher abundance may have declined only slightly from 1978 to 2006 (Mourato
Overall, there is no evidence to suggest that present abundance levels are so low, such that depensatory processes are at work. As previously noted, although it is likely that the bigeye thresher shark has experienced declines of varying magnitudes throughout its range due to fishing mortality, recent relative abundance data included in the status review report (Young
Similar to abundance, the ERA team expressed some concern regarding the effect of the bigeye thresher shark's growth rate and productivity on its risk of extinction. Bigeye thresher sharks exhibit life-history traits and population parameters that are on the low end of the spectrum among other shark species. The estimated growth coefficients confirm that the bigeye thresher is generally a slow-growing species. Relative to other thresher species, the bigeye thresher shark is the least fecund and productive, with a low intrinsic rate of population increase (r = 0.009 year
Like the common thresher, habitat characteristics that are important to the bigeye thresher are unknown, as are nursery areas. There is currently no evidence of female philopatry, the species is highly mobile, and there is little known about specific migration routes. It is also unknown if there are source-sink dynamics at work that may affect population growth or species' decline. Thus, based on the best available information, there is insufficient information to support the conclusion that spatial structure and connectivity pose significant risks to this species.
Similar to the common thresher, the ERA team concluded, and we agree, that the current level of information regarding the bigeye thresher shark's diversity is either unavailable or unknown, such that the contribution of this factor to the extinction risk of the species cannot be determined at this time. Currently, there is no evidence to suggest the species is at risk due to a substantial change or loss of variation in genetic characteristics or gene flow among populations.
As described previously, section 4(a)(1) of the ESA and NMFS implementing regulations (50 CFR 424.11(c)) state that we must determine whether a species is endangered or threatened because of any one or a combination of the following factors: The present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; or other natural or manmade factors affecting its continued existence. The ERA team evaluated whether and the extent to which each of the foregoing factors contributed to the overall extinction risk of the global bigeye thresher shark population. This section briefly summarizes the ERA team's findings and our conclusions regarding threats to the common thresher shark. More details can be found in the status review report (Young
The ERA team did not identify habitat destruction as a potential threat to the bigeye thresher shark. As described earlier (see
As previously described, the MSA requires NMFS to identify and describe EFH in FMPs, minimize the adverse effects of fishing on EFH, and identify actions to encourage the conservation and enhancement of EFH in the U.S. EEZ. Results from the two previously described NMFS-funded cooperative survey programs indicate the importance of coastal waters off the Atlantic east coast, from Maine to the Florida Keys, central Gulf of Mexico and localized areas off of Puerto Rico and the U.S. Virgin Islands (NMFS, 2009). As a side note, insufficient data are available to differentiate EFH by size classes in the Atlantic for the bigeye thresher shark; therefore, EFH is the same for all life stages. Since bigeye thresher shark EFH is defined as the water column or attributes of the water column, NMFS determined that there are minimal or no cumulative anticipated impacts to the EFH from gear used in U.S. HMS and non-HMS fisheries, basing its finding on an examination of published literature and anecdotal evidence (NMFS, 2006).
The bigeye thresher population off California and Oregon appears to be predominantly adult males (71 percent of observed catches are mature males), which range north to Oregon, and immature females, which primarily occur south of Monterey Bay and in the Southern California Bight. Essential Fish Habitat is described for two age classes: Late juveniles/subadults and adults. Neonates/early juveniles (~90 to 115 cm FL, 0 to 2 and 3 year olds) are not known to occur in the U.S. West Coast EEZ, thus EFH is not defined for this size class. For late juveniles/subadults (>115 cm FL and <155 cm FL males and <189 cm FL females), EFH is described as coastal and oceanic waters in epi- and mesopelagic zones from the U.S.-Mexico border north to 37° N. latitude off Davenport, California, South of 34° N. latitude from the 100 fm (183 m) isobath to the 2,000 fm (3,568 m) isobaths and north of 34° N. from the 800 fm (1,463 m) isobath out to the 2,200 fm (4,023 m) isobath. For adults (>154 cm FL males and >188 cm FL females) EFH is described as coastal and oceanic waters in epi-and mesopelagic zones from the U.S.-Mexico border north to 45° N. latitude off Cascade Head, Oregon. In southern California EFH is south of 34° N. latitude from the 100 fm (183 m) isobath out to the 2,000 fm (3,568 m) isobath and North of 34° N. latitude from the 800 fm (1,463 m) isobath out to the outer EEZ boundary.
Likewise, bigeye thresher shark habitat in other parts of its range is assumed to be similar to that in the Northwest Atlantic and Gulf of Mexico, comprised of open ocean environments occurring over broad geographic ranges and characterized primarily by the water column attributes. As such, large-scale impacts, such as global climate change, that affect ocean temperatures, currents, and potentially food chain dynamics, may pose a threat to this species. Studies on the impacts of climate change specific to thresher sharks have not been conducted; however, there are a couple of studies on other pelagic shark species that occur in the range of the bigeye thresher shark (refer back to the common thresher
Like the common thresher, the bigeye thresher is also considered a valuable bycatch species, which, when combined with its high at-vessel mortality rates and low productivity, makes this species more susceptible to overutilization. The ERA team assessed three different factors that may contribute to the overutilization of the bigeye thresher shark: Bycatch in commercial fisheries (including at-vessel and post-release mortality rates), recreational fisheries, and the global shark trade (including the trade of both bigeye thresher fins and meat). Similar to common thresher sharks, bigeye thresher sharks are caught as bycatch in many global fisheries, including bottom and pelagic longline fisheries, purse seine fisheries, coastal gillnet fisheries, and artisanal fisheries; however, as a primarily pelagic and tropical species (in contrast to the common thresher's more coastal and temperate distribution), the bigeye thresher shark is relatively common in the catches of tropical fisheries, particularly in the Western and Central Pacific and Indian Oceans. It is also relatively common in catches of fisheries operating in the Northwest and South Atlantic. Though it is generally not a target species in commercial fisheries, the bigeye thresher shark is valued for both its meat and fins, and is therefore valued as incidental catch for the international shark trade (Clarke
As noted previously in the
On the U.S. West Coast, utilization of bigeye thresher shark is likely minimal. Bigeye threshers sometimes co-occur with common threshers as incidental catch, but they are generally more prevalent offshore, especially north of Point Conception. The first reported catch within the U.S. West Coast EEZ occurred in 1963 when a bigeye thresher was taken in a set gillnet in southern California. Although it is now a regular incidental species in the drift net fishery (NMFS, 2009), it is estimated that bigeye threshers comprise approximately only nine percent of the total thresher catch. Overall, bigeye thresher represents a minor component of U.S. West Coast fisheries; individuals taken within the management area are thought to be on the edges of their habitat ranges, and they are presumably not overexploited, at least locally (PFMC, 2003). Additionally, regulations to control for overutilization of common threshers in this region (described previously) would also confer benefits to the bigeye thresher shark, which is evidenced by the similar trajectories of West Coast commercial landings of both species.
Farther south in the Eastern Pacific, the level of utilization of bigeye thresher is unclear, as there is currently very little information regarding the status of bigeye thresher in the Eastern Pacific. Bigeye threshers are known bycatch in purse-seine and longline fisheries operating in this region. In 2005, bigeye thresher represented the most incidentally caught shark species in the Korean longline fishery operating in the Eastern Pacific (between 1°48′ S. ~7°00′ S. and 142°00′ ~149°13′ W.), comprising 12.8 percent of the total shark catch (Kim
Bigeye threshers are also reported in fisheries records from the principal port of Manta, Ecuador; however, they comprise a minor portion of the total shark catch and even the total thresher
In the Western and Central Pacific, bigeye threshers are regularly caught as bycatch in longline fisheries throughout the region. Longline fishing effort in this region has steadily increased since 1995 primarily in the South Pacific, and nearly half the effort occurs in tropical and equatorial waters where bigeye threshers have shown the highest CPUEs (Matsunaga & Yokawa, 2013; Rice
The bigeye thresher shark appears to be an important species in other longline fisheries of the Western and Central Pacific as well. Some reliable fisheries data from Japanese longline observer data indicate that bigeye thresher was the second most commonly caught shark species from 1992-2006, comprising 10.9 percent of the total shark catch (Matsunaga and Yokawa, 2013). Catch estimates indicate that removals have been stable over the last decade, and some analyses indicate slight increases in catch rates of thresher sharks in certain areas, although no clear temporal trend was detected (Clarke, 2011; Lawson, 2011). The bigeye thresher is also an important species in Taiwanese longline fisheries targeting tuna, comprising approximately five percent of the total shark catch (Liu and Tsai, 2011). Although catches of bigeye threshers have increased over time in Taiwanese longline fisheries, information regarding corresponding effort is not available to discern abundance trends. As previously discussed, bigeye thresher appears to be a common bycatch species in RMI longline fisheries, with 1,636 bigeye thresher sharks caught from 2005-2009 (Bromhead
As described previously in the common thresher
In the Northwest Atlantic, the bigeye thresher is a common bycatch species in the U.S. pelagic longline fishery, with relatively high post-capture mortality rates. As previously discussed (see the common thresher
As previously noted, fisheries data for thresher sharks in the Northeast Atlantic and Mediterranean are scarce and unreliable due to the mixing of both thresher species in the records. The bigeye thresher has been poorly documented in the Mediterranean and is considered scarce or rare (Amorim
In the South Atlantic, bigeye thresher sharks are caught as bycatch in various longline fisheries, including those of Brazil, Uruguay, Taiwan, Japan, Venezuela, and Portugal, where they have shown to have high bycatch-related mortality rates. However, as previously noted, there is little information on the catch rates or trends in abundance of thresher sharks in the South Atlantic, with some countries still failing to collect or report shark data. Based on observer data from 1994-2000, bigeye thresher represented only 2.2 percent of the total shark catch in the Venezuelan pelagic longline fishery; however, without corresponding effort data, discernable temporal trends are unavailable. Similarly, low CPUE rates were observed in Uruguayan longline fisheries despite high fishing pressure from 2001 to 2005; however, with such a short time series, temporal trends were also not discernable from this fishery. The only fishery for which a temporal trend is available is from the prominent Brazilian Santos and Guaruja tuna longline fishery that operates in the Southwest Atlantic. Standardized CPUE of bigeye thresher from this fishery showed a slight decline from 1978 to 2006, with bigeye threshers disappearing from the catch altogether in 2006. However, a shift in the distribution of fishing effort also occurred in 2006, moving from the equatorial Atlantic between 7° N. and 5° S. to around 20° S. Thus, the disappearance of bigeye threshers from Brazilian longline catch can likely be attributed to the shift of fishing effort into more temperate waters, where the species is less prevalent. Given the high fishing pressure in this portion of the range, with evidence of high bycatch-related mortality and slight declines in CPUE, overutilization is potentially negatively affecting the species in this part of its range. However, with only a slight decline in CPUE over the past several decades, and a geographical shift in effort of the Brazilian longline fleet to more temperate latitudes, fishing pressure on bigeye thresher may be on a decline in this part of its range and is likely not contributing to overutilization of the species such that it places the species at a high risk of extinction throughout its global range, now or in the foreseeable future.
Overall, according to an ERA conducted in 2008 by the ICCAT Standing Committee on Research and Statistics for shark and ray species typically taken in Atlantic pelagic longline fisheries, Atlantic bigeye thresher sharks were identified as one of the least productive and most vulnerable sharks of the species examined. In addition, other more recent ERAs also found that the bigeye thresher's combination of low productivity and high susceptibility to pelagic longline gear places the species at a high risk of overexploitation (Cortés
The bigeye thresher shark has been reported in the catches of several fisheries operating in the Indian Ocean. While there are no abundance trends for bigeye thresher in the Indian Ocean, the IOTC acknowledges, and the ERA team agreed, that bycatch rates and associated mortality of bigeye thresher shark are likely high in Indian Ocean longline fisheries. Landings data reported to the IOTC are reported for the thresher complex and not identified to species, thus it is difficult to interpret this information with respect to bigeye thresher. However, given the bigeye thresher's high hooking mortality rate, the intensive fishing pressure in this region may be contributing to the overutilization of the species in the Indian Ocean. We note that this threat may also be exacerbated by the species' relatively high vulnerability to fisheries due to its slow growth and low productivity. Thus, in the absence of any trend data, we concluded conservatively that overutilization in the form of bycatch-related fishing mortality is likely contributing to population declines and increasing this species' risk of extinction in the Indian Ocean in the foreseeable future, although there are significant uncertainties. However, it should also be noted that longline fishing effort in the Indian Ocean appears to be declining as well as shifting to more temperate waters (Ardill
The ERA team did not identify recreational fisheries as a threat to the bigeye thresher shark throughout its range. Although common threshers comprise an important aspect of the recreational fishery in southern
Finally, the ERA team assessed the threat of the shark trade to the global extinction risk of the bigeye thresher. As previously described, the thresher complex has been reported as comprising approximately 2.3 percent of the shark fin trade; however, the proportion of bigeye thresher in the fin trade is unknown. As discussed previously in the common thresher assessment, based on genetic analyses of fins in markets of major shark fin exporting countries throughout the range of the species, including Taiwan, Indonesia, and UAE, bigeye thresher fins have commonly been identified as present. In fact, bigeye thresher fins comprised approximately 7 percent of fins in numerous markets across Indonesia, which is one of the largest shark catching nations in the world. However, overall, the ERA team concluded that thresher sharks as a whole represent a relatively small portion of the fin trade, and the situation regarding the fin trade may be improving, as evidenced by a decline in both price and demand for fins. In fact, landings of thresher sharks in particular have declined in both Hawaii and American Samoa, which has been attributed to regulations prohibiting shark finning in the United States. Additionally, and as previously noted, thresher sharks were not historically identified as “preferred” or “first choice” species for fins, with some traders considering thresher fins to be of low quality and value (Rose, 1996; FAO, 2002; Clarke, pers. comm. 2015). Furthermore, recent studies suggest that due to a waning interest in fins, the shark fin market is declining, and a surge in the trade of shark meat has occurred in recent years (Dent and Clarke, 2015; Eriksson and Clarke, 2015). However, as previously discussed in the common thresher
The ERA team did not identify disease or predation as potential threats to the bigeye thresher shark, as they did not find evidence to suggest that either is presently contributing significantly to the species' risk of extinction. Like common thresher sharks, bigeye thresher sharks likely carry a range of parasites, including external copepods and cestodes. As previously described, nine species of copepods, genus
Predation is also not thought to be a factor influencing bigeye thresher numbers, as the bigeye thresher is a large shark with limited numbers of predators during all life stages. While they may be preyed upon by mako sharks, white sharks, killer whales, and even large sea lions, there is no information to suggest that this level of opportunistic predation is affecting bigeye thresher populations. Therefore, based on the best available information, the ERA team concluded, and we agree, that neither disease nor predation is currently placing the species in danger of extinction throughout its global range, now or in the foreseeable future.
The ERA team evaluated existing regulatory mechanisms to determine whether they may be inadequate to address threats to the bigeye thresher shark. Existing regulatory mechanisms may include Federal, state, and international regulations for commercial and recreational fisheries, as well as the international shark trade. Below is a brief description and evaluation of current and relevant domestic and international management measures that may affect the bigeye thresher shark. Since many of the broader regulatory mechanisms that may affect sharks in general were already discussed in the common thresher
In the Northwest Atlantic, in addition to all of the previously described regulatory mechanisms regarding U.S. HMS fisheries for pelagic sharks, the U.S. FMP for Atlantic Tunas, Swordfish,
In addition, the HMS Management Division recently published an amendment to the Consolidated HMS FMP that specifically addresses Atlantic HMS fishery management measures in the U.S. Caribbean territories (77 FR 59842; Oct. 1, 2012). Due to substantial differences between some segments of the U.S. Caribbean HMS fisheries and the HMS fisheries that occur off the mainland of the United States (including permit possession, vessel size, availability of processing and cold storage facilities, trip lengths, profit margins, and local consumption of catches), the HMS Management Division implemented measures to better manage the traditional small-scale commercial HMS fishing fleet in the U.S. Caribbean Region. Among other things, this rule created an HMS Commercial Caribbean Small Boat (CCSB) permit, which: Allows fishing for and sales of big-eye, albacore, yellowfin, and skipjack tunas, Atlantic swordfish, and Atlantic sharks within local U.S. Caribbean market; collects HMS landings data through cooperation with NMFS and existing territorial government programs; authorizes specific gears; is restricted to vessels less than or equal to 45 feet (13.7 m) length overall; and may not be held in combination with any other Atlantic HMS vessel permits. However, at this time, fishermen who hold the CCSB permit are prohibited from retaining Atlantic sharks, and are restricted to fishing with only rod and reel, handline, and bandit gear under the permit. Both the CCSB and Atlantic HMS regulations will help protect bigeye thresher sharks while in the Northwest Atlantic Ocean, Gulf of Mexico, and Caribbean Sea.
In addition to U.S. regulatory mechanisms, there are also international regulatory mechanisms specific to bigeye thresher in the Atlantic Ocean. In 2009, ICCAT adopted Recommendation 09-07, which prohibits the retention of bigeye threshers caught in association with ICCAT-managed fisheries. Each Contracting Party to ICCAT is responsible for implementing this recommendation, and currently there are approximately 47 contracting parties (including the United States, the EU, Brazil, Venezuela, Senegal, Mauritania, and many other Central American and West African countries). The ICCAT Recommendation 09-07 includes a special exception for a Mexican small-scale coastal fishery with a catch of less than 110 fish. Based on the nominal catch data from ICCAT, it appears that catches of bigeye thresher sharks by ICCAT vessels have been on a decline since the implementation of this measure. Prior to Recommendation 09-07, average reported bigeye thresher catch was approximately 82 mt per year (range: 0 to 185 mt; 1993-2009). In 2014, only fleets operating under U.S., Brazil, and Trinidad and Tobago flags reported catches of bigeye thresher sharks (total = 25 mt). These declining numbers reported by ICCAT vessels may be a reflection of the efficacy of Recommendation 09-07 for reducing the number of landed bigeye thresher sharks, as well as the previously described regulation implemented by Spain, a main thresher catching country in the Atlantic, that prohibits the landing and sale of any thresher species. Although these retention bans do not address bycatch-related mortality, they likely provide some benefit to the bigeye thresher shark, particularly given that the species was historically retained as bycatch in ICCAT fisheries. Therefore, although the bigeye thresher has relatively high vulnerability (susceptibility and productivity) to ICCAT fisheries, regulations prohibiting the retention of bigeye thresher sharks help to minimize the threat of overutilization of this species within the Atlantic Ocean.
In the Western and Central Pacific, the Western and Central Pacific Fisheries Commission (WCPFC) is the main regulatory body for the management of sharks. Unlike ICCAT and IOTC, the WCPFC has no regulatory measures specific for the conservation of thresher sharks. However, thresher sharks are designated as “key shark species” in the WCPFC area, which means they are nominated for the purposes of either data provision and/or assessment. Thresher sharks were nominated for assessment and are thus included in the WCPFC's Shark Research Plan. Additionally, the WCPFC has implemented a number of conservation management measures (CMMs), that, although have variable implementation rates by the WCPFC members (CCMs), likely confer some conservation benefits for bigeye thresher, including reporting requirements and a five percent fin to carcass ratio (CMM 2010-07). As previously discussed in the common thresher
As previously noted, inadequate regulatory mechanisms to control for overutilization of thresher species were noted as problematic throughout the Indian Ocean. The IOTC is the only RFMO that has specific regulations for all three thresher species. In 2010, the IOTC implemented Resolution 12/09 on the conservation of thresher species, which prohibits retaining on board, transhipping, landing, storing, selling or offering for sale any part or whole carcass of thresher sharks of all the species of the family Alopiidae. However, despite the prohibition on landings of
Although inadequate regulations to control for overutilization via the shark fin trade were an initial concern to the ERA team, as the bigeye thresher was identified to species in several genetic tests of fins in various portions of its range, and seemed to comprise a large portion of fins in markets across Indonesia (one of the largest shark catching countries in the world), we note that overall, thresher fins do not make up a large portion of the shark fin trade (~2.3 percent) relative to other species, such as blue, mako, and hammerhead sharks. Additionally, the reported 2.3 percent is for the thresher complex and likely includes a large number of pelagic thresher sharks, given their range and distribution overlaps with bigeye thresher, they comprise a significant component of thresher fins identified in the aforementioned genetic studies, and they comprise the majority of thresher catches in some areas. As noted previously, thresher shark fins are also not considered highly valued or “first choice” among some traders. Finally, and as previously discussed, the situation regarding the fin trade appears to be improving in some areas (refer back to common thresher—
Based on the above review of regulatory measures (in addition to the regulations described in Young
As previously described, the ERA team assessed the effects of climate change as a potential threat to bigeye thresher sharks; however, since most of the studied impacts from climate change are habitat-focused, the threat of climate change is addressed in the
Guided by the results from the demographic risk analysis and threats assessment, the ERA team members used their informed professional judgment to make an overall extinction risk determination for the bigeye thresher shark now and in the foreseeable future. The ERA team concluded that the bigeye thresher shark is currently at a low risk of extinction. However, due to a lack of abundance trends and catch data for a large portion of the species' range, the ERA team expressed uncertainty by spreading their likelihood points across all categories. Likelihood points attributed to the overall level of extinction risk categories were as follows: Low Risk (34.5/70), Moderate Risk (30.5/70), High Risk (5/70). The ERA team reiterated that across the species' range, regional abundance trends are highly variable, with no clear trend for the global population. There is also no evidence to suggest depensatory processes are currently at work. The species is found globally, throughout its historical range, appears to be well-adapted, and is not limited by habitat. Although the global abundance of bigeye thresher shark is highly uncertain, none of the available regional studies that reported recent standardized CPUEs (Northwest Atlantic, South Atlantic, Hawaii, Western and Central Pacific), and give some insight into the species' current abundance, show a significant or continuing decline such that demographic risks are significantly contributing to the species' risk of extinction. Based on most recent fisheries data, the ERA team concluded that at least some populations of bigeye thresher are not overutilized and current fishing pressure and associated mortality on these populations may be sustainable. We recognize that the bigeye thresher's tropical distribution may increase the species' exposure to many high seas industrial fisheries operations throughout its range, particularly where fishing pressure is likely highest within the Indo-Pacific. This is evidenced by the fact that the species is commonly observed or caught throughout this portion of its range (including where regulations may be inadequate—which may increase the impact of this potential threat on its contribution to the extinction risk of the species) and is present in several genetic tests of shark fins throughout its range, indicating that the species is utilized to some degree in the shark fin trade. We recognize that the bigeye thresher may be experiencing some degree of population decline in the Western and Central Pacific and Indian Oceans; however, the magnitude of decline in the Western and Central Pacific was considered to be “slight” in recent years, with a conservative assumption that the available CPUE and landings data (which are reported for the thresher complex (all three
The available information indicates that most of the observed declines occurred historically, before any significant management regulations were in place. Since then, current regulatory measures in some parts of the bigeye thresher range are reducing the threat of overutilization, and likely preventing further abundance declines in these portions in the foreseeable future. Therefore, the ERA team concluded that at least some populations are not suffering from overutilization and are well managed, thus decreasing the likelihood of extinction of the global population. The ERA team acknowledged that given the species' low productivity and high bycatch-related mortality rates, it is generally more vulnerable to unsustainable levels of exploitation. However, given the best available information, the ERA team concluded that over the next 50 years, it is unlikely that the bigeye thresher shark has a high risk of extinction throughout its global range, now or in the foreseeable future, due to current trends in its abundance, productivity, spatial structure, or diversity or influenced by depensatory processes, effects of environmental stochasticity, or catastrophic events.
If we find that the bigeye thresher is not in danger of extinction now or in the
Applying the SPR policy to the bigeye thresher shark, we first evaluated whether there is substantial information indicating that the species may be threatened or endangered in any portion of its range. After a review of the best available information, the ERA team concluded, and we agree, that the Indian Ocean likely has more concentrated threats than other portions of the bigeye thresher's range due to the intensive fishing pressure in this region, combined with the species' high rates of bycatch-related mortality and low productivity. However, with virtually no information regarding abundance trends or catch data of bigeye thresher from this region, we cannot conclude that the species is in danger of extinction or likely to become so in the foreseeable future in this portion of its range. Even if the bigeye thresher was in danger of extinction in the Indian Ocean (or likely to become so in the foreseeable future), the ERA team concluded that the loss of the Indian Ocean population of bigeye thresher would not result in the remainder of the species being endangered or threatened. In particular, we did not find substantial evidence to indicate that the loss of this portion would result in a level of abundance for the remainder of the species to be so low or variable, that it would cause the species to be at a moderate or high risk of extinction due to environmental variation, anthropogenic perturbations, or depensatory processes. Bigeye thresher sharks are highly mobile, globally distributed, and have no known barriers to migration. Although there is preliminary evidence of possible genetic partitioning between ocean basins, this was based on one study with a limited sample size (see Trejo, 2005_ENREF_224). Thus, there is no substantial evidence to suggest that the loss of the Indian Ocean portion of its range would severely fragment and isolate the species to the point where the remaining populations would be at risk of extinction from demographic processes. In fact, we found no information that would suggest that the remaining populations could not repopulate the lost portion, and, if for some reason the species could not repopulate the lost portion, it would still not constitute a significant risk of extinction to the remaining populations. We did not find substantial evidence to indicate that the loss of genetic diversity from one portion (such as loss of the Indian Ocean population) would result in the remaining population lacking enough genetic diversity to allow for adaptations to changing environmental conditions. Additionally, areas exhibiting source-sink dynamics, which could affect the survival of the species, were not evident in any part of the bigeye thresher shark range. There is also no evidence of a portion that encompasses aspects that are important to specific life history events but another portion that does not, where loss of the former portion would severely impact the growth, reproduction, or survival of the entire species. There is also limited information regarding nursery grounds or other important habitats utilized by the species that could be considered limiting factors for the species' survival. In fact, we found evidence that there are likely reproductive grounds and nursery areas in all three major ocean basins. In other words, the viability of the species does not appear to depend on the productivity of the population or the environmental characteristics in any one portion. Overall, we did not find any evidence to suggest that any specific portion of the species' range had increased importance over any other with respect to the species' survival. As such, we did not identify any portions of the bigeye thresher range, including the Indian Ocean, that meet both criteria under the SPR Policy (
Section 4(b)(1) of the ESA requires that NMFS make listing determinations based solely on the best scientific and commercial data available after conducting a review of the status of the species and taking into account those efforts, if any, being made by any state or foreign nation, or political subdivisions thereof, to protect and conserve the species. We have independently reviewed the best available scientific and commercial information, including the petition, public comments submitted on the 90-day finding (80 FR 48061; August 11, 2015), the status review report (Young
We conclude that the bigeye thresher shark is not presently in danger of extinction, nor is it likely to become so in the foreseeable future, throughout all of its range. We summarize the factors supporting this conclusion as follows: (1) The species is broadly distributed over a large geographic range, with no barrier to dispersal; (2) its current range is indistinguishable from its historical range and there is no evidence of habitat loss or destruction; (3) while the species possesses life history characteristics that increase its vulnerability to harvest, and has been found to be more susceptible to pelagic longline fisheries compared to other shark species (based on results from Ecological Risk Assessments), the species is still regularly encountered in fisheries and appears sustainable in some portions of its range despite decades of fishing pressure; (4) the best available information indicates that abundance is variable across the species' range, with reports of localized population declines but also evidence of stable and/or increasing abundance estimates; (5) based on the ERA team's assessment, while the current population size has likely declined from historical numbers, it is sufficient to maintain population viability into the foreseeable future; (6) there is no evidence that disease or predation is contributing to an increased risk of extinction of the species; (7) existing regulatory mechanisms to address the most important threats to the species (harvest) are not inadequate throughout its range, such that they contribute significantly to the species' risk of extinction globally; (8) there is no evidence that other natural or manmade factors are contributing to an increased risk of extinction of the species; and (9) while the global population has likely declined from historical numbers, there is no evidence that the species is
Based on these findings, we conclude that the bigeye thresher shark is not currently in danger of extinction throughout all or a significant portion of its range, nor is it likely to become so within the foreseeable future. Accordingly, the bigeye thresher shark does not meet the definition of a threatened or endangered species, and thus, the bigeye thresher shark does not warrant listing as threatened or endangered at this time.
A complete list of all references cited herein is available upon request (see
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
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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 |