Federal Register Vol. 81, No.94,
Federal Register Volume 81, Issue 94 (May 16, 2016)
Federal Register Volume 81, Issue 94 (May 16, 2016)
| Page Range | 30157-30481 | |
| FR Document |
![Federal Register / Vol. 81, No. 1 / Monday, January 4, 2016 / Notices 93
invited to send comments regarding our each collection’s supporting statement Form Number: CMS–359/360 (OMB
burden estimates or any other aspect of and associated materials (see Control Number: 0938–0267);
this collection of information, including ADDRESSES). Frequency: Occasionally; Affected
any of the following subjects: (1) The Public: Private Sector (Business or other
CMS–359/360 Comprehensive
necessity and utility of the proposed for-profits); Number of Respondents: 50;
Outpatient Rehabilitation Facility
information collection for the proper (CORF) Eligibility and Survey Forms Number of Responses: 50; Total Annual
performance of the agency’s functions; and Supporting Regulations Hours: 123.
(2) the accuracy of the estimated (For questions regarding this collection
burden; (3) ways to enhance the quality, Under the PRA (44 U.S.C. 3501–
contact James Cowher (410) 786–1948.)
utility, and clarity of the information to 3520), federal agencies must obtain
be collected; and (4) the use of approval from the Office of Management Dated: December 28, 2015.
automated collection techniques or and Budget (OMB) for each collection of William N. Parham, III,
other forms of information technology to information they conduct or sponsor. Director, Paperwork Reduction Staff, Office
minimize the information collection The term ‘‘collection of information’’ is of Strategic Operations and Regulatory
burden. defined in 44 U.S.C. 3502(3) and 5 CFR Affairs.
1320.3(c) and includes agency requests [FR Doc. 2015–32965 Filed 12–31–15; 8:45 am]
DATES: Comments must be received by or requirements that members of the BILLING CODE 4120–01–P
March 4, 2016. public submit reports, keep records, or
ADDRESSES: When commenting, please provide information to a third party.
reference the document identifier or Section 3506(c)(2)(A) of the PRA DEPARTMENT OF HEALTH AND
OMB control number. To be assured requires federal agencies to publish a HUMAN SERVICES
consideration, comments and 60-day notice in the Federal Register
recommendations must be submitted in concerning each proposed collection of Administration for Children and
any one of the following ways: information, including each proposed Families
1. Electronically. You may send your extension or reinstatement of an existing
comments electronically to http:// collection of information, before Proposed Information Collection
www.regulations.gov. Follow the submitting the collection to OMB for Activity; Comment Request
instructions for ‘‘Comment or approval. To comply with this
Submission’’ or ‘‘More Search Options’’ requirement, CMS is publishing this AGENCY:Administration for Children
to find the information collection notice. and Families; HHS.
document(s) that are accepting 1. Type of Information Collection ACTION: Notice.
comments. Request: Extension of a currently
2. By regular mail. You may mail approved information collection; Title Proposed Projects
written comments to the following of Information Collection:
address: Comprehensive Outpatient Title: ACF Performance Progress
CMS, Office of Strategic Operations and Rehabilitation Facility (CORF) Reports—Program Indicators.
Regulatory Affairs, Division of Eligibility and Survey Forms and OMB No.: 0970–0406.
Regulations Development, Attention: Supporting Regulations; Use: The form Description: The Office of Grants
Document Identifier/OMB Control CMS–359 is used as the application for Management (OGM), in the
Number ______, Room C4–26–05, health care providers seeking to Administration for Children and
7500 Security Boulevard, Baltimore, participate in the Medicare program as Families (ACF) is proposing the
Maryland 21244–1850. a Comprehensive Outpatient
To obtain copies of a supporting continued collection of program
Rehabilitation Facility (CORF). This performance data for ACF’s
statement and any related forms for the form initiates the process for facilities to
proposed collection(s) summarized in discretionary grantees. The form
become certified as a CORF and it developed by OGM was created from
this notice, you may make your request provides the CMS Regional Office State
using one of following: the basic template of the OMB-approved
Survey Agency staff identifying reporting format of the Program
1. Access CMS’ Web site address at information regarding the applicant that
http://www.cms.hhs.gov/ Performance Report. OGM uses this data
is stored in the Automated Survey to ensure grantees are proceeding in a
PaperworkReductionActof1995. Processing Environment (ASPEN)
2. Email your request, including your satisfactory manner in meeting the
system. approved goals and objectives of the
address, phone number, OMB number, The form CMS–360 is a survey tool
and CMS document identifier, to project, and if funding should be
used by the State Survey Agencies to
Paperwork@cms.hhs.gov. continued for another budget period.
record information in order to
3. Call the Reports Clearance Office at determine a provider’s compliance with The requirement for grantees to report
(410) 786–1326. the CORF Conditions of Participation on performance is OMB grants policy.
FOR FURTHER INFORMATION CONTACT: (CoPs) and to report this information to Specific citations are contained in 45
Reports Clearance Office at (410) 786– the Federal government. The form CFR part 75 Uniform Administrative
1326. includes basic information on the CoP Requirements, Cost Principles, and
SUPPLEMENTARY INFORMATION: requirements, check boxes to indicate Audit Requirements for HHS Awards.
the level of compliance, and a section Respondents: All ACF Discretionary
Contents for recording notes. We have the Grantees. State governments, Native
tkelley on DSK3SPTVN1PROD with NOTICES
This notice sets out a summary of the responsibility and authority for American Tribal governments, Native
use and burden associated with the certification decisions which are based American Tribal Organizations, Local
following information collections. More on provider compliance with the CoPs Governments, and Nonprofits with or
detailed information can be found in and this form supports this process. without 501(c)(3) status with the IRS.
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![94 Federal Register / Vol. 81, No. 1 / Monday, January 4, 2016 / Notices
ANNUAL BURDEN ESTIMATES
Number of Average
Number of Total burden
Instrument responses per burden hours
respondents hours
respondent per response
ACF–OGM–SF–PPR–B ........................................................... 6000 1 1 6000
Estimated Total Annual Burden DEPARTMENT OF HEALTH AND comment will be made public, you are
Hours: 6000. HUMAN SERVICES solely responsible for ensuring that your
In compliance with the requirements comment does not include any
Food and Drug Administration confidential information that you or a
of Section 506(c)(2)(A) of the Paperwork
Reduction Act of 1995, the [Docket No. FDA–2015–D–4048] third party may not wish to be posted,
such as medical information, your or
Administration for Children and
Unique Device Identification: anyone else’s Social Security number, or
Families is soliciting public comment
Convenience Kits; Draft Guidance for confidential business information, such
on the specific aspects of the as a manufacturing process. Please note
Industry and Food and Drug
information collection described above. that if you include your name, contact
Administration Staff; Availability
Copies of the proposed collection of information, or other information that
information can be obtained and AGENCY: Food and Drug Administration, identifies you in the body of your
comments may be forwarded by writing HHS. comments, that information will be
to the Administration for Children and ACTION: Notice of availability. posted on http://www.regulations.gov.
Families, Office of Planning, Research • If you want to submit a comment
and Evaluation, 370 L’Enfant SUMMARY: The Food and Drug with confidential information that you
Promenade SW., Washington, DC 20447, Administration (FDA) is announcing the do not wish to be made available to the
Attn: ACF Reports Clearance Officer. availability of the draft guidance public, submit the comment as a
entitled ‘‘Unique Device Identification: written/paper submission and in the
Email address: infocollection@
Convenience Kits; Draft Guidance for manner detailed (see ‘‘Written/Paper
acf.hhs.gov. All requests should be
Industry and Food and Drug Submissions’’ and ‘‘Instructions’’).
identified by the title of the information
Administration Staff.’’ This proposed
collection. guidance document is intended to Written/Paper Submissions
The Department specifically requests outline the Agency’s current thinking Submit written/paper submissions as
comments on: (a) Whether the proposed that for purposes of Unique Device follows:
collection of information is necessary Identification (UDI) labeling and data • Mail/Hand delivery/Courier (for
for the proper performance of the submission requirements, the term written/paper submissions): Division of
functions of the agency, including ‘‘convenience kit’’ applies solely to two Dockets Management (HFA–305), Food
whether the information shall have or more different medical devices and Drug Administration, 5630 Fishers
practical utility; (b) the accuracy of the packaged together for the convenience Lane, Rm. 1061, Rockville, MD 20852.
agency’s estimate of the burden of the of the user, where they are intended to • For written/paper comments
proposed collection of information; (c) remain packaged together and not submitted to the Division of Dockets
the quality, utility, and clarity of the replaced, substituted, repackaged, Management, FDA will post your
information to be collected; and (d) sterilized, or otherwise processed or comment, as well as any attachments,
ways to minimize the burden modified before the devices are used by except for information submitted,
information to be collected; and (d) an end user. This draft guidance is not marked and identified, as confidential,
ways to minimize the burden of the final nor is it in effect at this time. When if submitted as detailed in
finalized, this guidance document will ‘‘Instructions.’’
collection of information on
constitute a change in policy. Instructions: All submissions received
respondents, including through the use
of automated collection techniques or DATES: Although you can comment on must include the Docket No. FDA–
any guidance at any time (see 21 CFR 2015–D–4048 for ‘‘Unique Device
other forms of information technology.
10.115(g)(5)), to ensure that the Agency Identification: Convenience Kits; Draft
Consideration will be given to
considers your comment of this draft Guidance for Industry and Food and
comments and suggestions submitted
guidance before it begins work on the Drug Administration Staff.’’ Received
within 60 days of this publication. final version of the guidance, submit comments will be placed in the docket
Robert Sargis, either electronic or written comments and, except for those submitted as
Reports Clearance Officer. on the draft guidance by April 4, 2016. ‘‘Confidential Submissions,’’ publicly
[FR Doc. 2015–32969 Filed 12–31–15; 8:45 am] ADDRESSES: You may submit comments viewable at http://www.regulations.gov
as follows: or at the Division of Dockets
BILLING CODE 4184–01–P
Management between 9 a.m. and 4 p.m.,
Electronic Submissions Monday through Friday.
Submit electronic comments in the • Confidential Submissions—To
following way: submit a comment with confidential
• Federal eRulemaking Portal: http://
tkelley on DSK3SPTVN1PROD with NOTICES
information that you do not wish to be
www.regulations.gov. Follow the made publicly available, submit your
instructions for submitting comments. comments only as a written/paper
Comments submitted electronically, submission. You should submit two
including attachments, to http:// copies total. One copy will include the
www.regulations.gov will be posted to information you claim to be confidential
the docket unchanged. Because your with a heading or cover note that states
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Document Created: 2015-12-31 23:05:38
Document Modified: 2015-12-31 23:05:38
| Page and Subject | |
|---|---|
| 81 FR 30202 - Hazardous Materials: Incorporation by Reference Edition Update for the American Society of Mechanical Engineers Boiler and Pressure Vessel Code and Transportation Systems for Liquids and Slurries: Pressure Piping Code | |
| 81 FR 30304 - Sunshine Act Meeting | |
| 81 FR 30348 - Sunshine Act Meeting | |
| 81 FR 30346 - Sunshine Act Meeting | |
| 81 FR 30365 - Sunshine Act Meeting | |
| 81 FR 30349 - Sunshine Act Meeting Notice | |
| 81 FR 30179 - Safety Zone; Upper Mississippi River, Minneapolis, MN | |
| 81 FR 30314 - Tribal Management Grant Program; Correction | |
| 81 FR 30338 - 60-Day Notice of Proposed Information Collection: Father's Day Survey | |
| 81 FR 30338 - 60-Day Notice of Proposed Information Collection: Emergency Solutions Grant Data Collection | |
| 81 FR 30312 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Information To Accompany Humanitarian Device Exemption Applications and Annual Distribution Number Reporting Requirements | |
| 81 FR 30267 - Applications for New Awards; Investing in Innovation Fund-Scale-Up Grants | |
| 81 FR 30292 - Combined Notice of Filings #2 | |
| 81 FR 30294 - Combined Notice of Filings #1 | |
| 81 FR 30297 - Falck, David P.; Notice of Filing | |
| 81 FR 30297 - Notice of Effectiveness of Exempt Wholesale Generator Status | |
| 81 FR 30295 - Millennium Pipeline Company, L.L.C.; Notice of Availability of the Environmental Assessment for the Proposed Valley Lateral Project | |
| 81 FR 30298 - Combined Notice of Filings #1 | |
| 81 FR 30293 - V3 Commodities Group, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
| 81 FR 30298 - ID SOLAR 1, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
| 81 FR 30279 - Applications for New Awards; Investing in Innovation Fund-Validation Grants | |
| 81 FR 30297 - Combined Notice of Filings | |
| 81 FR 30298 - Combined Notice of Filings | |
| 81 FR 30291 - Combined Notice of Filings #2 | |
| 81 FR 30293 - Combined Notice of Filings #1 | |
| 81 FR 30296 - Combined Notice of Filings #2 | |
| 81 FR 30412 - U.S. National Commission for UNESCO Notice of Teleconference Meeting | |
| 81 FR 30183 - Revised Interpretation of Clean Water Act Tribal Provision | |
| 81 FR 30413 - Culturally Significant Objects Imported for Exhibition Determinations: “Keir Collection of Art of the Islamic World” Exhibitions | |
| 81 FR 30300 - National Wetland Condition Assessment 2011 Final Report | |
| 81 FR 30224 - Revision to the Near-Road NO2 | |
| 81 FR 30412 - Reporting and Recordkeeping Requirements Under OMB Review | |
| 81 FR 30414 - Noise Exposure Map Notice; Receipt of Noise Compatibility Program and Request for Review Boise Air Terminal (Gowen Field) Boise, ID; Correction | |
| 81 FR 30164 - Special Conditions: Cessna Aircraft Company, Models 208 and 208B, Caravan Airplanes; As Modified by Peregrine; Installation of Rechargeable Lithium Battery | |
| 81 FR 30413 - Sixth Meeting: RTCA Special Committee 233 Addressing Human Factors/Pilot Interface Issues for Avionics (SC-233) | |
| 81 FR 30309 - Agency Information Collection Activities: Submission for OMB Review; Comment Request | |
| 81 FR 30308 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
| 81 FR 30413 - Tenth Meeting: RTCA Special Committee 231 (SC-231) Terrain Awareness Warning Systems (TAWS) | |
| 81 FR 30414 - Twenty-Third Meeting: RTCA Special Committee 222 (SC-222) AMS(R)S, Joint Meeting With EUROCAE WG-82 | |
| 81 FR 30239 - Advisory Committee on Supply Chain Competitiveness: Notice of Public Meetings | |
| 81 FR 30178 - Drawbridge Operation Regulation; Lake Washington Ship Canal, Seattle, WA | |
| 81 FR 30202 - Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; 2016 Closure of the Northern Gulf of Maine Scallop Management Area | |
| 81 FR 30305 - General Services Administration Acquisition Regulation; Submission for OMB Review; Proposal to Lease Space, GSA Form 1364 and Lessor's Annual Cost Statement, GSA Form 1217 | |
| 81 FR 30215 - Fisheries of the Exclusive Economic Zone Off Alaska; Deep-Water Species Fishery by Vessels Using Trawl Gear in the of the Gulf of Alaska | |
| 81 FR 30229 - Train Crew Staffing | |
| 81 FR 30181 - Safety Zone; Fourth of July Fireworks, Crescent City, Crescent City Harbor, Crescent City, CA | |
| 81 FR 30173 - Title Evidence for Trust Land Acquisitions | |
| 81 FR 30305 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
| 81 FR 30305 - Notice of Proposals to Engage in or to Acquire Companies Engaged in Permissible Nonbanking Activities | |
| 81 FR 30337 - Agency Information Collection Activities: Application for Citizenship and Issuance of Certificate Under Section 322, Form N-600K; Revision of a Currently Approved Collection | |
| 81 FR 30331 - Agency Information Collection Activities: Application of Certificate of Citizenship, Form N-600; Revision of a Currently Approved Collection | |
| 81 FR 30240 - New England Fishery Management Council; Public Meeting | |
| 81 FR 30341 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public Interest | |
| 81 FR 30240 - Western Pacific Fishery Management Council; Public Meetings | |
| 81 FR 30320 - Notice Announcing the Automated Commercial Environment (ACE) as the Sole CBP-Authorized Electronic Data Interchange (EDI) System for Processing Certain Electronic Entry and Entry Summary Filings Accompanied by Food and Drug Administration (FDA) Data | |
| 81 FR 30322 - Notice of Issuance of Final Determination Concerning Certain Exercise Equipment | |
| 81 FR 30319 - Center for Scientific Review; Notice of Closed Meetings | |
| 81 FR 30320 - Center for Scientific Review; Notice of Closed Meetings | |
| 81 FR 30316 - Center for Scientific Review; Notice of Closed Meeting | |
| 81 FR 30314 - Center for Scientific Review; Notice of Closed Meetings | |
| 81 FR 30221 - Special Local Regulation; Beaufort Water Festival, Beaufort, SC | |
| 81 FR 30350 - PSEG Power, LLC and PSEG Nuclear LLC; PSEG Site | |
| 81 FR 30157 - Energy Conservation Program: Exempt External Power Supplies Under the EPS Service Parts Act of 2014 | |
| 81 FR 30217 - Energy Conservation Program: Certification and Enforcement-Import Data Collection; Notice of Reopening of Comment Period | |
| 81 FR 30266 - Submission for OMB Review; Comment Request | |
| 81 FR 30348 - Comment Request: National Science Foundation Proposal/Award Information-NSF Proposal and Award Policies and Procedures Guide | |
| 81 FR 30238 - Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment Assistance | |
| 81 FR 30324 - Agency Information Collection Activities: Proposed Collection; Comment Request; Public Assistance Program | |
| 81 FR 30420 - Notice of Funding Availability for the Small Business Transportation Resource Center Program | |
| 81 FR 30346 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Equal Employment Opportunity in Apprenticeship Programs | |
| 81 FR 30415 - Notice of Funding Availability for the Small Business Transportation Resource Center Program | |
| 81 FR 30415 - Hours of Service (HOS) of Drivers; American Pyrotechnics Ass'n. (APA) Application for Exemption From the 14-Hour Rule; Extension of Current APA Exemption Period; Correction | |
| 81 FR 30218 - Slot Management and Transparency for LaGuardia Airport, John F. Kennedy International Airport, and Newark Liberty International Airport | |
| 81 FR 30265 - Charter Renewal of Department of Defense Federal Advisory Committees | |
| 81 FR 30311 - Postmarket Surveillance Under Section 522 of the Federal Food, Drug, and Cosmetic Act; Guidance for Industry and Food and Drug Administration Staff; Availability | |
| 81 FR 30425 - Additional Designations, Foreign Narcotics Kingpin Designation Act | |
| 81 FR 30342 - Certain Quartz Slabs and Portions Thereof Institution of Investigation | |
| 81 FR 30340 - Certain Electrical Conductor Composite Cores and Components Thereof; Institution of Investigation | |
| 81 FR 30173 - Recovery of Debts Owed to the United States Government by Administrative Offset | |
| 81 FR 30266 - Notice of Availability (NOA) of a Draft Environmental Assessment (EA) Addressing the Closure of Former Defense Fuel Support Point (DFSP) Moffett Field Located in Santa Clara County, California | |
| 81 FR 30238 - Submission for OMB Review; Comment Request | |
| 81 FR 30237 - Submission for OMB Review; Comment Request | |
| 81 FR 30307 - Agency Forms Undergoing Paperwork Reduction Act Review | |
| 81 FR 30307 - Statement of Organization, Functions, and Delegations of Authority | |
| 81 FR 30219 - Qualified Facility Attestation Using Form FDA 3942a (for Human Food) or Form FDA 3942b (for Animal Food); Draft Guidance for Industry; Availability; Agency Information Collection Activities; Proposed Collection; Comment Request | |
| 81 FR 30310 - Considerations for Use of Histopathology and Its Associated Methodologies To Support Biomarker Qualification; Guidance for Industry; Availability | |
| 81 FR 30300 - William B. Ruger, Jr.; Notice of Existing Licensee's Failure To File Notice of Intent To File a Subsequent License Application | |
| 81 FR 30294 - Oklahoma Municipal Power Authority; Notice of Request for Partial Waiver | |
| 81 FR 30299 - Implementation Issues Under the Public Utility Regulatory Policies Act of 1978; Supplemental Notice of Technical Conference | |
| 81 FR 30348 - Petition for Modification | |
| 81 FR 30347 - Petitions for Modification of Application of Existing Mandatory Safety Standards | |
| 81 FR 30302 - Initial Clearing Target of 126 Megahertz Set for the Broadcast Television Spectrum Incentive Auction; Bidding in the Clock Phase of the Reverse Auction (Auction 1001) Will Start on May 31, 2016 | |
| 81 FR 30239 - New England Fishery Management Council; Public Meeting | |
| 81 FR 30244 - New England Fishery Management Council; Public Meeting | |
| 81 FR 30243 - Gulf of Mexico Fishery Management Council; Public Meeting | |
| 81 FR 30316 - National Cancer Institute; Notice of Meeting | |
| 81 FR 30255 - Agency Information Collection Activities: Submission for OMB Review; Comment Request | |
| 81 FR 30256 - Agency Information Collection Activities: Comment Request | |
| 81 FR 30257 - Supervisory Highlights: Winter 2016 | |
| 81 FR 30304 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding Company | |
| 81 FR 30304 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
| 81 FR 30345 - Notice of Lodging of Proposed Consent Decree Under the Clean Air Act | |
| 81 FR 30345 - Notice of Lodging of Proposed Settlement Agreement Under the Comprehensive Environmental Response, Compensation, and Liability Act | |
| 81 FR 30345 - Notice of Lodging of Proposed Consent Decree Under the Comprehensive Environmental Response, Compensation, and Liability Act | |
| 81 FR 30264 - Army Science Board Request for Information on Robotic and Autonomous Systems-of-Systems (RAS) Technology Initiatives | |
| 81 FR 30344 - Manufacturer of Controlled Substances Registration: Johnson Matthey, Inc. | |
| 81 FR 30343 - Importer of Controlled Substances Registration: Siegfried USA, LLC | |
| 81 FR 30362 - Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Modify the Maximum Number of Times an Order on PSX May Be Updated Before the System Cancels the Order | |
| 81 FR 30381 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change to Adopt a New Limit Up-Limit Down Pricing Program Under Rule 7014 | |
| 81 FR 30363 - Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Modify the Maximum Number of Times an Order on BX May Be Updated Before the System Cancels the Order | |
| 81 FR 30395 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Order Approving a Proposed Rule Change To Adopt FINRA Rule 4554, Alternative Trading Systems-Recording and Reporting Requirements of Order and Execution Information for NMS Stocks | |
| 81 FR 30373 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change to Rule 11.13, Order Execution and Routing, To Delete References to the TRIM3 Routing Option | |
| 81 FR 30403 - Self-Regulatory Organizations; ISE Mercury, LLC; Notice of Filing of Proposed Rule Change Relating to a Corporate Transaction Involving Its Indirect Parent | |
| 81 FR 30386 - Self-Regulatory Organizations; ISE Gemini, LLC; Notice of Filing of Proposed Rule Change Relating to a Corporate Transaction Involving Its Indirect Parent | |
| 81 FR 30351 - Self-Regulatory Organizations; International Securities Exchange, LLC; Notice of Filing of Proposed Rule Change Relating to a Corporate Transaction Involving Its Indirect Parent | |
| 81 FR 30366 - Self-Regulatory Organizations; Bats BYX Exchange, Inc. f.k.a BATS Y-Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Adopt Exchange Rule 11.27(a) To Implement the Quoting and Trading Provisions of the Regulation NMS Plan To Implement a Tick Size Pilot Program | |
| 81 FR 30397 - Self-Regulatory Organizations; Bats EDGA Exchange, Inc. f/k/a EDGA Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Adopt Exchange Rule 11.21(a) To Implement the Quoting and Trading Provisions of the Regulation NMS Plan To Implement a Tick Size Pilot Program | |
| 81 FR 30375 - Self-Regulatory Organizations; Bats EDGX Exchange, Inc. f/k/a EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Adopt Exchange Rule 11.22(a) To Implement the Quoting and Trading Provisions of the Regulation NMS Plan To Implement a Tick Size Pilot Program | |
| 81 FR 30360 - Self-Regulatory Organizations; Bats BYX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 11.13, Order Execution and Routing, To Delete the IOCM and ICMT Routing Options | |
| 81 FR 30372 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Related to Fees | |
| 81 FR 30319 - National Library of Medicine: Cancellation of Meeting | |
| 81 FR 30317 - National Institute of Mental Health: Notice of Closed Meetings | |
| 81 FR 30314 - National Heart, Lung, and Blood Institute: Notice of Closed Meeting | |
| 81 FR 30318 - National Heart, Lung, and Blood Institute; Notice of Closed Meeting | |
| 81 FR 30317 - National Cancer Institute; Notice of Closed Meetings | |
| 81 FR 30343 - Manufacturer of Controlled Substances Registration: Johnson Matthey Pharmaceutical Materials, Inc. | |
| 81 FR 30343 - Manufacturer of Controlled Substances Registration: Organix, Inc. | |
| 81 FR 30344 - Manufacturer of Controlled Substances Registration: AMRI Rensselaer, Inc. | |
| 81 FR 30245 - Notice of Proposed Amendment to and Request for Comment on the Final Order in Response to a Petition From Certain Independent System Operators and Regional Transmission Organizations To Exempt Specified Transactions Authorized by a Tariff or Protocol Approved by the Federal Energy Regulatory Commission or the Public Utility Commission of Texas From Certain Provisions of the Commodity Exchange Act Pursuant to the Authority Provided in the Act | |
| 81 FR 30178 - Drawbridge Operation Regulation; Willamette River, Portland, OR | |
| 81 FR 30181 - Approval and Promulgation of Implementation Plans; Oregon: Interstate Transport of Lead and Nitrogen Dioxide | |
| 81 FR 30198 - Emission Mask Requirements for Digital Technologies on 800 MHz NPSPAC Channels; Analog FM Capability on Mutual Aid and Interoperability Channels | |
| 81 FR 30203 - Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; Annual Specifications and Management Measures for the 2016 Tribal and Non-Tribal Fisheries for Pacific Whiting | |
| 81 FR 30340 - Notice of Public Meeting for the Southeast Oregon Resource Advisory Council | |
| 81 FR 30331 - Extension of the Designation of Honduras for Temporary Protected Status | |
| 81 FR 30325 - Extension of the Designation of Nicaragua for Temporary Protected Status | |
| 81 FR 30301 - Public Comment Draft for the Integrated Risk Information System (IRIS) Assessment of tert-Butyl Alcohol | |
| 81 FR 30182 - National Emission Standards for Hazardous Air Pollutants: Off-Site Waste and Recovery Operations: Action Denying a Petition for Reconsideration | |
| 81 FR 30229 - Revisions to Arbitration Procedures | |
| 81 FR 30237 - Ketchikan Resource Advisory Committee | |
| 81 FR 30166 - Airworthiness Directives; The Boeing Company Airplanes | |
| 81 FR 30170 - Airworthiness Directives; The Boeing Company Airplanes | |
| 81 FR 30451 - Significant New Use Rules on Certain Chemical Substances | |
| 81 FR 30449 - Federal Acquisition Regulation; Federal Acquisition Circular 2005-88; Small Entity Compliance Guide | |
| 81 FR 30448 - Federal Acquisition Regulation; Technical Amendments | |
| 81 FR 30447 - Federal Acquisition Regulation; Improvement in Design-Build Construction Process | |
| 81 FR 30439 - Federal Acquisition Regulation; Basic Safeguarding of Contractor Information Systems | |
| 81 FR 30438 - Federal Acquisition Regulation: Simplified Acquisition Threshold for Overseas Acquisitions in Support of Humanitarian or Peacekeeping Operations | |
| 81 FR 30429 - Federal Acquisition Regulation: High Global Warming Potential Hydrofluorocarbons | |
| 81 FR 30427 - Federal Acquisition Regulation; Federal Acquisition Circular 2005-88; Introduction |
Issue
Forest Service
Economic Development Administration
International Trade Administration
National Oceanic and Atmospheric Administration
Army Department
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Food and Drug Administration
Indian Health Service
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
U.S. Citizenship and Immigration Services
U.S. Customs and Border Protection
Indian Affairs Bureau
Land Management Bureau
Drug Enforcement Administration
Parole Commission
Mine Safety and Health Administration
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
Pipeline and Hazardous Materials Safety Administration
Foreign Assets Control Office
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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Office of Energy Efficiency and Renewable Energy, Department of Energy.
Final rule.
On November 18, 2015, the U.S. Department of Energy (“DOE”) issued a notice of proposed rulemaking to exempt certain types of external power supplies consistent with the EPS Service Parts Act of 2014. That proposal, which serves as the basis for this final rule, explained that the Act exempted certain EPSs made available by a manufacturer as a service or spare part from the energy conservation standards promulgated in a February 2014 final rule. The proposal sought to codify this exemption and certain related reporting requirements. This rule adopts the November 2015 proposal along with related provisions to require manufacturers to annually report the total units of exempt EPSs shipped as service and spare parts that fail to meet the appropriate energy conservation standards.
The effective date of this rule is June 15, 2016.
The docket, which includes
A link to the docket Web page can be found at:
For further information on how to review the docket, contact Ms. Brenda Edwards at (202) 586-2945 or by email:
Direct requests for additional information may be sent to Mr. Jeremy Dommu, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE-2J, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-9870. Email:
For legal issues, please contact Mr. Michael Kido, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-8145. Email:
Title III of the Energy Policy and Conservation Act of 1975 (42 U.S.C. 6291, et
Under EPCA, the energy conservation program consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. The testing requirements consist of test procedures that manufacturers of covered products must use as the basis for (1) certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA, and (2) making representations about the efficiency of those products. Similarly, DOE must use these test procedures to determine whether the products comply with any relevant standards promulgated under EPCA.
Section 301 of EISA 2007 established minimum energy conservation standards for Class A external power supplies (“EPSs”) manufactured on or after July 1, 2008. (42 U.S.C. 6295(u)(3)(A)). See 42 U.S.C. 6291(36)(C)(i)-(ii). EISA 2007 exempts Class A EPSs from meeting these statutorily-prescribed standards if the devices were manufactured before July 1, 2015, and made available by the manufacturer as service parts or spare parts for end-use consumer products that were manufactured prior to July 1, 2008. (42 U.S.C. 6295(u)(3)(B)) Congress created this limited (and temporary) exemption as part of a broad range of amendments to EPCA under EISA 2007. The provision did not grant DOE with the authority to expand or extend the length of this exemption and Congress did not grant DOE with the general authority to exempt any already covered
After releasing a preliminary analysis and issuing a proposed set of energy conservation standards, DOE published a final rule prescribing new standards for non-Class A EPSs and amended standards for some Class A EPSs. See 79 FR 7846 (February 10, 2014). These new standards, commonly referred to as Level VI efficiency standards because EPSs subject to these standards are required to be marked with the Roman numeral VI according to the External Power Supply International Efficiency Marking Protocol, apply to products manufactured on or after February 10, 2016. When DOE published the rule, it did not have the authority to provide manufacturers with an exemption for EPSs manufactured after to the compliance date of these new standards if they were made available as service or spare parts to end-use consumer products. Accordingly, despite requests from some commenters who responded to DOE's proposed standards by asking for such an exemption, DOE could provide no such relief as part of that final rule.
On December 18, 2014, Congress enacted the EPS Service Parts Act of 2014 (“Service Parts Act”). That law exempted manufacturers of certain EPSs that are made available as service and spare parts for end-use products manufactured before February 10, 2016 from the energy conservation standards that DOE promulgated in its February 2014 rule. To be exempt under the Service Parts Act, an EPS must meet four separate criteria. Specifically, the EPS must be: (i) Manufactured during the period beginning on February 10, 2016, and ending on February 10, 2020; (ii) marked in accordance with the External Power Supply International Efficiency Marking Protocol; (iii) compliant, where applicable, with the standards for Class A EPSs and certified to DOE as meeting at least International Efficiency Level IV; and (iv) made available by the manufacturer as a service part or spare part for an end-use product manufactured before February 10, 2016.
Additionally, the Service Parts Act permits DOE to require manufacturers of an EPS that is exempt from the 2016 standards to report to DOE the total number of such EPS units that are shipped annually as service and spare parts and that do not meet those standards. See 42 U.S.C. 6295(u)(5)(A)(ii). DOE may also limit the applicability of the exemption if the Secretary determines that the exemption is resulting in a significant reduction of the energy savings that would result in the absence of the exemption. See 42 U.S.C. 6295(u)(5)(A)(iii). Finally, the statute authorizes DOE to provide a similar exemption for EPSs from future energy conservation standards.
On November 18, 2015, DOE published a notice of proposed rulemaking (“NOPR”) proposing to codify the provisions of the EPS Service Parts Act of 2014 within the Code of Federal Regulations (“CFR”) and solicited comment from the public. 80 FR 71984. As part of the NOPR, DOE sought comment on a number of specific issues including: How manufacturers produce spare or service parts as compared to how manufacturers produce EPS units provided with a new product, the specific language that should be codified regarding the exemption of certain EPSs sold as service or spare parts, and the reporting timeframe for importers and domestic manufacturers to report the total number of units sold in the prior year. DOE analyzed all of the comments received from the list of commenters in Table I-1 in response to the 2015 NOPR and incorporated recommendations, where appropriate, into this final
DOE is incorporating the statutory provisions described in this preamble into its regulations. DOE is also providing some clarification on the circumstances under which EPSs would be considered spare or service parts. Lastly, DOE is requiring manufacturers who manufacture 1,000 or more exempt EPSs to annually report to DOE the total number of units of exempt EPSs shipped as service and spare parts that do not meet the 2016 standards.
DOE is incorporating the provisions of the Service Parts Act into 10 CFR 430.32 to ensure that the regulations reflect the statutory exemption and that interested parties are able to readily access the content of this new statutory provision. Additionally, since the exemption from the Class A (Level IV) standards for certain EPSs that are made available as service and spare parts expired on June 30, 2015, DOE is also removing the text related to this now-expired exemption from 10 CFR 4320.32(w)(2), and replacing it with the new provisions of the Service Parts Act that exempt certain EPSs from the new and amended direct operation (Level VI) standards.
In the NOPR, DOE explained that the Service Parts Act provides an exemption for certain EPSs that are made available by manufacturers as service or spare parts. DOE observed that most end-use products that use EPSs are sold with the EPS that is necessary to operate that product. DOE proposed that, in applying the statutory exemption, an EPS that is sold with an end-use product would not be considered to be a service or spare part. However, DOE noted that, in its view, any EPS sold separately from an end-use product, including an EPS made available as a replacement for, or in addition to, the EPS originally sold with an end-use product, would be considered an EPS made available as a service or spare part—which would make that EPS potentially eligible to be exempt from the 2016 standards under the Service Parts Act.
To further clarify its application of this statutory exemption, DOE proposed that only those EPSs that are made available as service or spare parts for end-use products that were manufactured before February 10, 2016 (the date that manufacturers must comply with the new and amended standards for direct operation EPSs) would qualify for the exemption. DOE proposed, accordingly, that if an EPS is made available as a service part or spare part for any end-use product that continues to be manufactured after February 10, 2016, or is sold with any end-use product manufactured after that date, that EPS would not be eligible for the exemption.
In the NOPR, DOE further recognized that many EPSs, like those that use an industry standard communication protocol, such as the universal serial bus (“USB”), may be capable of operating many different end-use products. To apply the statutory exemption to the “basic model” concept used in its regulatory scheme, DOE proposed that the exemption would apply to an EPS basic model that a manufacturer makes available only as a service part or a spare part for an end-use product that was manufactured before February 10, 2016, and would not apply to an EPS basic model that a manufacturer makes available as a service part or spare part for end-use products that continue to be manufactured after February 10, 2016. Thus, an EPS basic model would be exempt from the 2016 Level VI standard if, among other criteria, it is made available by the manufacturer only as a service part or a spare part for an end-use product, and only if the end-use product was manufactured before February 10, 2016. DOE sought comment on this proposal from stakeholders and interested parties.
ASAP, et al. supported DOE's efforts to construct a narrowly-defined exemption for EPSs offered as service or spare parts to aid in limiting the sale of a larger number of EPSs than warranted by the intent of the law, stating that “abuse of the exemption could significantly reduce energy savings from the EPS standards.” (ASAP, et al., No. 2 at p.2) AHAM, et al. also expressed support for DOE's proposal in their comments noting that “this is a sensible exemption that will allow manufacturers to maintain supplies of replacement parts for older equipment and will also allow warranty and contract compliance by manufacturers, as well as manufacturer compliance with state parts retention laws.” (AHAM, et al., No. 3 at p.1)
Similarly, ASAP, et al. strongly supported DOE's interpretation that the exemption should not apply to EPSs made available as spare or service parts that are sold with products manufactured after February 10, 2016. ASAP, et al. asserted that the redesign of EPSs for products manufactured afterward is justified because an EPS that is sold with a product manufactured after February 10, 2016, would already be required to meet the new standards, and thus it does not create undue burden on industry to ensure that EPSs made available as spare or service parts for those same end-use products also comply with the new standards. (ASAP, et al., No. 2 at p.3) The CA IOUs agreed that any spare or service EPS for products manufactured after the compliance date should comply with the 2016 standards because redesigning an EPS or designing a substitute EPS to comply with the standards would not be a significant burden for manufacturers to meet. (CA IOUs, No. 5 at p.2) The CA IOUs also supported DOE's interpretation that the exemption would not apply to EPSs that are sold as spare or service parts but are capable of operating end-use products manufactured both before and after the compliance date. In their collective view, meeting the 2016 standard would not be an undue burden for manufacturers to meet. (CA IOUs, No. 5 at p.2)
ITI disagreed. In its view, the Service Parts Act exemption should apply to all EPSs made available as spare or service parts for end-use products manufactured prior to the 2016 compliance date. (ITI, No. 4 at p.1) It argued that DOE's proposed clarification would deny this exemption to many USBs and other EPSs capable of operating multiple end-use products contrary to the required exemption of the Service Parts Act. ITI further claimed that the apparent reduction in scope of the exemption provides insufficient notice to manufacturers as they were anticipating the exemption to reflect what they believed would be the clear language and scope of the enacted law. (ITI, No. 4 at p.2)
In the NOPR, DOE misstated in one place that, if an EPS is
Given the nature of DOE's regulatory scheme, under which the non-compliance of a product is determined on a basic model, not unit-by-unit, basis, this final rule offers a reasonable approach in applying the Service Parts Act's exemption. See 10 CFR 429.114. Applied otherwise, a basic model of EPS would be wholly exempt (
Therefore, DOE is finalizing its proposal that this exemption would apply to an EPS basic model that a manufacturer makes available only as a service part or a spare part for an end-use product that was manufactured before February 10, 2016, and would not apply to an EPS basic model that a manufacturer makes available as a service part or spare part for end-use products that continue to be manufactured after February 10, 2016.
The Service Parts Act permits DOE to require manufacturers of an EPS that is exempt from the 2016 standards to report to DOE the total number of such EPS units that are shipped annually as service and spare parts and that do not meet those standards. See 42 U.S.C. 6295(u)(5)(A)(ii). DOE stated that it considered the “shipments” referred to in the statute to be those units sold by either the importer or the domestic manufacturer, and that because importers could have both incoming and outgoing shipments, DOE considered “units sold” to be clearer than “units shipped.” See 42 U.S.C. 6291(12) (under EPCA, “manufacture” means “to manufacture, produce, assemble or import”).
Accordingly, consistent with the Service Parts Act, DOE proposed that importers and domestic manufacturers of EPSs that are exempt under the Service Parts Act would be required to report annually to DOE the total number of exempt EPS units that were sold during the most recent 12-calendar-month period ending on July 31 that do not meet the 2016 standards. 80 FR at 71986. DOE received no comments specifically with regard to the use of the word “sold” as opposed to “shipped” in this context, and will use the word “sold” in its reporting requirement, as proposed in the NOPR.
DOE explained in the NOPR that many of the EPSs sold as spare and service parts are Class A EPSs and they continue to be subject to the current Class A EPS standards (
Similarly, DOE proposed to require each importer or domestic manufacturer of non-Class A EPSs that are exempted by the Service Parts Act and do not meet the 2016 standards to submit an annual report of the corresponding number of units of each individual model of such EPS that the importer or domestic manufacturer sold in the prior year. These non-Class A EPSs include multiple-voltage EPSs, high-power EPSs, and some EPSs used to operate end-use products that are motor-driven. Under DOE's February 2014 final rule, non-Class A EPSs, unless exempt, are required to meet the Level VI standards starting in 2016. These non-class A EPSs would not be certified under the provisions of 10 CFR 429.12 (General requirements applicable to certification reports), if they are exempt, but under DOE's proposal, manufacturers of these EPSs would be required to submit a report including the number of exempt EPSs sold.
Separately, the Service Parts Act authorizes DOE to limit the applicability of the service and spare part exemption if DOE determines that the exemption is resulting in a significant reduction of the energy savings that would otherwise result from the final rule. See 42 U.S.C. 6295(u)(5)(A)(iii). Having information regarding the number of exempt units sold would aid DOE in making this determination.
ASAP,
AHAM,
Reporting requirements in this instance serve a variety of important and useful roles, among which include helping DOE assess the impacts of the Service Parts Act's exemption on overall national energy savings. Notwithstanding this fact, DOE recognizes that reporting requirements may create a burden and has modified its proposal from the NOPR to allow manufacturers or domestic importers to report the total annual number of exempt EPSs sold as spare or service parts rather than requiring individual reporting on a per model basis, as suggested by AHAM. Under DOE's revised reporting methodology, manufacturers or importers would only need to track and report the total number of exempt EPSs sold.
DOE also recognizes the reporting burdens for manufacturers that sell only a small number of exempt units. Accordingly, consistent with the authority provided to DOE by the Service Parts Act, DOE will adopt AHAM's suggestion and relieve manufacturers from the sales reporting requirements contained in this final rule provided that the quantity of exempt service and spare part EPSs sold by that manufacturer does not exceed 1,000 units annually. This 1,000 unit threshold will apply to the total number of exempt EPSs sold annually by that manufacturer (including importers) in aggregate and not on a per model basis. Consequently, a manufacturer would not be exempt from the reporting requirements if it sells more than one exempt model of EPS, each of which it sells less than 1,000 of annually, but, in aggregate, the total number of exempt EPSs sold by that manufacturer exceeds 1,000 across all models. DOE is modifying the regulatory text in the CFR to reflect this approach.
The Office of Management and Budget (“OMB”) has determined that certification rulemakings do not constitute “significant regulatory actions” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 (Oct. 4, 1993). Accordingly, this action was not subject to review under the Executive Order by the Office of Information and Regulatory Affairs (“OIRA”) in the Office of Management and Budget.
The Regulatory Flexibility Act (5 U.S.C. 601,
For manufacturers of EPSs, the Small Business Administration (“SBA”) has set a size threshold, which defines those entities classified as “small businesses” for the purposes of the statute. DOE used the SBA's small business size standards to determine whether any small entities would be subject to the requirements of the rule. 65 FR 30836, 30848 (May 15, 2000), as amended at 65 FR 53533, 53544 (September 5, 2000) and codified at 13 CFR part 121. The size standards are listed by North American Industry Classification System (“NAICS”) code and industry description and are available at
Notwithstanding the absence of domestic EPS manufacturers, DOE reviewed this final rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. This final rule would incorporate into DOE's regulations a statutorily-prescribed exemption affecting EPSs that manufacturers make available as service or spare parts. The exemption allows manufacturers to maintain and distribute supplies of replacement parts for older equipment without needing to meet the EPS energy conservation standards that have applied since February 10, 2016. This exemption provides manufacturers with flexibility in meeting their warranty and contract obligations in cases where service or spare parts require an EPS. It also relieves manufacturers of the burdens of redesigning and certifying EPSs used for end-use products that are no longer manufactured, which DOE anticipates will save these manufacturers from any significant expenses that would otherwise be used solely to support products that are no longer in production. As for the reporting requirements, DOE is, consistent with comments received from industry participants, adopting an approach that requires only manufacturers who sell 1,000 or more exempt EPSs to report its shipped units—an amount that will considerably lessen any small business-related impacts.
Consistent with its prior incorporation of the previous statutory exemption added by Congress for Class A EPSs made available as service and spare parts, see 10 CFR 430.32(w)(2) (2015), DOE expects any potential impact from its requirement to be minimal. For these reasons, DOE certifies that the final rule would not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this rulemaking. DOE will transmit the certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the SBA for review under 5 U.S.C. 605(b).
This rule revises an existing information collection. This information collection request contains:
(1)
(2)
(3)
(4)
Manufacturers of EPSs must certify to DOE that their products comply with any applicable energy conservation standards. In certifying compliance, manufacturers must test their products according to the DOE test procedures for EPSs including any amendments adopted for those test procedures. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment, including external power supplies. See 10 CFR part 429, subpart B. The collection-of-information requirement for certification and recordkeeping is subject to review and approval by OMB under the Paperwork Reduction Act (“PRA”). This requirement has been approved by OMB under OMB Control Number 1910-1400. Public reporting burden for the proposed certification requirement is estimated to average 30 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
In this final rule, DOE is finalizing requirements for external power supply manufacturers to provide the total number of exempt EPS units sold as service and spare parts for which the manufacturer is claiming exemption from the current standards. The following are DOE's estimates, revised from the value originally proposed in the NOPR, of the time for manufacturers to collect, organize and store the data required by this final rule. As part of this final rule, manufacturers will not be required to provide the total number of exempt EPS units sold for each basic model, and instead will only provide the total number of exempt EPSs sold by that manufacturer. Additionally, manufacturers who sell under 1,000 exempt EPSs will be exempt from reporting requirements. Accordingly, DOE anticipates the impact in burden hours will be reduced from the estimates provided in the NOPR. DOE has increased the cost estimate for the NOPR to a fully burdened labor rate of $100 per hour, consistent with other certification requirements, to account for any skilled labor that may be required. DOE has revised its burden estimates to be consistent with the amendments being adopted in this final rule for reporting. DOE is showing the burden estimates for the individual amendments being adopted today and for the information collection as a whole.
After adding the values for this final rule to the existing information collection requirements, the following totals reflect the information collection as a whole:
(5)
(6)
(7)
(8)
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
DOE has determined that this final rule, which would incorporate a recently-enacted exemption into the CFR for EPSs sold as spare or service parts, falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321,
Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this final rule and has determined that it 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. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of this final rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) No further action is required by Executive Order 13132.
Regarding the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in sections 3(a) and 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, the final rule meets the relevant standards of Executive Order 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (“UMRA”) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820. DOE's policy statement is also available at
DOE examined this final rule according to UMRA and its statement of policy and determined that the rule contains neither an intergovernmental mandate, nor a mandate that may result in the expenditure of $100 million or more in any year, so these requirements do not apply.
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
DOE has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights” 53 FR 8859 (March 18, 1988), that this rule would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed this final rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OIRA at OMB, a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that: (1) Is a significant
This regulatory action to amend the existing certification requirements for EPSs sold as spare parts is not a significant regulatory action under Executive Order 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as a significant energy action by the Administrator of OIRA. Therefore, it is not a significant energy action, and, accordingly, DOE has not prepared a Statement of Energy Effects.
Under section 301 of the Department of Energy Organization Act (Public Law 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the Federal Energy Administration Act of 1974, as amended by the Federal Energy Administration Authorization Act of 1977. (15 U.S.C. 788; FEAA) Section 32 essentially provides in relevant part that, where a proposed rule authorizes or requires use of commercial standards, the notice of proposed rulemaking must inform the public of the use and background of such standards. In addition, section 32(c) requires DOE to consult with the Attorney General and the Chairman of the Federal Trade Commission (“FTC”) concerning the impact of the commercial or industry standards on competition. This proposal to amend the certification requirements for all covered consumer products does not propose the use of any commercial standards.
As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this rule before its effective date. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(2).
The Secretary of Energy has approved publication of this final rule.
Administrative practice and procedure, Confidential business information, Energy conservation, Reporting and recordkeeping requirements.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Intergovernmental relations, Small businesses.
For the reasons stated in the preamble, DOE amends parts 429 and 430 of chapter II of title 10, Code of Federal Regulations as set forth below:
42 U.S.C. 6291-6317.
(b) * * *
(3) Pursuant to § 429.12(b)(13), a certification report for external power supplies that are exempt from the energy conservation standards at § 430.32(w)(1)(ii) pursuant to § 430.32(w)(2) of this chapter must include the following additional information if, in aggregate, the total number of exempt EPSs sold as spare and service parts by the certifier exceeds 1,000 units across all models: The total number of units of exempt external power supplies sold during the most recent 12-calendar-month period ending on July 31, starting with the annual report due on September 1, 2017.
(c)
(i) The importer or domestic manufacturer's name and address;
(ii) The brand name; and
(iii) The number of units sold during the most recent 12-calendar-month period ending on July 31.
(2) The report must be submitted to DOE in accordance with the submission procedures set forth in § 429.12(h).
42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.
(w) * * *
(2) A basic model of external power supply is not subject to the energy conservation standards of paragraph (w)(1)(ii) of this section if the external power supply—
(i) Is manufactured during the period beginning on February 10, 2016, and ending on February 10, 2020;
(ii) Is marked in accordance with the External Power Supply International Efficiency Marking Protocol, as in effect on February 10, 2016;
(iii) Meets, where applicable, the standards under paragraph (w)(1)(i) of this section, and has been certified to the Secretary as meeting those standards; and
(iv) Is made available by the manufacturer only as a service part or a spare part for an end-use product that—
(A) Constitutes the primary load; and
(B) Was manufactured before February 10, 2016.
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for the Cessna Aircraft Company, Models 208 and 208B Caravan airplanes. This airplane, as modified by Peregrine, will have a novel or unusual design feature associated with the use of a replacement option of a lithium battery instead of nickel-cadmium (Ni-Cd) and lead-acid rechargeable batteries. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
The effective date of these special conditions is May 16, 2016. We must receive your comments by June 15, 2016.
Send comments identified by docket number FAA-2016-6567 using any of the following methods:
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•
•
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Ruth Hirt, Federal Aviation Administration, Small Airplane Directorate, Aircraft Certification Service, ACE-114, 901 Locust, Room 301, Kansas City, MO 64106; telephone (816) 329-4108, facsimile (816) 329-4090.
The FAA has determined, in accordance with 5 U.S.C. 553(b)(3)(B) and 553(d)(3), that notice and opportunity for prior public comment hereon are unnecessary because the substance of this special condition has been subject to the public comment process in several prior instances with no substantive comments received. The FAA, therefore, finds that good cause exists for making these special conditions effective upon issuance.
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.
We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.
On March 25, 2015, Peregrine applied for a supplemental type certificate (STC) to install a rechargeable lithium battery on the Cessna Models 208 and 208B Caravan airplanes. Both the 208 and 208B are normal category airplanes, powered by a single-turbine engine that drives an aircraft propeller, with passenger seating up to eleven (11) and a maximum takeoff weight of 8,000 and 8,750 pounds respectively.
The current regulatory requirements for part 23 airplanes do not contain adequate requirements for the application of rechargeable lithium batteries in airborne applications. This type of battery possesses certain failure and operational characteristics with maintenance requirements that differ significantly from that of the Ni-Cd and lead-acid rechargeable batteries currently approved in other normal, utility, acrobatic, and commuter category airplanes. Therefore, the FAA is proposing this special condition to address (1) all characteristics of the rechargeable lithium batteries and their installation that could affect safe operation of the modified 208 and 208B airplanes, and (2) appropriate Instructions for Continued Airworthiness (ICAW) that include maintenance requirements to ensure the availability of electrical power from the batteries when needed.
Under the provisions of Title 14, Code of Federal Regulations (CFR) 21.101, Peregrine must show that the 208 and 208B airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate Data Sheet No. A37CE, or the applicable regulations in effect on the date of application for the change.
If the Administrator finds that the applicable airworthiness regulations (
In addition to the applicable airworthiness regulations and special conditions, the 208 and 208B airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in § 11.19, under § 11.38 and they become part of the type certification basis under § 21.101.
Special conditions are initially applicable to the models for which they are issued. Should the applicant apply for an STC to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.
The Cessna Models 208 and 208B airplanes will incorporate the following novel or unusual design features:
The installation of a rechargeable lithium battery as a main or engine start aircraft battery.
The applicable part 23 airworthiness regulations governing the installation of batteries in general aviation airplanes, including § 23.1353, were derived from Civil Air Regulations (CAR) 3 as part of the recodification that established 14 CFR part 23. The battery requirements, which are identified in § 23.1353, were a rewording of the CAR requirements that did not add any substantive technical requirements. An increase in incidents involving battery fires and failures that accompanied the increased use of Ni-Cd batteries in aircraft resulted in rulemaking activities on the battery requirements for transport category airplanes. These regulations were incorporated into § 23.1353(f) and (g), which apply only to Ni-Cd battery installations.
The introduction of lithium batteries into aircraft raises some concern about associated battery or cell monitoring systems and the impact to the electrical system when monitoring components fail. Associated battery or cell monitoring systems (
Lithium batteries typically have different electrical impedance characteristics than Ni-Cd or lead-acid batteries. Peregrine needs to evaluate other components of the aircraft electrical system with respect to these characteristics.
Presently, there is limited experience with use of rechargeable lithium batteries and rechargeable lithium battery systems in applications involving commercial aviation. However, other users of this technology, ranging from personal computers, wireless telephone manufacturers to the electric vehicle industry, have noted safety problems with rechargeable lithium batteries. These problems include overcharging, over-discharging, flammability of cell components, cell internal defects, and during exposure to extreme temperatures that are described in the following paragraphs.
1. Overcharging: In general, rechargeable lithium batteries are significantly more susceptible to internal failures that can result in self-sustaining increases in temperature and pressure (
2. Over-discharging: Discharge of some types of rechargeable lithium battery cells beyond the manufacturer's recommended specification can cause corrosion of the electrodes of the cell, resulting in loss of battery capacity that cannot be reversed by recharging. This loss of capacity may not be detected by the simple voltage measurements commonly available to flight crews as a means of checking battery status—a problem shared with Ni-Cd batteries. In addition, over-discharging has the potential to lead to an unsafe condition (creation of dendrites that could result in internal short circuit during the recharging cycle).
3. Flammability of Cell Components: Unlike Ni-Cd and lead-acid batteries, some types of rechargeable lithium batteries use liquid electrolytes that are flammable. The electrolyte can serve as a source of fuel for an external fire, if there is a breach of the battery container.
4. Cell Internal Defects: The rechargeable lithium batteries and rechargeable battery systems have a history of undetected cell internal defects. These defects may or may not be detected during normal operational evaluation, test and validation. This may lead to an unsafe condition during in service operation.
5. Extreme Temperatures: Exposure to an extreme temperature environment has the potential to create major hazards. Care must be taken to ensure that the lithium battery remains within the manufacturer's recommended specification.
These problems experienced by users of lithium batteries raise concern about the use of lithium batteries in aviation. The intent of the proposed special condition is to establish appropriate airworthiness standards for lithium battery installations in the 208 and 208B airplanes and to ensure, as required by §§ 23.1309 and 23.601, that these battery installations are not hazardous or unreliable.
The special conditions are applicable to the 208 and 208B airplanes. Should Peregrine apply at a later date for an STC to modify any other model included on Type Certificate No. A37CE to incorporate the same novel or unusual design feature, the special conditions would apply to that model as well.
This action affects only certain novel or unusual design features on the 208 and 208B airplanes. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.
The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the subject contained herein. Therefore, notice and opportunity for prior public comment hereon are unnecessary and the FAA finds good cause, in accordance with 5 U.S.C. 553(b)(3)(B) and 553(d)(3), making these special conditions effective upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.
Aircraft, Aviation safety, Signs and symbols.
49 U.S.C. 106(g), 40113 and 44701; 14 CFR 21.16 and 21.101; and 14 CFR 11.38 and 11.19.
The FAA states in this Notice that the following special conditions be applied to lithium battery installations on the 208 and 208B airplanes in lieu of the requirements § 23.1353(a)(b)(c)(d)(e), amendment 49.
Lithium battery installations on the 208 and 208B airplanes must be designed and installed as follows:
a. Safe cell temperatures and pressures must be maintained during any probable charging or discharging condition, or during any failure of the charging or battery monitoring system not shown to be extremely remote. The lithium battery installation must be designed to preclude explosion or fire in the event of those failures.
b. Lithium batteries must be designed to preclude the occurrence of self-sustaining, uncontrolled increases in temperature or pressure.
c. No explosive or toxic gasses emitted by any lithium battery in normal operation or as the result of any failure of the battery charging or monitoring system, or battery installation not shown to be extremely remote, may accumulate in hazardous quantities within the airplane.
d. Lithium batteries that contain flammable fluids must comply with the flammable fluid fire protection requirements of 14 CFR 23.863(a) through (d).
e. No corrosive fluids or gases that may escape from any lithium battery may damage airplane structure or essential equipment.
f. Each lithium battery installation must have provisions to prevent any hazardous effect on structure or essential systems that may be caused by the maximum amount of heat the battery can generate during a short circuit of the battery or of its individual cells.
g. Lithium battery installations must have—
(1) A system to control the charging rate of the battery automatically to prevent battery overheating or overcharging, or
(2) A battery temperature sensing and over-temperature warning system with a means for automatically disconnecting the battery from its charging source in the event of an over-temperature condition or,
(3) A battery failure sensing and warning system with a means for automatically disconnecting the battery from its charging source in the event of battery failure.
h. Any lithium battery installation functionally required for safe operation of the airplane, must incorporate a monitoring and warning feature that will provide an indication to the appropriate flight crewmembers, whenever the capacity and state of charge of the batteries have fallen below levels considered acceptable for dispatch of the airplane.
i. The ICAW must contain recommended manufacturer's maintenance and inspection requirements to ensure that batteries, including single cells, meet a functionally safe level essential to the aircraft's continued airworthiness.
(1) The ICAW must contain operating instructions and equipment limitations in an installation maintenance manual.
(2) The ICAW must contain installation procedures and limitations in a maintenance manual, sufficient to ensure that cells or batteries, when installed according to the installation procedures, still meet safety functional levels essential to the aircraft's continued airworthiness. The limitations must identify any unique aspects of the installation.
(3) The ICAW must contain corrective maintenance procedures to check battery capacity at manufacturer's recommended inspection intervals.
(4) The ICAW must contain scheduled servicing information to replace batteries at manufacturer's recommended replacement time.
(5) The ICAW must contain maintenance and inspection requirements how to check visually for battery and charger degradation.
j. Batteries in a rotating stock (spares) that have degraded charge retention capability or other damage due to prolonged storage must be checked at manufacturer's recommended inspection intervals.
k. If the lithium battery application contains software and/or complex hardware, in accordance with AC 20-115
Compliance with the requirements of this Special Condition must be shown by test or analysis, with the concurrence of the Wichita Aircraft Certification Office.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. This AD was prompted by reports of cracked antenna support channels, skin cracking underneath the number 2 very high frequency (VHF) antenna, and cracking in the frames attached to the internal support structure. This AD requires repetitive inspections to determine the condition of the skin and the internal support structure, and follow-on actions including corrective action as necessary. We are issuing this AD to detect and correct skin cracking of the fuselage. Such cracking could result in separation of the number 2 VHF antenna from the airplane and rapid depressurization of the cabin.
This AD is effective June 20, 2016.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of June 20, 2016.
For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet
You may examine the AD docket on the Internet at
Jennifer Tsakoumakis, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification Office (ACO), 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5264; fax: 562-627-5210; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. The NPRM published in the
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response to each comment. Boeing concurred with the NPRM.
Southwest Airlines requested that we correct a typographical error in paragraph (h)(4) of the proposed AD, which states that accomplishment of the preventative modification terminates the inspection required by “paragraphs (g), (g)(1), and (h)(2) of the AD.” Southwest Airlines noted that the NPRM does not contain paragraph (g)(1). Southwest Airlines concluded that this appears to be a typographical error and the references to paragraphs (g) and (g)(1) of the proposed AD should be to paragraphs (h) and (h)(1) of the proposed AD, similar to what is stated in paragraph (k)(3) of the proposed AD.
British Airways stated that it has identified a potential contradiction between paragraphs (h)(4) and (k)(3) of the proposed AD. British Airways stated that paragraph (h)(4) of the proposed AD refers to paragraph (h)(2), whereas paragraph (k)(3) of the proposed AD refers to paragraphs (h), (h)(1), and (h)(2) of the proposed AD.
We agree to revise paragraph (h)(4) of this AD because there is a typographical error. We have changed the references in paragraph (h)(4) of this AD to specify paragraphs (h), (h)(1), and (h)(2) of this AD. This change resolves the contradiction noted by British Airways.
Southwest Airlines requested that we provide a provision to terminate the inspections required by paragraph (h) of the proposed AD for previously installed repairs that have received FAA approval. The commenter stated that these repairs would inhibit the inspections required by paragraph (h) of this AD.
We do not agree with the commenter's request because previously installed FAA-approved repairs may not have been designed to address the specified unsafe condition identified in this AD. We understand that some of these repairs may not allow inspection of the area specified in the AD; in those cases, the operator must request approval for an alternative method of compliance (AMOC) according to paragraph (m) of this AD. We have not revised this AD in this regard.
British Airways asked why the terminating action specified in paragraph (k)(3) of the proposed AD is not included in the text “until the accomplishment of paragraphs” references in paragraphs (h)(1) and (h)(2) of the proposed AD. We infer British Airways is requesting that we revise paragraphs (h)(1) and (h)(2) of the proposed AD.
We agree with the commenter because installation of the preventive modification in accordance with paragraph (k)(3) of this AD is acceptable for terminating the repetitive inspections. In addition, we note the reference to paragraph (k)(1) of this AD in paragraph (h)(2) of this AD is redundant. We have made the following changes to this AD:
• In paragraph (h)(1) of this AD, we specify to repeat the inspections “until the accomplishment of paragraph (k)(1), (k)(2), or (k)(3) of this AD, as applicable.”
• In paragraph (h)(2) of this AD, we specify to repeat the inspections “until the accomplishment of paragraph (k)(2) or (k)(3) of this AD, as applicable.”
Southwest Airlines requested a correction to the language in paragraph (h)(2) of the proposed AD to add the term “as applicable” after the listed inspections. Southwest Airlines stated that there are multiple sections of Part 2 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014. Southwest Airlines noted that each group/configuration has its own Part 2 instructions and that Groups 3 through 6, Configurations 2 and 3, do not contain instructions for internal detailed inspections or internal high frequency eddy current inspections.
We agree with the commenter because certain inspections are applicable to only certain configurations. We have added the language “as applicable” to paragraph (h)(2) of this AD.
Southwest Airlines requested that we revise paragraph (k)(2) of the proposed AD to include a statement that accomplishment of the repair specified in paragraph (h)(3) of the proposed AD also terminates the preventive modification specified in paragraph
We do not agree with the commenter's request because, for some airplane configurations, the repair only installs an external skin doubler and the preventative modification includes replacement of the internal support structure. For some airplane configurations, the preventive modification specified in Part 4 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014, is required after installation of the repair specified in Part 3 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014. We have not revised this AD in this regard.
Southwest Airlines requested that we revise paragraph (k)(2) of the proposed AD to specify the repair also terminates the initial inspections in paragraph (h) of the proposed AD. Southwest Airlines stated that the current statement in paragraph (k)(2) of the proposed AD does not address a terminating action for the initial inspection specified in paragraphs (h)(1) and (h)(2) of the proposed AD for aircraft that have previously installed the repair specified in paragraph (h)(3) of the proposed AD.
We agree with the commenter's request because repairs installed in accordance with Part 3 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014, prior to the effective date of this AD, will not allow accomplishment of the initial inspections as specified in paragraph (h) of this AD. We revised paragraph (k)(2) of this AD to specify that accomplishment of the repair required by paragraph (h)(3) of this AD terminates the initial and repetitive inspections required in paragraphs (h), (h)(1), and (h)(2) of this AD.
Aviation Partners Boeing stated that accomplishing Supplemental Type Certificate (STC) ST01219SE (
We concur with the commenter. We have redesignated paragraph (c) of the proposed AD as paragraph (c)(1) of this AD and added new paragraph (c)(2) to this AD to state that installation of STC ST01219SE does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST01219SE is installed, a “change in product” AMOC approval request is not necessary to comply with the requirements of 14 CFR 39.17.
We have revised paragraph (j) of this AD to clarify that the post-repair and post-modification inspections are airworthiness limitations that are required by maintenance and operational rules; therefore, these inspections are not required by this AD.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.
We reviewed Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014. The service information describes procedures for repetitive inspections to determine the condition of the skin and the internal support structure, and follow-on actions including corrective action as necessary. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We estimate that this AD affects 609 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We estimate the following costs to do any necessary repairs/modifications that would be required based on the results of the inspections. We have no way of determining the number of aircraft that might need these repairs/modifications.
According to the manufacturer, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue
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 June 20, 2016.
None.
(1) This AD applies to The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes, certificated in any category, as identified in Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014.
(2) Installation of Supplemental Type Certificate (STC) ST01219SE (
Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by reports of cracked antenna support channels, skin cracking underneath the number 2 VHF antenna, and cracking in the frames attached to the internal support structure. We are issuing this AD to detect and correct skin cracking of the fuselage. Such cracking could result in separation of the number 2 VHF antenna from the airplane and rapid depressurization of the cabin.
Comply with this AD within the compliance times specified, unless already done.
For airplanes identified as Group 1 in Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014: Within 120 days after the effective date of this AD, inspect for cracking at the number 2 VHF antenna location, and do all applicable follow-on actions, using a method approved in accordance with the procedures specified in paragraph (m) of this AD.
For airplanes identified as Groups 2 through 6, Configurations 1 through 3 in Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014: Within 1,250 flight cycles after the effective date of this AD, do an external detailed inspection for cracking of the fuselage skin, as applicable, and do all applicable corrective actions, in accordance with Part 1 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014. Thereafter, at the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014, except as required by paragraph (l)(1) of this AD: Do all applicable actions specified in paragraphs (h)(1) through (h)(4) of this AD.
(1) Repeat the Part 1 inspections specified in paragraph (h) of this AD until the accomplishment of paragraph (k)(1), (k)(2), or (k)(3) of this AD, as applicable.
(2) Inspect for cracking at the number 2 VHF antenna location using internal and external detailed inspections, internal and external high frequency eddy current (HFEC) inspections, and an HFEC open-hole inspection, as applicable, in accordance with Part 2 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014. Repeat the inspections until the accomplishment of paragraph (k)(2) or (k)(3) of this AD, as applicable.
(3) Repair any crack found, in accordance with Part 3 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014, except as required by paragraph (l)(2) of this AD.
(4) Do a preventive modification, in accordance with Part 4 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014, except as specified in paragraph (l)(2) of this AD. The accomplishment of this preventive modification terminates the inspections required by paragraphs (h), (h)(1), and (h)(2) of this AD.
For airplanes identified as Groups 3 through 6, Configuration 4, in Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014: At the applicable time specified in table 10 of paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014, except as required by paragraph (l)(1) of this AD, do an external detailed inspection for cracking at the outer row of fasteners common to the internal repair doubler, and do an internal general visual inspection for cracking on the modified internal support structure of the number 2 VHF antenna, skin, and surrounding stringers, channel, and frames, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014.
(1) If any cracking is found, before further flight, repair using a method approved in accordance with the procedures specified in paragraph (m) of this AD.
(2) If no cracking is found, repeat the inspections at the time specified in table 10 of paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014.
Tables 7 through 9 of paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014, specify post-repair and post-modification airworthiness limitation inspections in compliance with 14 CFR 25.571(a)(3) at the repaired and modified locations, which support compliance with 14 CFR 121.1109(c)(2) or 129.109(b)(2). As airworthiness limitations, these inspections are required by maintenance and operational rules. It is therefore unnecessary to mandate them in this AD. Deviations from these inspections require FAA approval, but do not require an alternative method of compliance.
The following describes terminating action for the airplane groups and configurations, as identified in Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014.
(1) For airplanes in Group 2, Configuration 2; and Groups 3 through 6, Configuration 2: Accomplishment of the inspections specified in paragraph (h)(2) of this AD terminates the repetitive inspection requirements of paragraph (h)(1) of this AD.
(2) For airplanes in Group 2, Configuration 1; and Groups 3 through 6, Configurations 1, 2, and 3: Accomplishment of the repair specified in paragraph (h)(3) of this AD terminates the initial and repetitive inspections specified in paragraphs (h), (h)(1), and (h)(2) of this AD.
(3) For airplanes in Group 2, Configuration 1; and Groups 3 through 6, Configurations 1 and 3: Accomplishment of the preventive modification specified in paragraph (h)(4) of this AD terminates the initial and repetitive inspections specified in paragraphs (h), (h)(1), and (h)(2) of this AD.
(1) Where Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014, specifies a compliance time “after the Revision 1 date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.
(2) Where Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014, specifies to contact Boeing for appropriate action, and specifies that action as “RC” (Required for Compliance): Before further flight, repair the cracking using a method approved in accordance with the procedures specified in paragraph (m) of this AD.
(1) The Manager, Los Angeles 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 (n) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Los Angeles ACO, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(4) Except as required by paragraph (l)(2) of this AD, for service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (m)(4)(i) and (m)(4)(ii) apply.
(i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. An AMOC is required for any deviations to RC steps, including substeps and identified figures.
(ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.
For more information about this AD, contact Jennifer Tsakoumakis, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles ACO, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5264; fax: 562-627-5210; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Boeing Special Attention Service Bulletin 737-53-1159, Revision 1, dated October 20, 2014.
(ii) Reserved.
(3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet
(4) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for all The Boeing Company Model 757 airplanes. This AD was prompted by a report of cracking in the fuselage frame. This AD requires inspections for cracking in the fuselage frame, left and right sides, and repair if necessary. We are issuing this AD to detect and correct fuselage frame fatigue cracking. Such cracking could result in loss of structural integrity and the inability to sustain loading conditions.
This AD is effective June 20, 2016.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of June 20, 2016.
For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet
You may examine the AD docket on the Internet at
Roger Durbin, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification Office (ACO), 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5233; fax: 562-627-5210; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 757 airplanes. The NPRM published in the
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response to each comment.
Boeing requested that we revise paragraph (g) of the proposed AD to change it from “frames at stringer 24 and stringer 25, left and right sides,” to state, “frames in Section 43 at stringer 25, left and right sides, and frames in Section 46 at stringer 24, left and right sides.”
We agree with the comment as it adds clarity and makes the AD consistent with the required Accomplishment Instructions of Boeing Alert Service Bulletin 757-53A0099, dated September 18, 2014. We have revised the introductory text to paragraph (g) of this AD accordingly.
Boeing requested that we revise paragraph (g)(1) of the proposed AD from “repeat the inspections at intervals not to exceed 12,000 flight cycles,” to state, “repeat the inspections of frame areas at intervals not to exceed 12,000 flight cycles in areas that have not been repaired as a result of this service bulletin.”
We disagree with the commenter's proposal to make exceptions for areas repaired using the procedures described in the service bulletin, where we assume that the commenter is referring to Boeing Alert Service Bulletin 757-53A0099, dated September 18, 2014. We have not received repair data for cracks detected as a result of the inspections required by this AD, and therefore cannot make a determination that any such repair is terminating action for the required inspections. We will consider requests for alternative methods of compliance (AMOCs) with supporting repair data, which may include termination of the required inspections, or alternate inspection intervals and methods, as required, to address the unsafe condition.
United Airlines and United Parcel Service requested to delay the AD until approved repair information could be included in a revision of Boeing Alert Service Bulletin 757-53A0099, dated September 18, 2014. One commenter noted that its cargo operations often required frame repairs and the lack of approved repair configurations would require unnecessary AMOC requests.
We do not agree to delay issuance of this final rule for a revision to Boeing Alert Service Bulletin 757-53A0099, dated September 18, 2014, to include repair data. Including the repair data will only delay necessary inspections required to address the unsafe condition. The number of positive findings requiring repairs is unknown at this time, and therefore the value of delaying the AD for approved repair data is unknown. It is not possible to address existing repairs which may require an AMOC. The various repair configurations and locations are unknown and therefore cannot be addressed at this time. If the required inspections result in a significant number of repairs, operators and/or the original equipment manufacturer can request a global AMOC for repair data using the procedures in paragraph (i) of this AD.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.
We reviewed Boeing Alert Service Bulletin 757-53A0099, dated September 18, 2014. The service information describes procedures for detailed and high frequency eddy current (HFEC) inspections for cracking in the fuselage frame at stringer 24 and stringer 25, left and right sides. 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 AD affects 652 airplanes of U.S. registry. We estimate the following costs to comply with this AD:
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in 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 June 20, 2016.
None.
This AD applies to all The Boeing Company Model 757-200, -200CB, -200PF, and -300 airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by a report of cracking in the fuselage frame at Station (STA) 1440, stringer 24L. We are issuing this AD to detect and correct fuselage frame fatigue cracking. Such cracking could result in loss of structural integrity and the inability to sustain loading conditions.
Comply with this AD within the compliance times specified, unless already done.
At the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 757-53A0099, dated September 18, 2014, except as required by paragraph (h) of this AD, do detailed and high frequency eddy current inspections for cracking in the fuselage frames in Section 43 at stringer 25, left and right sides, and frames in Section 46 at stringer 24, left and right sides, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 757-53A0099, dated September 18, 2014.
(1) If cracking is not found, repeat the inspections at intervals not to exceed 12,000 flight cycles.
(2) If any cracking is found, before further flight, repair using a method approved in accordance with the procedures specified in paragraph (i) of this AD. Repeat the inspections at intervals not to exceed 12,000 flight cycles in unrepaired areas.
Where Boeing Alert Service Bulletin 757-53A0099, dated September 18, 2014, specifies a compliance time “after the Original Issue date of this Service Bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.
(1) The Manager, Los Angeles 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 (j) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Los Angeles ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(4) Except as required by paragraph (h) of this AD: For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (i)(4)(i) and (i)(4)(ii) apply.
(i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. An AMOC is required for any deviations to RC steps, including substeps and identified figures.
(ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining
For more information about this AD, contact Roger Durbin, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles ACO, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5233; fax: 562-627-5210; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Boeing Alert Service Bulletin 757-53A0099, dated September 18, 2014.
(ii) Reserved.
(3) For Boeing service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet
(4) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Railroad Retirement Board.
Final rule.
The Railroad Retirement Board (Board) amends its regulations by changing from 180 days delinquent to 120 days delinquent debts that are referred to Treasury in compliance with the DATA Act.
This rule will be effective May 16, 2016.
Martha P. Rico, Secretary to the Board, Railroad Retirement Board, 844 N. Rush Street, Chicago, Illinois 60611-2092.
Marguerite P. Dadabo, Assistant General Counsel, (312) 751-4945, TTD (312) 751-4701.
The Railroad Retirement Board (Board) amends part 367 of the Board's regulations, Recovery of Debts Owed to the United States Government by Administrative Offset. Specifically, the Board amends section 367.3(a), Board Responsibilities. Section 367.3(a) states that all nontax debts over 180 days delinquent shall be referred to the Department of the Treasury for administrative offset through the Treasury Offset Program as required by 31 U.S.C. 3716. 31 U.S.C. 3716 was amended by the Digital Accountability and Transparency Act (DATA Act), Public Law 113-101. The DATA Act now requires agencies to refer to the Department of the Treasury valid, delinquent nontax debts for the purpose of administrative offset at 120 days. The amendment to section 367.3(a) of the Board's regulation changes from 180 days to 120 days the debts referred to the Department of the Treasury in compliance with the DATA Act.
A proposed rule was published in the
The Board, with the concurrence of the Office of Management and Budget, has determined that this is not a significant regulatory action under Executive Order 12866, as amended. Therefore, no regulatory impact analysis is required. There are no changes to the information collections associated with Part 367.
Debts, Railroad employees, Railroad retirement.
For the reasons set out in the preamble, the Railroad Retirement Board amends title 20, chapter II, subchapter F, part 367 of the Code of Federal Regulations as follows:
45 U.S.C. 231f(b)(5); 31 U.S.C. 3716
By Authority of the Board.
Bureau of Indian Affairs, Interior.
Final rule.
This rule deletes the requirement for fee-to-trust applicants to furnish title evidence that meets the “Standards for the Preparation of Title Evidence in Land Acquisitions by the United States” issued by the U.S. Department of Justice (DOJ), and replaces the requirement with a more targeted requirement for title evidence, because adherence to the DOJ standards is not required for acquisitions of land in trust for individual Indians or Indian tribes.
This rule becomes effective on May 16, 2016.
Elizabeth Appel, Director, Office of Regulatory Affairs and Collaborative Action, Office of the Assistant Secretary—Indian Affairs; telephone (202) 273-4680,
This rule replaces the “Standards for the Preparation of Title Evidence in Land Acquisitions by the United States” issued by DOJ (DOJ standards) with a more targeted title evidence standard. Under the new standard, applicants must furnish a deed evidencing that the applicant has ownership, or a written sales contract or written statement from the transferor that the applicant will have ownership. Applicants must also submit either (1) a current title insurance commitment; or (2) the policy of title insurance issued at the time of the applicant's or current owner's acquisition of the interest and an abstract dating from the time the interest was acquired. This rule does not preclude applicants from having title confirmed pursuant to all requirements of DOJ standards (as those standards apply in the land-into-trust context) if the applicant so chooses.
The rule continues the current requirement that title evidence must be submitted and reviewed by the Department of the Interior (Department) before title is transferred. The rule continues to provide that the Secretary has discretion to require the elimination of any liens, encumbrances, or infirmities prior to acceptance in trust. The rule also continues the practice of requiring the elimination of any legal claims, including but not limited to liens, mortgages, and taxes, determined by the Secretary to make title unmarketable, prior to acceptance in trust.
Section 5 of the Indian Reorganization Act (IRA) is the primary authority providing the Secretary of the Interior (Secretary) with discretion to acquire land in trust for individual Indians or Indian tribes.
On March 1, 2016, BIA published an interim final rule deleting the requirement for the applicant to furnish title evidence meeting DOJ standards because those standards are not required for acquisitions of land in trust for individual Indians or Indian tribes.
The BIA received 13 comments in response to the interim final rule, most asking questions seeking clarification of the regulatory text. Several commenters supported the rule, but requested clarification. Commenters who opposed the rule stated that the current DOJ standards are necessary to protect the public, including adjoining landowners and other third parties, and protect against conflicts of interest, and that DOJ standards are more reliable and less costly.
After careful consideration of the comments and applying its own experience in reviewing fee-to-trust applications and title evidence, BIA has determined that the final rule provides sufficient standards to protect the United States. The purpose of title evidence requirements is to ensure that the Tribe has marketable title to convey to the United States, thereby protecting the United States.
Several commenters requested clarification of what “written evidence” is required by paragraphs (a)(1) and (a)(2) of the interim final rule. In paragraph (a)(1), the interim final rule required “written evidence of the applicant's title or that title will be transferred to the United States on behalf of the applicant to complete the acquisition in trust.” In paragraph (a)(2), the interim final rule required “written evidence of how title was acquired by the applicant or current owner.” Commenters stated that it appeared the same evidence may satisfy both (a)(1) and (a)(2), in the form of the applicant's deed. To clarify, the final rule specifies that the written evidence must be a deed or other conveyance instrument providing evidence of the applicant's title. The final rule also specifies that if the applicant does not yet have title, the written evidence must be: (1) A deed or other conveyance instrument providing evidence of the transferor's title; and (2) a written agreement or affidavit from the transferor demonstrating that title will be transferred to the United States on behalf of the applicant to complete the acquisition in trust.
A few commenters also noted that (a)(1) and (a)(2) appeared to impose redundant requirements. The final rule addresses this comment by deleting (a)(2), because the specified written evidence required by (a)(1) will necessarily also serve as evidence of how the applicant or current owner acquired title.
A commenter requested clarification of paragraph (b)'s requirement for a “current title insurance commitment” to confirm that no title insurance policy needs to be purchased in the name of the U.S. in trust for the applicant. The commenter is correct that no title insurance policy needs to be purchased if the applicant provides a current title insurance commitment. Also, if the applicant or current owner already obtained a title insurance policy when they acquired the land, the applicant need not purchase a new title insurance policy if they provide the previously issued policy and an abstract of title dating from the time the land was acquired by the applicant or current owner to the present. No clarification to the rule was made in response to this comment because the rule already states the alternatives to purchasing a title insurance policy.
Another commenter noted that, because the rule requires only the commitment to issue title insurance rather than an actual title insurance policy, that title companies may stop issuing commitments without a final title policy. For BIA's purposes, the title commitment is sufficient evidence and, in recognition that there is an extra cost imposed for obtaining the actual title
A commenter requested clarification of the requirement for “the policy of title insurance issued at the time of the applicant's or current owner's acquisition of the land and an abstract of title dating from the time the land was acquired by the applicant or current owner.” This commenter stated that an existing title insurance policy may not have been issued at the time of the acquisition, and suggested revising the provision to simply state “the policy of title insurance issued to the applicant or current owner.” The final rule incorporates this suggestion and clarifies that the abstract must address the time period beginning when the insurance policy was issued to the applicant or current owner.
One commenter asked whether BIA, and the Office of the Solicitor, will still require a current title commitment, even when the applicant provides the previously issued policy and abstract. Upon the effective date of the rule, the BIA and Office of the Solicitor will require only the title evidence listed in the rule.
A commenter requested clarification as to whether the requirement for an abstract of title is intended to address title going forward rather than backward, and if so, that it would not be a title abstract in the traditional sense because the abstract would reflect only the current owner. The final rule clarifies that the requirement is intended to address title going forward, by adding “to the present.” The commenter is correct that the abstract of title will be straightforward, and may only reflect the current owner, but the abstract will serve the purpose of confirming the current owner's ownership and showing whether any liens, encumbrances, or infirmities have been placed on title prior to acceptance in trust, in lieu of requiring the applicant to purchase a new title commitment.
A commenter requested clarification on what “marketability” means. The commenter also asked how BIA will address reversionary clauses and defeasible title issues and their effect on marketability. The final rule makes no substantive change to the provision allowing BIA to require the elimination of any such liens, encumbrances, or infirmities if BIA determines they make title to the land unmarketable. Likewise, the final rule makes no substantive change to the meaning of “unmarketable.”
A commenter suggested the rule explain that the deed will not be recorded until exceptions to the title insurance policy are satisfied. The final rule does not include this explanation because it is inaccurate. There is no requirement that all exceptions be eliminated. The Department reviews and makes a determination on each exception as to whether it must be eliminated, and does not require the elimination of exceptions that do not affect the title to the land.
A few commenters requested more specifics as to what title standards the Department will apply in lieu of the DOJ standards. For example, one commenter asked whether the Department will still require applicants to use the American Land Title Association (ALTA) U.S. policy form in those cases in which the applicant chooses to obtain title insurance. The BIA has updated the fee-to-trust handbook to ensure it is consistent with this final rule. The revised version of the fee-to-trust handbook specifies that, if the applicant chooses to submit title insurance, it should use the most current version of the ALTA U.S. policy form. A commenter also asked how the Department will determine who is qualified to provide title evidence, in lieu of the DOJ standards. The revised fee-to-trust handbook specifies that the Department will look to the appropriate licensing authority for qualifications. A commenter also asked what type of deed will be required to convey title to the U.S. on behalf of the applicant. The Department will continue the approach it has taken in the past (requiring a warranty deed in nearly all instances), specified in the revised fee-to-trust handbook.
A commenter asked whether the Department will look to State laws for guidance. The Department relies on national standards, as set out in the rule and revised fee-to-trust handbook, rather than State laws, with regard to the Department's decision whether to approve title.
One commenter requested stating that the applicant need not provide title evidence until after the Secretary makes the decision to take the land into trust. The final rule only addresses what title evidence is required, it is not intended to change the Department's process or timing.
One commenter suggested imposing timelines on the Department's issuance of preliminary and final title opinions. The final rule does not incorporate this suggestion because there are too many variables to establish a definitive timeframe for preparation of these documents.
A few commenters suggested edits that were beyond the scope of the interim final rule. One Tribal commenter noted the difficulty in obtaining title insurance policies in California and suggested actions the Department could take to educate title insurance companies. Another commenter suggested adding a requirement to obtain State approval to transfer jurisdiction of land being taken into trust. These comments are outside the scope of this rulemaking.
A commenter also stated that the revision is not appropriate for an interim final rule. The Department disagrees because the rule is a targeted, procedural improvement.
As described above, the final rule includes edits to the interim final rule for clarification. The edits are summarized in the table below:
As the preamble to the interim final rule stated, this rule will apply to all trust applications submitted after the effective date. This rule will also apply to trust applications that are pending and for which the Preliminary Title Opinion has not yet been prepared by the Office of the Solicitor as of the effective date. However, if applicants have already submitted evidence meeting the DOJ standards, they need not re-submit evidence pursuant to this rule. This rule will not apply to trust applications that are pending and for which the Preliminary Title Opinion has already been prepared by the Office of the Solicitor as of the effective date.
BIA has updated its fee-to-trust handbook to incorporate changes required by the new rule. The handbook is available at:
Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based 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 this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. It will not result in the expenditure by State, local, or Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year. The rule will not result in a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. Nor will this rule have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of the U.S.-based enterprises to compete with foreign-based enterprises. This rule removes the requirement for title evidence to comply with DOJ standards and replaces this requirement with a more targeted requirement for title evidence; it will not result in additional expenditures by any entity.
This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
Under the criteria in Executive Order 12630, this rule does not affect individual property rights protected by the Fifth Amendment nor does it involve a compensable “taking.” A takings implication assessment is not required.
Under the criteria in Executive Order 13132, this rule has no 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. This rule removes the requirement for title evidence to comply with DOJ standards and replaces this requirement with a more targeted requirement for title evidence; it does not affect States or the relationship with States in any way.
This rule complies with the requirements of Executive Order 12988. Specifically, this rule has been reviewed to eliminate errors and ambiguity and written to minimize litigation; and is written in clear language and contains clear legal standards.
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments,” Executive Order 13175 (59 FR 22951, November 6, 2000), and 512 DM 2, we have evaluated the potential effects on federally recognized Indian Tribes and Indian trust assets and have determined there is no “substantial direct effect” on Tribes, on the relationship between the Federal Government and Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. The rule will affect Tribes who apply to take land into trust, in that the rule removes unnecessary submissions of documentation. However, the rule does not have a substantial direct effect on Tribes because Tribes can still submit evidence meeting the DOJ title standards should they so choose and allowing the option of submitting a past title insurance policy and an abstract of title is intended to be less burdensome than the existing rule. The Department is committed to meaningful consultation with Tribes on substantive matters that have a substantial direct effect on Tribes, in accordance with E.O. 13175 and the Department of the Interior Policy on Consultation with Indian Tribes.
This information collection for trust land applications is authorized by OMB Control Number 1076-0100, with an expiration of 08/31/16. The elimination of the requirement to comply with DOJ standards is not expected to have a quantifiable effect on the hour burden estimate for the information collection, but BIA will review whether its current estimates are affected by this change at the next renewal.
This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because the rule is covered by a categorical exclusion. This rule is excluded from the requirement to prepare a detailed statement because it is a regulation of an administrative nature. (For further information, see 43 CFR 46.210(i).) We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.
In developing this rule we did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Pub. L. 106-554).
This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required.
We published an interim final rule with a request for comment without prior notice and comment, as allowed under 5 U.S.C. 553(b)(B). Under section 553(b)(B), we find that prior notice and comment are unnecessary because this is a minor, technical action that eliminates an unnecessary requirement. This rule removes the unnecessary requirement that the title evidence the applicant submits must comply with DOJ standards for title evidence. Delay in publishing this rule would unnecessarily continue imposing the unnecessary requirement on applicants and would therefore be contrary to the public interest. We stated that we would review comments and initiate a proposed rulemaking, revise, or withdraw the rule. Because the comments we received were primarily seeking clarifications, we have chosen to revise the rule with requested clarifications.
Indians—lands, Reporting and recordkeeping requirements.
For the reasons given in the preamble, the interim rule amending 25 CFR part 151 which was published at 81 FR 10477 on March 1, 2016, is adopted as a final rule with the following change:
R.S. 161: 5 U.S.C. 301. Interpret or apply 46 Stat. 1106, as amended; 46 Stat.1471, as amended; 48 Stat. 985, as amended; 49 Stat. 1967, as amended, 53 Stat. 1129; 63 Stat. 605; 69 Stat. 392, as amended; 70 Stat. 290, as amended; 70 Stat. 626; 75 Stat. 505; 77 Stat. 349; 78 Stat. 389; 78 Stat. 747; 82 Stat. 174, as amended, 82 Stat. 884; 84 Stat. 120; 84 Stat. 1874; 86 Stat. 216; 86 Stat. 530; 86 Stat. 744; 88 Stat. 78; 88 Stat. 81; 88 Stat. 1716; 88 Stat. 2203; 88 Stat. 2207; 25 U.S.C. 2, 9, 409a, 450h, 451, 464, 465, 487, 488, 489, 501, 502, 573, 574, 576, 608, 608a, 610, 610a, 622, 624, 640d-10, 1466, 1495, and other authorizing acts.
(a) If the Secretary determines that she will approve a request for the acquisition of land from unrestricted fee status to trust status, she shall require the applicant to furnish title evidence as follows:
(1) The deed or other conveyance instrument providing evidence of the applicant's title or, if the applicant does not yet have title, the deed providing evidence of the transferor's title and a written agreement or affidavit from the transferor, that title will be transferred to the United States on behalf of the applicant to complete the acquisition in trust; and
(2) Either:
(i) A current title insurance commitment; or
(ii) The policy of title insurance issued to the applicant or current owner and an abstract of title dating from the time the policy of title insurance was issued to the applicant or current owner to the present.
(3) The applicant may choose to provide title evidence meeting the title standards issued by the U.S. Department of Justice, in lieu of the evidence required by paragraph (a)(2) of this section.
(b) After reviewing submitted title evidence, the Secretary shall notify the
Coast Guard, DHS.
Notice of deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the Montlake Bridge across the Lake Washington Ship Canal, mile 5.2, at Seattle, WA. The deviation is necessary to accommodate the University of Washington, and University of Washington Bothell commencement ceremony traffic. This deviation allows the bridge to remain in the closed-to-navigation position to accommodate the timely movement of vehicular traffic.
This deviation is effective from 9:30 a.m. on June 11, 2016 to 6:15 p.m. on June 12, 2016.
The docket for this deviation, [USCG-2016-0392] is available at
If you have questions on this temporary deviation, call or email Mr. Steven Fischer, Bridge Administrator, Thirteenth Coast Guard District; telephone 206-220-7282, email
The University of Washington, through the Washington Department of Transportation, has requested that the Montlake Bridge bascule span remain in the closed-to-navigation position, and need not open to marine traffic to facilitate timely movement of commencement vehicular traffic.
The Montlake Bridge across the Lake Washington Ship Canal, at mile 5.2, in the closed position provides 30 feet of vertical clearance throughout the navigation channel, and 46 feet of vertical clearance throughout the center 60-feet of the bridge; vertical clearance references to the Mean Water Level of Lake Washington. The normal operating schedule for Montlake Bridge operates in accordance with 33 CFR 117.1051(e).
The deviation period is from 9:30 a.m. to 12:30 p.m. and from 4:30 p.m. to 6:30 p.m. on June 11, 2016; and from 11:45 a.m. to 1:45 p.m. and from 4:15 p.m. to 6:15 p.m. on June 12, 2016. The deviation allows the bascule span of the Montlake Bridge to remain in the closed-to-navigation position for the times and dates herein. Waterway usage on the Lake Washington Ship Canal ranges from commercial tug and barge to small pleasure craft.
Vessels able to pass through the bridge in the closed-to-navigation position may do so at anytime. The bridge will be able to open for emergencies and there is no immediate alternate route for marine 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 vessels 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 designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Notice of deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the upper deck of the Steel Bridge, mile 12.1, and the Burnside Bridge, mile 12.4, both crossing the Willamette River, at Portland, OR. The deviation is necessary to accommodate the annual Rose Festival Parade event, which crosses the Steel Bridge and Burnside Bridge. This deviation allows the upper deck of the Steel Bridge and Burnside Bridge to remain in the closed-to-navigation position and need not open for marine traffic to allow for the safe movement of event participants.
This deviation is effective from 7 a.m. to 2 p.m. on June 11, 2016.
The docket for this deviation, [USCG-2016-0380] is available at
If you have questions on this temporary deviation, call or email Mr. Steven Fischer, Bridge Administrator, Thirteenth Coast Guard District; telephone 206-220-7282, email
TriMet Public Transit and Multnomah County have requested that the upper deck of the Steel Bridge and the Burnside Bridge remain in the closed-to-navigation position to accommodate the annual Rose Festival Parade event. The Steel Bridge, mile 12.1, and the Burnside Bridge, mile 12.4, both cross the Willamette River.
The Steel Bridge is a double-deck lift bridge with a lower lift deck and an upper lift deck which operate independent of each other. When both decks are in the down position the bridge provides 26 feet of vertical clearance. When the lower deck is in the up position, the bridge provides 71 feet of vertical clearance. This deviation does not affect the operating schedule of the lower deck which opens on signal. The normal operating schedule for the upper deck of the Steel Bridge operates in accordance with 33 CFR 117.897(c)(3)(ii).
The Burnside Bridge provides a vertical clearance of 64 feet in the closed-to-navigation position. The normal operating schedule for the Burnside Bridge operates in accordance with 33 CFR 117.897(c)(3)(iii). The Steel Bridge and Burnside Bridge clearances are above Columbia River Datum 0.0.
The deviation period is from 7 a.m. to 2 p.m. on June 11, 2016 to accommodate the route of the annual Rose Festival Parade event. The deviation allows the upper deck of the Steel Bridge, mile 12.1, and the Burnside Bridge, mile 12.4, both crossing the Willamette River, to remain in the closed-to-navigation position and need not open for maritime traffic from 7 a.m. to 2 p.m. on June 11, 2016. Waterway usage on this part of the Willamette River includes vessels ranging from commercial tug and barge to small pleasure craft.
Vessels able to pass through the Steel Bridge and Burnside Bridge in the closed positions may do so at any time. The bridges will be able to open for emergencies, 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 bridges so that 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 designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for all waters of the Upper Mississippi River (UMR) from mile 853.2 to mile 854.2. The safety zone is needed to protect persons, property, and infrastructure from potential damage and safety hazards associated with a fireworks display. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port (COTP). Deviation from the safety zone may be requested and will be considered on a case-by-case basis as specifically authorized by the COTP or a designated representative.
This rule is effective from 10 p.m. until 11 p.m. on June 17, 2016.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email LCDR Sean Peterson, Chief of Prevention, U.S. Coast Guard; telephone 314-269-2332, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency finds good cause those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the Coast Guard was not notified of the event until April 19, 2016. After full review of the event details, the Coast Guard determined that action is needed to protect people and property from the safety hazards associated with a fireworks display on the Upper Mississippi River. It would be impracticable to publish a NPRM because the safety zone must be established on June 17, 2016.
The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. On June 17, 2016, a fireworks display will take place on the Upper Mississippi River between mile 853.2 and mile 854.2 for the 150th Celebration of General Mills. The COTP has determined that potential hazards associated with the fireworks display will be a safety concern for anyone within the area that is designated as the safety zone. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone during the fireworks display.
This rule establishes a safety zone from 10 p.m. until 11 p.m. on June 17, 2016. The safety zone will cover all navigable waters on the Upper Mississippi River between mile 853.2 and mile 854.2. The safety zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during the fireworks display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.
We developed this rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive Orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.
This temporary final rule establishes a safety zone that will be enforced for a limited time period. During the enforcement period, vessels are prohibited from entering into or remaining within the safety zone unless specifically authorized by the COTP or other designated representative. Based on the location and short duration of the enforcement period, this rule does not pose a significant regulatory impact. Additionally, notice of this safety zone or any changes in the planned schedule will be made via Broadcast Notice to Mariners and Local Notice to Mariners.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A. above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting approximately one hour that will prohibit entry between miles 853.2 and 854.2 on the Upper Mississippi River. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) To seek permission to enter, contact the COTP or the COTP's representative via VHF-FM channel 16 or through Coast Guard Sector Upper Mississippi River at 314-269-2332. Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.
(d)
(e)
Coast Guard, DHS.
Notice of enforcement.
The Coast Guard will enforce the safety zone for the Crescent City Fourth of July Fireworks display in the Captain of the Port, San Francisco area of responsibility during the dates and times noted below. This action is necessary to protect life and property of the maritime public from the hazards associated with the fireworks display. During the enforcement period, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone, unless authorized by the Patrol Commander (PATCOM).
The regulations in 33 CFR 165.1191, Table 1, Item number 4 will be enforced from 9:30 p.m. to 10 p.m. on July 4, 2016.
If you have questions on this notice of enforcement, call or email Lieutenant Junior Grade Christina Ramirez, U.S. Coast Guard Sector San Francisco; telephone (415) 399-3585 or email at
The Coast Guard will enforce the safety zone established in 33 CFR 165.1191, Table 1, Item number 4 on July 4, 2016. Upon commencement of the 30 minute fireworks display, scheduled to begin at 9:30 p.m. on July 4, 2016, the safety zone will encompass the navigable waters surrounding the land-based launch site on the West Jetty of Crescent City Harbor within a radius of 700 feet in approximate position 41°44′41″ N, 124°11′59″ W (NAD 83) for the Fourth of July Fireworks, Crescent City in 33 CFR 165.1191, Table 1, Item number 4. Upon the conclusion of the fireworks display the safety zone shall terminate. This safety zone will be in effect from 9:30 p.m. to 10 p.m. on July 4, 2016.
Under the provisions of 33 CFR 165.1191, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone during all applicable effective dates and times, unless authorized to do so by the PATCOM. Additionally, each person who receives notice of a lawful order or direction issued by an official patrol vessel shall obey the order or direction. The PATCOM is empowered to forbid entry into and control the regulated area. The PATCOM shall be designated by the Commander, Coast Guard Sector San Francisco. The PATCOM may, upon request, allow the transit of commercial vessels through regulated areas when it is safe to do so.
This notice of enforcement is issued under authority of 33 CFR 165.1191 and 5 U.S.C. 552 (a). In addition to this notice of enforcement in the
If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.
Environmental Protection Agency (EPA).
Final rule.
The Clean Air Act (CAA) requires each State Implementation Plan (SIP) to contain adequate provisions prohibiting air emissions that will have certain adverse air quality effects in other states. On October 20, 2015, the State of Oregon made a submittal to the Environmental Protection Agency (EPA) to address these requirements. The EPA is approving the submittal as meeting the requirements that each SIP contain adequate provisions to prohibit emissions that will contribute significantly to nonattainment or interfere with maintenance of the 2008 lead (Pb) and 2010 nitrogen dioxide (NO
This final rule is effective June 15, 2016.
The EPA has established a docket for this action under Docket ID No. EPA-R10-OAR-2016-0050. All documents in the docket are listed on the
Kristin Hall at (206) 553-6357,
On October 20, 2015, Oregon made a submittal to address the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for multiple NAAQS, including the 2008 Pb and 2010 NO
The EPA is approving Oregon's October 20, 2015 submittal as meeting the CAA section 110(a)(2)(D)(i)(I) interstate transport requirements for the 2008 Pb and 2010 NO
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because this action does not involve technical standards; and
• does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 15, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Reporting and recordkeeping requirements.
42 U.S.C. 7401
For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) The EPA approves Oregon's October 20, 2015 submittal as meeting the requirements of CAA section 110(a)(2)(D)(i)(I) for the 2008 lead and 2010 nitrogen dioxide NAAQS.
Environmental Protection Agency (EPA).
Notice of action denying a petition for reconsideration.
The Environmental Protection Agency (EPA) is providing notice that it has responded to a petition for reconsideration of a final rule published in the
May 16, 2016.
Emily Seidman, U.S. EPA, Office of General Counsel, Mail Code 2344A, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone (202) 564-0906; email at
This
All documents in the docket are listed on the
This
Section 307(b)(1) of the Clean Air Act (CAA) indicates which Federal Courts of Appeals have venue for petitions for review of final EPA actions. This section provides, in part, that the petitions for review must be filed in the Court of Appeals for the District of Columbia Circuit if: (i) The agency action consists of “nationally applicable regulations promulgated, or final action taken, by the Administrator,” or (ii) such actions are locally or regionally applicable, if “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.”
The EPA has determined that its denial of the petition for reconsideration is nationally applicable for purposes of CAA section 307(b)(1) because the actions directly affect the OSWRO NESHAP, which is a nationally applicable regulation. Thus, any petitions for review of the EPA's decision denying the petitioners' request for reconsideration must be filed in the United States Court of Appeals for the District of Columbia Circuit by July 15, 2016.
On March 18, 2015, the EPA promulgated a final rule amending the OSWRO NESHAP based on the RTR conducted for the OSWRO source category. 80 FR 14248, March 18, 2015. The EPA amended the OSWRO NESHAP to revise provisions related to emissions during periods of startup, shutdown, and malfunction; to add requirements for electronic reporting of performance testing; to add monitoring requirements for pressure relief devices (PRDs); to revise routine maintenance provisions; to clarify provisions for open-ended valves and lines and for some performance test methods and procedures; and to make several minor clarifications and corrections. Subsequent to publishing the final rule, the EPA received a petition for reconsideration submitted jointly by Eastman Chemical Company and the American Chemical Council (dated May 18, 2015). This petition sought reconsideration of two of the amended provisions of the OSWRO NESHAP: (1) The equipment leak provisions for connectors, and (2) the requirement to monitor PRDs on portable containers. The EPA considered the petition and supporting information along with information contained in the OSWRO NESHAP amendment rulemaking docket (Docket ID No. EPA-HQ-OAR-2012-0360) in reaching a decision on the petition. The Agency granted reconsideration of the PRD monitoring requirement in a letter to the petitioners dated February 8, 2016. In separate letters to the petitioners dated May 5, 2016, the Administrator denied reconsideration of the equipment leak provisions for connectors and explained the reasons for the denial in these letters. These letters are available in the OSWRO NESHAP amendment rulemaking docket.
Environmental Protection Agency (EPA).
Final interpretive rule.
Section 518 of the Clean Water Act (CWA), enacted as part of the 1987 amendments to the statute, authorizes EPA to treat eligible Indian tribes with reservations in a manner similar to states (TAS) for a variety of purposes, including administering each of the principal CWA regulatory programs and receiving grants under several CWA authorities. Since 1991, EPA has followed a cautious interpretation that has required tribes, as a condition of receiving TAS regulatory authority under section 518, to demonstrate inherent authority to regulate waters and activities on their reservations under principles of federal Indian common law. The Agency has consistently stated, however, that its approach was subject to change in the event of further congressional or judicial guidance addressing tribal authority under CWA section 518. Based on such guidance, EPA in the interpretive rule we are finalizing today concludes definitively that section 518 includes an express delegation of authority by Congress to Indian tribes to administer regulatory programs over their entire reservations, subject to the eligibility requirements in section 518. This reinterpretation streamlines the process for applying for TAS, eliminating the need for applicant tribes to demonstrate inherent authority to regulate under the Act and allowing eligible tribes to implement the congressional delegation of authority. The reinterpretation also brings EPA's treatment of tribes under the CWA in line with EPA's treatment of tribes under the Clean Air Act, which has similar statutory language addressing tribal regulation of Indian reservation areas. This interpretive rule
This final interpretive rule is effective on May 16, 2016.
EPA has established a docket for this rule under Docket ID No. EPA-HQ-OW-2014-0461. All documents in the docket are listed on the
Thomas Gardner, Standards and Health Protection Division, Office of Science and Technology (4305T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 566-0386; email address:
This supplementary information section is organized as follows:
This rule applies to tribal governments that seek eligibility to administer regulatory programs under the Clean Water Act (CWA, or the Act). The table below provides examples of entities that could be affected by this rule or have an interest in it.
If you have questions regarding the effect of this interpretive rule on a particular entity, please consult the person listed in the preceding
Today's interpretive rule streamlines how tribes apply for TAS under CWA section 518 for CWA regulatory programs including the water quality standards program. It eliminates the need for applicant tribes to demonstrate inherent authority to regulate under the Act, thus allowing tribes to implement a delegation of authority by Congress. Specifically, EPA revises its existing interpretation of CWA section 518 to conclude definitively that this provision includes an express delegation of authority by Congress to Indian tribes to administer regulatory programs over their entire reservations, subject to the eligibility requirements in section 518.
EPA conducted consultation and coordination with tribes and states before proposing the reinterpretation in the
EPA received a total of 44 comments from the public on the proposed interpretive rule. A majority (27) of the comments expressed support for the rule, including unanimous support from tribes and tribal organizations that responded. Sections IV and V address issues and questions about the proposal that commenters raised.
Today's rule finalizes the proposal, reflecting EPA's consideration of the comments and other input received. The comments, EPA's responses to the comments, and meeting notes are available in the public docket at
The CWA, 33 U.S.C. 1251,
This rule entails no significant cost. Its only effect will be to reduce the administrative burden for a tribe applying in the future to administer a CWA regulatory program, and to potentially increase the pace at which tribes seek such programs. See the discussion of administrative burden and cost in sections VII and VIII.B.
This interpretive rule, which sets forth EPA's revised interpretation of CWA section 518, is not a final agency action subject to immediate judicial review. This interpretive rule is not determinative of any tribe's eligibility for TAS status. Rather, it notifies prospective applicant Indian tribes and others of EPA's revised interpretation. Today's interpretive rule would be subject to judicial review only in the context of a final action by EPA on a TAS application from an Indian tribe for the purpose of administering a CWA regulatory program based on the revised interpretation.
Congress added CWA section 518 as part of amendments made to the statute in 1987. Section 518(e) authorizes EPA to treat eligible Indian tribes in a similar manner as states for a variety of purposes, including administering each of the principal CWA regulatory programs and receiving grants under several CWA funding authorities. Section 518(e) is commonly known as the “TAS” provision, for treatment in a manner similar to a state.
Section 518(e) establishes eligibility criteria for TAS, including requirements that the tribe have a governing body carrying out substantial governmental duties and powers; that the functions to be exercised by the tribe pertain to the management and protection of water resources within the borders of an Indian reservation; and that the tribe be reasonably expected to be capable of carrying out the functions to be exercised in a manner consistent with the terms and purposes of the Act and applicable regulations. Section 518(e) also requires EPA to promulgate regulations specifying the TAS process for applicant tribes. See section II.B.
Section 518(h) defines “Indian tribe” to mean any Indian tribe, band, group, or community recognized by the Secretary of the Interior and exercising governmental authority over a federal Indian reservation. It also defines “federal Indian reservation” to mean all land within the limits of any reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation.
Pursuant to section 518(e), EPA promulgated several final regulations establishing TAS criteria and procedures for Indian tribes interested in administering programs under the Act. The relevant regulations addressing TAS requirements for the principal CWA regulatory programs are:
• 40 CFR 131.8 for section 303(c) water quality standards (WQS). Final rule published December 12, 1991 (56 FR 64876); proposed rule published September 22, 1989 (54 FR 39098). Referred to hereafter as the “1991 WQS TAS rule” or “1991 TAS rule”;
• 40 CFR 131.4(c) for section 401 water quality certification, published in the 1991 WQS TAS rule;
• 40 CFR 123.31-123.34 for section 402 National Pollutant Discharge Elimination System (NPDES) permitting and other provisions, and 40 CFR 501.22-501.25 for the state section 405 sewage sludge management program. Final rule published December 22, 1993 (58 FR 67966); proposed rule published March 10, 1992 (57 FR 8522); and
• 40 CFR 233.60-233.62 for section 404 dredge or fill permitting. Final rule published February 11, 1993 (58 FR 8172); proposed rule published November 29, 1989 (54 FR 49180).
In 1994, EPA amended the above regulations to simplify the TAS process and eliminate unnecessary and duplicative procedural requirements.
Today's interpretive rule does not address or affect the TAS requirements or review process for tribes to receive grants.
The TAS eligibility criteria in section 518(e) make no reference to any demonstration of an applicant tribe's regulatory authority to obtain TAS. Rather, the relevant part of section 518(e)—which is section 518(e)(2)—requires only that the functions to be exercised by the tribe pertain to the management and protection of reservation water resources. As noted above, section 518(h)(1) also defines Indian reservations to include all reservation land irrespective of who owns the land. EPA nonetheless took a cautious approach when it issued the 1991 WQS TAS rule and subsequent regulations described in section II.B above. The 1991 approach required each tribe seeking TAS for the purpose of administering a CWA regulatory program to demonstrate its inherent authority under principles of federal Indian law, including gathering and analyzing factual information to demonstrate the tribe's inherent authority over the activities of nonmembers of the tribe on nonmember-owned fee lands within a reservation.
EPA recognized at the time that there was significant support for the proposition that Congress had intended to delegate authority to otherwise eligible tribes to regulate their entire reservations under the Act. Notably, in a plurality opinion in
For further details about EPA's 1991 interpretation of the CWA TAS provision, see section III of EPA's proposal. 80 FR at 47433-34.
Since 1991, EPA has taken final action approving TAS for CWA regulatory programs for 53 tribes.
Notably, the first court to review a challenge to an EPA CWA TAS approval expressed the view that the statutory language of section 518 indicated plainly that Congress intended to delegate authority to Indian tribes to regulate water resources on their entire reservations, including regulation of non-Indians on fee lands within a reservation.
The TAS provision of a separate statute—the Clean Air Act (CAA)—and the review of that provision in court provide additional relevant guidance (both congressional and judicial) regarding legislative intent to treat Indian reservations holistically for purposes of environmental regulation by delegating authority over such areas to eligible Indian tribes. Congress added the CAA TAS provision—section 301(d)—to the statute in 1990, only three years after it enacted CWA section 518. Although CAA section 301(d) pre-dates EPA's 1991 CWA TAS rule, it was not until 1998 that EPA promulgated its regulations interpreting the CAA TAS provision as an express congressional delegation of authority to eligible Indian tribes. 40 CFR part 49; 63 FR 7254 (February 12, 1998) (the “CAA Tribal Authority Rule”). The U.S. Court of Appeals for the D.C. Circuit upheld that interpretation two years later.
EPA finalized its regulations implementing CAA section 301(d) in 1998. The CAA TAS provision, combined with the definition of Indian tribe in CAA section 302(r), established the same basic TAS eligibility criteria for CAA purposes that apply under the CWA:
EPA noted at that time important similarities between the CAA and CWA TAS provisions. Most notably, the tribal provisions of both statutes expressly provide eligibility for tribal programs that pertain to the management and protection of environmental resources (
Several parties petitioned for judicial review of the CAA Tribal Authority Rule and challenged whether CAA section 301(d) could be properly interpreted as a delegation of authority by Congress to eligible Indian tribes.
A dissenting judge in the
As the D.C. Circuit stated in
In light of these developments, as well as EPA's experience administratively interpreting and implementing the CAA TAS provision, it is appropriate to revisit and revise EPA's approach to TAS under the CWA. In the preambles to the CWA TAS regulations from the 1990s, EPA discussed the possibility of reinterpreting CWA section 518 as an express congressional delegation of authority to tribes based on subsequent congressional or judicial guidance. Additionally, in 2011 EPA discussed the possible reinterpretation of section 518 in a review of EPA's legal authorities that could help advance environmental justice.
EPA received numerous comments on the proposed rule addressing the Agency's rationale for revising its interpretation of section 518. All eighteen Indian tribes and the three tribal organizations that commented expressed strong support for the rule. Two states also expressed support for tribal opportunities to obtain TAS. Several members of the public also supported the rule, including a member of the Indian law academic community. Supportive commenters agreed that the plain language of section 518 indicates Congress' intent to delegate authority to tribes to regulate their entire reservations under the CWA and that the cited case law developments provide additional support for the revised interpretation and a solid basis for EPA to finalize the rule. Commenters noted the similarities between the CWA
EPA also received comments from several other states, a local government, a local government association, two operating agents of industrial facilities, and one member of the public disagreeing with, or questioning, in whole or in part EPA's rationale for the revised interpretation of section 518. These comments assert that EPA's legal analysis does not support the change in statutory interpretation; that there has been no definitive court ruling on the proper interpretation of section 518; and that the judicial statements regarding section 518 that EPA cited in the proposal represent dicta and not actual court holdings on the CWA question. The comments also argue that the relevant CWA legislative history does not support the revised interpretation and note that Congress has been aware of EPA's prior interpretation since 1991 but has taken no action to correct it, notwithstanding that Congress amended section 518 in 2000. Commenters also point to a backdrop of U.S. Supreme Court case law addressing limitations on inherent tribal authority with regard to the activities of non-tribal members and assert that the revised interpretation would run counter to that line of jurisprudence. The comments also assert that differences between the CWA and CAA and between water and air quality issues support treating reservations differently under the two statutes.
EPA appreciates but disagrees with these comments. EPA recognizes that the various judicial statements supporting the Agency's interpretation of section 518 as a congressional delegation were not central to the holdings of the relevant cases. This is not surprising in light of the fact that EPA has not previously approved a TAS application based on this interpretation of section 518. Because EPA has premised its prior TAS approvals on demonstrations of inherent tribal regulatory authority, there would be no opportunity in the ordinary course of judicial review to join the open question regarding the proper interpretation of the statute. Nonetheless, the commenters undervalue the significance of the cited judicial statements. For instance, although the district court in
EPA is also aware of the separate Supreme Court jurisprudence addressing inherent tribal authority over nonmembers on Indian reservations. This is, of course, the same line of authority that EPA has previously applied when tribes sought to regulate the activities of nonmembers under the CWA. Retained inherent authority is, however, only one of the means by which tribes may exercise authority over their reservations and, in particular, over the activities of nonmembers. The Supreme Court has long recognized Congress' broad power to delegate authority to Indian tribes, including the authority to regulate the conduct of nonmembers of the tribes.
EPA also acknowledges that the legislative history of section 518 is inconclusive regarding congressional intent to delegate authority to tribes. The commenters, however, overstate the degree to which the legislative record indicates an absence of such intent. EPA carefully analyzed this legislative history in the preamble to the 1991 WQS TAS rule and found that the record includes statements that can be interpreted to support either view. The absence of clarity in the record was among the reasons EPA opted to proceed initially with a high degree of caution and impose a requirement not otherwise reflected in the CWA that tribes demonstrate inherent authority to regulate under the statute. Notably, in 1996 the district court in
EPA also finds the absence of any action by Congress to correct EPA's prior cautious approach to be
Further, the fact that Congress in 2000 enacted a separate targeted amendment to section 518 to make a newly created program available to tribes without also addressing tribal regulatory authority sheds no light on the question. In 2000, Congress enacted the coastal recreation water quality monitoring and notification provision at section 406 of the CWA and also provided that tribes should be able to obtain TAS for that program. The fact that Congress did not further amend the statute at that time to address tribal regulatory authority is unrevealing regarding its prior intent in 1987 to delegate authority to tribes. For the reasons described above, there was no substantial cause for Congress to address tribal jurisdiction at that time. In addition, the legislative history of the 2000 amendment is consistent with Congress' narrow purpose to insert section 406 into the list of programs identified in section 518 for potential TAS. It does not indicate any consideration of the issue of tribal regulatory authority. Further, CWA section 406 establishes a funding and monitoring program. It does not entail the exercise of any regulatory authority by states or tribes. It would have been highly anomalous for Congress to address tribal regulatory authority as an adjunct to establishing a TAS opportunity for a non-regulatory program. In these circumstances, EPA declines to interpret congressional inaction as a tacit approval or adoption of EPA's prior approach to tribal authority.
Finally, EPA continues to view the analogy between CWA and CAA regulation, and between the tribal provisions of the two statutes, as supportive of today's rule. Although there are differences between the two statutes and their relevant histories, both evince a clear congressional intent (only three years apart) to treat Indian reservations holistically and to provide for tribal regulation of mobile pollutants on reservations irrespective of land ownership. The CAA, which authorizes TAS over both reservation and non-reservation lands, expresses the delegation of authority by distinguishing between those two categories and clearly placing reservations within tribal jurisdiction. The CWA authorizes TAS solely for reservations. The statute is thus somewhat more limited in the geographic scope of potential TAS, but, as a result, it more directly expresses the delegation of authority over the covered reservation areas. Section 518(e)(2) requires only that the tribal program pertain to reservation water resources, and section 518(h)(1) unambiguously defines reservations to include all reservation land notwithstanding ownership. EPA also disagrees with a comment suggesting that differences between airsheds and watersheds within Indian reservations support treating the two statutes' tribal provisions differently. In particular, the comment notes that watersheds can have defined beds and banks that cross lands with disparate ownership patterns. EPA notes that the same is essentially true of airsheds, which cover reservation lands without regard to ownership. As noted by the district court in
Based on EPA's experience to date, the TAS application process has become significantly more burdensome than EPA anticipated in 1991. Many authorized tribes have informed EPA that the demonstration of inherent tribal authority, including application of the test established in
In the 1991 TAS rule, EPA expressed its expert view that given the importance of surface water to tribes and their members, the serious nature of water pollution impacts, and the mobility of pollutants in water, applicant Indian tribes would generally be able to demonstrate inherent regulatory authority to set WQS for reservation waters, including as applied to nonmembers on fee lands under federal Indian law principles.
Unfortunately, EPA's expectations have not, as a general matter, been realized. Although each TAS application has varied according to the particular facts and circumstances of the applicant tribe and its reservation, the general experience confirms that demonstrations of inherent regulatory authority continue to impose unintended administrative burden on applicant tribes and to require substantial commitments of limited tribal and federal resources. In particular, the demonstration of inherent authority over nonmember activities on the reservation under the so-called
The elimination of such unintended administrative burdens does not, in itself, provide a legal rationale to alter EPA's interpretation of section 518.
As explained in section III, EPA has long interpreted the CWA as expressing Congress' preference for tribal regulation of reservation surface water quality.
EPA today revises its interpretation of CWA section 518 and concludes definitively that Congress expressly delegated authority to Indian tribes to administer CWA regulatory programs over their entire reservations, including over nonmember activities on fee lands within the reservation of the applicant tribe, subject to the eligibility requirements in section 518. In doing so, EPA thus exercises the authority entrusted to it by Congress to implement the CWA TAS provision.
The effect of this interpretive rule is to relieve a tribe of the need to demonstrate its inherent authority when it applies for TAS to administer a CWA regulatory program. An applicant tribe still needs to meet all other eligibility requirements specified in CWA section 518 and EPA's implementing regulations. Nonetheless, this rule eliminates any need to demonstrate that the applicant tribe retains inherent authority to regulate the conduct of nonmembers of the tribe on fee lands under the test established by the Supreme Court in
EPA bases its revised interpretation of CWA section 518 on its analysis in section IV above and a careful consideration of comments received. Most importantly, EPA's revised interpretation is based on the plain text of section 518 itself. Section 518(e)(2) requires only that the functions to be exercised by the applicant Indian tribe pertain to the management and protection of water resources “within the borders of an Indian reservation.” Section 518(h)(1) then defines the term “federal Indian reservation
As EPA explained in section IV.A in connection with the CAA, such a territorial approach that treats Indian reservations uniformly promotes rational, sound management of environmental resources that might be subjected to mobile pollutants that disperse over wide areas without regard to land ownership.
EPA considered not revising its 1991 interpretation of section 518. EPA did not choose this option because it would continue to impose an unnecessary requirement on applicant tribes not specified in the CWA to demonstrate inherent authority, including meeting the
EPA also considered revising the text of existing TAS regulations for CWA regulatory programs to alter tribal application requirements in light of the revised interpretation. In particular, EPA considered revising the requirements relating to tribal submissions of statements addressing jurisdiction as well as the procedures for states and other appropriate entities to comment on tribal assertions of authority. Had EPA decided to revise its regulations, EPA would have issued a legislative rule revising the TAS application provisions in the Code of Federal Regulations. However, EPA rejected this approach as both unnecessary and counterproductive. As described in section V.C.6, EPA concludes that the existing regulations are appropriately structured to accommodate the revised interpretation and that the procedures requiring tribal legal statements and providing opportunities for notice and comment continue to serve important purposes. Among other things, such procedures ensure that applicant tribes will continue to adequately address the reservation boundaries within which they seek to regulate under the CWA as well as any potential impediments that may in some cases exist to their ability to accept or effectuate the congressional delegation of authority. Retaining the notice and comment requirements will also ensure that states and other appropriate entities continue to have an opportunity to interact with EPA on these issues and that EPA's decision making on individual TAS applications is well informed.
Because today's interpretive rule merely explains EPA's revised interpretation of existing statutory requirements established in the CWA tribal provision—and does not make any changes to the existing regulations—an interpretive rule is the appropriate vehicle to announce EPA's revised approach.
One state commented that EPA must use a legislative rulemaking process because the revised interpretation will eliminate the existing regulatory requirement that applicant tribes submit a statement addressing their jurisdiction and will affect states' opportunity under
EPA disagrees that a legislative rulemaking is required to issue the revised interpretation. As noted above, EPA has decided not to revise any existing TAS application regulations published in the Code of Federal Regulations. Contrary to the state commenter's assertion, EPA specifically decided to retain the regulatory requirements relating to tribal jurisdictional statements and states' opportunity to comment on such assertions. Although EPA could reasonably have chosen to revise or eliminate aspects of these regulations, EPA has concluded that requiring applicant tribes to submit relevant jurisdictional information and allowing states and other appropriate entities to comment on such submissions will continue to ensure that any reservation boundary or other relevant jurisdictional issues are raised during a well-informed decision making process.
Importantly, although this interpretive rule is not subject to notice and comment requirements of the Administrative Procedure Act, EPA decided to provide notice and an opportunity for comment—in addition to other pre- and post-proposal outreach to tribes, states, and the public—to increase transparency and to allow interested parties to provide their views. EPA received comments on the proposal and has considered them in developing today's rule. A member of the academic community expressly supported EPA's use of an interpretive rule as the appropriate administrative mechanism to publish the revised interpretation. EPA appreciates that support.
In this section, EPA responds to several specific topics that were raised in public comments on EPA's proposal and in earlier input received from tribes and states during pre-proposal and post-proposal outreach.
EPA's final rule does not affect—either by expanding or contracting—the geographic scope of potential tribal TAS eligibility under the CWA. Under section 518, tribes can only obtain TAS status over waters within the borders of their reservations.
EPA received comments from several local governments seeking clarification of the geographic scope of TAS for CWA regulatory purposes and in particular noting that some reservations have complex histories of congressional treatment, including the opening of reservations to non-Indian settlement through surplus land acts. The commenters assert that each surplus land statute must be analyzed individually to determine whether it has altered the land status of the subject reservation and note that in some cases such statutes may result in situations where certain lands are taken out of reservation status, even though they remain surrounded by the original exterior boundaries of a reservation. The commenters request that EPA define the fee-owned lands that may be covered by a TAS application to exclude lands settled by non-tribal members pursuant to a federal surplus land act. One tribal commenter noted that there may be non-reservation inholdings that are surrounded by reservation lands and disagreed with EPA's approach of requiring that all lands subject to TAS for CWA regulatory purposes qualify as Indian reservation land. A state commenter agreed with EPA that reservation boundaries remain a relevant issue for tribal TAS applications and noted that EPA's revised interpretation would not reduce any burdens associated with resolving such issues.
EPA notes that any issues regarding the geographic scope of TAS under the CWA are outside the scope of this interpretive rule. As noted above and in the proposal, the revised interpretation does not alter in any way EPA's longstanding approach to the limitation of TAS in CWA section 518 to lands that qualify as reservation lands. This basic geographic land status limitation exists irrespective of whether tribes must demonstrate inherent authority to regulate under the CWA or whether they may rely on the congressional delegation of authority in section 518.
EPA appreciates the local governmental commenters' questions and understands that some Indian reservations may have complicated histories and that reservation boundaries may be altered by congressional act. EPA agrees that any such issue would need to be addressed on a reservation-specific basis and that each relevant surplus lands statute would need to be evaluated individually. Such issues would thus be raised and addressed only in the context of a particular TAS application from a specific tribe. To provide additional clarity, however, EPA reiterates as a general matter that any land subject to TAS approval for CWA regulatory purposes must qualify as Indian reservation land as defined in CWA section 518(h)(1). Thus, consistent with EPA's longstanding approach, any non-reservation land could not be included in a CWA TAS approval even if it is surrounded by other land that does qualify as reservation. Any land located within the original exterior boundaries of a reservation that has lost its reservation status by virtue of an act of Congress could thus not be included in a CWA TAS approval. EPA has never approved CWA TAS over such non-reservation land, and would have no authority to do so. EPA thus disagrees with the tribal commenter that non-reservation inholdings may be included in a TAS approval under the CWA. This limitation is imposed in the statute, and nothing in today's final rule alters or affects EPA's approach on this issue. EPA does not believe, however, that the Agency should establish a separate definition for “fee lands” that may be
Today's revised interpretation does not alter EPA's longstanding approach to tribal trust lands. Indian reservations include trust lands validly set aside for Indian tribes even if such lands have not formally been designated as an Indian reservation. Many named Indian reservations were established through federal treaties with tribes, federal statutes, or Executive Orders of the President. Such reservations are often referred to as formal Indian reservations. Many tribes have lands that the United States holds in trust for the tribes, but that have not been formally designated as reservations. Under EPA's longstanding approach, and consistent with relevant judicial precedent, such tribal trust lands are informal reservations and thus have the same status as formal reservations for purposes of the Agency's programs.
One state commenter requested additional clarification regarding the treatment of tribal trust lands for CWA TAS purposes, and in particular inquired whether tribal trust lands outside the borders of a tribe's formal reservation would be included in the statute's definition of reservation. Although this issue is outside the scope of—and is not affected by—today's interpretive rule, EPA welcomes the opportunity to provide further clarity. EPA notes that some tribes may have tribal trust lands in addition to, and separate from, a formal reservation. For other tribes, such tribal trust lands may constitute the tribe's entire reservation land base. In either case, the tribal trust lands qualify as reservation lands for CWA TAS purposes. All such lands are thus within the borders of an Indian reservation for purposes of the statute.
EPA's revised statutory interpretation does not affect any existing limitations on tribal criminal enforcement authority. This interpretive rule relates solely to applicant Indian tribes' civil regulatory authority to administer CWA regulatory programs on their reservations; it does not address or in any way alter the scope of tribal criminal enforcement jurisdiction. EPA is aware that federal law imposes certain significant limitations on Indian tribes' ability to exercise criminal enforcement authority, particularly with regard to non-Indians. EPA has previously established regulations addressing implementation of criminal enforcement authority on Indian reservations for those CWA programs that include potential exercises of such authority.
Two industry commenters asserted that the limitations on a tribe's authority to impose the criminal sanctions that are specified as potential penalties in the CWA render the tribe unable to demonstrate that it is capable of carrying out required program functions for purposes of TAS eligibility. This issue is outside the scope of—and is not affected by—today's interpretive rule. As noted above, this rule addresses only the civil regulatory authority of applicant tribes. The rule also does not address the capability element of TAS eligibility under the CWA. Nonetheless, EPA notes that it disagrees with the commenters' assertion—which, if correct, would presumably preclude any tribe from demonstrating TAS eligibility for a CWA regulatory program that includes a criminal enforcement component. As described above, EPA's existing TAS regulations provide that the federal government will exercise primary criminal enforcement authority where tribal authority is limited or precluded. These regulations were promulgated to avoid precisely the outcome asserted by the commenters. The regulations have been in place for decades, and they are unaffected by today's interpretive rule.
EPA also disagrees with the commenters' assertion that the absence of any statutory language in section 518 addressing the limitations on tribal criminal authority is an indication that Congress did not intend to delegate authority to Indian tribes. EPA notes that the limitations on tribal criminal enforcement originate in legal principles established separate and apart from the CWA. Therefore, if the commenters were correct, Indian tribes could never demonstrate authority—whether inherent or congressionally delegated—to administer a CWA program that includes a criminal enforcement component without some statement in the statute affirming or otherwise addressing the exercise of criminal authority. Because the statute contains no such statement, this would render TAS impossible even under EPA's prior interpretation, and would thus make the CWA TAS provision internally inconsistent and in significant part a nullity. Under the commenters' approach, section 518 would, on the one hand, authorize TAS for programs that include criminal enforcement, while simultaneously precluding such TAS by virtue of an absence of congressional explanation of how criminal enforcement will be exercised. EPA disagrees that this could reflect Congress' intent. EPA also notes that the Agency has already interpreted the CAA tribal provision as including a congressional delegation of civil regulatory authority to tribes over their entire reservations, and that interpretation has been upheld in court. Like the CWA, the CAA authorizes TAS for programs that include a criminal enforcement component without separately addressing the exercise of such authority during program implementation. Under both statutes, EPA has exercised its authority to address this programmatic issue through long-established regulations that retain primary criminal enforcement with the federal government.
There could be rare instances where special circumstances limit or preclude a particular tribe's ability to accept or
The application requirements of existing CWA TAS regulations already provide for tribes to submit a statement of their legal counsel (or equivalent official) describing the basis for their assertion of authority. The statement can include copies of documents such as tribal constitutions, by-laws, charters, executive orders, codes, ordinances, resolutions, etc.
EPA received several comments asserting that special circumstances limit particular tribes' ability to obtain TAS to regulate under the CWA. For instance, one state asserted that the tribes located within the state are precluded under federal laws specific to those tribes from obtaining TAS for CWA regulatory programs. Another state asserted that a tribe located within the state is precluded by a federal statute specific to that tribe from regulating reservation land that is owned in fee by nonmembers of the tribe. The state noted that if that tribe applied to regulate such fee lands, the state would avail itself of the opportunity under EPA's regulations to submit comments and would assert that the cited federal law affects the tribe's ability to exercise such authority. One local government commented that the geographic extent of a tribe's governing authority does not include the local government and provided historical information intended to support its position. And two industry commenters asserted that the tribe upon whose reservation they are located has entered into binding agreements waiving the tribe's right to regulate the commenters' facilities, thus rendering the tribe unable to obtain TAS for CWA regulatory programs over those facilities.
EPA appreciates the information about special circumstances provided in these comments. Importantly, the precise outcome of any such circumstance could only be determined in the context of a particular tribe's TAS application and upon a full record of information addressing the issue. The substance of these specific situations is thus outside the scope of—and is not affected by—today's rule. However, the comments are both illustrative and instructive regarding the types of special circumstances and jurisdictional issues that may affect a tribe's ability to carry out the congressional delegation of authority in the CWA tribal provision. Other federal statutes may, for instance, limit a particular tribe's or group of tribes' ability to participate, in whole or in part, in CWA regulation through the TAS process. In addition, before approving a tribe's TAS eligibility, EPA would carefully consider whether any binding contractual arrangements or other legal documents such as tribal charters or constitutions might affect the tribe's regulatory authority generally, or with regard to any specific members of the regulated community. Finally, the geographic scope of the reservation boundaries over which a tribe asserts authority would continue to be a relevant and appropriate issue for consideration in the TAS process. As explained elsewhere, EPA's existing TAS regulations require applicant tribes to address these types of issues in their jurisdictional statements and provide states and other appropriate entities the opportunity to comment and inform EPA of any potential impediments to tribal regulatory authority. These comment opportunities help ensure that EPA's decision making is well informed. Additional available information regarding certain of these special circumstances is provided in EPA's Response to Comments document included in the docket for this rule.
During pre-proposal outreach and again following proposal of the rule, EPA received comments from the State of Oklahoma regarding section 10211(b) of the Safe, Accountable, Flexible, Efficient Transportation Equity Act of 2005 (“SAFETEA”), Public Law 109-59, 119 Stat. 1144 (August 10, 2005). Because this provision of federal law expressly addresses TAS under EPA's statutes, including the CWA, EPA explained in the proposal that section 10211(b) established a unique TAS requirement with respect to Indian tribes located in the State of Oklahoma. Under section 10211(b), tribes in Oklahoma seeking TAS under a statute administered by EPA for the purpose of administering an environmental regulatory program must, in addition to meeting applicable TAS requirements under the EPA statute, enter into a cooperative agreement with the state that is subject to EPA approval and that provides for the tribe and state to jointly plan and administer program requirements. This requirement of SAFETEA exists apart from, and in addition to, existing TAS criteria, including the TAS criteria set forth in section 518 of the CWA. Today's rule relates solely to the interpretation of an existing CWA TAS requirement; it thus has no effect on the separate TAS requirement of section 10211(b) of SAFETEA. In its comments on the proposal, the State of Oklahoma requested additional information regarding the process or sequence of events that will be used to ensure that this provision of SAFETEA is satisfied in the context of particular tribal TAS applications that may be submitted following finalization of today's interpretive rule. EPA notes that section 10211(b) expressly contains certain procedural requirements—
With today's rule, EPA is not intending to assess the extent of tribal inherent regulatory authority. As the Agency clearly articulated in the TAS rules identified in section II.B, the importance of water resources to tribes, the serious potential impacts of water pollution on tribes' uses of their waters, and the mobility of pollutants in water all strongly support tribes' ability to demonstrate their inherent authority to regulate surface water quality on their reservations, including the authority to regulate nonmember conduct on fee lands under the Supreme Court's test established in
Today's rule does not affect these prior TAS approvals. The rule does, however, modify EPA's approach going forward to be consistent with Congress' intent to delegate civil regulatory authority to eligible tribes. It relieves tribes of the administrative burden associated with demonstrating their inherent regulatory authority in the TAS application process. It does not, however, alter EPA's prior views regarding the extent of tribal inherent regulatory authority.
All of the tribal commenters fully support EPA's interpretive rule. Several tribes also noted their view that tribes possess inherent authority to regulate the quality of their reservation waters. EPA appreciates these comments and reiterates that today's revised interpretation of the CWA tribal provision is intended solely to effectuate the plain intent of Congress to delegate civil authority to tribes to regulate water resources on their entire reservations under the CWA. Today's rule is not intended as an assessment of the scope of retained tribal inherent authority.
Several state, local government, and industry commenters asserted that under federal law, tribal inherent regulatory authority over nonmembers of the tribe is limited and that the U.S. Supreme Court has consistently recognized and affirmed such limitations. The commenters appear to assert that such limitations argue against EPA's revised interpretation of the CWA tribal provision. EPA disagrees. EPA is aware of Supreme Court jurisprudence addressing retained tribal inherent regulatory authority, particularly with regard to such authority as applied to non-tribal members. However, as described above in sections IV and V.A, federal law also recognizes Congress' authority to delegate jurisdiction to tribes to regulate throughout their reservations, including regulation of the activities of non-tribal members. A relevant reviewing federal court has already upheld EPA's interpretation that the Clean Air Act includes such a delegation, and the plain language of CWA section 518 supports the same approach. Issues regarding tribal inherent authority are distinct from EPA's interpretation of the express statutory language in section 518.
Because today's revised statutory interpretation is consistent with existing CWA TAS regulatory requirements, EPA has not revised any regulatory text in the Code of Federal Regulations.
Consistent with today's rule, tribes will rely on the congressional delegation of authority in section 518 as the source of their authority to regulate water quality on their reservations. Under the TAS regulations identified in section II.B, tribes would still need to address and overcome any special circumstances that might affect their ability to obtain TAS for a CWA regulatory program (see section V.C.4), and the existing TAS application regulations require submission of a legal statement that would cover such issues. Apart from such special circumstances, the main focus in determining the extent of an applicant tribe's jurisdiction for CWA regulatory purposes will likely be identifying the geographic boundaries of the Indian reservation area (whether a formal or informal reservation) over which the congressionally delegated authority would apply.
The existing regulations also provide appropriate opportunities for potentially interested entities to comment to EPA regarding any jurisdictional issues associated with a tribe's TAS application. As mentioned in section II.B above, EPA's TAS regulations for the CWA section 303(c) WQS program include a process for notice to appropriate governmental entities—states, tribes and other federal entities located contiguous to the reservation of the applicant tribe—and provide an opportunity for such entities to provide comment on the applicant tribe's assertion of authority. EPA makes such notice broad enough that other potentially interested entities can participate in the process. 56 FR at 64884. For example, EPA routinely publishes notice of tribal TAS applications for the WQS program in relevant local newspapers covering the area of the subject reservation and in electronic media.
EPA received comments from local governments requesting that EPA ensure
The existing TAS regulations and this rule relate solely to the applications of Indian tribes for TAS eligibility for the purpose of administering CWA regulatory programs. They do not provide substantive approval of an authorized tribe's actual CWA regulatory program. Each program has its own regulations specifying how states and authorized tribes are to apply for and administer the program.
EPA's TAS regulations for the CWA section 402, 404 and 405 permitting programs require an analysis of tribal jurisdiction as part of the program approval process under 40 CFR parts 123, 233 and 501 that are described in section II.B. As described in the Simplification Rule, EPA makes its decisions to approve or disapprove those programs as part of a public notice and comment process conducted in the
Today's interpretive rule streamlines the TAS application and review process for tribes seeking eligibility to administer CWA regulatory programs. The rule significantly reduces the expected time and effort for tribes to develop and EPA to review TAS applications and could encourage more tribes to apply for TAS for CWA regulatory programs. As stated above (sections V.C.4 and V.C.6), applicant tribes would still need to identify their reservation boundaries and address any special circumstances potentially affecting their ability to effectuate the congressional delegation of authority and obtain TAS to regulate under the CWA.
Any EPA approval of a TAS application for a CWA regulatory program after May 16, 2016 will be based on the delegation of authority from Congress as the relevant source of authority supporting the tribe's eligibility. Any new tribal TAS application for a CWA regulatory program submitted after May 16, 2016 will need to be consistent with the interpretation of section 518 expressed in this rule. For any pending TAS application for CWA regulatory programs as of May 16, 2016, EPA will consult with the applicant tribe to assist it in amending its application if necessary to be consistent with this rule and to address any process issues.
EPA's rule has no effect on the scope of existing state regulatory programs approved by EPA under the CWA. Generally speaking, civil regulatory jurisdiction in Indian country lies with the federal government and the relevant Indian tribe, not with the states.
The revised reinterpretation of section 518 relates solely to the exercise of jurisdiction by Indian tribes on their reservations; it has no effect on the scope of existing CWA regulatory programs administered by states outside of Indian country. It neither diminishes nor enlarges the scope of such approved state programs.
There are uncommon situations where a federal statute other than the CWA grants a state jurisdiction to regulate in areas of Indian country. For example, in a few cases EPA has approved states to operate CWA regulatory programs in areas of Indian country where the states demonstrated jurisdiction based on such a separate federal statute. This rule does not address or affect such jurisdiction that other federal statutes provide to states.
Regulations already exist to address circumstances where a state or tribe believes that unreasonable consequences could arise or have arisen as a result of differing WQS set by states and eligible Indian tribes on common bodies of water. Section 518(e) of the CWA required EPA to provide a mechanism to address such situations. The Agency did so at 40 CFR 131.7, which establishes a detailed dispute resolution mechanism. Today's rule does not affect that process; the process remains available as needed to address potential state/tribal issues.
EPA received comments from several states, a local government, and a local government association regarding potential effects of the rule on state water quality programs. Some comments asserted that the rule would improperly displace existing state authority to protect water quality in certain Indian reservation areas—
EPA appreciates these comments and wishes to further clarify the Agency's view that the revised interpretation announced today would not affect existing EPA-approved state programs or other state authorities. Importantly, it is EPA's position that the congressional delegation of jurisdiction in CWA section 518 relates solely to the authority of tribes to administer regulatory programs under the CWA. It does not address or affect (by enlarging or diminishing) the authority of any entity—tribe or state—to apply any water quality or other program established under its laws outside the scope of the federal CWA. Any question regarding whether a state has sufficient authority to apply such state laws to non-tribal members on their reservation fee lands (or to otherwise apply such laws on an Indian reservation), is outside the scope of today's rule and would be unaffected by the rule. EPA does not, for instance, view Congress' decision to delegate to tribes the authority to regulate their reservations under the CWA as increasing or altering tribal authority to implement any other tribal law or program—including non-CWA tribal water quality laws. Nor does EPA take the position that the congressional delegation of CWA
With regard to state water quality programs approved by EPA under the CWA, EPA disagrees with the commenters' assertion that today's rule could affect or displace existing state authorities. As noted above, under principles of federal law, states generally lack authority to regulate on Indian reservations. EPA has thus generally excluded such lands from the Agency's approval of state programs submitted to EPA under the CWA (and other environmental laws administered by EPA). It is thus generally the case that states are not approved by EPA in the first instance to administer CWA regulatory programs on reservations. In most cases, therefore, there are no existing EPA-approved state CWA programs on reservations that could be affected or displaced by a congressional delegation of authority to Indian tribes.
States may apply to EPA for CWA program approval over reservation areas. In such cases, the state would need to demonstrate a source of regulatory authority premised in federal law. Such a demonstration would be needed irrespective of whether the reservation land at issue is owned by non-tribal members or by the state itself. In rare circumstances, EPA has in the past approved certain state CWA regulatory programs on Indian reservations. In each case, the relevant state's authority has been based on a separate federal statute expressly granting the state jurisdiction to regulate on the reservation. Today's rule does not affect such EPA-approved state programs or otherwise alter the apportionment of jurisdiction established in those other federal laws. Although each case must be assessed in light of its own statutory arrangement, EPA generally believes that CWA section 518 would not affect a separate statutory scheme that is specifically applicable to a particular state or tribe and that expressly provides for state environmental regulatory jurisdiction on Indian reservation lands and/or expressly precludes tribes from asserting such authority. This does not mean, as asserted by one state commenter, that today's rule would be unlawful in such a state. It simply means that the congressional delegation of authority in section 518 may be precluded by a separate federal law, with jurisdiction to administer CWA regulatory programs being granted to the state under that law. As described above in section V.C.4, EPA recognizes that such unusual circumstances may affect certain tribes' ability to effectuate the congressional delegation of authority or otherwise obtain TAS to regulate under the CWA. A situation where a separate federal law specifically apportions jurisdiction among a particular state and the tribe(s) located in such state could be one example of such a circumstance.
As noted in section V.C.6, today's rule does not revise any regulatory text. However, it does render some of EPA's existing guidance obsolete. For example, parts of a 1998 memorandum to EPA staff (the “Cannon-Perciasepe Memorandum”)
EPA intends to update its internal procedures and its training and guidance for applicant tribes to reflect these changes consistent with the express congressional delegation of authority to eligible tribes.
This rule entails no significant cost. Its only effect will be to reduce the administrative burden for a tribe applying in the future to administer a CWA regulatory program, and to potentially increase the pace at which tribes seek such programs. See the discussion of administrative burden and cost in section VIII.B (Paperwork Reduction Act).
Additional information about these statutes and Executive Orders can be found at
This interpretive rule is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.
The information collection activities in this interpretive rule have been submitted for approval to OMB under the PRA. The Information Collection Request (ICR) document that EPA prepared has been assigned EPA ICR number 2515.02. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here. The information collection requirements are not enforceable until OMB approves them.
As discussed in section II.B, EPA's regulations require that a tribe seeking to administer a CWA regulatory program must submit information to EPA demonstrating that the tribe meets the statutory criteria described in section II.A. EPA requires this information in order to determine that the tribe is eligible to administer the program.
This rule streamlines the application by revising EPA's interpretation of section 518 to eliminate the need for an applicant tribe to demonstrate its inherent regulatory authority—
This estimate could overstate actual burden because (a) EPA assumed that all applications are first-time applications for CWA regulatory programs, and thus the tribes submitting them would be unable to rely on materials from previous applications for different regulatory programs; (b) EPA used a liberal estimate of the annual rate of tribal applications to ensure that the ICR does not underestimate tribal burden; and (c) EPA used a simplifying steady-state assumption in estimating annualized costs.
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 OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB approves this ICR, the Agency will announce that approval in the
I certify that this interpretive rule will not have a significant economic impact on a substantial number of small entities under the RFA. This rule will not impose any requirements on small entities. This rule affects only Indian tribes that seek to administer CWA regulatory programs.
This interpretive rule does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The rule imposes no enforceable duty on any state, local or tribal governments or the private sector.
This interpretive rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This rule applies only to tribal governments that seek eligibility to administer CWA regulatory programs. Although it could be of interest to some state governments, it does not apply directly to any state government or to any other entity. As discussed in section V.C.8, the rule has no effect on the scope of existing state regulatory programs approved by EPA under the CWA.
In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and state and local governments, EPA consulted with representatives of state governments to obtain meaningful and timely input before and after proposal for consideration in this rulemaking. By letter dated June 18, 2014, EPA invited ten national and regional state associations
In the public comments, two states expressed support for tribal opportunities to obtain TAS. Some participants disagreed with or questioned in whole or in part the Agency's rationale for the reinterpretation. Others questioned whether the proposal would affect the geographic scope of tribal authority under the CWA and how the proposal would affect a state's ability to challenge a tribe's application. Some states also had questions about issues unique to their situations.
EPA considered all of the state comments in developing this final interpretive rule. EPA's responses are included in sections IV and V of this rule and in the Response to Comments document in the docket for this rulemaking.
This interpretive rule has tribal implications because it will directly affect tribes applying in the future to administer CWA regulatory programs. However, because it neither imposes substantial direct compliance costs on federally recognized tribal governments, nor preempts tribal law, tribal consultation was not required by Executive Order 13175. In any event, EPA consulted and coordinated with tribal officials under the EPA Policy on Consultation and Coordination with
EPA initiated a tribal consultation and coordination process before proposing this rule by sending a “Notification of Consultation and Coordination” letter on April 18, 2014, to all of the 566 then federally recognized tribes. EPA contacted all federally recognized tribes, even though only tribes with reservations can apply for TAS under the CWA, because it is possible that additional tribes could acquire reservation lands in the future. The letter invited tribal leaders and designated consultation representatives to participate in the tribal consultation and coordination process. EPA held two identical webinars concerning this matter for tribal representatives on May 22 and May 28, 2014. A total of 70 tribal representatives participated in the two webinars, and tribes and tribal organizations sent 20 pre-proposal comment letters to EPA. On August 7, 2015, EPA resumed the consultation and coordination process with tribes. A total of 44 tribal representatives participated in webinars in September 2015.
EPA received 21 comment letters from tribes and tribal associations during the public comment period. All tribal comments supported the proposal. Some tribes had questions about how EPA would handle reservation land status and boundary matters. Some comments urged EPA to help find solutions to tribal funding limitations. EPA will continue to consider tribal resource issues in its budgeting and planning process. However, EPA cannot assure tribes that additional funding will be available for a tribe to develop or implement a CWA regulatory program.
EPA considered all of the tribal comments in developing this interpretive rule. EPA's responses are included in sections IV and V of this rule and in the Response to Comments document in the docket for this rulemaking,
EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This interpretive rule is not subject to Executive Order 13045 because it does not concern an environmental health or safety risk.
This interpretive rule is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
The human health or environmental risks addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income, or indigenous populations. This rule affects the procedures tribes must follow to seek TAS for CWA regulatory purposes and does not directly affect the level of environmental protection.
This interpretive rule is exempt from the CRA because it is a rule of agency organization, procedure or practice that does not substantially affect the rights or obligations of non-agency parties.
Federal Communications Commission.
Final rule.
This document amends the Commission's rules to guard against interference to critical public safety communications in the 800 MHz National Public Safety Planning Advisory Committee (NPSPAC) band (806-809/851-854 MHz) and to enhance public safety system interoperability in the VHF, UHF and 800 MHz bands by specifying analog FM as the standard emission for use on all interoperability channels in these bands.
Effective June 15, 2016.
John A. Evanoff, Attorney-Advisor, Policy and Licensing Division, Public Safety and Homeland Security Bureau, (202) 418-0848 or
This is a summary of the Commission's
The
The Final Regulatory Flexibility Analysis required by section 604 of the Regulatory Flexibility Act, 5 U.S.C. 604, is included in Appendix B of the
The actions taken in the
The Commission will send a copy of this
1. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking (NPRM). The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. The comments received are discussed below. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.
2. The basic purpose of the
3. Based on the record, we conclude that the public interest will best be served by adopting the rules proposed in the
4. There were no comments raised that specifically addressed the proposed rules and policies presented in the IRFA. Nonetheless, we considered the potential impact of the rules proposed in the IRFA on small entities and reduced the compliance burden for all small entities in order to reduce the economic impact of the rules enacted herein on such entities.
5. First, our decision to apply the H Mask to digital technology is limited to equipment that operates in the sensitive interference environment of the NPSPAC band where 25 kilohertz channels are spaced only 12.5 kilohertz apart. We recognize that the NPSPAC channels are more susceptible to adjacent channel interference due to the 12.5 kilohertz channel spacing relative to the rest of the 800 MHz band where channels are spaced 25 kilohertz apart. Equipment not conforming to the H Mask would increase the potential for adjacent channel interference, require greater geographic separation to mitigate interference and thus reduce spectrum reuse of limited public safety spectrum. Thus, by amending the emission mask rules applicable to the NPSPAC band, we reduce the economic burden on public safety licensees in having to contend with increased adjacent channel interference and decreased spectrum availability.
6. Second, our decision to require analog FM common modulation capability promotes interoperability on the mutual aid channels and the VHF/UHF interoperability channels. In light of the embedded base of analog FM equipment on the mutual aid and VHF/UHF interoperability channels, we believe that requiring a common modulation scheme is a low-cost measure to ensure that these channels remain available during times of crisis.
7. Third, the record shows that the benefits to public safety users of requiring (1) digital technologies to comply with Emission Mask H when operating in the NPSPAC band and (2) equipment to have analog FM capability when operating on 800 MHz, VHF, and UHF public safety mutual aid and interoperability channels exceed the asserted costs of (1) compliance with Emission Mask H, and (2) providing analog FM capability. Additionally, public safety agencies that wish to use non-H Mask compliant digital emissions for non-interoperable communications may apply for authorizations in the 4.5 MHz of 800 MHz interleaved spectrum.
8. The RFA directs agencies to provide a description of, and, where feasible, an estimate of, the number of small entities that may be affected by the rules adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act (SBA). A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).
9. Private Land Mobile Radio Licensees. PLMR systems serve an essential role in a range of industrial, business, land transportation, and public safety activities. These radios are used by companies of all sizes operating in all U.S. business categories, and are often used in support of the licensee's primary (non-telecommunications) business operations. For the purpose of determining whether a licensee of a PLMR system is a small business as defined by the SBA, we use the broad census category, Wireless Telecommunications Carriers (except Satellite).
10. The Wireless Telecommunications Carriers (except satellite) industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular phone services, paging services, wireless Internet access, and wireless video services. The appropriate size standard under SBA rules for the category Wireless Telecommunications Carriers (except satellite) is that a business is small if it has 1,500 or fewer employees. Census data for 2007 show that there were 1,383 such firms that operated for the entire year. Of this total, 1,368 firms had fewer than 1000 employees. Thus, under this category and the associated small business size standard, the Commission estimates that
11. The definition of the Wireless Telecommunications Carriers (except satellite) industry provides that a small entity is any such entity employing no more than 1,500 persons. The Commission does not require PLMR licensees to disclose information about number of employees, so the Commission does not have information that could be used to determine how many PLMR licensees constitute small entities under this definition. We note that PLMR licensees generally use the licensed facilities in support of other business activities, and therefore, it would also be helpful to assess PLMR licensees under the standards applied to the particular industry subsector to which the licensee belongs.
12. As of November 1, 2012, there were 1,185 PLMR licensees operating in the PLMR band between 806-809/851-854 MHz (NPSPAC band) and 686 PLMR licensees operating on the VHF and UHF public safety interoperability channels. We note that any entity engaged in a commercial activity is eligible to hold a PLMR license, and that any revised rules in this context could therefore potentially impact small entities covering a great variety of industries.
13. Small Businesses, Small Organizations, and Small Governmental Jurisdictions. Our action may, over time, affect small entities that are not easily categorized at present. We therefore describe here, at the outset, three comprehensive, statutory small entity size standards that encompass entities that could be directly affected by the amended rules. As of 2009, small businesses represented 99.7% of the 28.2 million businesses in the United States, according to the SBA. Additionally, a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 2007, there were approximately 1,621,315 small organizations. Finally, the term “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2007 indicate that there were 89,527 governmental jurisdictions in the United States. We estimate that, of this total, as many as 88,761 entities may qualify as “small governmental jurisdictions.” Thus, we estimate that most governmental jurisdictions are small.
14. RF Equipment Manufacturers. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: Transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment.” The SBA small business size standard for Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing is all such firms having 750 or fewer employees. According to Census Bureau data for 2007, there were a total of 939 establishments in this category that operated for the entire year. Of this total, 912 had employment of under 500, and an additional 10 had employment of 500 to 999. Thus, under this size standard, the majority of firms can be considered small.
15. The
16. The RFA requires an agency to describe any significant alternatives that it has considered in developing its approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”
17. We have evaluated our rule changes in the context of small business entities and find no alternatives, to the benefit of small entities that would achieve our goals of adjacent channel interference avoidance and facilitating nationwide interoperability. Additionally, the rules we adopt are consistent with industry practice and reflect the embedded base of public safety equipment on these channels. Accordingly, we expect most manufacturers and public safety licensees already comply with our regulations, therefore minimizing any significant economic impact on small entities. We believe that these restrictions on adjacent channel interference and interoperability compliance requirements are the minimum needed, when weighed against the significant benefits to small entities, including public safety entities, that result from the approach we are adopting here. In order to further minimize the economic impact on small entities, the rules require analog FM
18. None.
19. The Commission will send a copy of the
20. Accordingly,
21.
22.
23.
Radio.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 90 as follows:
Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g), 303(r), 332(c)(7).
(d) * * *
(80) After December 7, 2000 this frequency is available primarily for public safety interoperability only communications. Stations licensed prior to December 7, 2000 may continue to use this frequency on a co-primary basis until January 1, 2005. After January 1, 2005, all operations will be secondary to co-channel interoperability communications. Analog FM emission shall exclusively be used for operation on the VHF and UHF interoperability channels.
(i) Mobile/portable equipment capable of use in the 806-809/851-854 MHz band segment and submitted for certification thirty or more days after publication of a summary of the
(j) * * *
(1) Applications for certification of mobile and portable equipment designed to transmit voice on public safety frequencies in the 150-174 MHz or 450-470 MHz band will be granted only if the mobile/portable equipment is capable of operating in the analog FM mode on the nationwide public safety interoperability channels in the 150-174 MHz band or 450-470 MHz band, as appropriate. (See § 90.20(c), (d)(80) of this part.)
(a) * * *
(1) Channels numbers 1-230 are also available to eligible applicants in the Public Safety Category in non-border areas. The assignment of these channels
(a) * * *
(5) * * *
(i) Channel numbers 1-230 are also available to eligible applicants in the Public Safety Category in the Canada Border Regions. The assignment of these channels will be done in accordance with the policies defined in the Report and Order of Gen. Docket No. 87-112 (See § 90.16). The following channels are available only for mutual aid purposes as defined in Gen. Docket No. 87-112: Channels 1, 39, 77, 115, 153. Mobile and portable radios operating on the mutual aid channels shall employ analog FM emission.
(c) * * *
(6) * * *
(i) Channel numbers 1-230 are also available to eligible applicants in the Public Safety Category in the Canada Border Regions. The assignment of these channels will be done in accordance with the policies defined in the Report and Order of Gen. Docket No. 87-112 (See § 90.16). The following channels are available only for mutual aid purposes as defined in Gen. Docket No. 87-112: Channels 1, 39, 77, 115, 153. Mobile and portable radios operating on the mutual aid channels shall employ analog FM emission.
In rule document 2016-10027 appearing on pages 25613-25618 in the issue of Friday, April 29, 2016, make the following correction:
On page 25614, in the first column, in the “
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS announces that the Northern Gulf of Maine Scallop Management Area will close for the remainder of the 2016 fishing year. No vessel issued a federal scallop permit, with the exception of Northern Gulf of Maine permit holders also holding a Maine state scallop permit and fishing under the state waters exemption program in Maine state waters, may fish for, possess, or land scallops from the Northern Gulf of Maine Scallop Management Area. Regulations require this action once NMFS projects that 100 percent of the 2016 total allowable catch for the Northern Gulf of Maine Scallop Management Area will be harvested.
Effective 0001 hr local time, May 13, 2016, through February 28, 2017.
Shannah Jaburek, Fishery Management Specialist, (978) 282-8456.
The reader can find regulations governing fishing activity in the Northern Gulf of Maine (NGOM) Scallop Management Area in 50 CFR 648.54 and § 648.62. These regulations authorize vessels issued a valid federal scallop permit to fish in the NGOM Scallop Management Area under specific conditions, including a total allowable catch (TAC) of 67,454 lb (30.6 mt) for the 2016 fishing year, and a State Waters Exemption Program for the state of Maine. NMFS reduced the 2016 NGOM Scallop Management Area TAC from 70,000 lb (31.8 mt) to 67,454 lb (30.6 mt) to account for a 2,546-lb (1,155-kg) over harvest of the 2015 TAC during the 2015 fishing year. Section 648.62(b)(2) requires the NGOM Scallop Management Area to be closed to federally permitted scallop vessels for the remainder of the fishing year once the NMFS Greater Atlantic Regional Administrator determines that the TAC for fishing year 2016 is projected to be harvested. Any vessel that holds a federal NGOM permit (category LAGC B) may continue to fish in the Maine state waters portion of the NGOM Scallop Management Area under the State Waters Exemption Program found in § 648.54 provided they have a valid Maine state scallop permit and fish in state waters only.
Based on trip declarations by federally permitted scallop vessels fishing in the NGOM Scallop Management Area, and analysis of fishing effort, we project that the 2016 TAC will be harvested as of May 13, 2016. Therefore, in accordance with § 648.62(b)(2), the NGOM Scallop Management Area is closed to all federally permitted scallop vessels as of May 13, 2016. No vessel issued a federal scallop permit may fish for, possess, or land scallops in or from the NGOM Scallop Management Area after 0001 local time, May 13, 2016, unless the vessel is fishing exclusively in state waters and is participating in an approved state waters exemption program as specified in § 648.54. Any federally permitted scallop vessel that has declared into the NGOM Scallop Management Area, complied with all trip notification and observer requirements, and crossed the VMS demarcation line on the way to the area before 0001, May 13, 2016, may complete its trip. All limited access scallop vessels fishing on a day-at-sea must exit the NGOM Scallop
This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.
NMFS finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because it would be contrary to the public interest and impracticable. The NGOM Scallop Management Area opened for the 2016 fishing year on March 1, 2016. The regulations at § 648.60(b)(2) require this closure to ensure that federally permitted scallop vessels do not harvest more than the allocated TAC for the NGOM Scallop Management Area. The projections of the date on which the NGOM Scallop Management Area TAC will be harvested become apparent only as trips into the area occur on a real-time basis and as activity trends begin to appear. As a result, an accurate projection only can be made very close in time to when the TAC is harvested. In addition, proposing a closure would likely increase activity, triggering an earlier closure than predicted. To allow federally permitted scallop vessels to continue to take trips in the NGOM Scallop Management Area during the period necessary to publish and receive comments on a proposed rule would likely result in vessels over harvesting the 2016 TAC for the NGOM Scallop Management Area. Over harvest from the NGOM Scallop Management Area would result in excessive fishing effort in the area, where effort controls are critical, thereby undermining conservation objectives of the Atlantic Sea Scallop Fishery Management Plan and requiring more restrictive future management measures. Also, the public had prior notice and full opportunity to comment on this closure process when we put these provisions in place. NMFS further finds, pursuant to 5 U.S.C. 553(d)(3), good cause to waive the 30-day delayed effectiveness period for the reasons stated above.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS issues this final rule for the 2016 Pacific whiting fishery under the authority of the Pacific Coast Groundfish Fishery Management Plan (FMP), the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and the Pacific Whiting Act of 2006. This final rule announces the 2016 U.S. Total Allowable Catch (TAC) of 367,553 metric tons of Pacific whiting, establishes the tribal allocation of 64,322 metric tons, establishes a set-aside for research and bycatch of 1,500 metric tons, and announces the allocations of Pacific whiting to the non-tribal fishery for 2016. This rule will ensure that the 2016 Pacific whiting fishery is managed in accordance with the goals and objectives of the Magnuson-Stevens Act, the FMP, the Pacific Whiting Act of 2006, and other applicable laws.
Effective May 12, 2016.
Miako Ushio (West Coast Region, NMFS), phone: 206-526-4644, and email:
This final rule is accessible via the Internet at the Office of the Federal Register Web site at
The final environmental impact statement (FEIS) regarding Harvest Specifications and Management Measures for 2015-2016 and Biennial Periods Thereafter is available on the NOAA Fisheries West Coast Region Web site at:
This final rule announces the TAC for Pacific whiting, expressed in metric tons (mt). This is the fifth year that the TAC for Pacific whiting has been determined under the terms of the Agreement with Canada on Pacific Hake/Whiting (the Agreement) and the Pacific Whiting Act of 2006 (the Whiting Act), 16 U.S.C. 7001-7010. The Agreement and the Whiting Act establish bilateral bodies to implement the terms of the Agreement, each with various responsibilities, including: The Joint Management Committee (JMC), which is the decision-making body; the Joint Technical Committee (JTC), which conducts the stock assessment; the Scientific Review Group (SRG), which reviews the stock assessment; and the Advisory Panel (AP), which provides stakeholder input to the JMC (The Agreement, Art. II-IV; 16 U.S.C. 7001-7005). The Agreement establishes a default harvest policy (F-40 percent with a 40/10 adjustment) and allocates 73.88 percent of the TAC to the United States and 26.12 percent of the TAC to Canada. The JMC is primarily responsible for developing a TAC recommendation to the Parties (United States and Canada). The Secretary of Commerce, in consultation with the Secretary of State, has the authority to accept or reject this recommendation.
Coastwide Pacific whiting landings averaged 224,376 mt from 1966 to 2015, with a low of 89,930 mt in 1980 and a peak of 363,135 mt in 2005. The coast-wide catch in 2015 was 190,663 mt of a 440,000 mt bilateral TAC. The U.S. harvested 47.4 percent and Canada 31.8 percent of their respective allocations. The overall catch of Pacific whiting in U.S. waters was much less than anticipated. Industry reported that this lower catch was due to several factors including unusual, dispersed distribution of the fish later in the season after the at-sea fleet returned from Alaska, possibly due to anomalously warm ocean conditions. Catches may also have been impacted
The JTC prepared the stock assessment document “Status of Pacific hake (whiting) stock in U.S. and Canadian waters in 2016,” which was completed on March 1, 2016, and presents a model that depends primarily upon an acoustic survey biomass index, catches, and age compositions for information on the scale of the current Pacific whiting stock. The most recent survey was conducted in 2015, and was a result of collaboration between Fisheries and Oceans Canada and NOAA Fisheries. The 2015 coast-wide survey biomass estimate was 2.156 million mt, which is estimated to be the highest on record for the survey. The amount of spawning biomass in 2016 is estimated to be 79 percent of historic average levels, well above the target 40 percent.
As with past estimates, there is a considerable range of uncertainty around the most recent estimates because young cohorts that make up a large portion of the survey biomass have not been observed very long. However, age-composition data from both the aggregated fisheries (1975-2015) and the acoustic survey (1998-2015) indicate an exceptionally strong 2010 cohort (age-5 whiting in 2015) contributing to recent increases in the survey index. Coast-wide catches in recent years have largely depended on the 2010 cohort, accounting for 70 percent of the commercial catch in 2013, 67 percent in 2014, and 67 percent in 2015. Similarly, the 2015 survey age composition was nearly 60 percent age-5 fish from the 2010 cohort. Both survey and fishery data sources provided initial indications that the 2014 cohort (age-1 whiting in 2015) was above average. Current estimates suggest that the 2014 cohort is potentially similar in magnitude to the 2010 cohort, but because it has been observed only once (in 2015 data) the estimate is highly uncertain.
The JTC provided tables showing catch alternatives for 2016. Using the default F-40 percent harvest rate identified in the Agreement (Paragraph 1 of Article III), the coastwide TAC for 2016 would be 804,399 mt. The stock assessment model predicts that the probability of the spawning stock biomass dropping below 40 percent under the default harvest rate catch scenario is 54 percent, and the probability of dropping below 10 percent of unfished biomass in 2016 is less than 1 percent. Spawning biomass in 2017 is likely to be less than in 2016 under any catch level, because the dominant 2010 cohort is projected to lose biomass due to natural mortality at a faster rate than it will increase in biomass due to growth.
The SRG met in Seattle, Washington, on February 23-25, 2016, to review the draft stock assessment document prepared by the JTC. The SRG noted that the 2015 acoustic-trawl survey was successfully completed, and that the 2015 survey biomass was 12 percent higher than the 2013 survey estimate, with approximately 21.4 percent of the estimated biomass in Canadian waters and 78.6 percent in U.S. waters and that as with past assessments, uncertainty in current stock status projections is likely underestimated. The SRG determined that substantive improvements had been made in the biomass estimate. In particular, a geostatistical approach, kriging, has been applied to develop index estimates since 2011, and important refinements were made this year that increased the SRG's confidence in the extrapolated biomass estimates. The SRG noted that according to the stock assessment, projected median catches of 830,124 mt in 2016 and 955,423 mt in 2017 could be achievable without overfishing.
The AP met on March 16-18, 2016, and provided its 2016 TAC recommendation to the JMC on March 18, 2016. At its March 17-18, 2016, meeting, the JMC reviewed the advice of the JTC, the SRG, and the AP, and agreed on a TAC recommendation for transmittal to the Parties. Paragraph 1 of Article III of the Agreement directs the default harvest rate to be used unless scientific evidence demonstrates that a different rate is necessary to sustain the offshore whiting resource.
After consideration of the 2016 stock assessment and other relevant scientific information, the JMC did not use the default harvest rate. Instead, a more conservative approach was agreed upon. There were two primary reasons for choosing a TAC well below the default level of F-40 percent: (1) A desire to minimize mortality of the potentially strong 2014 year class, which is anticipated to be important to the fishery over the next several years, but the scale of which is uncertain, and (2) to extend the harvest available from the 2010 year class. The JMC recommended an unadjusted TAC of 439,995 mt for 2016, which is approximately half of what the TAC would be by using the default harvest rate. This conservative approach was endorsed by the AP. Both the U.S. and Canada caught significantly less than their individual TACs in 2015. Therefore, 15 percent of each Party's individual unadjusted 2015 TACs is added to that Party's TAC for 2016 in accordance with Article II of the Agreement, resulting in a 2016 adjusted coastwide TAC of 497,500 mt.
The recommendation for an unadjusted 2016 United States TAC of 325,068 mt, plus 42,485 mt carryover of uncaught quota from 2015 results in an adjusted United States TAC of 367,553 mt for 2016 (73.88 percent of the coastwide TAC). This recommendation is consistent with the best available science, provisions of the Agreement, and the Whiting Act. The recommendation was transmitted via letter to the Parties on March 18, 2016. NMFS, under delegation of authority from the Secretary of Commerce, approved the adjusted TAC recommendation of 367,553 mt for U.S. fisheries on April 21, 2016.
This final rule establishes the tribal allocation of Pacific whiting for 2016. NMFS issued a proposed rule regarding this allocation on March 10, 2016 (81 FR 12676). This action finalizes the tribal allocation. Since 1996, NMFS has been allocating a portion of the U.S. TAC of Pacific whiting to the tribal fishery using the process described in § 660.50(d)(1). According to § 660.55(b), the tribal allocation is subtracted from the total U.S. Pacific whiting TAC. The tribal Pacific whiting fishery is managed separately from the non-tribal Pacific whiting fishery, and is not governed by limited entry or open access regulations or allocations.
The proposed rule described the tribal allocation as 17.5 percent of the U.S. TAC, and projected a range of potential tribal allocations for 2016 based on a range of U.S. TACs over the last 10 years (plus or minus 25 percent to capture variability in stock abundance). As described in the proposed rule, the resulting range of potential tribal allocations was 17,842 to 71,110 mt.
As described earlier in this preamble, the U.S. TAC for 2016 is 367,553 mt. Applying the approach described in the proposed rule, NMFS is establishing the 2016 tribal allocation of 64,322 mt (17.5 percent of the U.S. TAC) at § 660.50(f)(4) by this final rule. While the total amount of Pacific whiting to which the Tribes are entitled under their treaty
As with prior tribal Pacific whiting allocations, this final rule is not intended to establish precedent for future Pacific whiting seasons, or for the determination of the total amount of whiting to which the Tribes are entitled under their treaty right. Rather, this rule adopts an interim allocation, pending the determination of the total treaty amount. That amount will be based on further development of scientific information and additional coordination and discussion with and among the coastal tribes and State of Washington.
This final rule establishes the fishery harvest guideline (HG) and allocates it among the three non-tribal sectors of the Pacific whiting fishery. The fishery harvest guideline, sometimes called the non-tribal allocation, was not included in the tribal whiting proposed rule published on March 10, 2016 (81 FR 12676), for two reasons related to timing and process. First, a recommendation on the coastwide TAC for Pacific whiting for 2016, under the terms of the Agreement with Canada, was not available until March 18, 2016. This recommendation for a U.S. TAC was approved by NMFS, under delegation of authority from the Secretary of Commerce, on April 21, 2016. Second, the fishery HG is established following deductions from the U.S. TAC for the tribal allocation, mortality in scientific research activities, and fishing mortality in non-groundfish fisheries. The Council establishes the amounts deducted from the U.S. TAC for scientific research and non-groundfish fisheries on an annual basis at its April meeting, based on estimates of scientific research catch and estimated bycatch mortality in non-groundfish fisheries. For 2016, the Council recommended and NMFS approves a scientific research and bycatch set-aside of 1,500 mt. These amounts are not set until the TAC is available. The fishery HG is therefore being finalized with this rule. The 2016 HG, sometimes referred to as the non-tribal allocation, for Pacific whiting is 301,731 mt. This amount was determined by deducting from the total U.S. TAC of 367,553 mt, the 64,322 mt tribal allocation, along with 1,500 mt for scientific research catch and fishing mortality in non-groundfish fisheries.
Regulations at § 660.55(i)(2) allocate the fishery HG among the non-tribal C/P Coop Program, Mothership Coop Program, and Shorebased IFQ Program sectors of the Pacific whiting fishery. The C/P Coop Program is allocated 34 percent (102,589 mt for 2016), the Mothership Coop Program is allocated 24 percent (72,415 mt for 2016), and the Shorebased IFQ Program is allocated 42 percent (126,727 mt for 2016). The fishery south of 42° N. lat. may not take more than 6,336 mt (5 percent of the Shorebased IFQ Program allocation) prior to May 15, the start of the primary Pacific whiting season north of 42° N. lat.
The 2016 allocations of canary rockfish, darkblotched rockfish, Pacific ocean perch and widow rockfish to the Pacific whiting fishery were published in a final rule on March 10, 2015 (80 FR 12567). The allocations to the Pacific whiting fishery for these species are described in the footnotes to Table 2.b to part 660, subpart C and are not changed via this rulemaking.
On March 10, 2016, NMFS issued a proposed rule for the allocation and management of the 2016 tribal Pacific whiting fishery. The comment period on the proposed rule closed on April 11, 2016. No comment letters were received.
The Annual Specifications and Management Measures for the 2016 Tribal and non-Tribal Fisheries for Pacific Whiting are issued under the authority of the Magnuson-Stevens Act, and the Pacific Whiting Act of 2006, and are in accordance with 50 CFR part 660, subparts C through G, the regulations implementing the FMP. NMFS has determined that this rule is consistent with the national standards of the Magnuson-Stevens Act and other applicable laws.
NMFS has determined that the Pacific whiting fishery, both tribal and non-tribal, is consistent, to the maximum extent practicable, with approved coastal zone management programs for the States of Washington and Oregon. NMFS sent letters to the State of Washington and the State of Oregon describing its determination of consistency dated February 5, 2016. Both the State of Oregon and the State of Washington responded indicating agreement with the determination.
Pursuant to 5 U.S.C. 553(b)(B), the NMFS Assistant Administrator finds good cause to waive prior public notice and comment and delay in effectiveness for those provisions in this final rule that were not included in 80 FR 12676,
Every year, NMFS conducts a Pacific whiting stock assessment in which U.S. and Canadian scientists cooperate. The 2016 stock assessment for Pacific whiting was prepared in early 2016, and included updated total catch, length and age data from the U.S. and Canadian fisheries from 2015, and biomass indices from the 2015 Joint U.S.-Canadian acoustic/midwater trawl surveys. Because of this late availability of the most recent data for the assessment, and the need for time to conduct the treaty process for determining the TAC using the most recent assessment, it would not be possible to allow for notice and comment before the start of the primary Pacific whiting season on May 15.
A delay in implementing the Pacific whiting harvest specifications to allow for notice and comment would be contrary to the public interest because it would require either a shorter primary whiting season or development of a TAC without the most recent data. A shorter season could prevent the tribal and non-tribal fisheries from attaining their 2016 allocations, which would result in unnecessary short-term adverse economic effects for the Pacific whiting fishing vessels and the associated fishing communities. A TAC determined without the most recent data could fail to account for significant fluctuations in the biomass of this relatively short-lived species. To prevent these adverse effects and to allow the Pacific whiting season to commence, it is in the best interest of the public to waive prior notice and comment.
In addition, pursuant to 5 U.S.C. 553(d)(3), the NMFS Assistant Administrator finds good cause to waive the 30-day delay in effectiveness. Waiving the 30-day delay in effectiveness will not have a negative impact on any entities, as there are no new compliance requirements or other burdens placed on the fishing community with this rule. Failure to make this final rule effective at the start of the fishing year will undermine the intent of the rule, which is to promote the optimal utilization and conservation of Pacific whiting. Making this rule effective immediately would also serve the best interests of the public because
The preamble to the proposed rule and this final rule serve as the small entity compliance guide required by Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996. This action does not require any additional compliance from small entities that is not described in the preamble. Copies of this final rule are available from NMFS at the following Web site:
The Office of Management and Budget has determined that this final rule is not significant for purposes of Executive Order 12866.
When an agency proposes regulations, the Regulatory Flexibility Act (RFA) requires the agency to prepare and make available for public comment an Initial Regulatory Flexibility Analysis (IRFA) document that describes the impact on small businesses, non-profit enterprises, local governments, and other small entities. The IRFA is to aid the agency in considering all reasonable regulatory alternatives that would minimize the economic impact on affected small entities. After the public comment period, the agency prepares a Final Regulatory Flexibility Analysis (FRFA) that takes into consideration any new information and public comments. This FRFA incorporates the IRFA and a summary of the analyses completed to support the action.
NMFS published a proposed rule on March 10, 2016 (81 FR 12676) for the allocation of the 2016 tribal Pacific whiting fishery. The comment period on the proposed rule closed on April 11, 2016, and no comments were received on the proposed rule, the IRFA, or the economic impacts of this action generally. An IRFA was prepared and summarized in the Classification section of the preamble to the proposed rule. The description of this action, its purpose, and its legal basis are described in the preamble to the proposed rule and are not repeated here. The FRFA describes the impacts on small entities, which are defined in the IRFA for this action and not repeated here. Analytical requirements for the FRFA are described in Regulatory Flexibility Act, section 604(a)(1) through (5), and summarized below. The FRFA must contain: (1) A succinct statement of the need for, and objectives of, the rule; (2) A summary of the significant issues raised by the public comments in response to the initial regulatory flexibility analysis, a summary of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments; (3) A description and an estimate of the number of small entities to which the rule will apply, or an explanation of why no such estimate is available; (4) A description of the projected reporting, recordkeeping and other compliance requirements of the rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and (5) A description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.
This final rule establishes the initial 2016 Pacific whiting allocations for the tribal fishery, the fishery HG, the allocations for the non-tribal sectors (C/P, mothership, and shoreside), and the amount of Pacific whiting deducted from the TAC for scientific research and fishing mortality in non-groundfish fisheries. The amount of whiting allocated to these sectors is based on the U.S. TAC. From the U.S. TAC, small amounts of whiting that account for research catch and for bycatch in other fisheries are deducted. The amount of the tribal allocation is also deducted directly from the TAC. After accounting for these deductions, the remainder is the commercial harvest guideline. This guideline is then allocated among the other three sectors as follows: 34 percent for the C/P Coop Program; 24 percent for the MS Coop Program; and 42 percent for the Shorebased IFQ Program.
There are four tribes that can participate in the tribal whiting fishery: The Hoh, Makah, Quileute, and Quinault. The current tribal fleet is composed of 5 trawlers but in recent years, there have been fewer vessels actually fishing. Based on groundfish ex-vessel revenues and on tribal enrollments (the population size of each tribe), the four tribes and their fleets are considered “small” entities. We expect one tribal entity, the Makah Tribe, to fish in 2016.
This rule would also impact vessels in the non-tribal fishery that fish for Pacific whiting. Currently, there are three non-tribal sectors in the Pacific whiting fishery: Shorebased IFQ Program—Trawl Fishery; Mothership Coop Program—Whiting At-sea Trawl Fishery; and C/P Coop Program—Whiting At-sea Trawl Fishery.
Currently, the Shorebased IFQ Program is composed of 172 Quota Share permits/accounts, 152 vessel accounts, and 44 first receivers. The Mothership fishery is currently composed of a single coop, with six mothership processor permits, and 34 Mothership/Catcher-Vessel endorsed permits, with three permits each having two catch history assignments. The C/P Program is composed of 10 C/P permits owned by three companies that have formed a single coop. These regulations directly affect IFQ Quota shareholders whose vessel accounts receive Quota Pounds (QP), holders of mothership catcher-vessel-endorsed permits who determine how many co-ops will participate in the fishery and how much fish each co-op is to receive, and the C/P Coop which is made up of three companies that own the catcher-processor permits.
As part of the permit application processes for the non-tribal fisheries, based on a review of the SBA size criteria, applicants are asked if they consider themselves a “small” business, and they are asked to provide detailed ownership information. Although there are three non-tribal sectors, many companies participate in two sectors and some participate in all three sectors. All of the 34 mothership catch history assignments are associated with a single mothership co-op and all ten of the C/P permits are associated with a co-op. These co-ops are considered large entities from several perspectives; they have participants that are large entities, whiting co-op revenues exceed or have exceeded $20.5 million, or co-op members are connected to American Fishing Act permits or co-ops where the NMFS Alaska Region has determined they are all large entities (79 FR 54597; September 12, 2014). After accounting for cross participation, multiple Quota Share account holders, and affiliation through ownership, NMFS estimates that there are 103 non-tribal entities directly affected by these regulations, 89 of which are considered “small” businesses.
In total in 2015, non-tribal sectors harvested 52 percent of the final non-
For the years 2011 to 2015, the total whiting fishery (tribal and non-tribal) averaged harvests of approximately 205,000 mt annually, worth an average estimated $52 million in ex-vessel revenues. As the U.S. whiting TAC has been highly variable during this time, so have harvests. In the past five years, harvests have ranged from 151,000 mt (2015) to 264,000 mt (2014). Ex-vessel revenues have also varied. Annual ex-vessel revenues have ranged from $25 million (2015) to $65 million (2013 and 2014). Revenues are estimated for the mothership and catcher/processor harvest using the average annual shoreside ex-vessel price. Total whiting harvest in 2015 was approximately 151,000 mt, worth $25 million, at a shoreside ex-vessel price of $167 per mt. Ex-vessel revenues in 2014 were over $64 million with a harvest of 264,000 mt and an average shoreside ex-vessel price of $240 per mt. The prices for whiting are largely determined by the world market for groundfish, because most of the whiting harvested is exported. Poor world market conditions led to a decrease in prices in 2015. A confluence of biological factors precluded the tribal fishery in 2015, and resulted in a much lower harvest percentage of the annual commercial TAC than in prior years. In 2015 NMFS reapportioned 30,000 mt of the original 56,888 mt tribal allocation. This reapportionment was based on conversations with the tribes and the best information available at the time, which indicated that this amount would not limit tribal harvest opportunities for the remainder of the year.
NMFS believes this rule will not adversely affect small entities. There are no significant alternatives to the action in this final rule that accomplish the stated objectives of applicable statutes and the treaties with the affected tribes that minimize any of the significant economic impact of the final rule on small entities.
The RFA can be found at
There are no reporting or recordkeeping requirements associated with this final rule. No Federal rules have been identified that duplicate, overlap, or conflict with this action.
NMFS issued Biological Opinions under the Endangered Species Act (ESA) on August 10, 1990, November 26, 1991, August 28, 1992, September 27, 1993, May 14, 1996, and December 15, 1999, pertaining to the effects of the Groundfish FMP fisheries on Chinook salmon (Puget Sound, Snake River spring/summer, Snake River fall, upper Columbia River spring, lower Columbia River, upper Willamette River, Sacramento River winter, Central Valley spring, California coastal), coho salmon (Central California coastal, southern Oregon/northern California coastal), chum salmon (Hood Canal summer, Columbia River), sockeye salmon (Snake River, Ozette Lake), and steelhead (upper, middle and lower Columbia River, Snake River Basin, upper Willamette River, central California coast, California Central Valley, south/central California, northern California, southern California). These biological opinions have concluded that implementation of the FMP is not expected to jeopardize the continued existence of any endangered or threatened species under the jurisdiction of NMFS, or result in the destruction or adverse modification of critical habitat.
NMFS issued a Supplemental Biological Opinion on March 11, 2006, concluding that neither the higher observed bycatch of Chinook in the 2005 whiting fishery nor new data regarding salmon bycatch in the groundfish bottom trawl fishery required a reconsideration of its prior “no jeopardy” conclusion. NMFS also reaffirmed its prior determination that implementation of the FMP is not likely to jeopardize the continued existence of any of the affected Evolutionarily Significant Units (ESUs). Lower Columbia River coho (70 FR 37160, June 28, 2005) and Oregon Coastal coho (73 FR 7816, February 11, 2008) were relisted as threatened under the ESA. The 1999 biological opinion concluded that the bycatch of salmonids in the Pacific whiting fishery were almost entirely Chinook salmon, with little or no bycatch of coho, chum, sockeye, and steelhead.
NMFS has reinitiated section 7 consultation on the Pacific Coast Groundfish FMP with respect to its effects on listed salmonids. In the event the consultation identifies either reasonable and prudent alternatives to address jeopardy concerns, or reasonable and prudent measures to minimize incidental take, NMFS would coordinate with the Council to put additional alternatives or measures into place, as required. After reviewing the available information, NMFS has concluded that, consistent with sections 7(a)(2) and 7(d) of the ESA, this action will not jeopardize any listed salmonid species, would not adversely modify any designated critical habitat, and will not result in any irreversible or irretrievable commitment of resources that would have the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures.
On December 7, 2012, NMFS completed a biological opinion concluding that the groundfish fishery is not likely to jeopardize non-salmonid marine species, including listed eulachon, the southern distinct population segment (DPS) of green sturgeon, humpback whales, the eastern DPS of Steller sea lions, and leatherback sea turtles. The opinion also concluded that the fishery is not likely to adversely modify critical habitat for green sturgeon and leatherback sea turtles. An analysis included in the same document as the opinion concludes that the fishery is not likely to adversely affect green sea turtles, olive ridley sea turtles, loggerhead sea turtles, sei whales, North Pacific right whales, blue whales, fin whales, sperm whales, Southern Resident killer whales, Guadalupe fur seals, or the critical habitat for Steller sea lions. Since that biological opinion, the eastern DPS of Steller sea lions was delisted on November 4, 2013 (78 FR 66140); however, this delisting did not change the designation of the codified critical habitat for the eastern DPS of Steller sea lions. On January 21, 2013, NMFS evaluated the fishery's effects on eulachon to consider whether the 2012 opinion should be reconsidered in light of new information from the 2011 fishery and the proposed chafing gear modifications. NMFS determined that information about bycatch of eulachon in 2011 and chafing gear regulations did not change the effects that were analyzed in the December 7, 2012, biological opinion, or provide any other basis to reinitiate consultation. At the Pacific Fishery Management Council's June 2015 meeting, new estimates of eulachon take from fishing activity under the FMP indicated that the incidental take threshold in the 2012 biological opinion was exceeded again in 2013. The increased bycatch may be due to increased eulachon abundance. In light of the new fishery and
On November 21, 2012, the U.S. Fish and Wildlife Service (FWS) issued a biological opinion concluding that the groundfish fishery will not jeopardize the continued existence of the short-tailed albatross. The FWS also concurred that the fishery is not likely to adversely affect the marbled murrelet, California least tern, southern sea otter, bull trout, nor bull trout critical habitat. The 2012-2013 two-year average of short-tailed albatross take in the groundfish fishery, using expanded annual estimates of black-footed albatross as a proxy, ranged from 1.35 to 2.0 for the lower short-tailed albatross population estimate to 1.45 to 2.15 for the higher population estimates, which exceeded the 2 per 2-year period identified in the incidental take statement in the biological opinion. This led NMFS to reinitiate ESA Section 7 consultation on take of this species in the Pacific Coast Groundfish Fishery. Take of short-tailed albatross has not been observed in the whiting fishery, which is a midwater trawl fishery. After reviewing the available information, NMFS has concluded that, consistent with sections 7(a)(2) and 7(d) of the ESA, this action will not jeopardize listed short-tailed albatross, would not adversely modify any designated critical habitat, and will not result in any irreversible or irretrievable commitment of resources that would have the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures. In the event the consultation identifies either reasonable and prudent alternatives to address jeopardy concerns, or reasonable and prudent measures to minimize incidental take, NMFS would coordinate with the Council to put additional alternatives or measures into place, as required.
In accordance with the National Environmental Policy Act (NEPA), NMFS prepared a final environmental impact statement (FEIS) regarding Harvest Specifications and Management Measures for 2015-2016 and Biennial Periods Thereafter in the Pacific Coast Groundfish Fishery. In that FEIS, the effects of the Pacific whiting fishery were considered using a range of potential harvest levels, the highest of which considered was 408,260 mt, above the harvest level set in this rule.
Pursuant to Executive Order 13175, this final rule was developed after meaningful collaboration with tribal officials from the area covered by the FMP. Consistent with the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council is a representative of an Indian tribe with federally recognized fishing rights from the area of the Council's jurisdiction. In addition, NMFS has coordinated specifically with the tribes interested in the whiting fishery regarding the issues addressed by this final rule.
Fisheries, Fishing, Indian Fisheries.
For the reasons set out in the preamble, 50 CFR part 660 is amended as follows:
16 U.S.C. 1801
(f) * * *
(4)
a/ Annual catch limits (ACLs), annual catch targets (ACTs) and harvest guidelines (HGs) are specified as total catch values.
b/ Fishery harvest guidelines means the harvest guideline or quota after subtracting Pacific Coast treaty Indian tribes allocations and projected catch, projected research catch, deductions for fishing mortality in non-groundfish fisheries, and deductions for EFPs from the ACL or ACT.
c/ Bocaccio. A bocaccio stock assessment update was conducted in 2013 for the bocaccio stock between the U.S.-Mexico border and Cape Blanco. The stock is managed with stock-specific harvest specifications south of 40°10′ N. lat. and within the Minor Shelf Rockfish complex north of 40°10 N. lat. A historical catch distribution of approximately 6 percent was used to apportion the assessed stock to the area north of 40°10′ N. lat. The bocaccio stock was estimated to be at 31.4 percent of its unfished biomass in 2013. The OFL of 1,351 mt is projected in the 2013 stock assessment using an F
d/ Canary rockfish. A canary rockfish stock assessment update was conducted in 2011 and the stock was estimated to be at 23.2 percent of its unfished biomass coastwide in 2011. The coastwide OFL of 729 mt is projected in the 2011 rebuilding analysis using an F
e/ Cowcod. A stock assessment for the Conception Area was conducted in 2013 and the stock was estimated to be 33.9 percent of its unfished biomass in 2013. The Conception Area OFL of 56.4 mt is projected in the 2013 rebuilding analysis using an F
f/ Darkblotched rockfish. A 2013 stock assessment estimated the stock to be at 36 percent of its unfished biomass in 2013. The OFL of 580 mt is projected in the 2013 stock assessment using an F
g/ Pacific Ocean Perch. A stock assessment was conducted in 2011 and the stock was estimated to be at 19.1 percent of its unfished biomass in 2011. The OFL of 850 mt for the area north of 40°10′ N. lat. is projected in the 2011 rebuilding analysis using an F
h/ Petrale sole. A 2013 stock assessment estimated the stock to be at 22.3 percent of its unfished biomass in 2013. The OFL of 3,044 mt is projected in the 2013 assessment using an F30% F
i/ Yelloweye rockfish. A stock assessment update was conducted in 2011. The stock was estimated to be at 21.4 percent of its unfished biomass in 2011. The 52 mt coastwide OFL was projected in the 2011 rebuilding analysis using an F
j/ Arrowtooth flounder. The arrowtooth flounder stock was last assessed in 2007 and was estimated to be at 79 percent of its unfished biomass in 2007. The OFL of 6,396 mt is derived from the 2007 assessment using an F
k/ Black rockfish south (Oregon and California). A stock assessment was conducted for black rockfish south of 45°46′ N. lat. (Cape Falcon, Oregon) to Central California (
l/ Black rockfish north (Washington). A stock assessment was conducted for black rockfish north of 45°46′ N. lat. (Cape Falcon, Oregon) in 2007. The biomass in the north was estimated to be at 53 percent of its unfished biomass in 2007. The OFL from the assessed area is derived from the 2007 assessment using an F
m/ Cabezon (California). A cabezon stock assessment was conducted in 2009. The cabezon spawning biomass in waters off
n/ Cabezon (Oregon). A cabezon stock assessment was conducted in 2009. The cabezon spawning biomass in waters off Oregon was estimated to be at 52 percent of its unfished biomass in 2009. The OFL of 49 mt is calculated using an F
o/ California scorpionfish was assessed in 2005 and was estimated to be at 79.8 percent of its unfished biomass in 2005. The OFL of 117 mt is projected in the 2005 assessment using an F
p/ Chilipepper. The coastwide chilipepper stock was assessed in 2007 and estimated to be at 70 percent of its unfished biomass in 2006. Chilipepper are managed with stock-specific harvest specifications south of 40°10 N. lat. and within the Minor Shelf Rockfish complex north of 40°10′ N. lat. Projected OFLs are stratified north and south of 40°10′ N. lat. based on the average 1998-2008 assessed area catch, which is 93 percent for the area south of 40°10′ N. lat. and 7 percent for the area north of 40°10′ N. lat. The OFL of 1,694 mt for the area south of 40°10′ N. lat. is projected in the 2007 assessment using an F
q/ Dover sole. A 2011 Dover sole assessment estimated the stock to be at 83.7 percent of its unfished biomass in 2011. The OFL of 59,221 mt is projected in the 2011 stock assessment using an F
r/ English sole. A 2013 stock assessment was conducted, which estimated the stock to be at 88 percent of its unfished biomass in 2013. The OFL of 7,890 mt is projected in the 2013 assessment using an F
s/ Lingcod north. A lingcod stock assessment was conducted in 2009. The lingcod spawning biomass off Washington and Oregon was estimated to be at 62 percent of its unfished biomass in 2009. The OFL for Washington and Oregon of 1,842 mt is calculated using an F
t/ Lingcod south. A lingcod stock assessment was conducted in 2009. The lingcod spawning biomass off California was estimated to be at 74 percent of its unfished biomass in 2009. The OFL for California of 2,185 mt is projected in the assessment using an F
u/ Longnose skate. A stock assessment was conducted in 2007 and the stock was estimated to be at 66 percent of its unfished biomass. The OFL of 2,405 mt is derived from the 2007 stock assessment using an F
v/ Longspine thornyhead. A 2013 longspine thornyhead coastwide stock assessment estimated the stock to be at 75 percent of its unfished biomass in 2013. A coastwide OFL of 4,763 mt is projected in the 2013 stock assessment using an F
w/ Pacific cod. The 3,200 mt OFL is based on the maximum level of historic landings. The ABC of 2,221 mt is a 30.6 percent reduction from the OFL (σ=1.44/P*=0.40) as it's a category 3 stock. The 1,600 mt ACL is the OFL reduced by 50 percent as a precautionary adjustment. 509 mt is deducted from the ACL to accommodate the Tribal fishery (500 mt), research catch (7 mt), and the incidental open access fishery (2.0 mt), resulting in a fishery HG of 1,091 mt.
x/ Pacific whiting. The coastwide stock assessment was published in 2016 and estimated the spawning stock to be at 76 percent of its unfished biomass. The 2016 OFL of 830,124 mt is based on the 2016 assessment with an F
y/ Sablefish north. A coastwide sablefish stock assessment was conducted in 2011. The coastwide sablefish biomass was estimated to be at 33 percent of its unfished biomass in 2011. The coastwide OFL of 8,526 mt is projected in the 2011 stock assessment using an F
z/ Sablefish south. The ACL for the area south of 36° N. lat. is 1,880 mt (26.4 percent of the calculated coastwide ACL value). 5 mt is deducted from the ACL to accommodate the incidental open access fishery (2 mt) and research catch (3 mt), resulting in a fishery HG of 1,875 mt.
aa/ Shortbelly rockfish. A non-quantitative shortbelly rockfish assessment was conducted in 2007. The spawning stock biomass of shortbelly rockfish was estimated to be 67 percent of its unfished biomass in 2005. The OFL of 6,950 mt is based on the estimated MSY in the 2007 stock assessment. The ABC of 5,789 mt is a 16.7 percent reduction of the OFL (σ=0.72/P*=0.40) as it's a category 2 stock. The 500 mt ACL is set to accommodate for incidental catch when fishing for co-occurring healthy stocks and in recognition of the stock's importance as a forage species in the California Current ecosystem. 2 mt is deducted from the ACL to accommodate research catch, resulting in a fishery HG of 498 mt.
bb/ Shortspine thornyhead. A 2013 coastwide shortspine thornyhead stock assessment estimated the stock to be at 74.2 percent of its unfished biomass in 2013. A coastwide OFL of 3,169 mt is projected in the 2013 stock assessment using an F
cc/ Spiny dogfish. A coastwide spiny dogfish stock assessment was conducted in 2011. The coastwide spiny dogfish biomass was estimated to be at 63 percent of its unfished biomass in 2011. The coastwide OFL of 2,503 mt is derived from the 2011 assessment using an F
dd/ Splitnose rockfish. A splitnose rockfish coastwide assessment was conducted in 2009 that estimated the stock to be at 66 percent of its unfished biomass in 2009. Splitnose rockfish in the north is managed in the Minor Slope Rockfish complex and with species-specific harvest specifications south of 40°10′ N. lat. The coastwide OFL is projected in the 2009 assessment using an F
ee/ Starry flounder. The stock was assessed in 2005 and was estimated to be above 40 percent of its unfished biomass in 2005 (44 percent in Washington and Oregon, and 62 percent in California). The coastwide OFL of 1,847 mt is derived from the 2005 assessment using an F
ff/ Widow rockfish. The widow rockfish stock was assessed in 2011 and was estimated to be at 51.1 percent of its unfished biomass in 2011. The OFL of 3,990 mt is projected in the 2011 stock assessment using an F
gg/ Yellowtail rockfish. A 2013 yellowtail rockfish stock assessment was conducted for the portion of the population north of 40°10′ N. lat. The estimated stock depletion is 69 percent of its unfished biomass in 2013. The OFL of 6,949 mt is projected in the 2013 stock assessment using an F
hh/ Minor Nearshore Rockfish north. The OFL for Minor Nearshore Rockfish north of 40°10′ N. lat. of 88 mt is the sum of the OFL contributions for the component species managed in the complex. The ABCs for the minor rockfish complexes are based on a sigma value of 0.72 for category 2 stocks (
ii/ Minor Shelf Rockfish north. The OFL for Minor Shelf Rockfish north of 40°10′ N. lat. of 2,218 mt is the sum of the OFL contributions for the component species within the complex. The ABCs for the minor rockfish complexes are based on a sigma value of 0.72 for category 2 stocks (
jj/ Minor Slope Rockfish north. The OFL for Minor Slope Rockfish north of 40°10′ N. lat. of 1,844 mt is the sum of the OFL contributions for the component species within the complex. The ABCs for the Minor Slope Rockfish complexes are based on a sigma value of 0.39 for aurora rockfish, a sigma value of 0.36 for other category 1 stocks (
kk/ Minor Nearshore Rockfish south. The OFL for the Minor Nearshore Rockfish complex south of 40°10′ N. lat. of 1,288 mt is the sum of the OFL contributions for the component species within the complex. The ABC for the southern Minor Nearshore Rockfish complex is based on a sigma value of 0.36 for category 1 stocks (
ll/ Minor Shelf Rockfish south. The OFL for the Minor Shelf Rockfish complex south of 40°10′ N. lat. of 1,919 mt is the sum of the OFL contributions for the component species within the complex. The ABCs for the southern Minor Shelf Rockfish complex is based on a sigma value of 0.72 for category 2 stocks (
mm/ Minor Slope Rockfish south. The OFL of 814 mt is the sum of the OFL contributions for the component species within the complex. The ABC for the southern Minor Slope Rockfish complex is based on a sigma value of 0.39 for aurora rockfish, a sigma value of 0.72 for category 2 stocks (
nn/ Other Flatfish. The Other Flatfish complex is comprised of flatfish species managed in the PCGFMP that are not managed with species-specific OFLs/ABCs/ACLs. Most of the species in the Other Flatfish complex are unassessed, and include: butter sole, curlfin sole, flathead sole, Pacific sanddab (assessed in 2013, but the assessment results were too uncertain to inform harvest specifications), rock sole, sand sole, and rex sole (assessed in 2013). The Other Flatfish OFL of 9,645 mt is based on the sum of the OFL contributions of the component stocks. The ABC of 7,243 mt is based on a sigma value of 0.72 for category 2 stocks (
oo/ Other Fish. The Other Fish complex is comprised of kelp greenling coastwide, cabezon off Washington, and leopard shark coastwide. These species are unassessed. The OFL of 291 mt is the sum of the OFL contributions for kelp greenling off California (the SSC has not approved methods for calculating the OFL contributions for kelp greenling off Oregon and Washington), cabezon off Washington, and leopard shark coastwide. The ABC of 243 mt is the sum of ABC contributions for kelp greenling off California, cabezon off Washington and leopard shark coastwide calculated by applying a P* of 0.45 and a sigma of 1.44 to the OFL contributions for those stocks. The ACL is set equal to the ABC. There are no deductions from the ACL so the fishery HG is equal to the ACL of 243 mt.
(d) * * *
(1) * * *
(ii) * * *
(D) For the trawl fishery, NMFS will issue QP based on the following shorebased trawl allocations:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; opening.
NMFS is opening directed fishing for species that comprise the deep-water species fishery by vessels using trawl gear in the Gulf of Alaska (GOA). This action is necessary to fully use the 2016 groundfish total allowable catch specified for the species comprising the deep-water species category in the GOA.
Effective 1200 hours, Alaska local time (A.l.t.), May 15, 2016, through 1200 hours, A.l.t., July 1, 2016.
Comments must be received at the following address no later than 4:30 p.m., A.l.t., May 31, 2016.
You may submit comments on this document, identified by FDMS Docket Number NOAA-NMFS-2015-0110, by any of the following methods:
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Obren Davis, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
NMFS prohibited directed fishing for species that comprise the deep-water species fishery by vessels using trawl
Regulations at § 679.21(d)(4)(iii)(D) require NMFS to combine management of the available trawl halibut PSC limits in the second season (April 1 through July 1) deep-water and shallow-water species fishery categories for use in either fishery from May 15 through June 30 of each year. The combined second seasonal apportionment of Pacific halibut PSC is 810 mt. This includes the deep-water and shallow water Pacific halibut PSC limits carried forward from the first seasonal apportionments (January 20 through April 1). The deep-water and shallow-water Pacific halibut PSC apportionments were established by the final 2016 and 2017 harvest specifications for groundfish of the GOA (81 FR 14740, March 18, 2016).
As of May 10, 2016, NMFS has determined that there is approximately 135 metric tons of the trawl Pacific halibut PSC limit remaining in the deep-water fishery and shallow-water fishery seasonal apportionments. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully utilize the 2016 groundfish total allowable catch available in the deep-water species fishery category NMFS is terminating the previous closure and is reopening directed fishing for species comprising the deep-water fishery category in the GOA. The Administrator, Alaska Region (Regional Administrator) considered the following factors in reaching this decision: (1) The current harvest of Pacific halibut PSC in the deep-water species trawl fishery the of the GOA and, (2) the harvest capacity and stated intent on future harvesting patterns of vessels in participating in this fishery.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of directed fishing for species comprising the deep-water species fishery category in the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of May 10, 2016.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
Without this inseason adjustment, NMFS could not allow the trawl deep-water species fishery in the GOA to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until May 31, 2016.
This action is required by § 679.21 and § 679.25 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Office of the General Counsel, Department of Energy.
Notice of reopening of comment period.
On December 29, 2015, the U.S. Department of Energy (DOE) published a notice of proposed rulemaking (NOPR) in the
The comment period for the notice of proposed rulemaking published on December 29, 2015 (80 FR 81199), has been extended. DOE will accept comments, data, and information in response to the NOPR received no later than June 15, 2016.
See the section “Public Participation” for details on submitting comments.
Ms. Ashley Armstrong, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: 202-586-6590. Email:
On December 29, 2015, the U.S. Department of Energy (DOE) published a notice of proposed rulemaking in the
DOE wishes to provide interested parties with additional time to submit comments, and is reopening the comment period until June 15, 2016. DOE is particularly interested in receiving comments and views of interested parties concerning how to minimize the burden of data collection to importers of covered products or equipment subject to an applicable energy conservation standard, while at the same time providing DOE with traceability information sufficient to determine whether a covered import is one that the DOE has previously identified as noncompliant with the relevant standard and, if so, to provide U.S. Customs and Border Protection (CBP) “a description of the noncompliant covered import that is sufficient to enable CBP to identify the subject merchandise and refuse admission thereof into the customs territory of the United States.” (19 CFR 12.50(c))
In the NOPR, DOE proposed that an importer provide information regarding the importer's most recent submission in DOE's Compliance and Certification Management System (CCMS), specifically the CCMS ticket number, the CCMS attachment identification number assigned to the certification submission, and the line number in the submission corresponding to the basic model certified. Because DOE makes determinations of noncompliance on a basic model basis, identification of the certified basic model number of the covered import would allow DOE to accurately determine whether the covered import belongs to a basic model that has previously been found to be noncompliant with applicable energy conservation standards.
DOE received comments in response to the NOPR suggesting the submission of alternative data elements to achieve its traceability requirements, such as brand and basic model number of the product, or brand and individual model number. One commenter stated that importers may already provide to CBP the model number of the covered products or equipment that they import, such that DOE may be able to rely on this information in lieu of additional information that it may require. Commenters also recommended that DOE allow multiple paths for importers of covered products to provide traceability information for their products.
At the public meeting for the NOPR, DOE stated that it had considered alternatives to its proposal, such as requiring submission of brand and individual model number, or stock keeping unit (SKU). As noted, DOE is seeking a solution that will allow it to confirm that the covered import does not belong to a basic model that DOE has previously found to be noncompliant and is open to offering options for the importer to provide the necessary information in the least burdensome manner.
To this end, DOE seeks comments on potential options to achieving DOE's goal of traceability while minimizing the burden on importers. Among the possibilities DOE is considering, some of which have been suggested by commenters to date, are for importers to provide: The brand name and basic model number of the product or equipment as reported in the most recent CCMS certification submission; the brand name and individual model number of the product or equipment as reported in the most recent CCMS certification submission; or a SKU code, Universal Product Code, International Article Number, or Global Trade Item Number. Generally, DOE seeks comment on the advantage of allowing importers to use any unique identifier of the covered import that is readily available
Commenters have expressed concern with respect to DOE's proposal to require certain information related to covered products or equipment that are a component of another finished product, due to the fact that an importer may use more than one basic model of component part in its finished product, and may not know which basic model is contained in a given shipment. DOE notes that the purpose of this proposal is to allow quick identification by CBP of a noncompliant product. DOE welcomes comments on alternatives, including alternatives that would reduce importer burden, such as allowing the importer to identify the range of possible component part basic models, but importers should be aware that this approach could potentially result in a greater impact by having CBP stop shipments that may not contain noncompliant products due to the importer's choice to group multiple basic models into a single identifier.
In addition, DOE understands that characterizing its proposed requirement as a “certificate of admissibility” may have created the mistaken impression that it was proposing a conformity assessment procedure as described in the Technical Barriers to Trade Agreement administered by the World Trade Organization. DOE wishes to emphasize, however, that it is not proposing to mandate any additional testing
Moreover, it is not DOE's intent to delay in any way the importation of any covered product or equipment, aside from that for which DOE has already, separately, made a final determination that the basic model to which the covered import belongs is not compliant with applicable energy conservation standards. The importation of such a product is already prohibited. In addition, DOE notes that, although the information it proposes to collect would allow it to determine whether a covered import has been properly certified to DOE in CCMS, DOE is not proposing to delay the importation of a covered product subject to energy conservation standards solely due to a failure to certify the covered import. With this in mind, DOE welcomes comments on possible alternatives to the term “certification of admissibility” in reference to what is, in essence, a limited collection of information for purposes of traceability.
Finally, DOE seeks comments on alternatives to the proposed compliance date for the rule of 2 years after the date of publication of the final rule in the
DOE will accept comments, data, and information in response to the NOPR received no later than June 15, 2016. DOE will consider any comments in response to the NOPR received by midnight of June 15, 2016, and deems any comments received by that time to be timely submitted. Based on the comments received, DOE will determine whether it will need to issue a supplemental notice of proposed rulemaking or proceed to a final rule.
Any comments submitted must identify the NOPR for Import Data Collection, and provide docket number EERE-2015-BT-CE-0019 and/or regulatory information number (RIN) number 1990-AA44. Comments may be submitted using any of the following methods:
1.
2.
3.
4.
A link to the docket Web page can be found at:
For further information on how to submit a comment, review other public comments and the docket, or to request a public meeting, contact Ms. Brenda Edwards at (202) 586-2945 or by email:
Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT).
Notice of proposed rulemaking; withdrawal.
The DOT is withdrawing a previously published Notice of Proposed Rulemaking (NPRM) that would have replaced the Orders limiting scheduled operations at John F. Kennedy International Airport (JFK), Newark Liberty International Airport (EWR), and LaGuardia Airport (LGA)
As of May 16, 2016, the NPRM published on January 8, 2015 (80 FR 1274) is withdrawn.
In 2006, the FAA issued an Order imposing temporary limits on operations at LGA (71 FR 77854), and in 2008, issued Orders imposing temporary limits on operations at JFK (73 FR 3510) and EWR (73 FR 29550). These Orders have been extended and are in effect until October 29, 2016. On April 6, 2016, the FAA announced that the current Order at EWR will expire on October 29, 2016, and that EWR will be a Level 2, schedule-facilitated airport under the Worldwide Slot Guidelines effective for the Winter 2016 scheduling season (81 FR 19861). By this same announcement, the FAA indicated that slot-controlled restrictions at JFK and LGA remain necessary and that the FAA will extend these Orders, by separate
On January 8, 2015, the FAA and DOT published an NPRM (80 FR 1274) that would replace the FAA's Orders limiting scheduled operations at JFK, EWR, and LGA with a long-term comprehensive approach to slot management at these airports. The NPRM proposed the continuation of the limits on scheduled and unscheduled operations in place at each of these airports under the Orders, and would have required use of an allocated slot 80% of the time for the same flight or series of flights. The NPRM also requested public comment about five alternatives for a secondary market for the purchase, sale, lease, or trade of slots and proposed procedures to codify the exercise of DOT's existing authority to review slot transactions for anti-competitive and public interest effects arising from those secondary market transactions that would have been permitted by the implementation of a bulletin board for the proposed secondary market.
Since the FAA and DOT first initiated this rulemaking effort there have been significant changes in circumstances affecting New York City area airports, including changes in competitive effects from ongoing industry consolidation, slot utilization and transfer behavior, and actual operational performance at the three airports. Furthermore, the FAA recently announced that slot controls are no longer needed at EWR (81 FR 19861). The NPRM proposed an approach to manage slots and the efficient use of airspace at JFK, EWR, and LGA that would have treated all three New York City area airports similarly. In light of the changes in market conditions and operational performance, and particularly the potential impact of EWR's change in status, the Department is withdrawing the NPRM to allow for further evaluation of these changes. Withdrawal of this NPRM (80 FR 1274, January 8, 2015) does not preclude the agency from issuing future rulemakings on this issue, nor does it commit the agency to any course of action in the future. The FAA will continue to monitor the operational performance at these airports. Further, if the Department detects unfair or anticompetitive behavior, we will not hesitate to continue to use our existing authority to take corrective action. We will also continue to cooperate with the U.S. Department of Justice on any reviews it undertakes.
Issued under authority provided by 49 U.S.C. 106(f), 40101, 40103, 40105, and 41712 in Washington, DC on May 6, 2016.
Food and Drug Administration, HHS.
Notification of availability.
The Food and Drug Administration (FDA, we, or Agency) is announcing the availability of a draft guidance for industry entitled “Qualified Facility Attestation Using Form FDA 3942a (for Human Food) or Form FDA 3942b (for Animal Food).” This draft guidance explains our current thinking on how to determine whether a business is a “qualified facility” that is subject to modified requirements under our rule entitled “Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food” (the Preventive Controls for Human Food Rule) or under our rule entitled “Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Food for Animals” (the Preventive Controls for Animal Food Rule). This draft guidance also explains our current thinking on how a business would submit Form FDA 3942a attesting to its status as a qualified facility under the Preventive Controls for Human Food Rule and how a business would submit Form FDA 3942b attesting to its status as a qualified facility under the Preventive Controls for Animal Food Rule. We also are announcing an opportunity for public comment on the proposed collection of information embodied in Forms FDA 3942a and 3942b. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that we consider your comment on this draft guidance before we begin work on the final version of the guidance, submit either electronic or written comments by November 14, 2016. Submit either electronic or written comments on the proposed collection of information by July 15, 2016.
You may submit comments as follows:
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• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
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• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
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Submit written requests for single copies of the draft guidance and proposed forms to Food and Drug Administration (HFS-681), 5100 Paint Branch Pkwy., College Park, MD 20740. Send two self-addressed adhesive labels to assist that office in processing your request. See the
The FDA Food Safety Modernization Act (FSMA) (Pub. L. 111-353) enables FDA to better protect public health by helping to ensure the safety and security of the food supply. It enables FDA to focus more on preventing food safety problems rather than relying primarily on reacting to problems after they occur. FSMA recognizes the important role industry plays in ensuring the safety of the food supply, including the adoption of modern systems of preventive controls in food production.
Section 103 of FSMA amended the Federal Food, Drug, and Cosmetic Act (the FD&C Act) by adding section 418 (21 U.S.C. 350g) with requirements for hazard analysis and risk-based preventive controls for facilities that produce food for humans or animals. We have established regulations to implement these requirements within subparts C and G of the Preventive Controls for Human Food rule (21 CFR part 117) and within subparts C and E of the Preventive Controls for Animal Food Rule (21 CFR part 507). A business that meets the definition of a “qualified facility” (see 21 CFR 117.3 or 21 CFR 507.3) is subject to modified requirements in § 117.201 of the Preventive Controls for Human Food Rule or in § 507.7 of the Preventive Controls for Animal Food Rule. These modified requirements require the business to submit a form to FDA, attesting to its status as a qualified facility. Section 418(
In accordance with section 418(
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
This level 1 draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on Qualified Facility Attestation Using Form FDA 3942a (for Human Food) or Form FDA 3942b (for Animal Food). It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
The draft guidance entitled “Qualified Facility Attestation Using Form FDA 3942a (for Human Food) or Form FDA 3942b (for Animal Food)” contains information collection provisions that are subject to review by the Office of Management and Budget (OMB) under the PRA (44 U.S.C. 3501-3520). A description of these provisions is given below with an estimate of the associated annual reporting burden. Included in the estimate is the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing each collection of information.
We invite comments on: (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.
We estimate the burden for this collection of information as follows:
Consistent with the estimates found in our Preventive Controls for Human Food Rule, we calculate that approximately 37,134 human food facilities will spend approximately 30 minutes (0.5 hour) reporting their status as such to FDA every 2 years. Thus, dividing this figure by 2 to determine the annual burden, we estimate there will be a total of 18,567 responses and a total of 9,284 burden hours associated with this collection element.
Similarly, and consistent with the estimates found in our Preventive Controls for Animal Food Rule, we estimate that approximately 1,120 animal food facilities will spend approximately 30 minutes (0.5 hour) reporting their status as such to FDA every 2 years. Thus, dividing this figure by 2 to determine an annual burden, we estimate there will be a total of 560 responses and a total of 280 burden hours associated with this information collection element.
This draft guidance also refers to previously approved collections of information found in FDA regulations. The collections of information in part 117 have been approved under OMB control number 0910-0751. The collections of information in part 507 have been approved under OMB control number 0910-0789.
Persons with access to the Internet may obtain the draft guidance, including its appendices containing instructions for filling out Forms FDA 3942a and 3942b and the proposed Forms FDA 3942a and 3942b, at either
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a special local regulation on the waters of the Beaufort River, Beaufort, South Carolina, during the
Comments and related material must be received by the Coast Guard on or before June 15, 2016.
You may submit comments identified by docket number USCG-2016-0185 using the Federal eRulemaking Portal at
If you have questions about this proposed rulemaking, call or email Lieutenant John Downing, Sector Charleston Office of Waterways Management, Coast Guard; telephone (843) 740-3184, email
On March 3, 2016, the Coast Guard received a marine event application for the 2016 Beaufort Water Festival Air Show that will take place from noon to 5 p.m. on July 23, 2016. The purpose of the proposed rule is to ensure safety of life on the navigable waters of the United States during the Beaufort Water Festival Air Show. The legal basis for the proposed rule is the Coast Guard's Authority to establish special local regulations: 33 U.S.C. 1233.
The COTP proposes to establish a special local regulation on the waters of the Beaufort River, Beaufort, South Carolina during the Beaufort Water Festival Air Show. The event is scheduled to take place on July 23, 2016 from noon to 5 p.m. Approximately 100 spectator vessels are expected to attend the event. Persons and vessels desiring to enter, transit through, anchor in, or remain within the regulated area may contact the Captain of the Port Charleston by telephone at (843) 740-7050, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within the regulated area is granted by the Captain of the Port Charleston or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Charleston or a designated representative. The Coast Guard will provide notice of the special local regulation by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and executive orders.
E.O.s 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. E.O.13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This NPRM has not been designated a “significant regulatory action,” under E.O. 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget. This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.
The economic impact of this proposed rule is not significant for the following reasons: (1) The special local regulations would be enforced for only five hours (2) although persons and vessels would not be able to enter, transit through, anchor, or remain within the regulated area without authorization from the Captain of the Port Charleston or a designated representative, they would be able to operate in the surrounding area during the enforcement periods; (3) persons and vessels would still be able to enter, transit through, anchor in, or remain within the regulated area if authorized by the Captain of the Port Charleston or a designated representative; and (4) the Coast Guard would provide advance notification of the regulated area to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.
The Regulatory Flexibility Act of 1980, (5 U.S.C. 601-612), as amended requires Federal agencies to consider the potential impact of regulations on “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. We have considered the impact of this proposed rule on small entities. This rule may affect the following entities, some of which may be small entities: The owner or operators of vessels intending to enter, transit through, anchor in, or remain within the regulated area during the enforcement period. For the reasons discussed in Regulatory Planning and Review section above, this rule will not have a significant economic impact on a substantial number of small entities.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under E.O. 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in E.O. 13132.
Also, this proposed rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves special local regulation issued in conjunction with a regatta or marine parade. This rule is categorically excluded from further review under paragraph 34(h) of Figure 2-1 of the Commandant Instruction. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at
Marine Safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows:
33 U.S.C. 1233
(a) Regulated Area. This rule establishes a special local regulation on certain waters of the Beaufort River, Beaufort, South Carolina. The special local regulation would create a regulated area that will encompass a portion of the waterway that is 700 ft wide by 2600 ft in length on waters of the Beaufort River encompassed within the following points:
32°25′47″ N./080°40′44″ W.,
32°25′41″ N./080°40′14″ W.,
32°25′35″ N./080°40′16″ W.,
32°25′40″ N./080°40′46″ W.,
All coordinates are North American Datum 1983.
(b)
(c)
(1) All persons and vessels, except those participating in the Beaufort Water Festival Airshow, or serving as safety vessels, are prohibited from entering, transiting through, anchoring, or remaining within the regulated area. Persons and vessels desiring to enter, transit through, anchor in, or remain within the regulated area may contact the Captain of the Port Charleston by telephone at (843)740-7050, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within the regulated area is granted by the Captain of the Port Charleston or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Charleston or a designated representative.
(2) The Coast Guard will provide notice of the regulated area by Marine Safety Information Bulletins, Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
(d)
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to revise the minimum monitoring requirements for near-road nitrogen dioxide (NO
Comments must be received on or before June 30, 2016.
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2015-0486, at
Mr. Nealson Watkins, Air Quality Assessment Division, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mail code C304-06, Research Triangle Park, NC 27711; telephone: (919) 541-5522; fax: (919) 541-1903; email:
This action applies to state, territorial, and local air quality management programs that are responsible for ambient air quality monitoring under 40 CFR part 58. Categories and entities potentially regulated by this action include:
1.
2.
• Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a CFR part or section number.
• Explain why you agree or disagree, suggest alternatives, and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
• Make sure to submit your comments by the comment period deadline identified.
In addition to being available in the docket, an electronic copy of this proposed rule will also be available on the Worldwide Web (WWW) through the Technology Transfer Network (TTN). Following signature, a copy of this proposed rule will be posted on the TTN's policy and guidance page for newly proposed or promulgated rules at the following address:
The following topics are discussed in this preamble:
On February 9, 2010, the EPA promulgated minimum monitoring requirements for the ambient NO
As part of the 2010 NO
(a) The first tier of the ambient NO
(b) The second tier of the NO
(c) The third tier of the NO
The near-road component of the ambient NO
Phase 1: In CBSAs with a population of 1,000,000 or more persons, one near-road NO
Phase 2: In CBSAs where two near-road NO
Phase 3: In CBSAs with a population of at least 500,000 persons, but less than 1,000,000 persons, one near-road NO
As of April 2016, the EPA estimates that 65 near-road NO
The EPA is proposing to revise the minimum monitoring requirements for near-road NO
• The Phase 1 and Phase 2 near-road sites that have been installed to date are located at maximum concentration locations consistent with the guidance in the Near-road NO
• The higher populated CBSAs that contain these near-road NO
• Ambient concentrations collected at all existing near-road monitoring sites are well below both the annual and 1-hour daily maximum NAAQS levels of 53 ppb and 100 ppb, respectively.
Further information on each of the key points is provided below.
The “Near-road NO
Second, higher populated CBSAs have correspondingly more vehicles and vehicle miles traveled, which in turn increases the availability of mobile source emissions that lead to increased opportunity for higher NO
Third, the analysis of the available near-road NO
Due to the phased implementation of the near-road NO
In 2013, four sites with sufficiently complete datasets (75 percent or greater
In 2014, there were 21 CBSAs with near-road data meeting 75 percent completeness criteria. The highest 98th percentile 1-hour daily max value was 70 ppb measured in the Denver CBSA. The highest annual mean value was 27 ppb measured in the Los Angeles CBSA.
At the time of development of this proposal, 4th quarter 2015 data were not yet due to be submitted to the EPA. Using the 75 percent completeness criteria applied to the first three calendar quarters of submitted 2015 near-road NO
All of these data indicate that, to date, no near-road NO
In light of the information presented here and in the docket memo, the EPA is reconsidering the necessity of the third phase of the near-road NO
Given that measured near-road NO
The EPA notes that even with the proposed deletion of the Phase 3 near-road requirements, the authority remains for the EPA Regional Administrator to work with states to install additional near-road NO
In summary, given the relationships between population, traffic, and expected NO
The EPA also proposes to modify the requirement for a second near-road NO
This proposed revision is estimated to relieve requirements for approximately 53 near-road NO
This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.
This action does not impose an information collection burden under the PRA. The proposed revisions do not add any information collection requirements beyond those imposed by the existing NO
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. This action proposes to remove a sub-set of the
This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local or tribal governments or the private sector. This action proposes to reduce the number of required near-road NO
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. In the spirit of Executive Order 13132, and consistent with the EPA policy to promote communications between the EPA and state and local governments, the EPA specifically solicits comment on this proposed rule from state and local officials.
This action does not have tribal implications, as specified in Executive Order 13175. This proposed rule imposes no requirements on tribal governments. Thus, Executive Order 13175 does not apply to this action. In the spirit of Executive order 13175, the EPA specifically solicits additional comment on this proposed action from tribal officials.
The EPA interprets EO 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
This action does not involve technical standards.
The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations. The results of the network and data evaluation are contained in the Near-road NO
Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations.
For the reasons stated in the preamble, the Environmental Protection Agency proposes to amend 40 CFR part 58 as follows:
42 U.S.C. 7403, 7405, 7410, 7414, 7601, 7611, 7614, and 7619.
(a) * * *
(5) * * *
(iv) A plan for establishing a second near-road NO
(c) * * *
(4) January 1, 2015, for a second near-road NO
4. Appendix D to Part 58 is amended by revising section 4.3.2 to read as follows:
(a) Within the NO
(1) The near-road NO
(b) Measurements at required near-road NO
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Proposed rulemaking; extension of comment period.
On March 15, 2016, FRA published a Notice of Proposed Rulemaking (NPRM) that would require establishing minimum requirements for the size of train crew staffs depending on the type of operation. FRA is announcing an extension to the comment period and that it will schedule a public hearing in a future notice to provide interested persons an opportunity to comment on the proposal and to discuss further development of the regulation. When FRA schedules the public hearing in a future notice, it will also reopen the comment period for this proceeding to allow additional time for interested parties to submit written comments in response to views or information provided at the public hearing.
(1) Written Comments: FRA must receive written comments on the proposed rule by June 15, 2016. FRA may consider comments received after that date if possible without incurring additional expense or delay.
(2) FRA received a timely request for a public hearing and will publish a supplemental notice in the
You may submit comments identified by the docket number FRA-2014-0033 by any of the following methods:
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•
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Joseph D. Riley, Railroad Safety Specialist (OP)-Operating Crew Certification, U.S. Department of Transportation, Federal Railroad Administration, Mail Stop-25, Room W33-412, 1200 New Jersey Avenue SE., Washington, DC 20590, (202) 493-6318, or Alan H. Nagler, Senior Trial Attorney, U.S. Department of Transportation, Federal Railroad Administration, Office of Chief Counsel, RCC-10, Mail Stop 10, West Building 3rd Floor, Room W31-309, 1200 New Jersey Avenue SE., Washington, DC 20590, (202) 493-6038).
Anyone can search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union,
Surface Transportation Board.
Notice of proposed rulemaking.
The Surface Transportation Board (Board or STB) is proposing to amend its arbitration procedures to conform to the requirements of the
Comments are due by June 13, 2016. Replies are due by July 1, 2016.
Comments on this proposal may be submitted either via the Board's e-filing format or in the traditional paper format. Any person using e-filing should attach a document and otherwise comply with the instructions at the E-FILING link on the Board's Web site, at
Amy C. Ziehm at 202-245-0391. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1800-877-8339.]
Under Section 13 of the STB Reauthorization Act (codified at 49 U.S.C. 11708), the Board must “promulgate regulations to establish a voluntary and binding arbitration process to resolve rail rate and practice complaints” that are subject to the Board's jurisdiction. Section 11708 sets forth specific requirements and procedures for the Board's arbitration process. While the Board's existing arbitration regulations are for the most part consistent with the new statutory provisions, certain changes are needed so that the Board's regulations conform to the requirements under § 11708.
To make the strike process more practicable and efficient, we propose that the Board, through the Director of the Office of Proceedings, would provide parties a list of arbitrators culled from the Board's roster. This culled list would include not more than 15 arbitrators to limit the number of strikes each party would have to make. In culling the list, the Board would consider a variety of factors, including relevant background and experience, acceptability, geographical location, and any expressed preferences of the parties. The culled list would have an odd number of arbitrators to ensure that parties have the same number of strikes.
To select the other members for a panel of arbitrators, these rules propose that each party to the dispute would select one additional arbitrator from the roster, regardless of whether the selected arbitrator was included in the culled list or struck from the culled list by another party.
These proposed rules also provide that parties share the costs incurred by the Board and arbitrators equally, with each party responsible for paying its own legal and other associated arbitration costs, in accordance with section 11708(f)(4).
In accordance with section 11708(h), if a party appeals an arbitral decision, the Board would review the decision to determine if: (1) The decision is consistent with sound principles of rail regulation economics; (2) a clear abuse of arbitral authority or discretion occurred; (3) the decision directly contravenes statutory authority; or (4) the award limitation was violated.
Accordingly, with the exception of rate dispute proceedings, these proposed rules provide that the Board would issue a decision to initiate the arbitration process within 40 days after submission of a written complaint, or the joint notice described above. In rate dispute proceedings, the Board must determine if the rail carrier has market dominance before making the arbitration process available. 49 U.S.C 11708(c)(1)(C). Such a determination would likely require substantial additional time in cases where market dominance is contested. Accordingly, these rules propose that, unless the comments offer persuasive reasons to exclude from the arbitration program rate cases where market dominance is contested, the Board would initiate the arbitration process within 10 days after the Board issues a decision determining that the rail carrier in a rate dispute has market dominance.
After the Board initiates the arbitration process, if parties cannot mutually agree on an arbitrator or lead
In accordance with section 11708(e)(4), these proposed rules provide that the Board may extend any portion of the timetable upon agreement of all parties in the dispute, thus providing more flexibility than our rules currently allow.
The proposed rules, which would govern arbitration in Board proceedings, are set forth below.
The Board certifies under 5 U.S.C. 605(b) that these proposed rules, if promulgated, will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act. The proposed rules, if promulgated, would amend the existing procedures for arbitrating disputes before the Board so that the Board's regulations conform to the statutory requirements under 49 U.S.C. 11708.
Although some carriers and shippers impacted by the proposed rules may qualify as a “small business” within the meaning of 5 U.S.C. 601(3), we do not anticipate that our revised arbitration procedures would have a significant economic impact on a large number of small entities. To the extent that the rules have any impact, it would be to provide faster resolution of a controversy at a lower cost. The relief that could be accorded by an arbitrator would presumably be similar to the relief shippers could obtain through use of the Board's existing formal adjudicatory procedures, and at a greater net value considering that the arbitration process is designed to consume less time and likely will be less costly. Therefore, we do not believe that a substantial number of small entities would be significantly impacted.
Administrative practice and procedure, Railroads.
Administrative practice and procedure.
1. The Board proposes to amend its rules as set forth in this decision. Notice of the proposed rules will be published in the
2. Comments regarding the proposed rules are due by June 13, 2016. Replies are due by July 1, 2016.
3. This decision is effective on the day of service.
By the Board, Chairman Elliott, Vice Chairman Miller, and Commissioner Begeman.
For the reasons set forth in the preamble, under the authority of 49 U.S.C. 1321, title 49, chapter X, parts 1108 and 1115 of the Code of Federal Regulations are proposed to be amended as follows:
49 U.S.C. 11708, 49 U.S.C. 1321(a) and 5 U.S.C. 571
The revisions and addition read as follows:
(h)
(i)
(k)
(m)
(b)
(1) To resolve disputes involving labor protective conditions;
(2) To obtain the grant, denial, stay or revocation of any license, authorization (
(3) To prescribe for the future any conduct, rules, or results of general, industry-wide applicability;
(4) To resolve disputes that are solely between two or more rail carriers.
Parties may only use these arbitration procedures to arbitrate matters within the statutory jurisdiction of the Board.
The revision and addition read as follows:
(a) * * *
(2) Participants to a proceeding, where one or both parties have not opted into the arbitration program, may by joint notice agree to submit an issue in dispute to the Board's arbitration program. The joint notice must clearly state the issue(s) which the parties are willing to submit to arbitration and the corresponding maximum monetary award cap if the parties desire to arbitrate for a lower amount than the monetary award cap that would otherwise be applicable.
(3) Parties to a dispute may jointly notify the Board that they agree to submit an eligible matter in dispute to the Board's arbitration program, where no formal proceeding has begun before the Board. The joint notice must clearly state the issue(s) which the parties are willing to submit to arbitration and the corresponding maximum monetary award cap if the parties desire to arbitrate for a lower amount than the applicable monetary award cap.
The revision and addition read as follows:
(e) * * * Such disputes are subject to a monetary award cap of $2,000,000 or to a lower cap agreed upon by the parties in accordance with paragraph (b)(2) of this section.
(g)
The revisions and additions are as follows:
(b) * * *
(2) When the complaint limits the arbitrable issues, the answer must state whether the respondent agrees to those limitations or, if the respondent is already a participant in the Board's arbitration program, whether those limitations are consistent with the respondent's opt-in notice filed with the Board pursuant to § 1108.3(a)(1)(i). If the answer contains an agreement to arbitrate some but not all of the arbitration-program-eligible issues in the complaint, the complainant will have 10 days from the date of the answer to advise the respondent and the Board in writing whether the complainant is willing to arbitrate on that basis.
(e)
(1) Contain a statement that all relevant parties are participants in the Board's arbitration program pursuant to § 1108.3(a), or that the relevant parties are willing to arbitrate voluntarily a matter pursuant to the Board's arbitration procedures, and the relief requested;
(2) Indicate whether parties have agreed to a three-member arbitration panel or a single arbitrator;
(3) Indicate if the parties have agreed to a lower amount of potential liability in lieu of the otherwise applicable monetary award cap.
(f)
(g)
(1) Any additional issues selected for arbitration by the parties, that are not outside the scope of these arbitration rules as explained in § 1108.2(b), must be subject to the Board's statutory authority.
(2) These rules shall be incorporated by reference into any arbitration agreement conducted pursuant to an arbitration complaint filed with the Board.
The revisions read as follows:
(b)
(c)
(c) * * *
(2) The lead arbitrator appointed through the strike methodology shall serve as the head of the arbitration panel and will be responsible for ensuring that the tasks detailed in §§ 1108.7 and 1108.9 are accomplished.
(d)
(e)
(f) * * *
(2) If the incapacitated arbitrator was the lead or single arbitrator, the parties shall promptly inform the Board of the arbitrator's incapacitation and the selection procedures set forth in paragraph (c) of this section shall apply.
(a)
(b)
(c)
(d)
(e)
The revision reads as follows:
(a)
(b)
(b)
5 U.S.C. 559; 49 U.S.C. 1321, 49 U.S.C. 11708.
An appeal of right to the Board is permitted. The appeal must be filed within 20 days of a final arbitration decision, unless a later date is authorized by the Board, and is subject to the page limitations of § 1115.2(d). For arbitrations authorized under part 1108 of this chapter, the Board's standard of review of arbitration decisions will be narrow, and relief will only be granted on grounds that the decision is inconsistent with sound principles of rail regulation economics, a clear abuse of arbitral authority or discretion occurred, the decision directly contravenes statutory authority, or the award limitation was violated. For labor arbitration decisions, the Board's standard of review is set forth in
The following appendix will not appear in the Code of Federal Regulations.
The Board proposes here, as an alternative to filing a written complaint, that parties may submit a joint notice to the Board, indicating the consent of both parties to submit an issue in dispute to the Board's arbitration program. In the joint notice, parties would state the issue(s) that the parties are willing to submit to arbitration. The notice would also contain a statement that would indicate that all relevant parties are participants in the Board's arbitration program pursuant to § 1108.3(a), or that the relevant parties are willing to arbitrate voluntarily a matter pursuant to the Board's arbitration procedures, and the relief requested. The notice would indicate whether parties have agreed to a three-member arbitration panel or a single arbitrator. And, the notice would indicate whether the parties have mutually agreed to a lower amount of potential liability in lieu of the monetary award cap that would otherwise be applicable. This alternative filing method would encourage greater use of arbitration to resolve disputes at the Board.
Pursuant to section 11708(f), unless parties otherwise agree, an arbitrator or panel of arbitrators would be selected from a roster maintained by the Board. The Board's roster would provide a brief biographical sketch of each arbitrator, including information such as background, experience, and geographical location, as well as general contact information, based on the information supplied by the arbitrator. Under the proposed rules, an initial roster would be compiled by the Chairman, who would seek notice from all interested, qualified persons who wish to be placed on the Board's arbitration roster. The Chairman could augment the roster at any time to include other eligible arbitrators and remove from the roster any arbitrators who are no longer available or eligible. The roster would be made available to the public on the Board's Web site.
Forest Service, USDA.
Notice of meeting.
The Ketchikan Resource Advisory Committee (RAC) will meet in Ketchikan, Alaska. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act. RAC information can be found at the following Web site:
The meeting will be held on June 22, 2016, at 5:00 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 the Ketchikan Misty Fiords Ranger District, 3031 Tongass Avenue, Ketchikan, Alaska. A conference line is set up for those who would like to listen in by telephone. For the conference call number, please contact the person listed under
Written comments may be submitted as described under
Diane L. Olson, RAC Coordinator, by phone at 907-228-4105 or via email at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
The purpose of the meeting is to:
1. Update members on past RAC projects, and
2. Propose new RAC projects.
The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by June 14, 2016, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time to make oral comments must be sent to Diane L. Olson, RAC Coordinator, Ketchikan Misty Fiords Ranger District, 3031 Tongass Avenue, Ketchikan, Alaska 99901; by email to
The Department of 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
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).
Critical to the quality of data in the Business Register is that establishments are assigned an accurate economic classification, based on the North American Industry Classification System (NAICS). The primary purpose of the 2017 Economic Census Industry Classification Report is to meet this need.
New businesses are assigned NAICS codes by the Social Security Administration (SSA); however, many of these businesses cannot be assigned detailed NAICS codes, because insufficient data are provided by respondents on the Internal Revenue Service (IRS) Form SS-4. This report, conducted in fiscal years 2017 and 2018, will mail approximately 125,000 businesses per year that have been partially classified in the economic sectors covered in the Economic Census. Businesses selected for the sample will be asked to provide data on primary business activity in order to assign proper industry classification, thus maintaining proper coverage of the business universe. The activities listed in the Principal Business or Activity question of the questionnaire will vary based upon the partial NAICS code of the establishment at the time of mail out. An example of activities listed under this item is included under the question.
The 2017 Economic Census Industry Classification Report will be used to update the classification codes contained in the Business Register, ensuring establishments will be tabulated in the correct detailed industry for the 2017 Economic Census and in succeeding economic surveys. Information obtained from these establishments will also be included in the Census Bureau's County Business Patterns (CBP) publications. CBP publications provide annual data on establishment counts, employment, and payroll for all sectors of the economy at national, state, and county levels. The failure to collect this information will have an adverse effect on the quality and usefulness of economic statistics provided by the Census Bureau.
Title 13, U.S.C., Sections 131 and 193.
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Economic Development Administration, Department of Commerce.
Notice and opportunity for public comment.
Pursuant to section 251 of the Trade Act 1974, as amended (19 U.S.C. 2341
Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance for Firms Division, Room 71030, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice.
Please follow the requirements set forth in EDA's regulations at 13 CFR 315.9 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms.
International Trade Administration, U.S. Department of Commerce.
Notice of open meetings.
This notice sets forth the schedule and proposed topics of discussion for public meetings of the Advisory Committee on Supply Chain Competitiveness (Committee).
The meetings will be held on June 22, 2016, from 12:00 p.m. to 3:00 p.m., and June 23, 2016, from 9:00 a.m. to 4:00 p.m., Eastern Standard Time (EST).
The meetings on June 22 and 23 will be held at the U.S. Department of Commerce, 1401 Constitution Avenue NW., Research Library (Room 1894), Washington, DC 20230.
Richard Boll, Office of Supply Chain, Professional & Business Services (OSCPBS), International Trade Administration. Phone: (202) 482-1135 or Email:
Interested parties are invited to submit written comments to the Committee at any time before and after the meeting. Parties wishing to submit written comments for consideration by the Committee in advance of this meeting must send them to the Office of Supply Chain, Professional & Business Services, 1401 Constitution Ave. NW., Room 11014, Washington, DC 20230, or email to
For consideration during the meetings, and to ensure transmission to the Committee prior to the meetings, comments must be received no later than 5:00 p.m. EST on June 14, 2016. Comments received after June 14, 2016, will be distributed to the Committee, but may not be considered at the meetings. The minutes of the meetings will be posted on the Committee Web site within 60 days of the meeting.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Herring Committee to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will
This meeting will be held on Thursday, June 2, 2016 at 9 a.m.
The meeting will be held at the Four Points by Sheraton, One Audubon Road, Wakefield, MA 01880; phone: (978) 245-9300; fax: (781) 245-0842.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Committee plans to review outcomes of the May 16-17, 2016 public workshop on the Management Strategy Evaluation of Atlantic Herring Acceptable Biological Catch control rules; and make any recommendations to the Council. They will also review Plan Development Team work to date on this action that considers revising the Georges Bank haddock catch cap and associated accountability measures and make any recommendations to the Council regarding the development of alternatives. The committee will also review/discuss the herring coverage target alternatives/impacts analysis; and make any recommendations to the Council for preliminary preferred alternatives. Other business will be discussed as necessary.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final 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 Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Scientific & Statistical Committee to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This meeting will be held on Thursday, June 2, 2016, beginning at 9:30 a.m.
The meeting will be held at the Hilton Garden Inn, Boston Logan, 100 Boardman Street, Boston, MA 02128; phone: (617) 567-6789.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Committee will discuss the Wiedenmann report and how groundfish catch recommendations might be improved. They will receive an update and comment on a plan for the 5-year catch shares review of the scallop LACG ITQ management program. Also on the agenda is an update on NRCC discussions of operational assessment process and schedule. They will discuss other business as needed.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final 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 Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings and hearings.
The Western Pacific Fishery Management Council (Council) will hold its 123rd Scientific and Statistical Committee (SSC) meeting and its 166th Council meeting to take actions on fishery management issues in the Western Pacific Region. The Council will also hold meetings of its advisory groups, namely: (1) The Guam Regional Ecosystem Advisory Committee (REAC); (2) Commonwealth of the Northern Mariana Islands (CNMI) REAC; (3) Joint Guam and CNMI Marianas Advisory Panel (AP); (4) Fishery Data Collection and Research Committee (FDCRC); (5) Program Planning and Research Standing Committee; and (6) Executive and Budget Standing Committee.
The meetings will be held between May 31, 2016 and June 10, 2016. For specific dates, times and agendas, see
The 123rd SSC will be held at the Council office, 1164 Bishop Street, Suite 1400, Honolulu, HI 96813, phone: (808) 522-8220. The Guam
Kitty M. Simonds, Executive Director, phone: (808) 522-8220.
The 123rd SSC meeting will be held between 8:30 a.m. and 5 p.m. on May 31-June 2, 2016. The Guam REAC will be held on June 2, 2016. The CNMI REAC on June 3, 2016. The Joint Guam and CNMI Marianas AP meeting will be held between 8:30 a.m. and 4 p.m. on June 4, 2016. The FDCRC will be held between 9 a.m. to 12 p.m. on June 4, 2016. The Program Planning and Research Standing Committee will be held between 1 p.m. to 3 p.m. on June 4, 2016. Executive and Budget Standing Committee will be on June 4, 2016, from 3 p.m. to 5 p.m. The 166th Council meeting will be held from 8:30 to 5 p.m. on June 6-7 and 9-10, 2016.
In addition to the agenda items listed here, the Council and its advisory bodies will hear recommendations from Council advisors. Public comment periods will be provided throughout the agendas. The order in which agenda items are addressed may change. The meetings will run as late as necessary to complete scheduled business. Background documents will be available from, and written comments should be sent to, Kitty M. Simonds, Executive Director; Western Pacific Fishery Management Council, 1164 Bishop Street, Suite 1400, Honolulu, HI 96813, phone: (808) 522-8220 or fax: (808) 522-8226.
Non-emergency issues not contained in this agenda may come before the Council for discussion and formal Council action during its 166th meeting. However, Council action on regulatory issues will be restricted to those issues specifically listed in this document and any regulatory issue arising after publication of this document that requires emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take action to address the emergency.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kitty M. Simonds, (808) 522-8220 (voice) or (808) 522-8226 (fax), at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Gulf of Mexico Fishery Management Council (Council) will
The meeting will convene Wednesday, June 1, 2016, from 12 noon to 5 p.m. and Thursday, June 2, 2016, from 8:30 a.m. to 3:30 p.m.
The meeting will take place at the Council's office, 2203 N. Lois Avenue, Suite 1100, Tampa, FL 33607; telephone: (813) 348-1630.
Charlene Ponce, Public Information Officer, Gulf of Mexico Fishery Management Council;
The items of discussion on the agenda are as follows:
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 Technical Committee 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 Technical Committee 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 Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Herring Advisory Panel to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This meeting will be held on Wednesday, June 1, 2016 at 10 a.m.
The meeting will be held at the Four Points by Sheraton, One Audubon Road, Wakefield, MA 01880; phone: (781) 245-9300; fax: (781) 245-0842.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Advisory Panel plans to review outcomes of the May 16-17, 2016 public workshop on the Management Strategy Evaluation of Atlantic Herring Acceptable Biological Catch control rules; and make any recommendations to the Herring Committee. They will also review Plan Development Team work to date on this action that considers revising the Georges Bank haddock catch cap and associated accountability measures and make any recommendations to the Herring Committee regarding the development of alternatives. The panel will also review/discuss the herring coverage target alternatives/impacts analysis; and make any recommendations to the Herring Committee for preliminary preferred alternatives. Other business will be discussed as necessary.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final 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 Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.
16 U.S.C. 1801
Commodity Futures Trading Commission.
Notice of proposed order and request for comment.
The Commodity Futures Trading Commission (“CFTC” or “Commission”) is proposing an amendment to an order issued on March 28, 2013 exempting specified transactions from certain provisions of the Commodity Exchange Act (“CEA” or “Act”) and Commission regulations.
Comments for the Notice of Proposed Order must be received on or before June 15, 2016.
You may submit comments by any of the following methods:
•
•
•
•
Please submit your comments using only one of these methods.
All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from
Robert B. Wasserman, Chief Counsel, 202-418-5092,
The Commission is proposing to amend an order issued on March 28, 2013 pursuant to the authority in section 4(c)(6) of the Act
On July 21, 2010, President Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”).
The Dodd-Frank Act also added a savings clause that addresses the roles of the Commission, the Federal Energy Regulatory Commission (“FERC”), and state regulatory authorities as they relate to certain agreements, contracts, or transactions traded pursuant to the tariff or rate schedule of an RTO or ISO that has been approved by FERC or the state regulatory authority.
The Dodd-Frank Act granted the Commission specific powers to exempt certain contracts, agreements, or transactions from duties otherwise required by statute or Commission regulation by adding, as relevant here, new section 4(c)(6) to the CEA. Section 4(c)(6) provides that the Commission shall, if certain conditions are met, issue exemptions from the “requirements” of the CEA for certain transactions entered into pursuant to a tariff or rate schedule approved or permitted to take effect by FERC or a state regulatory authority.
The Commission must act “in accordance with” sections 4(c)(1) and (2) of the CEA when issuing an exemption under section 4(c)(6).
On March 28, 2013, the Commission issued the RTO-ISO Order, which exempts specified transactions of particular RTOs and ISOs
In the RTO-ISO Order, the Commission excepted from the exemption the Commission's general anti-fraud and anti-manipulation authority, and scienter-based prohibitions, under CEA sections 2(a)(1)(B), 4(d), 4b, 4c(b), 4
In February 2015, the United States District Court for the Southern District of Texas dismissed a private lawsuit on the ground that the CEA section 22 private right of action was not available to the plaintiffs under the RTO-ISO
Southwest Power Pool (“SPP”) is an RTO subject to regulation by FERC. On October 17, 2013, SPP filed an Exemption Application
On May 18, 2015, the Commission issued a proposed order with respect to SPP's Exemption Application (“SPP Proposed Order”).
As proposed, the SPP Proposed Order would not exempt SPP from the private right of action under CEA section 22 for violations of the manipulation, fraud, and scienter-based provisions from which SPP will not be exempted. The Commission explained in the SPP Proposed Order that neither the proposed nor the final RTO-ISO Order discussed, referred to, or mentioned CEA section 22, which provides for private rights of action for damages against persons who violate the CEA, or persons who willfully aid, abet, counsel, induce, or procure the commission of a violation of the Act.
The public comment period on the SPP Proposed Order ended on June 22, 2015. The Commission received thirteen (13) comment letters on the SPP Proposed Order,
Currently, Paragraph 1 of the RTO-ISO Order states that the Commission:
Exempts, subject to the conditions and limitations specified herein, the execution of the electric energy-related agreements, contracts, and transactions that are specified in paragraph 2 of this Order and any person or class of persons offering, entering into, rendering advice, or rendering other services with respect thereto, from all provisions of the CEA, except, in each case, the Commission's general anti-fraud and anti-manipulation authority, and scienter-based prohibitions, under CEA sections 2(a)(1)(B), 4(d), 4b, 4c(b), 4
In light of the
Exempts, subject to the conditions and limitations specified herein, the execution of the electric energy-related agreements, contracts, and transactions that are specified in paragraph 2 of this Order and any person or class of persons offering, entering into, rendering advice, or rendering other services with respect thereto, from all provisions of the CEA, except, in each case, the Commission's general anti-fraud and anti-manipulation authority, and scienter-based prohibitions, under CEA sections 2(a)(1)(B), 4(d), 4b, 4c(b), 4
It has been suggested that preserving the private right of action in CEA section 22 would cause regulatory uncertainty or inconsistent or duplicative regulation. However, the Covered Entities will be subject to the same substantive CEA provisions, including judicial interpretations of those provisions, regardless of whether the plaintiff who brings an action alleging a violation of one of those provisions is the Commission or a private party acting under CEA section 22.
By the terms of the RTO-ISO Order, all of the Covered Transactions must be offered or sold pursuant to a Requesting Party's tariff that has been approved or permitted to take effect by FERC or PUCT (which is a state regulatory authority).
Second, the private right of action in the CEA is instrumental in protecting the American public, deterring bad actors, and maintaining the credibility of the markets subject to the Commission's jurisdiction. Private claims serve the public interest by empowering injured parties to seek compensation for damages where the Commission lacks the resources to do so on their behalf. Moreover, the prospect of private rights of action serves the public interest by deterring misconduct in and maintaining the integrity of the markets subject to the Commission's jurisdiction.
Third, the private right of action under CEA section 22 was established by Congress as an integral part of the CEA's enforcement and remedial scheme. The Act grants the Commission various administrative tools to enforce the statute,
Under section 306 of the FPA, however, a person or entity may initiate an administrative proceeding with FERC for a violation of the FPA,
Finally, the Commission's preservation of section 22 liability with respect to the Excepted Provisions is consistent with the Commission's actions in prior 4(c) orders. Section 22 establishes liability for any person “who violates” the Act or “who willfully aids, abets, counsels, induces, or procures the commission of a violation” of the Act.
Moreover, in prior 4(c) exemptive orders issued by the Commission that reserved anti-fraud and anti-manipulation provisions, the Commission has never reserved its own ability to sue for such behavior while at the same time denying private rights of action for the same conduct.
With respect to the last 4(c) order listed above, the Commission exempted the trading and clearing of the subject transactions from the CEA only “to the extent necessary” to permit them to be traded and cleared on SEC-regulated entities. The Commission notes that this exemption does not extend to the fraud and manipulation provisions of the CEA because it is not “necessary” to act fraudulently or manipulatively in order to trade and clear such contracts on SEC-regulated entities, nor is exemption from the private right of action for acting fraudulently or manipulatively “necessary” to permit the trading and clearing of such contracts on SEC-regulated entities. Moreover, in all of the orders listed above, specific mention of CEA section 22 was not needed because, to the extent the orders did not provide an exemption from the anti-fraud and anti-manipulation provisions of the CEA, any violation of such provisions would be subject to a private right of action.
As discussed above in section I., the Dodd-Frank Act amended CEA section 4(c) to add sections 4(c)(6)(A) and (B), which provide authority to exempt certain transactions “from the requirements” of the CEA entered into: (a) Pursuant to a tariff or rate schedule approved or permitted to take effect by FERC, or (b) pursuant to a tariff or rate schedule establishing rates or charges for, or protocols governing, the sale of electric energy approved or permitted to take effect by the regulatory authority of the State or municipality having jurisdiction to regulate rates and charges for the sale of electric energy within the State or municipality.
Based on the difference in language between section 4(c)(6), under which the RTO-ISO Order was issued, and section 4(c)(1), the Commission notes that it is not clear that section 4(c)(6) provides the Commission with the authority to exempt the Covered Entities from the private right of action found in section 22. Section 4(c)(1) authorizes the Commission to grant exemptions from the Act's “requirements” or “from any other provision of this Act,” with certain exceptions.
As described above,
As set forth above in section I., CEA section 4(c)(2) requires the Commission to determine that: To the extent an exemption provides relief from any of the requirements of CEA section 4(a), the requirement should not be applied to the agreement, contract or transaction; the exempted agreement, contract, or transaction will be entered into solely between appropriate persons;
As explained in section I. above, CEA section 4(c)(3) outlines who may constitute an appropriate person for the purpose of a 4(c) exemption, including as relevant to the RTO-ISO Order: (a) Any person that fits in one of ten defined categories of appropriate persons; or (b) such other persons that the Commission determines to be appropriate in light of their financial or other qualifications, or the applicability of appropriate regulatory protections.
As required by CEA section 4(c)(2)(A), as well as section 4(c)(6), the Commission previously determined that the exemption set forth in the RTO-ISO Order is consistent with the public interest and the purposes of the CEA.
In addition, the Commission proposes to determine that the Proposed Amendment to the RTO-ISO Order, which would explicitly preserve the section 22 private right of action with respect to the Excepted Provisions, serves the public interest by helping to deter fraudulent conduct and maintain the credibility of the markets under the Commission's jurisdiction. In the same vein, private civil actions for fraud and manipulation serve the public interest by supplementing the Commission's ability to address the same conduct. Further, the Commission proposes to determine that the Proposed Amendment is consistent with the purposes of the CEA because it will deter and prevent price manipulation or any other disruptions to market integrity.
In the RTO-ISO Order, the Commission made a number of other determinations under CEA section 4(c), including:
• The Dodd-Frank Act applies to contracts and instruments traded in RTO or ISO markets pursuant to a FERC- or state-approved tariff or rate schedule, subject to the Commission's authority under CEA section 4(c)(6) to exempt contracts, agreements, or transactions traded pursuant to such a tariff or rate schedule upon determining that the exemption would be in the public interest and consistent with the purposes of the CEA; that the exemption would be applied only to agreements, contracts, or transactions that are entered into solely between appropriate persons; and that the exemption will not have a material adverse effect on the ability of the Commission or any contract market to discharge its regulatory or self-regulatory duties under the CEA.
• Due to the FERC or PUCT regulatory scheme and the RTO or ISO market structure already applicable to the Covered Transactions, the linkage between the Covered Transactions and those regulatory schemes, and the unique nature of the market participants that are eligible to rely on the exemption in the RTO-ISO Order, CEA section 4(a) should not apply to the Covered
• Eligible contract participants, as defined in section 1a(18)(A) of the CEA and in Commission regulation 1.3(m), are appropriate persons for purposes of the RTO-ISO Order in light of their financial or other qualifications, or the applicability of regulatory protections.
• The exemption in the RTO-ISO Order for the Covered Transactions would not have a material adverse effect on the Commission's or any contract market's ability to discharge its regulatory function.
The Proposed Amendment does not alter the Commission's determination with respect to any of the above 4(c) determinations. Therefore, the Commission proposes to incorporate such prior 4(c) determinations, and the findings on which such determinations are based, herein. All transactions that were permitted pursuant to the exemption set forth in the RTO-ISO Order would still be permitted under the RTO-ISO Order with the Proposed Amendment. The only change to the RTO-ISO Order made by the Proposed Amendment is that the Proposed Amendment would provide explicitly an additional means of deterring fraudulent or manipulative conduct—conduct that was already prohibited under the RTO-ISO Order—consistent with the public interest and the purposes of the Act.
The Regulatory Flexibility Act (“RFA”) requires that the Commission consider whether the Proposed Amendment to the RTO-ISO Order will have a significant economic impact on a substantial number of small entities and, if so, provide a regulatory flexibility analysis respecting the impact.
Also, the RTO-ISO Order, with the amendment proposed herein, would continue to alleviate the economic impact that the exempt entities, including any small entities that may opt to take advantage of the exemption set forth in the RTO-ISO Order, otherwise would be subjected to by continuing to exempt certain of their transactions from the application of substantive regulatory compliance requirements of the CEA and Commission regulations thereunder. In addition, there is no evidence of any substantial litigation with respect to fraud and manipulation under CEA section 22 in the RTO or ISO markets, particularly against any small entities that opt to take advantage of the exemption set forth in the RTO-ISO Order. Accordingly, the Commission does not expect the RTO-ISO Order, with the Proposed Amendment, to 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 exemption set forth in the RTO-ISO Order, with the amendment proposed herein, would not have a significant economic impact on a substantial number of small entities.
The purposes of the Paperwork Reduction Act of 1995 (“PRA”)
The Commission previously determined that the RTO-ISO Order did not impose any new recordkeeping or information collection requirements, or other collections of information on ten or more persons that require OMB approval.
Section 15(a) of the CEA
As discussed above, the RTO-ISO Order currently exempts contracts, agreements, and transactions for the purchase or sale of the limited electric energy-related products that are specifically described within the RTO-ISO Order from certain provisions of the CEA and Commission regulations, with the exception of the Commission's general anti-fraud and anti-manipulation authority, and scienter-based prohibitions, under CEA sections 2(a)(1)(B), 4(d), 4b, 4c(b), 4
In the discussion that follows, the Commission considers the costs and benefits of the Proposed Amendment to the RTO-ISO Order to the public and market participants generally, and to the Covered Entities specifically. It also considers the costs and benefits of the Proposed Amendment in light of the public interest factors enumerated in CEA section 15(a).
The Commission's proposed baseline for consideration of the costs and benefits of the Proposed Amendment to the RTO-ISO Order is the costs and benefits that the public and market participants would experience if the existing RTO-ISO Order is interpreted to exempt market participants from liability under the CEA section 22 private right of action.
In the discussion that follows, where reasonably feasible, the Commission endeavors to estimate quantifiable dollar costs of the Proposed Amendment to the RTO-ISO Order. The costs and benefits of the Proposed Amendment, however, are not presently susceptible to meaningful quantification. Where it is unable to quantify, the Commission discusses proposed costs and benefits in qualitative terms.
Using the hypothetical baseline described above,
Using the hypothetical baseline described above,
The Commission considered not issuing the Proposed Amendment to the RTO-ISO Order. The Commission considered the uncertainty that has arisen with respect to the scope of the RTO-ISO Order and the availability of a private right of action under the RTO-ISO Order, particularly following the court rulings in the
The Commission also considered the costs and benefits of amending the RTO-ISO Order to explicitly exempt the CEA section 22 private right of action with respect to fraud and manipulation. In the absence of the availability of a private right of action to address fraudulent and manipulative conduct, the potential for market disruption would increase since market participants would not be able to address such conduct through private claims. On the other hand, the costs of private litigation would be avoided under this alternative. The Commission has considered these costs and benefits and has declined to elect the alternative of explicitly exempting the Covered Entities from the CEA section 22 private right of action.
The Commission has considered the costs and benefits of retaining the CEA section 22 private right of action with respect to fraud and manipulation that the Commission determined to except from the RTO-ISO Order, and has elected to propose to amend the RTO-ISO Order to expressly retain the CEA section 22 private right of action with respect to the Excepted Provisions.
The Commission believes that the Proposed Amendment, by clarifying the existence of a private right of action with respect to fraud and manipulation, will serve to protect market participants
The Commission does not believe that the Proposed Amendment will have an effect on the efficiency, competitiveness, and financial integrity of the futures markets.
The Commission does not believe that the Proposed Amendment will have an effect on price discovery.
The Commission does not believe that the Proposed Amendment will have a material effect on sound risk management practices.
The Commission does not believe that there are any additional public interest considerations with respect to the Proposed Amendment.
The Commission invites public comment on its cost-benefit considerations of the Proposed Amendment to the RTO-ISO Order, including the consideration of reasonable alternatives. Commenters are invited to submit any data or other information that they may have quantifying or qualifying the costs and benefits of the proposal with their comment letters.
The Commission requests comment on all aspects of its Proposed Amendment to the RTO-ISO Order. In addition, the Commission specifically requests comment on the specific provisions and issues highlighted in the discussion above and on the issues presented in this section. For each comment submitted, please provide a detailed rationale supporting the response.
1. To the extent there are concerns that explicitly amending the RTO-ISO Order to preserve private claims for fraud and manipulation under CEA section 22 would result in frivolous litigation, the Commission requests comment on the following issues regarding such litigation.
a. Please provide details as to the specifics of such litigation, including:
i. What type of entity might sue what other type of entity?
ii. What are the theories under which such litigation might be brought?
iii. How might the causes of action in such litigation derive from the enumerated fraud and manipulation provisions of the CEA that are excepted from the RTO-ISO Order?
b. To the extent there is a concern about an increase in litigation regarding filed rates, how would such litigation survive a motion to dismiss based on the filed rate doctrine?
2. In a letter submitted to the Commission's Energy and Environmental Markets Advisory Committee, PJM, ERCOT, and CAISO argued that “[a]llowing private actions will undermine the legal certainty provided by the exemptions and potentially could divest FERC and the PUCT of jurisdiction over certain ISO and RTO transactions.”
3. To the extent any commenters believe that preserving the private right of action in the RTO-ISO Order will have any other detrimental effect(s) on the RTO-ISO markets or market participants, the Commission requests that such commenters provide a specific and detailed basis for such a conclusion.
The following appendices will not appear in the Code of Federal Regulations.
On this matter, Chairman Massad and Commissioner Bowen voted in the affirmative. Commissioner Giancarlo voted in the negative.
The proposal we have approved today would amend a 2013 CFTC order that exempted specified transactions of six independent system operators (“ISOs”) and regional transmission organizations (“RTOs”) from certain provisions of the Commodity Exchange Act (CEA). That order explicitly did not exempt ISOs and RTOs from the general CEA provisions that prohibit fraud and manipulation. If adopted, the proposed amendment would make clear that this exemption does not prohibit private rights of action for violations of the very same anti-fraud and anti-manipulation provisions that are explicitly reserved in the order.
Private rights of action have been instrumental in helping to protect market participants and deter bad actors. These actions can also augment the limited enforcement resources of the CFTC, and serve the public interest by allowing harmed parties to seek damages in instances where the Commission lacks the resources to do so on their behalf.
I appreciate the desire of businesses to have as little regulatory uncertainty as possible. Indeed, providing certainty for market participants is something upon which we're always striving to improve. But we also must make sure there is adequate recourse for those participants.
Moreover, private rights of action were called for by Congress under the CEA, to ensure wronged parties were provided with an appropriate remedy. Congress determined that the benefits to the public good outweigh
While some believe the Commission must have intended to exempt ISOs from private rights of action in the original order because it did not specifically preserve them, the proposal points out that it would be unusual for the Commission to have such an intention and say nothing about it, given that it expressly excluded general anti-fraud and anti-manipulation authority from the exemption. Regardless, we should decide the issue now on the merits. The proposal invites comment from all market participants and members of the public.
Finally, let me say that we are giving this proposal careful thought and consideration. We want to balance the value of regulatory certainty with the need to make sure that there is adequate recourse for market participants. We have heard from market participants in a number of venues, including a February meeting of the Energy and Environmental Markets Advisory Committee, and in other requests for comment. And we have tried to incorporate those concerns into the discussion of this proposal. This Notice of Proposed Amendment poses a number of specific questions that seek further detail with respect to the concerns we have heard from market participants. I encourage all interested parties to carefully consider these questions, and provide the Commission with your feedback.
I thank all those who have already provided us with the benefit of their perspective, as well as the CFTC staff and my fellow Commissioners for their work on this proposal. I look forward to hearing more as the comment period transpires.
I dissent from the proposed amendment to the final RTO-ISO Order issued by the Commission in 2013.
For over three years, U.S. power market participants have been operating in reliance on the RTO-ISO Order. They have trusted in the reasonable, unambiguous understanding that transactions covered by the Order are exempt from all provisions of the Commodity Exchange Act (“CEA or Act”) except for those specifically enumerated as reserved (the “Reserved Provisions”). They have relied on the plain language of the RTO-ISO Order that “[e]xempts . . . the execution of [specified] electric energy-related agreements, contracts and transactions . . . and any person or class of persons offering, entering into, rendering advice or rendering other services with respect thereto, from
Today's proposal manages to simultaneously toss legal certainty to the wind and threaten the household budgets of low and middle-income ratepayers by permitting private lawsuits in heavily regulated markets that are at the heart of the U.S. economy.
By this action, the Commission contends that its silence with respect to section 22 of the CEA should be interpreted as evincing its intention all along to retain a private right of action for violations of the Reserved Provisions and that the proposed addition of section 22 to that list is nothing more than a technical clarification.
With all due respect, the Commission's position is disingenuous. It flies in the face of well-accepted legal precedent established by the U.S. Supreme Court,
Of course, the Commission is free to change its mind and amend final orders through the notice and comment process, as it proposes to do now. Still, by taking this action the Commission is introducing a disturbing precedent regarding the legal certainty of its orders.
It can be argued that private claims may serve the public interest by empowering injured parties to seek compensation for damages where the Commission lacks the resources to do so on their behalf. Yet, the extensive regulation and monitoring of RTOs and ISOs significantly obviates the policing role of private suits in these markets. The six entities covered by the RTO-ISO Order are subject to extensive and effective regulation by the RTO-ISO's primary regulator (the Federal Energy Regulatory Commission, “FERC” or the Public Utility Commission of Texas, “PUCT”), and overseen by an independent market monitor responsible to the RTO-ISO's primary regulator. As the FERC has explained, RTOs and ISOs operate not only transmission facilities, but also markets for trading electric energy among utilities, and the “RTO and ISO markets and transmission services are tightly integrated and are regulated to a greater extent than other commodity markets.”
I believe that with the protection provided by such extensive regulatory oversight the Commission should not permit private litigation. Doing so would result in too many cooks in the proverbial oversight kitchen. It will lead to conflicting outcomes depriving market participants of the regulatory certainty and coherence Congress intended when it directed the CFTC and the FERC to apply “their respective authorities in a manner so as to ensure effective and efficient regulation in the public interest,” to resolve conflicts concerning their overlapping jurisdiction and to avoid, “to the extent possible, conflicting or duplicative regulation.”
Disallowing private suits under the CEA does not leave persons alleging harm from fraudulent or manipulative practices without recourse. The CFTC may seek restitution on
Aside from the injustice of changing the scope of the RTO-ISO Order three years after it was issued, subjecting the transactions covered by the Order to private suits under the CEA undermines carefully considered policy designed to promote affordable and reliable electricity for millions of American consumers. The defendants' conduct in the
In my view, the
Indeed, permitting these suits is in tension with long-standing jurisprudence disallowing private litigants from collaterally attacking a rate, tariff, protocol and/or rule approved or permitted to take effect by the PUCT and/or the FERC. Courts have regularly relied on the so-called “filed rate doctrine,” which deprives them of jurisdiction to hear otherwise valid private rights of action where such action seeks to undermine or attack “any `filed rate'—that is, one approved by the governing regulatory agency—[because such a rate] is per se reasonable and unassailable in judicial proceedings brought by ratepayers.”
Here, the Commission dismisses concerns that preserving the section 22 private right of action may cause regulatory uncertainty or inconsistent or duplicative regulation by arguing that the same result could occur if the CFTC were to bring enforcement actions for violations of the Reserved Provisions. This is a concern, to be sure. But the CFTC may bring suit only after an affirmative vote of a majority of Commissioners and in accordance with its Memorandum of Understanding with the FERC under which staff of the CFTC and the FERC have agreed to consult each other on matters of mutual interest and overlapping jurisdiction.
In conclusion, adding section 22 to the list of Reserved Provisions is a serious misstep. At a time of stagnant wage growth, today's proposal may needlessly subject millions of American ratepayers to higher utility bills as a result of the almost certain increase in litigation, court costs and settlement damages. Permitting private rights of action in the heavily regulated RTO-ISO markets is in great tension with the congressional command that the CFTC, the FERC and where applicable, state regulators, work to ensure effective, efficient regulation that provides the RTO-ISO market participants with legal certainty.
As such, I emphatically dissent from the proposal.
Bureau of Consumer Financial Protection.
Notice and request for comment.
In accordance with the Paperwork Reduction Act of 1995 (PRA), the Consumer Financial Protection Bureau (Bureau) is proposing to renew the Office of Management and Budget (OMB) approval for an existing information collection titled, “Application Process for Designation of Rural Area under Federal Consumer Financial Law.”
Written comments are encouraged and must be received on or before June 15, 2016 to be assured of consideration.
You may submit comments, identified by the title of the information collection, OMB Control Number (see below), and docket number (see above), by any of the following methods:
•
•
Documentation prepared in support of this information collection request is available at
Bureau of Consumer Financial Protection.
Notice and request for comment.
In accordance with the Paperwork Reduction Act of 1995 (PRA), the Consumer Financial Protection Bureau (Bureau) is requesting to renew the Office of Management and Budget (OMB) approval for an existing information collection titled, “Evaluation of Financial Empowerment Training Program.”
Written comments are encouraged and must be received on or before July 15, 2016 to be assured of consideration.
You may submit comments, identified by the title of the information collection, OMB Control Number (see below), and docket number (see above), by any of the following methods:
•
•
•
Documentation prepared in support of this information collection request is available at
Bureau of Consumer Financial Protection.
Supervisory Highlights; notice.
The Bureau of Consumer Financial Protection (CFPB) is issuing its tenth edition of its Supervisory Highlights. In this issue, the CFPB shares findings from recent examinations in the areas of student loan servicing, remittances, mortgage origination, debt collection, and consumer reporting. This issue also shares important updates to past fair lending settlements reached by the CFPB. As in past editions, this report includes information about recent public enforcement actions that resulted, at least in part, from our supervisory work. Finally, the report recaps recent developments to the CFPB's supervision program, such as the release of updated fair lending examination procedures and guidance documents in the areas of credit reporting, in-person debt collection, and preauthorized electronic fund transfers.
The Bureau released this edition of the Supervisory Highlights on its Web site on March 8, 2016.
Christopher J. Young, Managing Senior Counsel and Chief of Staff, Office of Supervision Policy, 1700 G Street NW., 20552, (202) 435-7408.
The Consumer Financial Protection Bureau (CFPB or Bureau) is committed to a consumer financial marketplace that is fair, transparent, and competitive, and that works for all consumers. One of the tools the CFPB uses to further this goal is the supervision of bank and nonbank institutions that offer consumer financial products and services. In this tenth edition of Supervisory Highlights, the CFPB shares recent supervisory observations in the areas of consumer reporting, debt collection, mortgage origination, remittances, student loan servicing, and fair lending. One of the Bureau's goals is to provide information that enables industry participants to ensure their operations remain in compliance with Federal consumer financial law. The findings reported here reflect information obtained from supervisory activities completed during the period under review as captured in examination reports or supervisory letters. In some instances, not all corrective actions, including through enforcement, have been completed at the time of this report's publication.
The CFPB's supervisory activities have either led to or supported three recent public enforcement actions, resulting in $52.75 million in consumer remediation and other payments and an additional $8.5 million in civil money penalties. The Bureau also imposed other corrective actions at these institutions, including requiring improved compliance management systems (CMS). In addition to these public enforcement actions, Supervision continues to resolve violations using non-public supervisory actions. When Supervision examinations determine that a supervised entity has violated a statute or regulation, Supervision directs the entity to implement appropriate corrective measures, including remediation of consumer harm when appropriate. Recent supervisory resolutions have resulted in restitution of approximately $14.3 million to more than 228,000 consumers. Other corrective actions have included, for example, furnishing corrected information to consumer reporting agencies, improving training for employees to prevent various law violations, and establishing and maintaining required policies and procedures.
This report highlights supervision work generally completed between September 2015 and December 2015, though some completion dates may vary. Any questions or comments from supervised entities can be directed to
Summarized below are some recent examination observations in consumer reporting, debt collection, mortgage origination, remittances, student loan servicing, and fair lending. As the CFPB's Supervision program progresses, we will continue to share positive practices found in the course of examinations (
One such common area for improvement is the accuracy of information about consumers that is supplied to consumer reporting agencies. As discussed in previous issues, credit reports are vital to a consumer's access to credit; they can be used to determine eligibility for credit, and how much consumers will pay for that credit. Given this, the accuracy of information furnished by financial institutions to consumer reporting agencies is of the utmost importance. As in the last issue of Supervisory Highlights, this issue shares observations regarding the furnishing of consumer information across a number of product areas (
CFPB examiners conducted one or more reviews of compliance with furnisher obligations under the Fair Credit Reporting Act (FCRA) and its implementing regulation, Regulation V, at depository institutions. The reviews focused on (i) entities furnishing information (furnishers) to nationwide specialty consumer reporting agencies (NSCRAs) that specialize in reporting in connection with deposit accounts and (ii) NSCRAs themselves.
Regulation V requires companies that furnish information to consumer reporting companies to establish and implement reasonable written policies and procedures regarding the accuracy and integrity of the information they furnish. Whether policies and procedures are reasonable depends on the nature, size, complexity, and scope of each furnisher's activities. Examiners found that while one or more furnishers had policies and procedures generally pertaining to FCRA furnishing obligations, they failed to have policies and procedures addressing the furnishing of information related to deposit accounts. One or more furnishers also lacked processes or policies to verify data furnished through automated internal systems. For example, one or more furnishers established automated systems to
The FCRA requires furnishers that regularly and in the ordinary course of business furnish information to consumer reporting agencies to promptly update information they determine is incomplete or inaccurate. Examiners found that one or more such furnishers of deposit account information failed to correct and update the account information they had furnished to NSCRAs and/or did not institute reasonable policies and procedures regarding accuracy, including prompt updating of outdated information. When consumers paid charged-off accounts in full, one or more furnishers would update their systems of records to reflect the payment, but would not update the change in status from “charged-off” to “paid-in-full” and send the update to the NSCRAs. One or more furnishers also required consumers to call the entity to request updated furnishing information when they made final payments on settlement accounts. If a consumer did not call, furnishing on accounts settled-in-full were not updated to the NSCRAs. Not updating an account to paid-in-full or settled-in-full status could adversely affect consumers' attempts to establish new deposit or checking accounts. Supervision directed one or more furnishers to update the furnishing for all impacted accounts.
Supervision conducted examinations of one or more NSCRAs to assess their efforts to ensure data quality in their consumer reports. Examiners noted that one or more NSCRAs had internal inconsistencies in linking certain identifying information (
Examiners reviewed one or more NSCRAs, focusing on their various systems and processes used to oversee and approve furnishers. They found that one or more NSCRAs had weaknesses in their systems and processes for credentialing of furnishers before the furnishers were allowed to supply consumer information to an NSCRA. Specifically, examiners found that one or more NSCRAs did not always follow their own policies and procedures for issuing credentials to furnishers and did not implement a timeframe for furnishers to submit NSCRA-required documentation during the credentialing process. In addition, one or more NSCRAs failed to maintain documentation adequate under their policies and procedures to demonstrate the steps that were taken to approve a furnisher after the initial credentialing process. Supervision directed one or more NSCRAs to strengthen their oversight and establish documented policies and procedures for the timely tracking of credentialing and re-credentialing of furnishers.
The Supervision program covers certain bank and nonbank creditors who originate and collect their own debt, as well as the larger nonbank third-party debt collectors. During recent examinations, examiners observed a beneficial practice that involved using exception reports provided by consumer reporting agencies (CRAs) to improve the accuracy and integrity of information furnished to CRAs. However, examiners also identified several violations of the Fair Debt Collection Practices Act (FDCPA), including failing to honor consumers' requests to cease communication, and using false, deceptive or misleading representations or means regarding garnishment.
Banks and nonbanks that engage in collections activity and that furnish information about consumers' debts to CRAs must comply with the FCRA and Regulation V. As noted above, furnishers must establish and implement reasonable written policies and procedures regarding the accuracy and integrity of the information that they furnish to a CRA. CRAs routinely provide or make available exception reports to furnishers. These exception reports identify for furnishers the specific information a CRA has rejected from the furnisher's data submission to the CRA, and thus has not been included in a consumer's credit file. The reports also provide information that a furnisher can use to understand why the furnished information was rejected. In some circumstances, these rejections may help identify mechanical problems in transmitting data or potential inaccuracies of the information the furnisher attempted to furnish.
In responding to a matter requiring attention requiring one or more entities engaging in collections activities to enhance policies and procedures to ensure proper and timely identification of information rejected by the CRAs, one or more entities enhanced its policies and procedures regarding the utilization of exception reports to resolve rejected information. Examiners found that the one or more entities reviewed and corrected rejections related to errors in consumer names, updated name and address information through customer outreach, and met regularly with the CRAs to discuss the exception reports and to identify patterns in rejections. As a result of these efforts, one or more entities had a significant reduction in errors and exceptions, which led to greater accuracy in the information furnished to CRAs.
Under section 805(c) of the FDCPA, when consumers notify a debt collector in writing that they refuse to pay a debt or that they wish the debt collector to cease further communication with them, the debt collector must, with certain exceptions, cease communication with the consumer with respect to the debt. Examiners determined that one or more debt collectors failed to honor some consumers' written requests to cease communication. The failures resulted from system data migration errors and from mistakes during manual data entry. In some instances, the debt collectors had not properly coded the accounts to prevent further calls. In other instances, debt collectors changed the accounts back to “active” status, allowing further communications to be made. Supervision directed one or more debt collectors to improve training for their employees on how to identify and properly handle cease-communication requests.
Under section 807 of the FDCPA, a debt collector may not use any false,
During the period covered by this report, the Title XIV rules were the focus of mortgage origination examinations. In addition, these examinations evaluated compliance for other applicable Federal consumer financial laws as well as evaluating entities' compliance management systems. Findings from examinations within this period demonstrate, with some exceptions, general compliance with the Title XIV rules. Exceptions include, for example, the absence of written policies and procedures at depository institutions required under the loan originator rule. Examiners also found certain deficiencies in compliance management systems, as discussed below.
The loan originator rule under Regulation Z requires depository institutions to establish and maintain written policies and procedures for loan originator activities, which specifically cover prohibited payments, steering, qualification requirements, and identification requirements. In one or more examinations, depository institutions violated this provision by failing to maintain such written policies and procedures. In most of these cases, examiners found violations of one or more related substantive provisions of the rule. For example, one or more institutions did not provide written policies and procedures—a violation itself—and violated the rule by failing to comply with the requirement to include the loan originator's name and Nationwide Multistate Licensing System and Registry identification on loan documents. In these instances, examiners determined that the failure to have written policies and procedures covering identification requirements was a violation of the rule and Supervision directed one or more institutions to establish and maintain the required written policies and procedures.
At one or more institutions, examiners concluded that a weak compliance management system allowed violations of Regulations X and Z to occur. For example, one or more supervised entities failed to allocate sufficient resources to ensure compliance with Federal consumer financial law. As a result, these entities were unable to institute timely corrective-action measures, failed to maintain adequate systems, and had insufficient preventive controls to ensure compliance and the correct implementation of established policies and procedures. Supervision notified the entities' management of these findings, and corrective action was taken to improve the entities' compliance management systems.
The CFPB's amendments to Regulation E governing international money transfers (or remittances) became effective on October 28, 2013. Regulation E, Subpart B (or the Remittance Rule) provides new protections, including disclosure requirements, and error resolution and cancellation rights to consumers who send remittance transfers to other consumers or businesses in a foreign country. The amendments implement statutory requirements set forth in the Dodd-Frank Act.
The CFPB began examining large banks for compliance with the Remittance Rule after the effective date, and, in December 2014, the Bureau gained supervisory authority over certain nonbank remittance transfer providers pursuant to one of its larger participant rules. The CFPB's examination program for both bank and nonbank remittance providers assesses the adequacy of each entity's CMS for remittance transfers. These reviews also check for providers' compliance with the Remittance Rule and other applicable Federal consumer financial laws. Below are some recent findings from Supervision's remittance transfer examination program.
In all cases where examiners found violations of the Remittance Rule, Supervision directed entities to make appropriate changes to compliance management systems to prevent future violations and, where appropriate, to remediate consumers for harm they experienced.
Overall, remittance transfer providers examined by Supervision have implemented changes to their CMS to address compliance with the Remittance Rule. But for some providers, CMS is in the early stages of development and weaknesses were noted. At both bank and nonbank remittance transfer providers, boards of directors and management have dedicated some resources to comply with the Remittance Rule, and have updated policies and procedures, complaint management and training programs to cover this area. But some providers did not implement these changes until sometime after the effective date of the Remittance Rule. Moreover, examiners found implementation gaps or systems issues, some of which were not addressed by pre-implementation testing and post-implementation monitoring and audit. For example, examiners found that failure by one or more remittance transfer providers to conduct adequate testing of their systems led to consumers receiving inaccurate disclosures or, in some instances, no disclosures at all. At some nonbank remittance transfer providers, Supervision found weaknesses in the oversight of agents/service providers, consumer complaint response, and compliance audit.
The Remittance Rule requires that providers of remittance transfers give their customers certain disclosures before (
Examiners noted the following violations at one or more providers:
The Remittance Rule requires that certain disclosures be given to consumers orally in transactions conducted orally and entirely by telephone. Examiners have also cited various violations of the rule related to oral disclosures. The Remittance Rule further requires disclosures in each of the foreign languages that providers principally use to advertise, solicit, or market remittance transfer services, or in the language primarily used by the sender to conduct the transaction, provided that the sender uses the language that is principally used by the remittance transfer provider to advertise, solicit, or market remittance transfer services. Compliance with the Remittance Rule's foreign language requirements has generally been adequate, though Supervision has cited one or more providers for failing to give oral disclosures and/or written results of investigations in the appropriate language.
One or more remittance providers made deceptive statements leaving consumers with a false impression regarding the conditions placed on designated recipients in order to access transmitted funds. Supervision directed one or more entities to review their marketing materials and make the necessary changes to cease these deceptive representations.
At one or more remittance transfer providers, examiners observed transactions in which the provider disclosed to consumers that the recipients would receive zero dollars after fees were deducted. In some cases, consumers completed these transactions after receiving disclosures indicating that no funds would be received. When examiners informed providers of these transactions, multiple providers took voluntary proactive steps to alter their systems to either provide consumers with an added warning to ensure they understood the possible result of the transaction, or simply prevent these transactions from being completed. While not a violation of the Remittance Rule, the CFPB is continuing to gather information about transactions with this possible outcome.
In September of last year, the Bureau released joint principles of student loan servicing together with the Departments of Education and Treasury as a framework to improve student loan servicing practices, promote borrower success and minimize defaults. We are committed to ensuring that student loan servicing is consistent, accurate and actionable, accountable, and transparent. The Bureau has made it a priority to take action against companies that are engaging in illegal servicing practices. To that end, supervising the student loan servicing market has therefore been a priority for the Supervision program. Our ongoing supervisory program has already touched a significant portion of the student loan servicing market, and industry members who service student loans would be well served by carefully reviewing the findings described below.
The CFPB continues to examine entities servicing both Federal and private student loans, primarily assessing whether entities have engaged in unfair, deceptive, or abusive acts or practices prohibited by the Dodd-Frank Act. As in all applicable markets, Supervision also reviews student loan servicers' practices related to furnishing of consumer information to CRAs for compliance with the FCRA and its implementing regulation, Regulation V. In the Bureau's student loan servicing examinations, examiners have identified a number of positive practices, as well as several unfair acts or practices, and Regulation V violations.
As described in previous editions of Supervisory Highlights, examiners have found UDAAPs relating to payment allocation among multiple student loans in a borrower's account. However, examiners have also found that one or more servicers have adopted payment allocation policies for overpayments designed to be more beneficial to consumers by minimizing interest expense. For example, one or more servicers allocated payments exceeding the total monthly payment on the account by allocating the excess funds to the loan with the highest interest rate. These servicers also clearly explained the allocation methodology to consumers, communicated that consumers can provide instructions on allocating overpayments, and provided mechanisms for providing these instructions, so that borrowers could choose to allocate excess funds in a different manner if they'd like.
Several reports of the CFPB Student Loan Ombudsman have noted that some private student loan borrowers have complained that they were not being offered repayment plans or loan modifications to assist them when they were struggling to make payments. In light of that, Supervision notes that it has observed reasonable borrower work-out plans at some private student loan servicers, suggesting that providing this kind of assistance is feasible.
Some private student loan promissory notes contain “whole loan due” clauses. In general, these clauses provide that if certain events occur, such as a consumer's bankruptcy or death, the loan will be accelerated and become immediately due. If the consumer does not satisfy the accelerated loan, the servicer will place the loan in default. This practice is sometimes referred to as an “auto-default.”
Examiners determined that one or more servicers engaged in an unfair practice in violation of the Dodd-Frank Act relating to auto-default. When a private student loan had a borrower and a cosigner, one or more servicers would auto-default both borrower and cosigner if either filed for bankruptcy. These auto-defaults were unfair where the whole loan due clause was ambiguous on this point because reasonable consumers would not likely interpret the promissory notes to allow their own default based on a co-debtor's bankruptcy. Further, one or more servicers did not notify either co-debtor that the loan was placed in default. Some consumers only learned that a servicer placed the loan in a default status when they identified adverse information on their consumer reports, the servicer stopped accepting loan payments, or they were contacted by a debt collector.
Supervision directed one or more servicers to immediately cease this
In one or more examinations, examiners determined that servicers committed unfair practices by failing to disclose a significant adverse consequence of forbearance. For some private student loans, a borrower's use of forbearance can delay, or permanently foreclose, the cosigner release option agreed to in the contract. Examiners found that one or more servicers committed an unfair practice by not disclosing this potential consequence when borrowers applied for forbearance. Consumers are at risk of substantial injury when, as a result of forbearance, the ability to release a cosigner is delayed or foreclosed. As a result of these findings, examiners directed one or more servicers to improve the content of its communications regarding the impact that forbearance use has on the availability of cosigner release.
Multiple loan owners have their loans serviced by student loan servicers. When ownership of student loans changes but the servicer continues to service the account, a servicer may need to “convert” the account to reflect the new loan owner. Similar conversions might be necessary when other major changes are made to the account (like the identity of the primary borrower). At one or more servicers, examiners found unfair practices connected to these conversions. Examiners found that, during a loan conversion process, one or more servicers used inaccurate interest rates that exceeded the rate for which the consumer was liable under the promissory note instead of using the correct interest rate information to update the relevant loan records. Examiners found this to be an unfair practice, and Supervision directed one or more servicers that committed this unfair practice to implement a plan to reimburse all affected consumers.
Compliance with the FCRA and Regulation V remains a top priority in the CFPB's student loan servicing examinations. Regulation V requires companies that furnish information on consumers to CRAs to establish and implement reasonable written policies and procedures regarding the accuracy and integrity of the information they furnish. Whether policies and procedures are reasonable depends on the nature, size, complexity, and scope of the entity's furnishing activities. Servicers and other furnishers must consider the guidelines in Appendix E to 12 CFR 1022 in developing their policies and procedures and incorporate those guidelines that are appropriate.
Many student loan servicers have extensive furnishing operations, sending information on millions of consumers to CRAs every month. During one or more student loan servicing examinations, examiners found one or more servicers that did not have any written policies and procedures regarding the accuracy and integrity of information furnished to the CRAs. Examiners also found policies and procedures that were insufficient to meet the obligations imposed by Regulation V. For example, examiners found:
• Policies and procedures that do not reference one another so that it is difficult to determine which policy or procedure applies;
• Policies and procedures that do not contemplate record retention, internal controls, audits, testing, third party vendor oversight, or the technology used to furnish information to CRAs; and
• Policies and procedures that lack sufficient detail on employee training.
In light of the extensive nature, size, complexity, and scope of the furnishing activities, examiners found that these policies and procedures were not reasonable according to Regulation V. Supervision directed one or more servicers to enhance their policies and procedures regarding the accuracy and integrity of information furnished to CRAs, including by addressing the conduct described in the bullets listed above.
On December 19, 2013, working in close coordination with the DOJ, the CFPB ordered Ally Financial Inc. and Ally Bank (Ally) to pay $80 million in damages to harmed African-American, Hispanic, and Asian and/or Pacific Islander borrowers. This public enforcement action represented the Federal Government's largest auto loan discrimination settlement in history.
On January 29, 2016, harmed borrowers participating in the settlement were mailed checks by the Ally settlement administrator, totaling $80 million, plus interest. The Bureau found that Ally had a policy of allowing dealers to increase or “mark up” consumers' risk-based interest rates, and paying dealers from those markups, and that the policy lacked adequate controls or monitoring. As a result, the Bureau found that between April 2011 and December 2013, this markup policy resulted in African-American, Hispanic, Asian and Pacific Islander borrowers paying more for auto loans than similarly situated non-Hispanic white borrowers.
In the summer and fall of 2015, the Ally settlement administrator contacted potentially eligible borrowers to confirm their eligibility and participation in the settlement. To be eligible for a payment, a borrower must have:
• Obtained an auto loan from Ally between April 2011 and December 2013;
• Had at least one borrower on the loan who was African-American, Hispanic, Asian or Pacific Islander; and
• Been overcharged.
Through that process, the settlement administrator identified approximately 301,000 eligible, participating borrowers and co-borrowers who were overcharged as a result of Ally's discriminatory markup policy during the relevant time period, representing approximately 235,000 loans.
In addition to the $80 million in settlement payments for consumers who were overcharged between April 2011 and December 2013, and pursuant to its continuing obligations under the terms of the orders, Ally recently paid approximately $38.9 million to consumers that Ally determined were both eligible and overcharged on auto loans issued during 2014.
Additional information regarding this public enforcement action can be found in the Summer 2014 edition of Supervisory Highlights.
On June 19, 2014, the CFPB, as part of a joint enforcement action with the DOJ, ordered Synchrony Bank, formerly known as GE Capital, to provide $169 million in relief to about 108,000 borrowers excluded from debt relief offers because of their national origin, in violation of ECOA. This public enforcement action represented the Federal Government's largest credit card discrimination settlement in history.
In the course of administering the settlement, Synchrony Bank identified additional consumers who have a mailing address in Puerto Rico or who indicated a preference to communicate in Spanish and were excluded from these offers. Synchrony Bank provided a total of approximately $201 million in
The Bureau's supervisory activities resulted in or supported the following public enforcement actions.
On December 16, 2015, the CFPB announced a consent order with EZCORP, Inc., a short-term, small-dollar lender, for illegal debt collection practices, some of which were initially discovered during the course of a Bureau examination. These practices related to in-person collection visits at consumers' homes or workplaces, risking disclosing the existence of consumers' debt to unauthorized third parties, falsely threatening consumers with litigation for non-payment of debts, misrepresenting consumers' rights, and unfairly making multiple electronic withdrawal attempts from consumer accounts which caused mounting bank fees. EZCORP violated the Electronic Fund Transfer Act and the Dodd-Frank Act's prohibition against unfair or deceptive acts or practices.
EZCORP will refund $7.5 million to 93,000 consumers, pay a $3 million civil money penalty, and stop collection of remaining payday and installment loan debts owed by roughly 130,000 consumers. The consent order also bars EZCORP from future in-person debt collection. In addition, the CFPB issued an industry-wide warning about potentially unlawful conduct during in-person collections at homes or workplaces.
On September 28, 2015, the CFPB resolved an action with Fifth Third Bank (Fifth Third) that requires Fifth Third to change its pricing and compensation system by substantially reducing or eliminating discretionary markups to minimize the risks of discrimination. On that same date, the DOJ filed a complaint and proposed consent order in the U.S. District Court for the Southern District of Ohio addressing the same conduct. That consent order was entered by the court on October 1, 2015. The CFPB found and the DOJ alleged that Fifth Third's past practices resulted in thousands of African-American and Hispanic borrowers paying higher interest rates than similarly-situated non-Hispanic white borrowers for their auto loans. The consent orders require Fifth Third to pay $18 million in restitution to affected borrowers.
As of the second quarter of 2015, Fifth Third was the ninth largest depository auto loan lender in the United States and the seventeenth largest auto loan lender overall. As an indirect auto lender, Fifth Third sets a risk-based interest rate, or “buy rate,” that it conveys to auto dealers. Fifth Third then allows auto dealers to charge a higher interest rate when they finalize the transaction with the consumer. This is typically called “discretionary markup.” Markups can generate compensation for dealers while giving them the discretion to charge similarly-situated consumers different rates. Fifth Third's policy permitted dealers to mark up consumers' interest rates as much as 2.5% during the period under review.
From January 2013 through May 2013, the Bureau conducted an examination that reviewed Fifth Third's indirect auto lending business for compliance with ECOA and Regulation B. On March 6, 2015, the Bureau referred the matter to the DOJ. The CFPB found and the DOJ alleged that Fifth Third's indirect lending policies resulted in minority borrowers paying higher discretionary markups, and that Fifth Third violated ECOA by charging African-American and Hispanic borrowers higher discretionary markups for their auto loans than non-Hispanic white borrowers without regard to the creditworthiness of the borrowers. The CFPB found and the DOJ alleged that Fifth Third's discriminatory pricing and compensation structure resulted in thousands of minority borrowers from January 2010 through September 2015 paying, on average, over $200 more for their auto loans.
The CFPB's administrative consent order and the DOJ's consent order require Fifth Third to reduce dealer discretion to mark up the interest rate to a maximum of 1.25% for auto loans with terms of five years or less, and 1% for auto loans with longer terms, or move to non-discretionary dealer compensation. Fifth Third is also required to pay $18 million to affected African-American and Hispanic borrowers whose auto loans were financed by Fifth Third between January 2010 and September 2015. The Bureau did not assess penalties against Fifth Third because of the bank's responsible conduct, namely the proactive steps the bank is taking that directly address the fair lending risk of discretionary pricing and compensation systems by substantially reducing or eliminating that discretion altogether. In addition, Fifth Third Bank must hire a settlement administrator who will contact consumers, distribute the funds, and ensure that affected borrowers receive compensation. The CFPB will release a consumer advisory with contact information for the settlement administrator once a settlement administrator is named.
On September 24, 2015, the CFPB and the DOJ filed a joint complaint against Hudson City Savings Bank (Hudson City) alleging discriminatory redlining practices in mortgage lending and a proposed consent order to resolve the complaint. The complaint alleges that from at least 2009 to 2013, Hudson City illegally redlined in violation of the Equal Credit Opportunity Act (ECOA) by providing unequal access to credit to neighborhoods in New York, New Jersey, Connecticut, and Pennsylvania. The DOJ also alleged that Hudson City violated the Fair Housing Act, which also prohibits discrimination in residential mortgage lending. Specifically, the complaint alleges that Hudson City structured its business to avoid and thereby discourage prospective borrowers in majority-Black-and-Hispanic neighborhoods from accessing mortgages. The consent order requires Hudson City to pay $25 million in direct loan subsidies to qualified borrowers in the affected communities, $2.25 million in community programs and outreach, and a $5.5 million penalty. This represents the largest redlining settlement in history as measured by such direct subsidies. On November 1, 2015, Hudson City was acquired by M&T Bank Corporation, and Hudson City was merged into Manufacturers Banking and Trust Company (M&T Bank), with M&T Bank as the surviving institution. As the successor to Hudson City, M&T Bank is responsible for carrying out the terms of the Consent Order.
Hudson City was a federally-chartered savings association with 135 branches and assets of $35.4 billion and focused its lending on the origination and purchase of mortgage loans secured by single-family properties. According to the complaint, Hudson City illegally avoided and thereby discouraged consumers in majority-Black-and-
• Placing branches and loan officers principally outside of majority-Black-and-Hispanic communities;
• Selecting mortgage brokers that were mostly located outside of, and did not effectively serve, majority-Black-and-Hispanic communities;
• Focusing its limited marketing in neighborhoods with relatively few Black and Hispanic residents; and
• Excluding majority-Black-and-Hispanic neighborhoods from its credit assessment areas.
The consent order which was entered by the court on November 4, 2015, requires Hudson City to pay $25 million to a loan subsidy program that will offer residents in majority-Black-and-Hispanic neighborhoods in New Jersey, New York, Connecticut, and Pennsylvania mortgage loans on a more affordable basis than otherwise available from Hudson City; spend $1 million on targeted advertising and outreach to generate applications for mortgage loans from qualified residents in the affected majority-Black-and-Hispanic neighborhoods; spend $750,000 on local partnerships with community-based or governmental organizations that provide assistance to residents in majority-Black-and-Hispanic neighborhoods; and spend $500,000 on consumer education, including credit counseling and financial literacy. In addition to the monetary requirements, the decree orders Hudson City to open two full-service branches in majority-Black-and-Hispanic neighborhoods, expand its assessment areas to include majority-Black-and-Hispanic communities, assess the credit needs of majority-Black-and-Hispanic communities, and develop a fair lending compliance and training program.
In addition to the public enforcement actions above, recent supervisory activities have resulted in approximately $14.3 million in restitution to more than 228,000 consumers. These non-public supervisory actions generally have been the product of CFPB ongoing supervision and/or targeted examinations, often involving either examiner findings or self-reported violations of Federal consumer financial law. Recent non-public resolutions were reached in the areas of deposits, debt collection, and mortgage origination.
On October 30, 2015, the CFPB published an update to the ECOA baseline review modules, which are part of the CFPB Supervision and Examination Manual. Examination teams use the ECOA baseline review modules to evaluate how institutions' compliance management systems identify and manage fair lending risks under ECOA. The procedures have been reorganized into five modules: Fair Lending supervisory history; Fair Lending compliance management system; and modules on Fair Lending risks related to origination, servicing, and underwriting models. Examination teams will use the second module, “Fair Lending compliance management system,” to evaluate compliance management as part of in-depth ECOA targeted reviews. The fifth module, “Fair Lending risks related to models,” is a new addition that examiners will use to review models that supervised financial institutions may use. The ECOA baseline review modules are consistent with and cross-reference the FFIEC interagency Fair Lending examination procedures. They can be utilized to evaluate fair lending risk at any supervised institution and in any product line.
When using the modules to conduct an ECOA baseline review, CFPB examination teams review an institution's fair lending supervisory history, including any history of fair lending risks or violations previously identified by the CFPB or any other Federal or state regulator. Examination teams collect and evaluate information about an entity's fair lending compliance program, including board of director and management participation, policies and procedures, training materials, internal controls and monitoring and corrective action. In addition to responses obtained pursuant to information requests, examination teams may also review other sources of information, including any publicly available information about the entity as well as information obtained through interviews with institution staff or supervisory meetings with an institution.
The CFPB is committed to providing guidance on its supervisory priorities to industry and members of the public.
On February 3, 2016, the CFPB issued a bulletin
Bulletin 2015-07, released on December 16, 2015, notes that both first-party and third-party debt collectors may run a heightened risk of committing unfair acts or practices in violation of the Dodd-Frank Act when they conduct in-person debt collection visits, including to a consumer's workplace or home. An act or practice is unfair under the Dodd-Frank Act when it causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers and is not outweighed by countervailing benefits to consumers or to competition. With respect to substantial injury, the bulletin explains that depending on the facts and circumstances, these visits may cause or be likely to cause substantial injury to consumers. For example, in-person collection visits may result in third parties such as consumers' co-workers, supervisors, roommates, landlords, or neighbors learning that the consumers have debts in collection, which could harm the consumer's reputation and, with respect to in-person collection at a consumer's workplace, result in negative employment consequences.
In addition, depending on the facts and circumstances, in-person collection visits may result in substantial injury to consumers even when there is no risk that the existence of the debt in collections will be disclosed to third
Finally, the bulletin also notes that third-party debt collectors and others subject to the FDCPA engaging in in-person collection visits risk violating certain provisions of the FDCPA, such as section 805(b) of the FDCPA's prohibition on communicating with third parties in connection with the collection of any debt (subject to certain exceptions).
On November 23, 2015, the CFPB released bulletin 2015-06, which reminds entities of their obligations under the Electronic Fund Transfer Act (EFTA) and its implementing regulation, Regulation E, when obtaining consumer authorizations for preauthorized electronic fund transfers (EFTs) from a consumer's account. The bulletin explains that oral recordings obtained over the phone may authorize preauthorized EFTs under Regulation E provided that these recordings also comply with the E-Sign Act. Further, the bulletin outlines entities' obligations to provide a copy of the terms of preauthorized EFT authorizations to consumers, summarizes the current law, highlights relevant supervisory findings, and articulates the CFPB's expectations for entities obtaining consumer authorizations for preauthorized EFTs to help them ensure their compliance with Federal consumer financial law.
The CFPB recognizes the value of communicating program findings to CFPB-supervised entities to aid them in their efforts to comply with Federal consumer financial law, and to other stakeholders to foster better understanding of the CFPB's work.
To this end, the Bureau remains committed to publishing its Supervisory Highlights report periodically in order to share information regarding general supervisory and examination findings (without identifying specific institutions, except in the case of public enforcement actions), to communicate operational changes to the program, and to provide a convenient and easily accessible resource for information on the CFPB's guidance documents.
This Supervisory Highlights summarizes existing requirements under the law, summarizes findings made in the course of exercising the Bureau's supervisory and enforcement authority, and is a non-binding general statement of policy articulating considerations relevant to the Bureau's exercise of its supervisory and enforcement authority. It is therefore exempt from notice and comment rulemaking requirements under the Administrative Procedure Act pursuant to 5 U.S.C. 553(b). Because no notice of proposed rulemaking is required, the Regulatory Flexibility Act does not require an initial or final regulatory flexibility analysis. 5 U.S.C. 603(a), 604(a). The Bureau has determined that this Supervisory Highlights does not impose any new or revise any existing recordkeeping, reporting, or disclosure requirements on covered entities or members of the public that would be collections of information requiring OMB approval under the Paperwork Reduction Act, 44 U.S.C. 3501,
Department of the Army, DoD.
Request for information regarding support to Army RAS Competencies.
Pursuant to the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Sunshine in Government Act of 1976 (U.S.C. 552b, as amended) and 41 Code of the Federal Regulations (CFR 102-3.140 through 160) the Department of the Army requests industry information on products, science and technology (S&T) research, operational concepts, and mission support innovations to support Army RAS competencies. No funds are available for any proposal or information submission and submitting information does not bind the Army for any future contracts/grants resulting from this request for information.
The Army Science Board is requesting information from organizations external to the Army that will help the board complete its analysis and ensure that all viable sources of information are explored. Based on information submitted in response to this request, the Army Science Board may invite selected organizations to provide additional information on technologies of interest.
To supplement the information developed in previous studies and otherwise available to the Board, organizations are invited to submit information on products or technologies to support RAS competencies and can be developed externally, either with support from the Army or from other sources.
Specific information requested from industry on RAS products or technology (including Unmanned Air Systems (UAS) or Unmanned Ground Vehicles (UGV)) that companies are offering, or plan to offer, to government, civil or commercial customers is: Identification of the product and its capabilities; Description of the product or technology, including on-board processing architecture and functionality (
Written submissions are to be submitted to the: Army Science Board, ATTN: Designated Federal Officer, 2530 Crystal Drive, Suite 7098, Arlington, VA 22202.
LTC Stephen K Barker at
In accordance with the ToR, this study will analyze and identify the Army formations with the greatest potential to benefit from adoption of RAS technology in both the near term (7-10 years) and the long term (10-25 years). For each selected application, the study team should define the benefits of RAS, considering such factors as cost, manpower reduction, survivability, and mission effectiveness. To the extent possible, the team should make maximum use of existing platforms available in the Army, other Services, or commercially. Among the concepts being studied by the study team, for which it is seeking input are on relevant products and technologies are: Counter Integrated Air Defense (IAD) System; Counter Armor and Counter Fires System; Combat Aviation Wingman; Manned-Unmanned Armor Platoon; Multi-Mission Aerial layer System; Soldier Situational Awareness (SA) System; and Point of Need Sustainment. This is not an exhaustive list. Other concepts are of interest as well.
a. Cover Page (1 page only):
Title
Industry
Respondent's technical and administrative points of contact (names, addresses, phone and fax numbers, and email addresses).
b. Abstract (1 page only): Summarize product or technology solutions and how they support Army RAS competencies. Respondents are encouraged to be as succinct as possible while providing sufficient detail to adequately convey the product or technology solutions.
c. Product or Technology Description (4 pages maximum): Provide an enhanced view of the product or technology solution you are proposing, focusing on the advantages of the product or technology and its applicability to future Army RAS competencies. The description of each solution should include the current state of development and the predicted performance levels the product or technology should reasonably achieve. Of most interest to this study is a description of the current autonomous functionality of the product, the types of human-RAS collaboration that are supported by the product, any plans to increase autonomy and collaboration, and changes required to the on-board processing architecture needed to enable these planned improvements.
d. Applicability to Future Army RAS competency (1 page only): Identify and expound upon how the product or technology supports the seven Study Concept areas mentioned above, concentrating on the added capability this solution provides that currently does not exist.
All Proposers should review the NATIONAL INDUSTRIAL SECURITY PROGRAM OPERATING MANUAL, (NISPOM), dated February 28, 2006, as it provides the baseline standards for the protection of classified information and prescribes the requirements concerning Contractor Development information under paragraph 4-105. Defense Security Service (DSS) Site for the NISPOM is:
Unclassified white papers/CDs must be mailed to the POC listed (see
A listing of respondents and whether or not their submission was utilized will be made available for public inspection upon request. Open deliberation by the full committee is anticipated on or about July 18, 2016 in Irvine, CA. This meeting will be preceded by standard
Department of Defense.
Renewal of Federal Advisory Committee.
The Department of Defense (DoD) is publishing this notice to announce that it is renewing the charter for the Threat Reduction Advisory Committee (“the Committee”).
Jim Freeman, Advisory Committee Management Officer for the Department of Defense, 703-692-5952.
This committee's charter is being renewed 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 charter and contact information for the Committee's Designated Federal Officer (DFO) can be obtained at
The Committee provides the Secretary of Defense and the Deputy Secretary of Defense, through the Under Secretary of Defense for Acquisition, Technology, and Logistics and the Assistant Secretary of Defense for Nuclear, Chemical, and Biological Defense Programs, independent advice and recommendations on matters relating to combating Weapons of Mass Destruction (WMD). The Committee shall be composed of no more than 25 members who are eminent authorities in the fields of national defense, geopolitical and national security affairs, WMD, nuclear physics, chemistry, and biology. Members who are not full-time or permanent part-time Federal officers or employees are appointed as experts or consultants pursuant to 5 U.S.C. 3109 to serve as special government employee members. Members who are full-time or permanent part-time Federal officers or employees are appointed pursuant to 41 CFR 102-3.130(a) to serve as regular government employee members. Each member is appointed to provide advice on behalf of the Government on the basis of their best judgment without representing any particular point of view and in a manner that is free from conflict of interest. Except for reimbursement of official Committee-related travel and per diem, members serve without compensation. The DoD, as necessary and consistent with the Committee's mission and DoD policies and procedures, may establish subcommittees, task forces, or working groups to support the Committee, and all subcommittees must operate under the provisions of FACA and the Government in the Sunshine Act. Subcommittees will not work independently of the Committee and must report all recommendations and advice solely to the Committee for full
Defense Logistics Agency (DLA), DoD.
Notice of Availability (NOA) of a draft Environmental Assessment (EA) addressing the Closure of Former DFSP Moffett Field located at Santa Clara County, California.
The DLA announces the availability of a draft EA that analyzes the potential environmental impacts associated with the Proposed Action to close the former DFSP, including removal of underground storage tanks and associated pipelines and equipment. The draft EA has been prepared as required under the National Environmental Policy Act (NEPA), (1969). In addition, the draft EA complies with DLA Regulation 1000.22.
The public comment period will end June 15, 2016.
You may submit comments to one of the following:
•
•
Stacey Christenbury at 703-767-6557 during normal business hours Monday through Friday, from 8:00 a.m. to 4:30 p.m. (EST) or by email:
Comments received by the end of the 30-day period will be considered when preparing the final version of the document. The draft EA is available in hardcopy at the Mountain View Public Library, located at 585 Franklin Street, Mountain View, California 94041, Phone: (650) 903-6337 or electronically at
Documents referenced in the draft EA are available upon request.
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 June 15, 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
Office of Innovation and Improvement, Department of Education.
Notice.
Investing in Innovation Fund—Scale-up Grants.
Notice inviting applications for new awards for fiscal year (FY) 2016.
As importantly, all i3 projects are required to generate additional evidence of effectiveness. All i3 grantees must use part of their budgets to conduct independent evaluations (as defined in this notice) of their projects. This requirement ensures that projects funded under the i3 program contribute significantly to improving the information available to practitioners and policymakers about which practices work, for which types of students, and in what contexts.
The Department awards three types of grants under this program: “Development” grants, “Validation” grants, and “Scale-up” grants. These grants differ in terms of the level of prior evidence of effectiveness required for consideration of funding, the level of scale the funded project should reach, and, consequently, the amount of funding available to support the project.
This notice invites applications for Scale-up grants only. The notice inviting applications for Validation grants is published elsewhere in this issue of the
Scale-up grants provide funding to support expansion of projects supported by strong evidence of effectiveness (as defined in this notice) to the national level (as defined in this notice). In addition, as Scale-up projects seek to improve outcomes for students in high-need schools, they also generate important information about an intervention's effectiveness and the contexts for which a practice is most effective. We expect that Scale-up grants will increase practitioners' and policymakers' understanding of the implementation of proven practices and help identify effective approaches to expanding such practices while also maintaining or increasing their effectiveness across contexts.
All Scale-up grantees must evaluate the effectiveness of the i3-supported practice that the project implements and expands. The evaluation of a Scale-up project must identify the core elements of, and codify, the i3-supported practice that the project implements in order to support adoption or replication by other entities. We also expect that evaluations of Scale-up grants will be conducted in a variety of contexts and for a variety of students in order to determine the context(s) and population(s) for which the i3-supported practice is most effective.
We remind LEAs of the continuing applicability of the provisions of the Individuals with Disabilities Education Act (IDEA) for students who may be served under i3 grants. Any grants in which LEAs participate must be consistent with the rights, protections, and processes established under IDEA for students who are receiving special education and related services or who are in the process of being evaluated to determine their eligibility for such services.
As described later in this notice, an applicant is required, as a condition of receiving assistance under this program, to make civil rights assurances, including an assurance that its program or activity will comply with section 504 of the Rehabilitation Act of 1973, as amended, and the Department's section 504 implementing regulations, which prohibit discrimination on the basis of disability. Regardless of whether a student with disabilities is specifically targeted as a “high-need student” (as defined in this notice) in a particular grant application, recipients are required to comply with all legal nondiscrimination requirements, including, but not limited to, the obligation to ensure that students with disabilities are not denied access to the benefits of the recipient's program because of their disability. The Department also enforces title II of the Americans with Disabilities Act (ADA), as well as the regulations implementing title II of the ADA, which prohibit discrimination on the basis of disability by public entities.
Furthermore, title VI and title IX of the Civil Rights Act of 1964 prohibit discrimination on the basis of race, color, and national origin, and sex, respectively. On December 2, 2011, the Departments of Education and Justice jointly issued guidance that explains how educational institutions can promote student diversity or avoid racial isolation within the framework of title VI (
Through its competitions, the i3 program seeks to improve the academic achievement of students in high-need schools by identifying and scaling promising solutions to pressing challenges in kindergarten through grade 12 (K-12). Now in its seventh year, the i3 program has invested over $1.3 billion—matched by over $200 million in private sector resources—in a portfolio of solutions and rigorous evaluations of several approaches that address critical challenges in education. When selecting the priorities for a given competition, the Department considers several factors including policy priorities, the need for new solutions in a particular priority area, the extent of the existing evidence supporting effective practices in a particular priority area, whether other available funding exists for a particular priority area, and the results and lessons learned from funded projects from prior i3 competitions. This year's competition does not include specific priorities for students with disabilities and English learners, as the program has successfully funded a range of projects serving these high-need populations under i3's broader priorities in previous competitions. Additionally, all applicants continue to be required to serve high-need student populations, and we continue to encourage applicants to consider how their proposed projects could serve students with disabilities or English learners. Applicants are encouraged to design an evaluation that will report findings on English learners, students with disabilities, and other subgroups.
All i3 grantees are expected to improve academic outcomes for high-need students (as defined in this notice). The FY 2016 Scale-up competition includes four absolute priorities. These absolute priorities, as described below, identify persistent challenges in public education for which there are solutions that are supported by rigorous and generalizable evidence. We are particularly interested in supporting such efforts in rural areas. As such, and consistent with the past three competitions, applicants applying under the Serving Rural Communities priority (Absolute Priority 4) must also address one of the other three absolute priorities established for the FY 2016 i3 Scale-up competition. This structure has resulted in a strong set of grantees that are addressing the unique challenges in rural communities. We also include two competitive preference priorities for i3 applicants, as described below.
First, we include an absolute priority for projects designed to implement and support the transition to internationally benchmarked, college- and career-ready academic content standards and associated assessments. Many States have raised the expectations for what schools should teach and their students should learn and do across the K-12 grade span by adopting new, more rigorous standards and assessments aligned to the demands of college and careers. Emerging research confirms that these exams are aligned to more rigorous standards.
Second, we include an absolute priority aimed at improving science, technology, engineering, and mathematics (STEM) education. Ensuring that all students can access and excel in STEM fields—which include coding and computer science—is essential to meeting the needs of our Nation's economy and encouraging our future prosperity.
Third, we include an absolute priority focused on improving low-performing schools. The Department desires to support whole-school models and strategies that lead to significant and sustained improvement in individual
Finally, we include an absolute priority for serving rural communities. Students living in rural communities face unique challenges, such as lack of access to specialized courses or college advising. Applicants applying under this priority must also address one of the other three absolute priorities established for the FY 2016 i3 Scale-up competition, while serving students enrolled in rural local educational agencies (as defined in this notice).
We also include two competitive preference priorities in the FY 2016 Scale-up competition. First, we include a competitive preference priority for projects that enable the broad adoption of effective practices. This competitive preference priority awards extra points to applicants that will implement systematic methods for identifying and supporting the expansion of these practices. While all Scale-up grantees must codify the core elements of their i3-supported practices, we are interested in projects that focus particularly on the documentation, dissemination, and replication of practices that have been demonstrated to be effective. We are particularly eager to support innovative partnership models to help share, disseminate, and scale effective practices among non-i3 grantees. In addition, practitioners and policymakers need access to strong, reliable data to make informed decisions about adopting effective practices, particularly to replace less effective alternatives. This competitive preference priority supports strategies that identify key elements of effective practices and that capture lessons learned about the implementation of these practices. In addition, an applicant addressing this priority must commit to implementing its approach in multiple settings and locations in order to ensure that the practice can be successfully replicated in different contexts.
Second, to expand the reach of the i3 program and encourage entities that have not previously received an i3 grant to apply, the Department includes a competitive preference priority for novice i3 applicants. A novice i3 applicant is an applicant that has never received a grant under the i3 program. An applicant must identify whether it is a novice applicant when completing the applicant information sheet. Instructions on how to complete the applicant information sheet are included in the application package.
Applicants should carefully review all of the application requirements and the requirements in the
The i3 program includes a statutory requirement for a private-sector match for all i3 grantees. For Scale-up grants, an applicant must obtain matching funds or in-kind donations from the private sector equal to at least five percent of its grant award. Each highest-rated application, as identified by the Department following peer review of the applications, must submit evidence of at least 50 percent of the required private-sector match prior to the awarding of an i3 grant. An applicant must provide evidence of the remaining 50 percent of the required private-sector match no later than three months after the project start date (
This notice includes selection criteria for the FY 2016 Scale-up competition that are designed to ensure that applications selected for funding have the potential to generate substantial improvements in student achievement (and other key outcomes), and include well-articulated plans for the implementation and evaluation of the proposed projects. Applicants should review the selection criteria and submission instructions carefully to ensure their applications address this year's criteria.
An entity that submits an application for a Scale-up grant should include the following information in its application: An estimate of the number of students to be served by the project; evidence of
The Department will screen applications that are submitted for Scale-up grants in accordance with the requirements in this notice and determine which applications meet the eligibility and other requirements. Peer reviewers will review all applications for Scale-up grants that are submitted by the established deadline.
Applicants should note, however, that we may screen for eligibility at multiple points during the competition process, including before and after peer review; applicants that are determined to be ineligible will not receive a grant award regardless of peer reviewer scores or comments. If we determine that a Scale-up grant application is not supported by strong evidence of effectiveness, or that the applicant does not demonstrate the required prior record of improvement, or does not meet any other i3 requirement, the application will not be considered for funding.
Please note that on December 10, 2015, the Every Student Succeeds Act (ESSA), which reauthorized the Elementary and Secondary Education Act of 1965, was signed into law. ESSA establishes the Education Innovation and Research Program (EIR), a new program that builds on the work led by the i3 program and its grantees. Accordingly, this FY 2016 i3 competition will be the final i3 competition under current statute and regulations. Pending congressional appropriations, the Department will launch the first EIR competition in FY 2017.
Applicants must address one of the first four absolute priorities. An applicant that addresses Absolute Priority 4, Serving Rural Communities, must also address one of the first three absolute priorities. Because applications will be rank ordered by absolute priority, applicants must clearly identify the specific absolute priority that the proposed project addresses. Applications submitted under Absolute Priority 4 will be ranked with other applications under Absolute Priority 4, and not included in the ranking for the additional priority that the applicant identified. This design helps us ensure that applications under Absolute Priority 4 receive an “apples to apples” comparison with other applicants addressing the Serving Rural Communities priority.
These priorities are:
Under this priority, we provide funding to projects that are designed to support the implementation of, and transition to, internationally benchmarked college- and career-ready standards and assessments, including developing and implementing strategies that use the standards and information from assessments to inform classroom practices that meet the needs of all students.
Under this priority, we provide funding to projects addressing pressing needs for improving STEM education.
Under this priority, we provide funding to projects that address designing whole-school models and implementing processes that lead to significant and sustained improvement in individual student performance and overall school performance and culture. These models may incorporate such strategies as providing strong school leadership; strengthening the instructional program; embedding professional development that provides teachers with frequent feedback to increase the rigor and effectiveness of their instructional practice; redesigning the school day, week, or year; using data to inform instruction and improvement; establishing a school environment that promotes a culture of high expectations; addressing non-academic factors that affect student achievement; and providing ongoing mechanisms for parent and family engagement.
To meet this priority, a project must serve schools among (1) the lowest-performing schools in the State on academic performance measures; (2) schools in the State with the largest within-school performance gaps between student subgroups described in section 1111(b)(2) of the ESEA; or (3) secondary schools in the State with the lowest graduation rate over a number of years or the largest within-school gaps in graduation rates between student subgroups described in section 1111(b)(2) of the ESEA. Additionally, projects funded under this priority must complement the broader turnaround efforts of the school(s), LEA(s), or State(s) where the projects will be implemented.
Under this priority, we provide funding to projects that address one of the absolute priorities established for the FY 2016 Scale-up i3 competition and under which the majority of students to be served are enrolled in rural local educational agencies (as defined in this notice).
Applicants may address both competitive preference priorities. An applicant must identify in the project narrative section of its application the priority or priorities it wishes the Department to consider for purposes of earning competitive preference priority points. The Department will not review or award points under any competitive preference priority that the applicant fails to clearly identify.
These priorities are:
Under this priority, we provide funding to projects that enable broad adoption of effective practices. An application proposing to address this priority must, as part of its application:
(a) Identify the practice or practices that the application proposes to prepare for broad adoption, including formalizing the practice (
(b) Evaluate different forms of the practice to identify the critical components of the practice that are crucial to its success and sustainability, including the adaptability of critical components to different teaching and learning environments and to diverse learners.
(c) Provide a coherent and comprehensive plan for developing materials, training, toolkits, or other supports that other entities would need in order to implement the practice effectively and with fidelity.
(d) Commit to assessing the replicability and adaptability of the practice by supporting the implementation of the practice in a variety of locations during the project period using the materials, training, toolkits, or other supports that were developed for the i3-supported practice.
Eligible applicants that have never directly received a grant under this program.
The definitions of “large sample,” “logic model,” “multi-site sample,” “national level,” “quasi-experimental design study,” “randomized controlled trial,” “regional level,” “relevant outcome,” “strong evidence of effectiveness,” and “What Works Clearinghouse (WWC) Evidence Standards” are from 34 CFR 77.1. All other definitions are from the 2013 i3 NFP. We may apply these definitions in any year in which this program is in effect.
(i) There is at least one study of the effectiveness of the process, product, strategy, or practice being proposed that meets the What Works Clearinghouse Evidence Standards without reservations, found a statistically significant favorable impact on a relevant outcome (with no statistically significant and overriding unfavorable impacts on that outcome for relevant populations in the study or in other studies of the intervention reviewed by and reported on by the What Works Clearinghouse), includes a sample that overlaps with the populations and settings proposed to receive the process, product, strategy, or practice, and includes a large sample and a multi-site sample. (Note: Multiple studies can cumulatively meet the large and multi-site sample requirements as long as each study meets the other requirements in this paragraph).
(ii) There are at least two studies of the effectiveness of the process, product, strategy, or practice being proposed, each of which: Meets the What Works Clearinghouse Evidence Standards with reservations, found a statistically significant favorable impact on a relevant outcome (with no statistically significant and overriding unfavorable impacts on that outcome for relevant populations in the studies or in other studies of the intervention reviewed by and reported on by the What Works Clearinghouse), includes a sample that overlaps with the populations and settings proposed to receive the process, product, strategy, or practice, and includes a large sample and a multi-site sample.
(a) For grades and subjects in which assessments are required under ESEA section 1111(b)(3): (1) A student's score on such assessments and may include (2) other measures of student learning, such as those described in paragraph (b), provided they are rigorous and comparable across schools within an LEA.
(b) For grades and subjects in which assessments are not required under ESEA section 1111(b)(3): Alternative measures of student learning and performance such as student results on pre-tests, end-of-course tests, and objective performance-based assessments; student learning objectives; student performance on English language proficiency assessments; and other measures of student achievement that are rigorous and comparable across schools within an LEA.
The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.
The regulations in 34 CFR part 86 apply to institutions of higher education only.
These estimated available funds are the total available for all three types of grants under the i3 program (Development, Validation, and Scale-up grants). Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2017 or later years from the list of unfunded applications from this competition.
The upper limit of the range of awards (
The Department is not bound by any estimates in this notice.
1.
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(a) An LEA.
(b) A partnership between a nonprofit organization and—
(1) One or more LEAs; or
(2) A consortium of schools.
(a)(1) Have significantly closed the achievement gaps between groups of students described in section 1111(b)(2) of the ESEA (economically disadvantaged students, students from major racial and ethnic groups, students with limited English proficiency, students with disabilities); or
(2) Have demonstrated success in significantly increasing student academic achievement for all groups of students described in that section;
(b) Have made significant improvements in other areas, such as high school graduation rates (as defined in this notice) or increased recruitment and placement of high-quality teachers and principals, as demonstrated with meaningful data;
(c) Demonstrate that it has established one or more partnerships with the private sector, which may include philanthropic organizations, and that organizations in the private sector will provide matching funds in order to help bring results to scale; and
(d) In the case of an eligible applicant that includes a nonprofit organization, provide in the application the names of the LEAs with which the nonprofit organization will partner, or the names of the schools in the consortium with which it will partner. If an eligible applicant that includes a nonprofit organization intends to partner with additional LEAs or schools that are not named in the application, it must describe in the application the demographic and other characteristics of these LEAs and schools and the process it will use to select them.
An entity submitting an application should provide, in Appendix C, under “Other Attachments Form,” of its application, information addressing the eligibility requirements described in this section. An applicant must provide, in its application, sufficient supporting data or other information to allow the Department to determine whether the applicant has met the eligibility requirements. Note that, to address the statutory eligibility requirements in paragraphs (a)(1) or (2), and (b), applicants must provide data that demonstrate a change due to the work of the applicant with an LEA or schools. In other words, applicants must provide data for at least two definitive points in time when addressing this requirement in Appendix C of their applications. For further guidance, please refer to the definition of “student achievement” in this notice, and the question and answer Webinar for FY 2016 i3 Scale-up and Validation Applications. Additionally, information on the statutory eligibility requirements can be found on the i3 Web site at
The authorizing statute specifies that an eligible applicant that includes a nonprofit organization meets the requirements in paragraphs (a) and (b) of the eligibility requirements for this program if the nonprofit organization has a record of significantly improving student achievement, attainment, or retention. For an eligible applicant that includes a nonprofit organization, the nonprofit organization must demonstrate that it has a record of significantly improving student achievement, attainment, or retention through its record of work with an LEA or schools. Therefore, an eligible applicant that includes a nonprofit organization does not necessarily need to include as a partner for its i3 grant an LEA or a consortium of schools that meets the requirements in paragraphs (a) and (b) of the eligibility requirements in this notice.
In addition, the authorizing statute specifies that an eligible applicant that includes a nonprofit organization meets the requirements of paragraph (c) of the eligibility requirements in this notice if the eligible applicant demonstrates that it will meet the requirement for private-sector matching.
4.
The Secretary may consider decreasing the matching requirement on a case-by-case basis, and only in the most exceptional circumstances. An eligible applicant that anticipates being unable to meet the full amount of the private-sector matching requirement must include in its application a request that the Secretary reduce the matching-level requirement, along with a statement of the basis for the request.
An applicant that does not provide a request for a reduction of the matching-level requirement in its application may not submit that request at a later time.
5.
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An applicant should identify up to four study citations to be reviewed against What Works Clearinghouse Evidence Standards for the purposes of meeting the i3 evidence standard requirement. An applicant should clearly identify these citations in Appendix D, under the “Other Attachments Form,” of its application. The Department will not review a study citation that an applicant fails to clearly identify for review. In addition to the four study citations, applicants should include a description of the intervention(s) the applicant plans to implement and the intended student outcomes that the intervention(s) attempts to impact in Appendix D.
An applicant must either ensure that all evidence is available to the Department from publicly available sources and provide links or other guidance indicating where it is available; or, in the full application, include copies of evidence in Appendix D. If the Department determines that an applicant has provided insufficient information, the applicant will not have an opportunity to provide additional information at a later time. However, if the WWC determines that a study does not provide enough information on key aspects of the study design, such as sample attrition or equivalence of intervention and comparison groups, the WWC will submit a query to the study author(s) to gather information for use in determining a study rating. Authors are asked to respond to queries within ten business days. Should the author query remain incomplete within 14 days of the initial contact to the study author(s), the study will be deemed ineligible under the grant competition. After the grant competition closes, the WWC will continue to include responses to author queries and will make updates to study reviews as necessary. However, the competition can only take into account information that is available at the time the competition is open.
The evidence standards apply to the prior research that supports the effectiveness of the proposed project. The i3 program does not restrict the source of prior research providing evidence for the proposed project. As such, an applicant could cite prior research in Appendix D for studies that were conducted by another entity (
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In addition, the grantee and its independent evaluator must agree to cooperate with any technical assistance provided by the Department or its contractor and comply with the requirements of any evaluation of the program conducted by the Department. This includes providing to the Department, within 100 days of a grant award, an updated comprehensive evaluation plan in a format and using such tools as the Department may require. Grantees must update this evaluation plan at least annually to reflect any changes to the evaluation. All of these updates must be consistent with the scope and objectives of the approved application.
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1.
You can contact ED Pubs at its Web site, also:
If you request an application package from ED Pubs, be sure to identify this competition as follows: CFDA number 84.411A.
Individuals with disabilities can obtain a copy of the application package in an accessible format (
2. a.
We will be able to develop a more efficient process for reviewing grant applications if we know the approximate number of applicants that intend to apply for funding under this competition. Therefore, the Secretary strongly encourages each potential applicant to notify us of the applicant's intent to submit an application by completing a Web-based form. When completing this form, applicants will provide (1) the applicant organization's name and address and (2) the absolute priority the applicant intends to address. Applicants may access this form online at
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
The page limit for the application does not apply to part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support of the application. However, the page limit does apply to all of the application narrative section of the application.
b.
Given the types of projects that may be proposed in applications for the i3
Consistent with the process followed in the prior i3 competitions, we plan on posting the project narrative section of funded i3 applications on the Department's Web site. Accordingly, you may wish to request confidentiality of business information. Identifying proprietary information in the submitted application will help facilitate this public disclosure process.
Consistent with Executive Order 12600, please designate in your application any information that you believe is exempt from disclosure under Exemption 4. In the appropriate Appendix section of your application, under “Other Attachments Form,” please list the page number or numbers on which we can find this information. For additional information please see 34 CFR 5.11(c).
3.
Applications for grants under this competition must be submitted electronically using the
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
6.
a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the System for Award Management (SAM) (formerly the Central Contractor Registry), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active SAM registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet at the following Web site:
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow two to five weeks for your TIN to become active.
The SAM registration process can take approximately seven business days, but may take upwards of several weeks, depending on the completeness and accuracy of the data you enter into the SAM database. Thus, if you think you might want to apply for Federal financial assistance under a program administered by the Department, please allow sufficient time to obtain and register your DUNS number and TIN. We strongly recommend that you register early.
Once your SAM registration is active, it may be 24 to 48 hours before you can access the information in, and submit an application through,
If you are currently registered with SAM, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your registration annually. This may take three or more business days.
Information about SAM is available at
In addition, if you are submitting your application via
7.
a.
Applications for grants under the i3 program, CFDA number 84.411A (Scale-up grants), must be submitted electronically using the Governmentwide
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement
You may access the electronic grant application for the i3 program at
Please note the following:
• When you enter the
• Applications received by
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through
• You should review and follow the Education Submission Procedures for submitting an application through
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: the Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• You must upload any narrative sections and all other attachments to your application as files in a read-only, non-modifiable Portable Document Format (PDF). Do not upload an interactive or fillable PDF file. If you upload a file type other than a read-only, non-modifiable PDF (
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from
Once your application is successfully validated by
These emails do not mean that your application is without any disqualifying errors. While your application may have been successfully validated by
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system;
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevents you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Kelly Terpak, U.S. Department of Education, 400 Maryland Avenue SW., Room 4W312, Washington, DC 20202. FAX: (202) 401-4123.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.411A) LBJ Basement Level 1, 400 Maryland Avenue SW., Washington, DC 20202-4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
We will not consider applications postmarked after the application deadline date.
c.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.411A), 550 12th Street SW., Room 7039, Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
The points assigned to each criterion are indicated in the parentheses next to the criterion. An applicant may earn up to a total of 100 points based on the selection criteria for the application.
A.
In determining the significance of the project, the Secretary considers the following factors:
(1) The magnitude or severity of the problem to be addressed by the proposed project. (34 CFR 75.210)
(2) The extent to which the proposed project involves the development or demonstration of promising new strategies that build on, or are alternatives to, existing strategies. (34 CFR 75.210)
(3) The extent to which the proposed project represents an exceptional approach to the priority or priorities established for the competition. (34 CFR 75.210)
B.
In determining the applicant's capacity to scale the proposed project, the Secretary considers the following factors:
(1) The extent to which the applicant demonstrates there is unmet demand for the process, product, strategy, or practice that will enable the applicant to reach the level of scale that is proposed in the application. (34 CFR 75.210)
(2) The extent to which the applicant will use grant funds to address a particular barrier or barriers that prevented the applicant, in the past, from reaching the level of scale proposed in the application. (2013 i3 NFP)
C.
In determining the quality of the proposed project design, the Secretary considers the following factors:
(1) The extent to which the goals, objectives, and outcomes to be achieved by the proposed project are clearly specified and measurable. (34 CFR 75.210)
(2) The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks. (34 CFR 75.210)
(3) The clarity and coherence of the applicant's multi-year financial and operating model and accompanying plan to operate the project at a national or regional level (as defined in this notice) during the project period. (2013 i3 NFP)
(4) The adequacy of procedures for ensuring feedback and continuous improvement in the operation of the proposed project. (34 CFR 75.210)
D.
In determining the quality of the project evaluation to be conducted, the Secretary considers the following factors:
(1) The extent to which the methods of evaluation will, if well implemented, produce evidence about the project's effectiveness that would meet the What Works Clearinghouse Evidence Standards without reservations. (34 CFR 75.210)
(2) The clarity and importance of the key questions to be addressed by the project evaluation, and the appropriateness of the methods for how each question will be addressed. (2013 i3 NFP)
(3) The extent to which the evaluation will study the project at the proposed level of scale, including, where appropriate, generating information about potential differential effectiveness of the project in diverse settings and for diverse student population groups. (2013 i3 NFP)
(4) The extent to which the evaluation plan includes a clear and credible analysis plan, including a proposed sample size and minimum detectable effect size that aligns with the expected project impact, and an analytic approach for addressing the research questions. (2013 i3 NFP)
(5) The extent to which the evaluation plan clearly articulates the key components and outcomes of the project, as well as a measurable threshold for acceptable implementation. (2013 i3 NFP)
(6) The extent to which the proposed project plan includes sufficient resources to carry out the project evaluation effectively. (2013 i3 NFP)
Applicants may wish to review the following technical assistance resources on evaluation: (1) WWC Procedures and Standards Handbook:
2.
For the application review process, we will use independent peer reviewers with varied backgrounds and professions including pre-kindergarten-grade 12 teachers and principals, college and university educators, researchers and evaluators, social entrepreneurs, strategy consultants, grant makers and managers, and others with education expertise. All reviewers will be thoroughly screened for conflicts of interest to ensure a fair and competitive review process.
Peer reviewers will read, prepare a written evaluation of, and score the assigned applications, using the selection criteria provided in this notice. For Scale-up grant applications we intend to conduct a single-tier review. If an eligible applicant addresses the first competitive preference priority (Enabling Broad Adoption of Effective Practices), reviewers will review and score this competitive preference priority. If competitive preference priority points are awarded, those points will be included in the eligible applicant's overall score. If an eligible applicant addresses the second competitive preference priority (Supporting Novice i3 Applicants), the Department will review its list of previous i3 grantees in scoring this competitive preference priority.
We remind potential applicants that in reviewing applications in any discretionary grant competition, the Secretary may consider, under 34 CFR 75.217(d)(3), the past performance of the applicant in carrying out a previous award, such as the applicant's use of funds, achievement of project objectives, and compliance with grant conditions. The Secretary may also consider whether the applicant failed to submit a timely performance report or submitted a report of unacceptable quality.
In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
3.
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If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
(c) Under 34 CFR 75.250(b), the Secretary may provide a grantee with additional funding for data collection analysis and reporting. In this case the Secretary establishes a data collection period.
4.
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In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
Kelly Terpak, U.S. Department of Education, 400 Maryland Avenue SW., Room 4W312 Washington, DC 20202. Telephone: (202) 453-7122. FAX: (202) 401-4123 or by email:
If you use a TDD or a TTY, call the Federal Relay Service, toll free, at 1-800-877-8339.
You may also access documents of the Department published in the
Office of Innovation and Improvement, Department of Education.
Notice.
Notice inviting applications for new awards for fiscal year (FY) 2016.
Catalog of Federal Domestic Assistance (CFDA) Number: 84.411B (Validation Grants).
Applications Available: May 18, 2016. Deadline for Notice of Intent to Apply: June 6, 2016. Deadline for Transmittal of Applications: July 15, 2016. Deadline for Intergovernmental Review: September 13, 2016.
As importantly, all i3 projects are required to generate additional evidence of effectiveness. All i3 grantees must use part of their budgets to conduct independent evaluations (as defined in this notice) of their projects. This requirement ensures that projects funded under the i3 program contribute significantly to improving the information available to practitioners and policymakers about which practices work, for which types of students, and in what contexts.
The Department awards three types of grants under this program: “Development” grants, “Validation” grants, and “Scale-up” grants. These grants differ in terms of the level of prior evidence of effectiveness required for consideration of funding, the level of scale the funded project should reach, and, consequently, the amount of funding available to support the project.
This notice invites applications for Validation grants only. The notice inviting applications for Scale-up grants is published elsewhere in this issue of the
Validation grants provide funding to support expansion of projects supported by moderate evidence of effectiveness (as defined in this notice) to the regional level (as defined in this notice) or to the national level (as defined in this notice). In addition, as Validation projects seek to improve outcomes for students in high need schools, they also generate important information about an intervention's effectiveness and the contexts for which a practice is most effective. We expect that Validation grants will increase practitioners' and policymakers' understanding of the implementation of proven practices, and help identify effective approaches to expanding such practices while also maintaining or increasing their effectiveness across contexts.
All Validation grantees must evaluate the effectiveness of the i3-supported practice that the project implements and expands. The evaluation of a Validation project must identify the core elements of, and codify, the i3-supported practice that the project implements in order to support adoption or replication by other entities. We also expect that evaluations of Validation grants will be conducted and disaggregated in a variety of contexts and for a variety of students in order to determine the context(s) and population(s) for which the i3-supported practice is most effective.
We remind LEAs of the continuing applicability of the provisions of the Individuals with Disabilities Education Act (IDEA) for students who may be served under i3 grants. Any grants in which LEAs participate must be consistent with the rights, protections, and processes established under IDEA for students who are receiving special education and related services or who are in the process of being evaluated to determine their eligibility for such services.
As described later in this notice, an applicant is required, as a condition of receiving assistance under this program, to make civil rights assurances, including an assurance that its program or activity will comply with section 504 of the Rehabilitation Act of 1973, as amended, and the Department's section 504 implementing regulations, which prohibit discrimination on the basis of disability. Regardless of whether a student with disabilities is specifically targeted as a “high-need student” (as defined in this notice) in a particular grant application, recipients are required to comply with all legal nondiscrimination requirements, including, but not limited to the obligation to ensure that students with disabilities are not denied access to the benefits of the recipient's program because of their disability. The Department also enforces title II of the Americans with Disabilities Act (ADA), as well as the regulations implementing title II of the ADA, which prohibit discrimination on the basis of disability by public entities.
Furthermore, title VI and title IX of the Civil Rights Act of 1964 prohibit discrimination on the basis of race, color, and national origin, and sex, respectively. On December 2, 2011, the Departments of Education and Justice jointly issued guidance that explains how educational institutions can promote student diversity or avoid racial isolation within the framework of title VI (
Through its competitions, the i3 program seeks to improve the academic achievement of students in high-need schools by identifying and scaling promising solutions to pressing challenges in kindergarten through grade 12 (K-12). Now in its seventh year, the i3 program has invested over $1.3 billion—matched by over $200 million in private sector resources—in a portfolio of solutions and rigorous evaluations of several approaches that address critical challenges in education. When selecting the priorities for a given competition, the Department considers several factors including policy priorities, the need for new solutions in a particular priority area, the extent of the existing evidence supporting effective practices in a particular priority area, whether other available funding exists for a particular priority area, and the results and lessons learned from funded projects from prior i3 competitions. This year's competition does not include specific priorities for students with disabilities and English learners, as the program has successfully funded a range of projects serving these high-need populations under i3's broader priorities in previous competitions. Additionally, all applicants continue to be required to serve high-need student populations, and we continue to encourage applicants to consider how their proposed projects could serve students with disabilities or English learners. Applicants are encouraged to design an evaluation that will report findings on English learners, students with disabilities, and other subgroups.
All i3 grantees are expected to improve academic outcomes for high-need students (as defined in this notice). The FY 2016 Validation competition includes four absolute priorities. These absolute priorities are intended to address persistent challenges in public education for which there are solutions that are supported by rigorous evidence. We are particularly interested in supporting such efforts in rural areas. As such, and consistent with the past three competitions, applicants applying under the Serving Rural Communities priority (Absolute Priority 4) must also address one of the other three absolute priorities established for the FY 2016 i3 Validation competition. This structure has resulted in a strong set of grantees that are addressing the unique challenges in rural communities. We also include one competitive preference priority for novice i3 applicants.
First, we include an absolute priority for projects designed to implement, and support the transition to, internationally benchmarked, college- and career-ready academic content standards and associated assessments. Many States have raised the expectations for what schools should teach and their students should learn and do across the K-12 grade span by adopting new, more rigorous standards and assessments aligned to the demands of college and careers. Emerging research confirms that these exams are aligned to more rigorous standards.
Second, we include an absolute priority for projects promoting science, technology, engineering and mathematics (STEM) education. Ensuring that all students can access and excel in STEM fields—which includes coding and computer science—is essential to meeting the needs of our Nation's economy and to our future prosperity.
Third, we include an absolute priority focused on improving low-performing schools. The Department looks to support whole-school models and strategies that lead to significant and sustained improvement in individual student performance and overall school performance and culture. Thousands of schools do not adequately prepare students to achieve at grade level and struggle to overcome the gaps in student performance across socioeconomic and racial groups.
Finally, we include an absolute priority for serving rural communities. Students living in rural communities face unique challenges, such as lack of access to specialized courses or college advising. Applicants applying under this priority must also address one of the other three absolute priorities established for the FY 2016 i3 Validation competition, while serving students enrolled in rural local educational agencies (as defined in this notice).
We also include one competitive preference priority in the FY 2016 Validation competition. To expand the reach of the i3 program and encourage entities that have not previously received an i3 grant to apply, the Department includes a competitive preference priority for novice i3 applicants. A novice i3 applicant is an applicant that has never received a grant under the i3 program. An applicant must identify whether it is a novice applicant when completing the applicant information sheet. Instructions on how to complete the applicant information sheet are included in the application package.
Applicants should carefully review all of the requirements in the
The i3 program includes a statutory requirement for a private-sector match for all i3 grantees. For Validation grants, an applicant must obtain matching funds or in-kind donations from the private sector equal to at least 10 percent of its grant award. Each highest-rated application, as identified by the Department following peer review of the applications, must submit evidence of at least 50 percent of the required private-sector match prior to the awarding of an i3 grant. An applicant must provide evidence of the remaining 50 percent of the required private-sector match no later than three months after the project start date (
This notice includes selection criteria for the FY 2016 Validation competition that are designed to ensure that applications selected for funding have the potential to generate substantial improvements in student achievement (and other key outcomes) and include well-articulated plans for the implementation and evaluation of the proposed projects. Applicants should review the selection criteria and submission instructions carefully to ensure their applications address this year's criteria.
An entity that submits an application for a Validation grant should include the following information in its application: An estimate of the number of students to be served by the project; evidence of the applicant's ability to implement and appropriately evaluate the proposed project; and information about its capacity (
The Department will screen applications that are submitted for Validation grants in accordance with the requirements in this notice and determine which applications meet the eligibility and other requirements. Peer reviewers will review all applications for Validation grants that are submitted by the established deadline.
Applicants should note, however, that we may screen for eligibility at multiple points during the competition process, including before and after peer review; applicants that are determined to be ineligible will not receive a grant award regardless of peer reviewer scores or comments. If we determine that a Validation grant application is not supported by moderate evidence of effectiveness, or that the applicant does not demonstrate the required prior record of improvement, or does not meet any other i3 requirement, the application will not be considered for funding.
Please note that on December 10, 2015, the Every Student Succeeds Act (ESSA), which reauthorized the Elementary and Secondary Education Act of 1965, was signed into law. ESSA establishes the Education Innovation and Research Program (EIR), a new program that builds on the work led by the i3 program and its grantees. Accordingly, this FY 2016 i3 competition will be the final i3 competition under current statute and regulations. Pending congressional appropriations, the Department will launch the first EIR competition in FY 2017.
Applicants must address one of the first four absolute priorities. An applicant that addresses Absolute Priority 4, Serving Rural Communities, must also address one of the first three absolute priorities. Because applications will be rank ordered by absolute priority, applicants must clearly identify the specific absolute priority that the proposed project addresses. Applications submitted under Absolute Priority 4 will be ranked with other applications under Absolute Priority 4 and not included in the ranking for the additional priority that the applicant identified. This design helps us ensure that applications under Absolute Priority 4 receive an “apples to apples” comparison with other applicants addressing the Serving Rural Communities priority.
These priorities are:
Under this priority, we provide funding to projects that are designed to support the implementation of, and transition to, internationally benchmarked college- and career-ready standards and assessments, including developing and implementing strategies that use the standards and information from assessments to inform classroom practices that meet the needs of all students.
Under this priority, we provide funding to projects that are designed to improve Student Achievement or other related outcomes by providing students with increased access to rigorous and engaging STEM coursework and Authentic STEM Experiences (as defined in this notice) that may be integrated across multiple settings.
Under this priority, we provide funding to projects that address designing whole-school models and implementing processes that lead to significant and sustained improvement
To meet this priority, a project must serve schools among (1) the lowest-performing schools in the State on academic performance measures; (2) schools in the State with the largest within-school performance gaps between student subgroups described in section 1111(b)(2) of the ESEA; or (3) secondary schools in the State with the lowest graduation rate over a number of years or the largest within-school gaps in graduation rates between student subgroups described in section 1111(b)(2) of the ESEA. Additionally, projects funded under this priority must complement the broader turnaround efforts of the school(s), LEA(s), or State(s) where the projects will be implemented.
Under this priority, we provide funding to projects that address one of the absolute priorities established for the FY 2016 Validation i3 competition and under which the majority of students to be served are enrolled in rural local educational agencies (as defined in this notice).
The priority is:
Eligible applicants that have never directly received a grant under this program.
The definition of “authentic STEM experiences” is from the Supplemental Priorities. The definitions of “large sample,” “logic model,” “moderate evidence of effectiveness,” “multi-site sample,” “national level,” “quasi-experimental design study,” “randomized controlled trial,” “regional level,” “relevant outcome,” and “What Works Clearinghouse (WWC) Evidence Standards” are from 34 CFR 77.1. All other definitions are from the 2013 i3 NFP. We may apply these definitions in any year in which this program is in effect.
(a) For grades and subjects in which assessments are required under ESEA section 1111(b)(3): (1) A student's score on such assessments and may include (2) other measures of student learning, such as those described in paragraph (b), provided they are rigorous and comparable across schools within an LEA.
(b) For grades and subjects in which assessments are not required under ESEA section 1111(b)(3): Alternative measures of student learning and performance such as student results on pre-tests, end-of-course tests, and objective performance-based assessments; student learning objectives; student performance on English language proficiency assessments; and other measures of student achievement that are rigorous and comparable across schools within an LEA.
The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.
The regulations in 34 CFR part 86 apply to institutions of higher education only.
These estimated available funds are the total available for all three types of grants under the i3 program (Development, Validation, and Scale-up grants). Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2017 or later years from the list of unfunded applications from this competition.
Development grants: Up to $3,000,000.
Validation grants: Up to $12,000,000.
Scale-up grants: Up to $20,000,000.
The upper limit of the range of awards (
Development grants: $3,000,000.
Validation grants: $11,500,000.
Scale-up grants: $19,000,000.
Development grants: 9-11 awards.
Validation grants: 2-3 awards.
Scale-up grants: 0-2 awards.
The Department is not bound by any estimates in this notice.
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(a) An LEA.
(b) A partnership between a nonprofit organization and—
(1) One or more LEAs; or
(2) A consortium of schools.
(a)(1) Have significantly closed the achievement gaps between groups of students described in section 1111(b)(2) of the ESEA (economically disadvantaged students, students from major racial and ethnic groups, students with limited English proficiency, students with disabilities); or
(2) Have demonstrated success in significantly increasing student academic achievement for all groups of students described in that section;
(b) Have made significant improvements in other areas, such as high school graduation rates (as defined in this notice) or increased recruitment and placement of high-quality teachers and principals, as demonstrated with meaningful data;
(c) Demonstrate that it has established one or more partnerships with the private sector, which may include philanthropic organizations, and that organizations in the private sector will provide matching funds in order to help bring results to scale; and
(d) In the case of an eligible applicant that includes a nonprofit organization, provide in the application the names of the LEAs with which the nonprofit organization will partner, or the names of the schools in the consortium with which it will partner. If an eligible applicant that includes a nonprofit organization intends to partner with additional LEAs or schools that are not named in the application, it must describe in the application the demographic and other characteristics of these LEAs and schools and the process it will use to select them.
An entity submitting an application should provide, in Appendix C, under “Other Attachments Form,” of its application, information addressing the eligibility requirements described in this section. An applicant must provide, in its application, sufficient supporting data or other information to allow the Department to determine whether the applicant has met the eligibility requirements. Note that, to address the statutory eligibility requirements in paragraphs (a)(1) or (2), and (b), applicants must provide data that demonstrate a change due to the work of the applicant with an LEA or schools. In other words, applicants must provide data for at least two definitive points in time when addressing this requirement in Appendix C of their applications. For further guidance, please refer to the definition of “student achievement” in this notice, and the question and answer Webinar for FY 2016 i3 Scale-up and Validation Applications. Additionally, information on the statutory eligibility requirements can be found on the i3 Web site at
The authorizing statute specifies that an eligible applicant that includes a nonprofit organization meets the requirements in paragraphs (a) and (b) of the eligibility requirements for this program if the nonprofit organization has a record of significantly improving student achievement, attainment, or retention. For an eligible applicant that includes a nonprofit organization, the nonprofit organization must demonstrate that it has a record of significantly improving student achievement, attainment, or retention through its record of work with an LEA or schools. Therefore, an eligible applicant that includes a nonprofit organization does not necessarily need to include as a partner for its i3 grant an LEA or a consortium of schools that meets the requirements in paragraphs (a) and (b) of the eligibility requirements in this notice.
In addition, the authorizing statute specifies that an eligible applicant that includes a nonprofit organization meets the requirements of paragraph (c) of the eligibility requirements in this notice if the eligible applicant demonstrates that it will meet the requirement for private-sector matching.
4.
The Secretary may consider decreasing the matching requirement on a case-by-case basis, and only in the most exceptional circumstances. An eligible applicant that anticipates being unable to meet the full amount of the private-sector matching requirement must include in its application a request that the Secretary reduce the matching-level requirement, along with a statement of the basis for the request.
An applicant that does not provide a request for a reduction of the matching-level requirement in its application may not submit that request at a later time.
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An applicant should identify up to two study citations to be reviewed against What Works Clearinghouse Evidence Standards for the purposes of meeting the i3 evidence standard requirement. An applicant should clearly identify these citations in Appendix D, under the “Other Attachments Form,” of its application. The Department will not review a study citation that an applicant fails to clearly identify for review. In addition to the two study citations, applicants should include a description of the intervention(s) the applicant plans to implement and the intended student outcomes that the intervention(s) attempts to impact in Appendix D.
An applicant must either ensure that all evidence is available to the Department from publicly available sources and provide links or other guidance indicating where it is available; or, in the full application, include copies of evidence in Appendix D. If the Department determines that an applicant has provided insufficient information, the applicant will not have an opportunity to provide additional information at a later time. However, if the WWC determines that a study does not provide enough information on key aspects of the study design, such as sample attrition or equivalence of intervention and comparison groups, the WWC will submit a query to the study author(s) to gather information for use in determining a study rating.
The evidence standards apply to the prior research that supports the effectiveness of the proposed project. The i3 program does not restrict the source of prior research providing evidence for the proposed project. As such, an applicant could cite prior research in Appendix D for studies that were conducted by another entity (
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In addition, the grantee and its independent evaluator must agree to cooperate with any technical assistance provided by the Department or its contractor and comply with the requirements of any evaluation of the program conducted by the Department. This includes providing to the Department, within 100 days of a grant award, an updated comprehensive evaluation plan in a format and using such tools as the Department may require. Grantees must update this evaluation plan at least annually to reflect any changes to the evaluation. All of these updates must be consistent with the scope and objectives of the approved application.
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1.
You can contact ED Pubs at its Web site, also:
If you request an application package from ED Pubs, be sure to identify this competition as follows: CFDA number 84.411B.
Individuals with disabilities can obtain a copy of the application package in an accessible format (
2.a.
We will be able to develop a more efficient process for reviewing grant applications if we know the approximate number of applicants that intend to apply for funding under this competition. Therefore, the Secretary strongly encourages each potential applicant to notify us of the applicant's intent to submit an application by completing a Web-based form. When completing this form, applicants will provide (1) the applicant organization's name and address and (2) the absolute priority the applicant intends to address. Applicants may access this form online at
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles,
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
The page limit for the application does not apply to part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support of the application. However, the page limit does apply to all of the application narrative section of the application.
b.
Given the types of projects that may be proposed in applications for the i3 program, your application may include business information that you consider proprietary. In 34 CFR 5.11 we define “business information” and describe the process we use in determining whether any of that information is proprietary and, thus, protected from disclosure under Exemption 4 of the Freedom of Information Act (5 U.S.C. 552, as amended).
Consistent with the process followed in the prior i3 competitions, we plan on posting the project narrative section of funded i3 applications on the Department's Web site. Accordingly, you may wish to request confidentiality of business information. Identifying proprietary information in the submitted application will help facilitate this public disclosure process.
Consistent with Executive Order 12600, please designate in your application any information that you believe is exempt from disclosure under Exemption 4. In the appropriate Appendix section of your application, under “Other Attachments Form,” please list the page number or numbers on which we can find this information. For additional information please see 34 CFR 5.11(c).
3.
Applications Available: May 18, 2016.
Deadline for Notice of Intent to Submit Applications: June 6, 2016.
Informational Meetings: The i3 program intends to hold Webinars designed to provide technical assistance to interested applicants for all three types of grants. Detailed information regarding these meetings will be provided on the i3 Web site at
Applications for grants under this competition must be submitted electronically using the
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
Deadline for Intergovernmental Review: September 13, 2016.
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5.
6.
a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the System for Award Management (SAM) (formerly the Central Contractor Registry), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active SAM registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet at the following Web site:
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow two to five weeks for your TIN to become active.
The SAM registration process can take approximately seven business days, but may take upwards of several weeks, depending on the completeness and accuracy of the data you enter into the SAM database. Thus, if you think you might want to apply for Federal financial assistance under a program administered by the Department, please allow sufficient time to obtain and register your DUNS number and TIN. We strongly recommend that you register early.
Once your SAM registration is active, it may be 24 to 48 hours before you can access the information in, and submit an application through,
If you are currently registered with SAM, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your registration annually. This may take three or more business days.
Information about SAM is available at
In addition, if you are submitting your application via
7.
a.
Applications for grants under the i3 program, CFDA number 84.411B (Validation grants), must be submitted electronically using the Governmentwide
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement
You may access the electronic grant application for the i3 program at
Please note the following:
• When you enter the
• Applications received by
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through
• You should review and follow the Education Submission Procedures for submitting an application through
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: The Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• You must upload any narrative sections and all other attachments to your application as files in a read-only, non-modifiable Portable Document Format (PDF). Do not upload an interactive or fillable PDF file. If you upload a file type other than a read-only, non-modifiable PDF (
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from
Once your application is successfully validated by
These emails do not mean that your application is without any disqualifying errors. While your application may have been successfully validated by
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevents you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Kelly Terpak, U.S. Department of Education, 400 Maryland Avenue SW., Room 4W312, Washington, DC 20202. FAX: (202) 401-4123.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.411B), LBJ Basement Level 1, 400 Maryland Avenue SW., Washington, DC 20202-4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
We will not consider applications postmarked after the application deadline date.
c.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.411B), 550 12th Street SW., Room 7039, Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
The points assigned to each criterion are indicated in the parentheses next to the criterion. An applicant may earn up to a total of 100 points based on the selection criteria for the application.
A.
In determining the significance of the project, the Secretary considers the following factors:
(1) The magnitude or severity of the problem to be addressed by the proposed project. (34 CFR 75.210)
(2) The extent to which the proposed project involves the development or demonstration of promising new strategies that build on, or are alternatives to, existing strategies. (34 CFR 75.210)
(3) The extent to which the proposed project represents an exceptional approach to the priority or priorities established for the competition. (34 CFR 75.210)
B.
In determining the applicant's capacity to scale the proposed project, the Secretary considers the following factors:
(1) The extent to which the applicant demonstrates there is unmet demand for the process, product, strategy or practice that will enable the applicant to reach the level of scale that is proposed in the application. (34 CFR 75.210)
(2) The extent to which the applicant will use grant funds to address a particular barrier or barriers that prevented the applicant, in the past, from reaching the level of scale proposed in the application. (2013 i3 NFP)
(3) The feasibility of successful replication of the proposed project, if favorable results are obtained, in a variety of settings and with a variety of populations. (34 CFR 75.210)
C.
In determining the quality of the proposed project design, the Secretary considers the following factors:
(1) The extent to which the goals, objectives, and outcomes to be achieved by the proposed project are clearly specified and measurable. (34 CFR 75.210)
(2) The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks. (34 CFR 75.210)
(3) The clarity and coherence of the applicant's multi-year financial and operating model and accompanying plan to operate the project at a national or regional level (as defined in this notice) during the project period. (2013 i3 NFP)
(4) The adequacy of procedures for ensuring feedback and continuous improvement in the operation of the proposed project. (34 CFR 75.210)
D.
In determining the quality of the project evaluation to be conducted, the Secretary considers the following factors:
(1) The extent to which the methods of evaluation will, if well implemented, produce evidence about the project's effectiveness that would meet the What Works Clearinghouse Evidence Standards without reservations. (34 CFR 75.210)
(2) The clarity and importance of the key questions to be addressed by the project evaluation, and the appropriateness of the methods for how each question will be addressed. (2013 i3 NFP)
(3) The extent to which the evaluation will study the project at the proposed level of scale, including, where appropriate, generating information about potential differential effectiveness of the project in diverse settings and for diverse student population groups. (2013 i3 NFP)
(4) The extent to which the evaluation plan includes a clear and credible analysis plan, including a proposed sample size and minimum detectable effect size that aligns with the expected project impact, and an analytic approach for addressing the research questions. (2013 i3 NFP)
(5) The extent to which the evaluation plan clearly articulates the key components and outcomes of the project, as well as a measurable threshold for acceptable implementation. (2013 i3 NFP)
(6) The extent to which the proposed project plan includes sufficient resources to carry out the project evaluation effectively. (2013 i3 NFP)
Applicants may wish to review the following technical assistance resources on evaluation: (1) WWC Procedures and Standards Handbook:
2.
For the application review process, we will use independent peer reviewers with varied backgrounds and professions including pre-kindergarten-grade 12 teachers and principals, college and university educators, researchers and evaluators, social entrepreneurs, strategy consultants, grant makers and managers, and others with education expertise. All reviewers will be thoroughly screened for conflicts of interest to ensure a fair and competitive review process.
Peer reviewers will read, prepare a written evaluation of, and score the assigned applications, using the selection criteria provided in this notice. For Validation grant applications, we intend to conduct a single tier review. If an eligible applicant addresses the competitive preference priority (Supporting Novice i3 Applicants), the Department will review its list of previous i3 grantees in scoring this competitive preference priority.
We remind potential applicants that in reviewing applications in any discretionary grant competition, the Secretary may consider, under 34 CFR 75.217(d)(3), the past performance of the applicant in carrying out a previous award, such as the applicant's use of funds, achievement of project objectives, and compliance with grant conditions. The Secretary may also consider whether the applicant failed to submit a timely performance report or submitted a report of unacceptable quality.
In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
3.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
(c) Under 34 CFR 75.250(b), the Secretary may provide a grantee with additional funding for data collection analysis and reporting. In this case the Secretary establishes a data collection period.
4.
5.
In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
Kelly Terpak, U.S. Department of Education, 400 Maryland Avenue SW., Room 4W312, Washington, DC 20202. Telephone: (202) 453-7122. FAX: (202) 401-4123 or by email:
If you use a TDD or a TTY, call the Federal Relay Service, toll free, at 1-800-877-8339.
You may also access documents of the Department published in the
Take notice that the Commission received the following electric corporate filings:
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 the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
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:
This is a supplemental notice in the above-referenced proceeding of V3 Commodities Group, LLC`s application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is May 24, 2016.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following qualifying facility 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 May 6, 2016, pursuant to section 292.402 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure,
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. Anyone filing a motion to intervene or protest must serve a copy of that document on the Petitioner.
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
Comment Date: 5:00 p.m. Eastern time on May 27, 2016.
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
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:
The staff of the Federal Energy Regulatory Commission (FERC or Commission) has prepared this Environmental Assessment (EA) of the Valley Lateral Project (Project) proposed by Millennium Pipeline Company, L.L.C. (Millennium) in the above-referenced docket. Millennium requests authorization to construct, operate, and maintain new natural gas facilities consisting of 7.9 miles of new, 16-inch-diameter natural gas pipeline extending from Millennium's existing mainline to the CPV Valley, LLC (CPV) Valley Energy Center in Orange County, New York. The Project would provide transportation capacity for 130,000 dekatherms per day (130 million cubic feet) of natural gas to serve the new 650 megawatt gas-powered CPV Valley Energy Center.
The EA assesses the potential environmental effects of the construction and operation of the Project in accordance with the National Environmental Policy Act of 1969. The FERC staff concludes that approval of the proposed Project, with appropriate mitigating measures, would not constitute a major federal action significantly affecting the quality of the human environment.
The U.S. Environmental Protection Agency and New York State Department of Agriculture and Markets participated as cooperating agencies in the preparation of the EA. Cooperating agencies have jurisdiction by law or special expertise with respect to resources potentially affected by the proposal and participate in the NEPA analysis.
The FERC staff mailed copies of the EA to federal, state, and local
A limited number of copies of the EA are also available for distribution and public inspection at: Federal Energy Regulatory Commission, Public Reference Room, 888 First Street NE., Room 2A, Washington, DC 20426, (202) 502-8371.
Any person wishing to comment on the EA may do so. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. The more specific your comments, the more useful they will be. To ensure that your comments are properly recorded and considered prior to a Commission decision on the proposal, it is important that the FERC receives your comments in Washington, DC, on or before June 8, 2016.
For your convenience, there are three methods you can use to submit your comments to the Commission. In all instances, please reference the project docket number (CP16-17-000) with your submission. The Commission encourages electronic filing of comments and has dedicated eFiling expert staff available to assist you at 202-502-8258 or
(1) You may file your comments electronically by using the eComment feature, which is located on the Commission's Web site at
(2) You may file your comments electronically by using the eFiling feature, which is located on the Commission's Web site at
(3) You may file a paper copy of your comments at the following address: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Room 1A, Washington, DC 20426.
Although your comments will be considered by the Commission, simply filing comments will not serve to make the commentor a party to the proceeding. Any person seeking to become a party to the proceeding must file a motion to intervene pursuant to Rule 214 of the Commission's Rules of Practice and Procedures (18 Code of Federal Regulations 385.214).
Additional information about the Project is available from the Commission's Office of External Affairs, at 1-866-208-FERC (3372), or on the FERC Web site (
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
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.
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 May 5, 2016, David P. Falck submitted for filing, supplemental application for authority to hold interlocking positions, pursuant to section 305(b) of the Federal Power Act and Part 45 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 45.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. 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 during the month of April 2016, the status of the above-captioned entities as Exempt Wholesale Generators became effective by operation of the Commission's regulations. 18 CFR 366.7(a).
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any of the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified date(s). 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:
This is a supplemental notice in the above-referenced proceeding of ID SOLAR 1, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is May 24, 2016.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
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:
As announced in the Notice of Technical Conference issued in this proceeding on February 9, 2016, the Federal Energy Regulatory Commission (Commission) will hold a technical conference on June 29, 2016, from 9:00 a.m. to approximately 4:00 p.m. on implementation issues under the Public Utility Regulatory Policies Act of 1978 (PURPA).
The purpose of the technical conference is to focus on issues associated with the Commission's implementation of PURPA. As noted in the preliminary agenda previously issued in this proceeding,
An updated Agenda for the technical conference, including speakers, is attached.
Panelists are invited to submit written comments (10 page limit) in advance of this technical conference, no later than June 7, 2016. These statements will be available prior to the conference on the Commission's Web site. Panelists will have the opportunity to make opening remarks (3 minute limit) at the start of the respective panels.
Those who plan to attend the technical conference are strongly encouraged to complete the registration form located at:
Information on this event will be posted on the Calendar of Events on the Commission's Web site,
Anyone with Internet access who desires to view this event can do so by navigating to
Commission conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations, please send an email to
While this conference is not for the purpose of discussing specific cases, we note that the discussions at the conference may address matters at issue in the following Commission proceedings that are either pending or within their rehearing period:
For more information about the technical conference, please contact:
By April 30, 2016, William B. Ruger, Jr., the existing licensee for the Sugar River II Project No. 10934 was required to file a notice of intent to file an application for a subsequent license. The existing license for Project No. 10934 expires on April 30, 2021.
The 200-kilowatt (kW) project is located on the Sugar River in Sullivan County, New Hampshire. No federal lands are affected.
The principal project works consist of: (1) A 44-foot-long, 10-foot-high concrete dam; (2) a 1.4-acre impoundment; (3) a rectangular intake; (4) a 650-foot-long, 7-foot diameter steel penstock; (5) a powerhouse containing one 200-kW turbine-generator unit; (6) a 75-foot-long transmission line; and (7) appurtenant facilities.
Pursuant to section 16.19(b) of the Commission's regulations, an existing licensee with a minor license or a license for a minor part of a hydroelectric project must file a notice of intent pursuant to section 16.6(b).
Pursuant to section 16.6(b) of the Commission's regulations, in order to notify the Commission whether or not a licensee intends to file an application for new license, the licensee must file with the Commission a letter that contains an unequivocal statement of the licensee's intention to file or not to file an application for a new license.
William B. Ruger, Jr. has not filed a notice of intent to file an application for a subsequent license for this project.
Pursuant to section 16.23(b) of the Commission's regulations, an existing licensee of a water power project that fails to file a notice of intent pursuant to section 16.6(b) shall be deemed to have filed a notice of intent indicating that it does not intend to file an application for subsequent license.
Pursuant to section 16.20 of the Commission's regulations, applications for subsequent license (except from the existing licensee which is prohibited from filing) must be filed with the Commission at least 24 months prior to the expiration of the existing license. Applications for license for this project must be filed by April 30, 2019. Questions concerning this notice should be directed to Steve Kartalia at (202) 502-6131 or
Environmental Protection Agency.
Notice of availability.
This notice announces the availability of EPA's report on the National Wetland Condition Assessment (NWCA) 2011. The NWCA describes the results of the nationwide probabilistic survey that was conducted in the spring and summer of 2011 by EPA and its state and tribal partners. The NWCA 2011 report includes information on how the survey was implemented, what the findings are on a national and ecoregional scale, and future actions.
Gregg Serenbetz, Office of Wetlands, Oceans and Watersheds, Office of Water (4502T), Washington, DC. Phone: 202-566-1253; email:
The
The key goals of the NWCA are to: (1) Describe the ecological condition of the nation's wetlands and stressors commonly associated with poor condition; (2) collaborate with states and tribes in developing complementary monitoring tools, analytical approaches, and data management technology to aid wetland protection and restoration program, and (3) advance the science of wetland monitoring and assessment to support wetland management needs. Using a statistical survey design, 967 sites were selected at random to represent the condition of wetlands across the lower 48 states. Both tidal and nontidal wetlands were targeted for sampling.
The NWCA finds less than half of wetland area nationally (48%) is in good condition; 32% is in poor condition and
You may view and download the final report from EPA's Web site at:
Environmental Protection Agency (EPA).
Notice; of public comment period.
The Environmental Protection Agency (EPA) is announcing a 60-day public comment period for the draft IRIS Toxicological Review of tert-Butyl Alcohol. The draft document was prepared by the National Center for Environmental Assessment (NCEA) within EPA's Office of Research and Development (ORD).
EPA is releasing this draft IRIS assessment for public comment and discussion during the June 29-30, 2016 IRIS Public Science Meeting. This draft assessment is not final, as described in EPA's information quality guidelines, and it does not represent, and should not be construed to represent Agency policy or views. EPA will consider all public comments submitted in response to this notice when revising this document.
The 60-day public comment period begins May 16, 2016, and ends July 15, 2016. Comments must be received on or before July 15, 2016.
The draft IRIS Toxicological Review of tert-Butyl Alcohol will be available via the Internet on IRIS' Recent Additions at
For information on the public comment period, contact the ORD Docket at the EPA Headquarters Docket Center; telephone: 202-566-1752; facsimile: 202-566-9744; or email:
For technical information on the draft IRIS assessment of tert-Butyl Alcohol, contact Dr. Janice Lee, NCEA; telephone: 919-541-9458; or email:
EPA's IRIS Program is a human health assessment program that evaluates quantitative and qualitative risk information on effects that may result from exposure to chemicals found in the environment. Through the IRIS Program, EPA provides the highest quality science-based human health assessments to support the Agency's regulatory activities and decisions to protect public health. The IRIS database contains information on chemicals that can be used to support the first two steps (hazard identification and dose-response evaluation) of the human health risk assessment process. When supported by available data, IRIS provides health effects information and toxicity values for health effects (including cancer and effects other than cancer). Government and others combine IRIS toxicity values with exposure information to characterize public health risks of chemicals; this information is then used to support risk management decisions designed to protect public health.
Submit your comments, identified by Docket ID No. EPA-HQ-ORD-2013-0111, by one of the following methods:
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The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is 202-566-1744. Deliveries are only accepted during the docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. If you provide comments by mail or hand delivery, please submit three copies of the comments. For attachments, provide an index, number pages consecutively with the comments, and submit an unbound original and three copies.
Federal Communications Commission.
Notice.
The Incentive Auction Task Force and Wireless Telecommunications Bureau announce the initial clearing target of 126 megahertz for the Broadcast Television Spectrum Incentive Auction and that the bidding in the clock phase of the reverse auction is scheduled to begin on May 31, 2016. This document also announces the mailing of Final Confidential Status Letters, the number of forward auction blocks, and details and dates regarding the availability of educational and informational materials and bidding for reverse auction applicants that are qualified to bid in the reverse auction clock phase.
This is a summary of the
1. The Incentive Auction Task Force (Task Force) and the Wireless Telecommunications Bureau (Bureau) announce the 126 megahertz initial spectrum clearing target that has been set by the Auction System's initial clearing target determination procedure and the associated band plan for the initial stage of the incentive auction, as well as the number of Category 1 and Category 2 generic license blocks in each Partial Economic Area (PEA) that will be offered in the initial stage during the forward auction (Auction 1002). The Task Force and Bureau also announce that they will send a confidential letter (the Final Confidential Status Letter) to inform each applicant that was permitted to make an initial commitment in the reverse auction (Auction 1001) of its status with respect to the clock phase of the reverse auction. Finally, the Task Force and Bureau provide details and specific dates regarding the availability of educational materials and the bidding in the clock phase of the reverse auction.
2. The Auction System's initial clearing target determination procedure has set an initial spectrum clearing target of 126 megahertz. Under the band plan associated with this spectrum clearing target, 100 megahertz, or 10 paired blocks, of licensed spectrum will be offered in the forward auction on a near-nationwide basis.
3. The generic license blocks offered in the initial stage during the forward auction under this band plan will consist of a total of 4030 “Category 1” blocks (zero to 15 percent impairment) and a total of 18 “Category 2” blocks (greater than 15 percent and up to 50 percent impairment). Approximately 97 percent of the blocks offered for the forward auction will be “Category 1” blocks, and 99 percent of the “Category 1” blocks will be zero percent impaired. Attached to the
4. The initial clearing target was determined by the procedure the Commission adopted in the
5. The Bureau will send to the contact person for each applicant that was permitted to make an initial commitment in Auction 1001 a Final Confidential Status Letter to inform the applicant of its status. The letter will notify the applicant, for each station included in the application, either that (1) the station is qualified to participate in the clock phase of the reverse auction; (2) the station is not qualified because no initial commitment was made for that station; (3) the station is not qualified because the commitment(s) made by the applicant for that station could not be accommodated; or (4) the station is not qualified because the Auction System determined that the station is not needed to meet the initial or any subsequent clearing target.
6. Applicants with one or more qualified stations will be deemed qualified bidders for the clock phase of Auction 1001 and will be automatically registered for the auction. The initial commitment is the station's unconditional, irrevocable offer to fulfill the terms of the commitment, which if accepted by the Commission, becomes a
7. Receipt of the registration mailing is critical to participating in both the mock auction and the clock phase of the reverse auction. Therefore, any applicant that has not received the Final Confidential Status Letter package by 12:00 noon Eastern Time (ET) on Wednesday, May 4, 2016, should contact the Auctions Hotline at (717) 338-2868. The contact person for each applicant is responsible for ensuring that each authorized bidder receives all of the information and materials.
8. If the Final Confidential Status Letter indicates that the Auction System has determined that a station is not qualified, the applicant will not be permitted to make any bids for that station in the reverse auction clock phase. Applicants without any qualified stations will not be deemed qualified bidders and will receive along with the Final Confidential Status Letter instructions for returning their RSA SecurID® tokens. The Task Force and Bureau remind all full power and Class A broadcast television licensees, including applicants that are not deemed qualified bidders, that they remain subject to the Commission's rules prohibiting certain communications in connection with Commission auctions until the completion of the forward auction as announced by the Commission by public notice. A party that is subject to the prohibition remains subject to the prohibition regardless of developments during the auction process. In addition, though communicating whether or not a party filed an application does not violate the rules, communicating that a party “is not bidding” in the auction could constitute an apparent violation that needs to be reported. In other words, an applicant that is not qualified to bid may nevertheless violate the prohibition by communicating its status to another covered party, regardless of the reason that it is not qualified.
9. FCC Incentive Auction Reverse Auction Bidding System User Guide. The Task Force and Bureau will make available an “FCC Incentive Auction Reverse Auction Bidding System User Guide,” which will describe the features of the Auction System that will be used to bid in the clock phase of the reverse auction. This user guide will be emailed to each authorized bidder on May 5, 2016. It will also be made available on the Commission's Auction 1001 Web page through a link in the “Education” section on May 5, 2016. Once posted, the user guide will remain available and accessible on the Auction 1001 Web page (
10. Online Bidding Tutorial. An online tutorial regarding bidding in the clock phase of the reverse auction will be available on May 18, 2016. The online tutorial will be accessible from the Auction 1001 Web page through a link in the “Education” section. Once posted, the tutorial will remain available and accessible on the Auction 1001 Web page for reference.
11. Bidding Preview Period. The Auction System will be available during a preview period that will open at 10:00 a.m. ET on May 23, 2016, and close at 6:00 p.m. ET on May 24, 2016. During this preview period, authorized bidders can log in and view the list of stations for which they may make bids in the clock phase, each station's bidding status, the initial relinquishment option assigned to the station, and, where applicable, available bid options with associated vacancy ranges and next round clock price offers.
12. Clock Phase Workshop. On May 24, 2016, from 10:00 a.m. ET to 1:00 p.m. ET, the Task Force, in conjunction with the Media and Wireless Telecommunications Bureaus (the Bureaus), will host a public workshop on the bidding system that will be used for bidding in the clock phase of Auction 1001. Details about the workshop and remote viewing will be released at a later date. After the event, a recording of the clock phase workshop will be accessible from the Auction 1001 Web page through a link in the “Education” section. Once posted, the clock phase workshop will remain available and accessible on the Auction 1001 Web page for reference.
13. Mock Auction and Mock Auction Preview Period. The Task Force and Bureaus will conduct one mock auction for all bidders qualified to bid in the clock phase of Auction 1001 beginning on May 25, 2016, and ending on May 26, 2016. The schedule of rounds for the mock auction is as follows. On May 25, 2016: Mock Bidding Round 1 (10:00 a.m.—12:00 p.m. ET) and Mock Bidding Round 2 (3:00 p.m.—5:00 p.m. ET). On May 26, 2016: Mock Bidding Round 3 (10:00 a.m.—11:00 a.m. ET); Mock Bidding Round 4 (1:00 p.m.—2:00 p.m. ET); and Mock Bidding Round 5 (4:00 p.m.—5:00 p.m. ET).
14. The mock auction will allow qualified bidders to become familiar with the clock phase bidding system and to ask Commission auction and technical support staff questions about the system and auction conduct. The Auction System will provide each bidder with a number and variety of stations for the mock auction similar to what the bidder will have during the actual clock phase of the reverse auction. The station(s) assigned to a bidder in the mock auction will be hypothetical, rather than the bidder's actual station(s) that it is qualified to bid for in the clock phase of the reverse auction, and the price offers that bidders see in the mock auction will not be the same as the actual price offers they see in the reverse auction itself. The mock auction will simulate the start of the auction, and each bidder will be allowed to submit bids for the stations shown. If a bidder does not make bids for a station, the station will be eliminated from further bidding in the mock auction. A bidder should take advantage of the mock auction to practice taking actions it may wish to take during actual bidding in the clock phase of Auction 1001 and to further familiarize itself with the bidding software.
15. The Task Force and Bureaus will conduct the mock auction over the Internet and provide the option of bidding by telephone. During a preview period that will open on the first day of the mock auction, May 25, 2016, at 9:00 a.m. ET and remain open until 10:00 a.m. ET, authorized bidders will be able to log in and view the list of stations for which they may make bids during the mock auction. A qualified bidder will be able to access the mock auction during the preview period at the link provided in the materials that accompany the Final Confidential Status Letter. That link will also be used to bid in the mock auction. The Task Force and Bureaus strongly recommend that all qualified bidders participate in the mock auction.
16. Clocks Rounds Start Date and Round Schedule. Bidding in the clock phase of Auction 1001 will begin on May 31, 2016, on the following schedule: May 31, 2016: Bidding Round (10:00 a.m.-4:00 p.m. ET) and June 1, 2016: Bidding Round (10:00 a.m.-2:00
Federal Election Commission.
Thursday, May 19, 2016 at 10:00 a.m.
999 E Street NW., Washington, DC (Ninth Floor).
This meeting will be open to the public.
Individuals who plan to attend and require special assistance, such as sign language interpretation or other reasonable accommodations, should contact Shawn Woodhead Werth, Secretary and Clerk, at (202) 694-1040, at least 72 hours prior to the meeting date.
Judith Ingram, Press Officer, Telephone: (202) 694-1220.
Federal Maritime Commission.
May 19, 2016; 10:00 a.m.
800 N. Capitol Street NW., First Floor Hearing Room, Washington, DC.
The first portion of the meeting will be held in Open Session; the second in Closed Session.
Karen V. Gregory, Secretary, (202) 523 5725.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than June 9, 2016.
A. Federal Reserve Bank of Chicago (Colette A. Fried, Assistant Vice President) 230 South LaSalle Street, Chicago, Illinois 60690-1414:
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B. Federal Reserve Bank of Minneapolis (Jacquelyn K. Brunmeier, Assistant Vice President) 90 Hennepin Avenue, Minneapolis, Minnesota 55480-0291:
1. J
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than May 31, 2016.
A. Federal Reserve Bank of Philadelphia (William Lang, Senior Vice President) 100 North 6th Street, Philadelphia, Pennsylvania 19105-1521:
B. Federal Reserve Bank of Chicago (Colette A. Fried, Assistant Vice President) 230 South LaSalle Street, Chicago, Illinois 60690-1414:
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The companies listed in this notice have given notice under the Home Owners' Loan Act (HOLA) (12 U.S.C. 1461
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 10a(c)(4)(B) of HOLA (12. U.S.C. 1467a(c)(4)(B)).
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than May 31, 2016.
A. Federal Reserve Bank of Cleveland (Nadine Wallman, Vice President) 1455 East Sixth Street, Cleveland, Ohio 44101-2566. Comments can also be sent electronically to
1.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than June 9, 2016.
A. Federal Reserve Bank of Dallas (Robert L. Triplett III, Senior Vice President) 2200 North Pearl Street, Dallas, Texas 75201-2272:
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Office of the Chief Acquisition Officer, General Services Administration (GSA).
Notice of request for comments regarding an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat Division will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a previously approved information collection requirement for Proposal to Lease Space, GSA Form 1364 and Lessor's Annual Cost Statement, GSA Form 1217. The approval requested includes four versions of the GSA Form 1364; GSA Forms 1364, 1364A, 1364A-1, and 1364WH. These forms are used to obtain information for offer evaluation and lease award purposes regarding property being offered for lease to house Federal agencies. This includes financial aspects of offers for analysis and negotiation, such as real estate taxes, adjustments for vacant space, and offeror construction overhead fees. A notice was published in the
A total of six lease contract models have been developed to meet the needs of the national leased portfolio. Five of the lease models require offerors to complete a GSA Form 1364 and four require a GSA Form 1217. The GSA Form 1364 versions requires the submission of information specifically aligned with certain leasing models and avoids mandating submission of
Three lease models, Streamlined, Standard, and Succeeding/Superseding, use GSA Form 1364. The 1364 captures all rental components, including the pricing for the initial tenant improvements. The global nature of the 1364 provides flexibility in capturing tenant improvement pricing based on either allowance or turnkey pricing, as required by the solicitation.
The Simplified Lease Model uses GSA Forms 1364A and 1364A-1. This model obtains a firm, fixed price for rent, which includes the cost of tenant improvement construction. Therefore, leases using the Simplified model do not include post-award tenant improvement cost information on the form. The 1364A includes rental rate components and cost data that becomes part of the lease contract and that is necessary to satisfy GSA pricing policy requirements. The 1364A-1 is a checklist that addresses technical requirements as referenced in the Request for Lease Proposals. The 1364A-1 is separate from the proposal itself and is maintained in the lease file; it does not become an exhibit to the lease. The 1364A-1 may contain proprietary offeror information that cannot be released under the Freedom of Information Act.
The Warehouse Lease Model uses GSA Form 1364WH. This model is specifically designed to accommodate the special characteristics of warehouse space and is optimized for space whose predominant use is for storage, distribution, or manufacturing. The 1364WH captures building characteristics unique to warehouse facilities and allows for evaluation of offers based on either area or volume calculations.
The Streamlined, Standard, Succeeding/Superseding, and Warehouse Lease Models use GSA Form 1217. GSA Form 1217 captures the estimated annual cost of services and utilities and the estimated costs of ownership, exclusive of capital charges. These costs are listed for both the entire building and the area proposed for lease to the Government, broken down into specific categories. The GSA Form 1217 was not included in the previous information collection notice and supporting statement. The previous omission was an error that is corrected by inclusion in this information collection request.
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Ms. Christina Mullins, Procurement Analyst, General Services Acquisition Policy Division, 202-969-4066 or via email at
The General Services Administration has various mission responsibilities related to the acquisition and provision of real property management, and disposal of real and personal property. These mission responsibilities generate requirements that are realized through the solicitation and award of leasing contracts. Individual solicitations and resulting contracts may impose unique information collection/reporting requirements on contractors, not required by regulation, but necessary to (1) evaluate whether the physical attributes of offered properties meet the Government's requirements and (2) evaluate the owner/offeror's price proposal.
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
PERFORMANCE PROGRESS AND EVALUATION REPORT (PPER)—Existing Collection in use without an OMB Control Number—Office of Financial Resources (OFR), Centers for Disease Control and Prevention (CDC).
Each year, approximately 80% of the Centers for Disease Control and Prevention's (CDC) budget is distributed via contracts, grants and cooperative agreements, from the Procurements and Grants Office (PGO) to partners throughout the world to promote health, prevent disease, injury and disability and prepare for new health threats. PGO is responsible for the stewardship of these funds while providing excellent, professional services to our partners and stakeholders.
Currently, CDC uses SF-PPR (a progress report form for Non-Research awards) or other methods to collect information semi-annually from Awardees regarding the progress made over specified time periods on CDC funded projects. The SF-PPR (OMB Control Number: 0970-0406, Expiration Date: 10/31/2015) is owned by the Administration for Children and Families (ACF) within the Department of Health and Human Services (HHS). This ICR is being developed by CDC to create a CDC-wide collection tool called the Progress Performance and Evaluation Report (PPER) that will be used to collect data on the progress of CDC Awardees for the purposes of evaluation and to bring the Awardee reporting procedure into compliance with the Paperwork Reduction Act (PRA).
The information collected will enable the accurate, reliable, uniform, and timely submission to CDC, of each Awardee's work plans and progress reports, including strategies, activities and performance measures. The information collected by the PPER is designed to align with, and support the goals outlined for each of the CDC Awardees. Collection and reporting of the information will occur in an efficient, standardized, and user-friendly manner that will generate a variety of routine and customizable reports. The PPER will allow each Awardee to summarize activities and progress towards meeting performance measures and goals over a specified time period specific to each award. CDC will also have the capacity to generate reports that describe activities across multiple Awardees. In addition, CDC will use the information collection to respond to inquiries from HHS, Congress and other stakeholder inquiries about program activities and their impact. The total estimated burden is 6,400 hours. There is no cost to respondents other than their time.
Part C (Centers for Disease Control and Prevention) of the Statement of Organization, Functions, and Delegations of Authority of the Department of Health and Human Services (45 FR 67772-76, dated October 14, 1980, and corrected at 45 FR 69296, October 20, 1980, as amended most recently at 81 FR 5442-5444, dated February 2, 2016) is amended to reflect the reorganization of the National Institute for Occupational Safety and Health, Centers for Disease Control and Prevention.
Section C-B, Organization and Functions, is hereby amended as follows:
Delete in its entirety the title and the mission and function statements for the
Centers for Medicare & Medicaid Services, Department of Health and Human Services.
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 July 15, 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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2.
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The law directs QHP issuers to notify the Secretary of the Department of Health and Human Services (HHS) of cost-sharing reductions made under the statute for qualified individuals, and directs the Secretary to make periodic and timely payments to the QHP issuer equal to the value of those reductions. Further, the law permits advance payment of the cost-sharing reduction amounts to QHP issuers based upon amounts specified by the Secretary.
Under established HHS regulations, QHP issuers will receive advance payments of the cost-sharing reductions throughout the year. Each issuer will then be subject to one of two reconciliation processes after the year to ensure that HHS reimbursed each issuer the correct advance cost-sharing amount. This information collection request establishes the data collection requirements for a QHP issuer to report to HHS which reconciliation reporting option the issuer will be subject to for a given benefit year.
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 (PRA), federal agencies are required to publish a notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by June 15, 2016:
When commenting on the proposed information collections, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be received by the OMB desk officer via one of the following transmissions: OMB, Office of Information and Regulatory Affairs, Attention: CMS Desk Officer, Fax Number: (202) 395-5806
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.
Under the Paperwork Reduction Act of 1995 (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 (44 U.S.C. 3506(c)(2)(A)) requires federal agencies to publish a 30-day notice in the
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Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA) is announcing the availability of a guidance for industry entitled “Considerations for Use of Histopathology and Its Associated Methodologies to Support Biomarker Qualification.” This guidance is intended to assist submitters of a biomarker for qualification that conduct nonclinical biomarker qualification studies in which histopathology is used as a reference or truth standard. This guidance discusses the processes that we recommend be considered when generating histopathology data to be included in biomarker studies and outlines the scientific standards recommended for histopathology used in nonclinical biomarker characterization and qualification. The recommendations in this guidance are intended for confirmatory studies in nonclinical biomarker qualification that justify the proposed context of use, where scientifically rigorous evaluation of biomarker performance in relation to histopathologic changes is essential. The principles outlined in this guidance are also applicable to exploratory nonclinical biomarker studies. This guidance finalizes the draft guidance “Use of Histology in Biomarker Qualification Studies,” issued in December 2011.
Submit either electronic or written comments on Agency guidances at any time.
You may submit comments as follows:
•
• 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”).
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• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Submit written requests for single copies of this guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing
Elizabeth Hausner, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, Rm. 4145, Silver Spring, MD 20993-0002, 301-796-1084.
FDA is announcing the availability of a guidance for industry entitled “Considerations for Use of Histopathology and Its Associated Methodologies to Support Biomarker Qualification.” The FDA Critical Path Initiative identified the discovery, characterization, qualification, and use of biomarkers as important for improving the efficiency and success rate of medical product development. Biomarkers have been broadly applied to describe the following:
• Structural features from the molecular to the anatomic level (
• Biochemical measurements (
• Physiologic organ system function tests (
The type of study reports to be submitted in support of a biomarker qualification will depend upon the proposed context of use and the ultimate goal of the submission. The proposed context of use dictates the depth, extent, and rigor of the supporting data for the biomarker. If a biomarker becomes qualified, analytically valid measurements of it can be relied upon to have a specific and interpretable meaning (
In the
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of FDA on considerations for the use of histopathology and its associated methodologies to support biomarker qualification. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
This guidance contains information collection provisions that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in this guidance were approved under OMB control numbers 0910-0001 for submissions related to 21 CFR 314, and 0910-0014 for submissions related to 21 CFR 312.
Persons with access to the Internet may obtain the document at either
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of the guidance entitled “Postmarket Surveillance Under Section 522 of the Federal Food, Drug, and Cosmetic Act.” This guidance is intended to assist manufacturers of devices subject to section 522 postmarket surveillance orders by providing an overview of the Federal Food, Drug, and Cosmetic Act (the FD&C Act), information on how to fulfill section 522 obligations, and recommendations on the format, content, and review of postmarket surveillance plan submissions.
Submit either electronic or written comments on this guidance at any time. General comments on Agency guidance documents are welcome at any time.
You may submit comments as follows:
Submit electronic comments in the following way:
•
• 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
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.”
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Submit written requests for single copies of the guidance to the Office of the Center Director, Guidance and Policy Development, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5431, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your request. The guidance may also be obtained by mail by calling CBER at 1-800-835-4709 or 240-402-8010. See the
Nicole Jones, Associate Director Program Operations, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 4108, Silver Spring, MD 20993-0002, 301-796-6062.
Section 522 of the FD&C Act (21 U.S.C. 360
FDA issued the draft of this guidance, originally entitled “Draft Guidance for Industry and Food and Drug Administration Staff; Procedures for Handling Section 522 Postmarket Surveillance Studies,” on August 16, 2011 (76 FR 50740). The comment period ended on November 14, 2011.
This document supersedes the guidance entitled, “Guidance for Industry and FDA Staff; Postmarket Surveillance under Section 522 of the Federal Food, Drug, and Cosmetic Act,” dated April 27, 2006.
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of FDA on postmarket surveillance under section 522 of the FD&C Act. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
Persons interested in obtaining a copy of the guidance may do so by downloading an electronic copy from the Internet. A search capability for all Center for Devices and Radiological Health guidance documents is available at
This guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR part 822 have been approved under 0910-0449.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by June 15, 2016.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, FAX: 202-395-7285, or emailed to
FDA PRA Staff, Office of Operations, Food and Drug Administration, 8455 Colesville Rd., COLE-14526, Silver Spring, MD 20993-0002,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Under section 520(m) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 360j(m)), FDA is authorized to exempt a humanitarian use device (HUD) from the effectiveness requirements in sections 514 and 515 of the FD&C Act (21 U.S.C. 360d and 360e) provided that the device: (1) Is used to treat or diagnose a disease or condition that affects fewer than 4,000 individuals in the United States; (2) would not be available to a person with such a disease or condition unless the exemption is granted, and there is no comparable device, other than another HUD approved under this exemption, available to treat or diagnose the disease or condition; (3) the device will not expose patients to an unreasonable or significant risk of illness or injury; and (4) the probable benefit to health from using the device outweighs the risk of injury or illness from its use, taking into account the probable risks and benefits of currently available devices or alternative forms of treatment.
HUDs approved under an HDE cannot be sold for an amount that exceeds the costs of research and development, fabrication, and distribution of the device (
Section 520(m)(6)(A)(ii) of the FD&C Act, as amended by FDASIA, provides that the Secretary of Health and Human Services will assign an annual distribution number (ADN) for devices that meet the eligibility criteria to be permitted to be sold for profit. The ADN is defined as the number of devices “reasonably needed to treat, diagnose, or cure a population of 4,000 individuals in the United States”, and therefore shall be based on the following information in a HDE application: The number of devices reasonably necessary to treat such individuals.
Section 520(m)(6)(A)(iii) of the FD&C Act (
On August 5, 2008, FDA issued a guidance entitled “Guidance for HDE Holders, Institutional Review Boards (IRBs), Clinical Investigators, and Food and Drug Administration Staff—Humanitarian Device Exemption (HDE) Regulation: Questions and Answers” (
In the
FDA is requesting the extension of OMB approval for the collection of information required under the statutory mandate of sections 515A (21 U.S.C. 360e-1) and 520(m) of the FD&C Act as amended.
In the
FDA estimates the burden of this collection of information as follows:
FDA's Center for Devices and Radiological Health receives an estimated average of six HDE applications per year. FDA estimates that three of these applications will be indicated for pediatric use. We estimate that we will receive approximately two requests for determination of eligibility criteria per year. FDA estimates that very few or no HDE holders will notify the Agency that the number of devices distributed in the year has exceeded the ADN. FDA estimates that five HDE holders will petition to have the ADN modified due to additional information on the number of individuals affected by the disease or condition.
Indian Health Service, HHS.
Notice; correction.
The Indian Health Service published a document in the
Michelle Eagle Hawk, Deputy Director, Office of Direct Service and Contracting Tribes, Indian Health Service, 5600 Fishers Lane, Mail Stop 08E17, Rockville, MD 20857, telephone (301) 443-1104. (This is not a toll-free number.)
In the
The total amount of funding identified for the current fiscal year (FY) 2016 is approximately $2,412,000.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App. 2), notice is hereby given of the joint meeting of the National Cancer Advisory Board (NCAB) and NCI Board of Scientific Advisors (BSA).
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting. The open session will be videocast and can be accessed from the NIH Videocasting and Podcasting Web site (
A portion of the National Cancer Advisory Board meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information is also available on the Institute's/Center's home page:
NCAB:
BSA:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications/contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications/contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material,
Notice is hereby given of the cancellation of the PubMed Central National Advisory Committee, June 7, 2016, 9:30 a.m. to June 7, 2016, 3:00 p.m., National Library of Medicine, Building 38, 2nd Floor, Lindberg Room, 8600 Rockville Pike, Bethesda, MD 20892 which was published on January 26, 2016, 81 FR 16, Page 4314.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Contact Person: Atul Sahai, Ph.D., Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 2188, MSC 7818, Bethesda, MD 20892, 301-435-1198,
Contact Person: Weijia Ni, Ph.D., Chief/Scientific Review Officer, Center for Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 3100, MSC 7808, Bethesda, MD 20892, 301-594-3292,
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
U.S. Customs and Border Protection, Department of Homeland Security.
General notice.
This document announces that the Automated Commercial Environment (ACE) will be the sole electronic data interchange (EDI) system authorized by the Commissioner of U.S. Customs and Border Protection (CBP) for processing electronic entries and entry summaries associated with the entry types specified in this notice, for merchandise that is subject to the import requirements of the Food and Drug Administration (FDA). This document also announces that the Automated Commercial System (ACS) will no longer be a CBP-authorized EDI system for purposes of processing these electronic filings.
Questions related to this notice may be emailed to
Section 484 of the Tariff Act of 1930, as amended (19 U.S.C. 1484), establishes the requirement for importers of record to make entry for merchandise to be imported into the customs territory of the United States. Customs entry information is used by U.S. Customs and Border Protection (CBP) and Partner Government Agencies (PGAs) to determine whether merchandise may be released from CBP custody. Importers of record are also obligated to complete the entry by filing an entry summary declaring the value, classification, rate of duty applicable to the merchandise and such other information as is necessary for CBP to properly assess duties, collect accurate statistics and determine whether any other applicable requirement of law is met.
The customs entry requirements were amended by Title VI of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057, December 8, 1993), commonly known as the Customs Modernization Act, or Mod Act. In particular, section 637 of the Mod Act amended section 484(a)(1)(A) of the Tariff Act of 1930 (19 U.S.C. 1484(a)(1)(A)) by revising the requirement to make and complete customs entry by submitting documentation to CBP to allow, in the alternative, the electronic transmission of such entry information pursuant to a CBP-authorized electronic data interchange (EDI) system. CBP created the Automated Commercial System (ACS) to track, control, and process all commercial goods imported into the United States. CBP established the specific requirements and procedures for the electronic filing of entry and entry summary data for imported merchandise through the Automated Broker Interface (ABI) to ACS.
In an effort to modernize the business processes essential to securing U.S. borders, facilitating the flow of legitimate shipments, and targeting illicit goods pursuant to the Mod Act and the Security and Accountability for Every (SAFE) Port Act of 2006 (Pub. L. 109-347, 120 Stat. 1884), CBP developed the Automated Commercial Environment (ACE) to eventually replace ACS as the CBP-authorized EDI system. Over the last several years, CBP has tested ACE and provided significant public outreach to ensure that the trade community is fully aware of the transition from ACS to ACE.
On February 19, 2014, President Obama issued Executive Order (E.O.) 13659,
On October 13, 2015, CBP published an Interim Final Rule in the
CBP has developed a staggered transition strategy for decommissioning ACS. The first two phases of the transition were announced in a
This notice announces that, effective June 15, 2016, ACE will be the sole CBP-authorized EDI system for electronic entries and entry summaries for merchandise that is subject to import requirements of the Food and Drug Administration (FDA), associated with the following entry types:
CBP will publish a subsequent
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of final determination.
This document provides notice that U.S. Customs and Border Protection (“CBP”) has issued a final determination concerning the country of origin of two pieces of exercise equipment known as the Matrix® G3-S60 Selectorized Dip/Chin Assist and the Matrix® G3-FW52 Back Extension Bench. Based upon the facts presented, CBP has concluded that the country of origin of the exercise equipment is the United States under Scenario One and China under Scenario 2.
The final determination was issued on May 10, 2016. A copy of the final determination is attached. Any party-at-interest, as defined in 19 CFR 177.22(d), may seek judicial review of this final determination no later than June 15, 2016.
Ross Cunningham, Valuation and Special Programs Branch, Regulations and Rulings, Office of Trade (202) 325-0034.
Notice is hereby given that on May 10, 2016, pursuant to subpart B of Part 177, U.S. Customs and Border Protection Regulations (19 CFR part 177, subpart B), CBP issued a final determination concerning the country of origin of two pieces of exercise equipment known as the Matrix® G3-S60 Selectorized Dip/Chin Assist and the Matrix® G3-FW52 Back Extension Bench, which may be offered to the U.S. Government under an undesignated government procurement contract. This final determination, HQ H270580, was issued under procedures set forth at 19 CFR part 177, subpart B, which implements Title III of the Trade Agreements Act of 1979, as amended (19 U.S.C. 2511-18). In the final determination, CBP concluded that under Scenario One, the processing in the United States results in a substantial transformation, whereas under Scenario Two, the processing in the United States does not result in a substantial transformation. Therefore, the country of origin of the exercise equipment for purposes of U.S. Government procurement is the United States under Scenario One and China under Scenario Two.
Section 177.29, CBP Regulations (19 CFR 177.29), provides that a notice of final determination shall be published in the
This is in response to your letter dated November 3, 2015, requesting a final determination on behalf of Johnson Health Tech North America (“Johnson”) pursuant to Subpart B of Part 177 of the U.S. Customs and Border Protection (“CBP”) Regulations (19 CFR part 177). Under these regulations, which implement Title III of the Trade Agreements Act of 1979 (“TAA”), as amended (19 U.S.C. 2511
Johnson is an exercise equipment manufacturer based in Cottage Grove, Wisconsin. It is a wholly-owned subsidiary of the Taiwanese entity Johnson Health Tech. Co., Ltd. (“JHT”). JHT, through its subsidiaries, operates in Taiwan, China, and the United States.
The two pieces of equipment at issue are the Matrix® G3-S60 Selectorized Dip/Chin Assist (“G3 Dip”) and the Matrix® G3-FW52 Back Extension Bench (“G3 Back Extension”). The G3 Dip machine is designed to be used for pull-ups and triceps dips. The user kneels on a counterweighted lever that supports some of the user's body weight during pull-up or triceps-dip exercises. This upward pressure helps the user develop strength before transitioning to unassisted pull-ups or triceps dips. The G3 Back Extension is an adjustable bench, angled at 45 degrees, designed to be used for lower-back exercises such as hyperextensions.
In its submission, Johnson described two scenarios for assembling the exercise equipment in the United States. The first scenario would apply to both the G3 Dip and the G3 Back Extension and involves importing all component parts for the equipment from China and welding, painting, and assembling them in the United States. The second scenario would apply only to the G3 Dip and is similar to the first scenario except that some of the sub-assemblies would be welded together in China. The specifics of each scenario are described in greater detail below.
Johnson states that the G3 Dip and G3 Back Extension will be derived from previous industrial designs that were completed in the United States, although some additional U.S. industrial design may be needed to refresh the look of the equipment. In the design process, U.S.-based engineers will use SolidWorks software to create 3D models and 2D drawings from computer models. Each unit will generally require between 100 and 200 2D computer drawings representing between 300 and 500 separate components and subassemblies. These 2D drawings will then be used as the blueprints in the manufacturing process.
The G3 Dip will consist of approximately 500 parts all produced in China from Chinese materials except for the cable that connects the weights to the counterweight. This cable will be procured from a U.S. supplier but is of unknown origin. The G3 Back Extension will consist of approximately 200 parts all produced in China from Chinese materials.
Johnson states that the equipment will consist of a number of major subassemblies referred to as “weldments.” Each weldment consists of a number of metal parts that are welded together to create a major component. These weldments are subsequently either welded or bolted together to form the finished product.
Nine weldments will comprise the G3 Dip: (1) The weight tower frame; (2) the base frame with steps; (3) the kneel pad support; (4) the left-hand chin-up bars; (5) the right-hand chin-up bars; (6) the head plate; (7) the add-a-weight frame support; (8) the add-a-weight weight stack support; and (9) the belt termination. The G3 Back Extension will have three weldments: (1) the base exercise frame; (2) the telescopic adjustment tube; and (3) the thigh pad support.
Johnson notes that none of the parts as imported from China or the weldments as assembled in the United States will be able to function on their own until they are assembled, welded, or bolted together in the United States.
In China, Johnson will purchase steel tubing that becomes the basis for the equipment's frame. The tubes will be cut to length, punched or drilled, and bent into the required shape before being packaged with individual parts and sent to the United States.
In the United States, Johnson will first clean the steel tubes in a steam booth and then clamp them into various weld fixtures for welding into weldments.
With respect to the G3 Dip, each weldment will require the following number of welding seams to fuse the various metal components together:
(1) Weight Tower Frame—18 seams;
(2) Base Frame With Steps—12 seams;
(3) Kneel Pad Support—6 seams;
(4) Left-Hand Chin-Up Bar—4 seams;
(5) Right-Hand Chin-Up Bar—4 seams;
(6) Head Plate—1 seam;
(7) Add-A-Weight Frame Support—1 seam;
(8) Add-A-Weight Weight Stack Support—1 seam;
(9) Belt Termination—2 seams.
With respect to the G3 Back Extension each weldment will need the following number of welding seams to fuse the various metal components together:
(1) Base Exercise Frame—16 seams;
(2) Telescopic Adjustment Tube—4 seams;
(3) Thigh Pad Support—2 seams.
After welding the metal components, workers will grind down some of the welds to ensure a proper fit for the final product. Next, metal components will be painted with powder-coat paint and placed into a paint oven to cure the paint. Some of the painted components will then be painted a second time with clear coat to protect the finish. At this point, all components and subassemblies will be ready for assembly into the final product, which will involve bolting together weldments; fastening hardware; adding rubber grips; capping off tube ends; positioning pulleys; adding weights, cables, or belts; and placing warning placards.
For the G3 Dip, Johnson states that it will take approximately 255 steps to assemble the 500 parts that make up the final product. As for the G3 Back Extension, it will take workers 148 steps to assemble the 200 parts that comprise the finished bench.
Johnson states that significant inspection and testing will be required for each piece of G3 equipment. The inspection will generally consist of a geometric measurement and analysis of the incoming components, a visual inspection of defects in workmanship and materials, functional testing of assembled units, inspection of paint, and cable tensile testing.
Johnson states that in order to assemble equipment in the United States using Scenario 1, it will need to hire at least 16 additional employees in the United States. Further investments will also need to be made in designing and building at least two new weld features, expanding into or acquiring new factory space, and updating IT infrastructure.
As noted above, Scenario Two would apply only to the G3 Dip machine. It is similar to Scenario One except that three of the nine weldments will be welded together in China and sent to the United States as pre-welded components: (1) the add-a-weight frame support; (2) the add-a-weight weight stack support; and (3) the belt termination. Workers in the United States will then conduct a pre-cleaning and degreasing, an incoming inspection, painting and curing, and assembly on the Chinese-produced weldments. As a result of the additional welding in China, four fewer welding seams would be needed in the United States under Scenario 2. Otherwise, the steps required under Scenario 2 are the same as those described above under “Description of the Manufacturing Process” for Scenario 1. Johnson states that it will take 210 steps to assemble the G3 Dip under Scenario Two and will require 17 additional employees in the United States (one employee more than under Scenario One due to the additional inspections required).
What is the country of origin of the G3 Back Extension and the G3 Dip for purposes of U.S. government procurement?
Pursuant to subpart B of part 177, 19 CFR 177.21
Under the rule of origin set forth under 19 U.S.C. 2518(4)(B):
An article is a product of a country or instrumentality only if (i) it is wholly the growth, product, or manufacture of that country or instrumentality, or (ii) in the case of an article which consists in whole or in part of materials from another country or instrumentality, it has been substantially transformed into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was so transformed.
In rendering advisory rulings and final determinations for purposes of U.S. Government procurement, CBP applies the provisions of subpart B of part 177 consistent with Federal Acquisition Regulations.
. . . an article that is mined, produced, or manufactured in the United States or that is substantially transformed in the United States into a new and different article of commerce with a name, character, or use distinct from that of the article or articles from which it was transformed.
In order to determine whether a substantial transformation occurs when components of various origins are assembled into completed products, the determinative issue is the extent of operations performed and whether the parts lose their identity and become an integral part of the new article.
CBP has consistently held that complex and meaningful assembly operations in the United States can result in a substantial transformation.
Similarly, the Court of International Trade has applied the “essence test” to determine whether the identity of an article is changed through assembly or processing. For example, in
Here, with respect to Scenario One, although all or nearly all the parts will be of Chinese origin, the extent of U.S. assembly operations is sufficiently complex and meaningful to result in a substantial transformation. Unlike the exercise equipment at issue in HQ 733188, the G3 Dip and G3 Back Extension under Scenario One will not be essentially complete when their component parts are imported. To the contrary, they will require substantial additional work to create a functional article of commerce. Under Scenario 1 for the G3 Dip, U.S. workers will need to produce nine separate weldments and weld 49 seams to create the major components that comprise the finished equipment. Likewise, with respect to the G3 Back Extension, U.S. workers will need to produce three separate weldments and weld 22 seams to create the major components that comprise the finished equipment.
In addition to the extensive welding operations that U.S. workers will undertake in Wisconsin, the parts that make up the frame will need to be cleaned and degreased, ground down, and sprayed with paint and clear coat in the United States. Next, workers will assemble 200 to 500 individual parts that go into the final product in an assembly process that will involve 148 to 255 individual steps. The assembly process will involve fastening hardware; adding rubber grips; capping off tube ends; positioning pulleys; adding weights, cables, or belts; and placing warning placards. Together with the U.S. welding operations, this assembly will cause the individual parts to lose their separate identities and to become integral components of a product with a new name, character, and use.
In addition to the extent and complexity of the U.S. assembly operations, several additional factors weigh in favor of finding that a substantial transformation will occur in the United States. As noted above, CBP also considers the resources expended on product design and development in the United States and the degree of skill required during the actual manufacturing process. Here, Johnson will expend significant resources in the United States on product development when its U.S.-based engineers create 3D CAD models and 2D drawings for use as blueprints during the manufacturing process. Furthermore, these engineers and the workers who will weld the subassemblies together require significant education, skill, and attention to detail.
With respect to Scenario Two, however, three of the G3 Dip's weldments will be imported from China as pre-assembled components (the add-a-weight frame support, the add-a-weight weight stack support, and the belt termination). Under
Based on the facts presented, the country of origin of the exercise equipment is the United States under Scenario One and China under Scenario Two.
The country of origin of the finished exercise equipment under Scenario One is the United States for purposes of government procurement and China under Scenario Two.
Notice of this final determination will be given in the
Federal Emergency Management Agency, DHS.
Notice.
The Federal Emergency Management Agency, 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 an extension, without change, of a currently approved information collection. In accordance with the Paperwork Reduction Act of 1995, this notice seeks comments concerning information collected for the Public Assistance (PA) program eligibility determinations, grants management, and compliance with Federal laws and regulations.
Comments must be submitted on or before July 15, 2016.
To avoid duplicate submissions to the docket, please use only one of the following means to submit comments:
(1)
(2)
All submissions received must include the agency name and Docket ID. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
Cliff Brown, Executive Officer, Recovery Directorate, Public Assistance Division, 202-646-4136. You may contact the Records Management Division for copies of the proposed collection of information at email address:
The Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5207 (the Stafford Act), authorizes grants to assist State, Tribal, and local governments and certain Private Non-Profit entities with the response to and recovery from disasters following Presidentially declared major disasters and emergencies. 44 CFR part 206 specifies the information collections necessary to facilitate the provision of assistance under the PA Program. 44 CFR 206.202 describes the general application procedures for the PA program.
Comments may be submitted as indicated in the
U.S. Citizenship and Immigration Services, Department of Homeland Security.
Notice.
Through this Notice, the Department of Homeland Security (DHS) announces that the Secretary of Homeland Security (Secretary) is extending the designation of Nicaragua for Temporary Protected Status (TPS) for 18 months, from July 6, 2016 through January 5, 2018.
The extension allows currently eligible TPS beneficiaries to retain TPS through January 5, 2018, so long as they otherwise continue to meet the eligibility requirements for TPS. The Secretary has determined that an extension is warranted because conditions in Nicaragua supporting its designation for TPS continue to be met.
Through this Notice, DHS also sets forth procedures necessary for eligible nationals of Nicaragua (or aliens having no nationality who last habitually resided in Nicaragua) to re-register for TPS and to apply for renewal of their Employment Authorization Documents (EAD) with U.S. Citizenship and Immigration Services (USCIS). Re-registration is limited to persons who have previously registered for TPS under the designation of Nicaragua and whose applications have been granted. Certain nationals of Nicaragua (or aliens having no nationality who last habitually resided in Nicaragua) who have not previously applied for TPS may be eligible to apply under the late initial registration provisions if they meet (1) at least one of the late initial filing criteria, and (2) all TPS eligibility criteria (including continuous residence in the United States since December 30, 1998, and continuous physical presence in the United States since January 5, 1999).
For individuals who have already been granted TPS under Nicaragua's designation, the 60-day re-registration period runs from May 16, 2016 through July 15, 2016. USCIS will issue new EADs with a January 5, 2018, expiration date to eligible Nicaragua TPS beneficiaries who timely re-register and apply for EADs under this extension. Given the timeframes involved with processing TPS re-registration applications, DHS recognizes that not all re-registrants will receive new EADs before their current EADs expire on July 5, 2016. Accordingly, through this Notice, DHS automatically extends the validity of EADs issued under the TPS designation of Nicaragua for 6 months, through January 5, 2017, and explains how TPS beneficiaries and their employers may determine which EADs are automatically extended and the impact on Employment Eligibility Verification (Form I-9) and the E-Verify processes.
The 18-month extension of the TPS designation of Nicaragua is effective July 6, 2016, and will remain in effect through January 5, 2018. The 60-day re-registration period runs from May 16, 2016 through July 15, 2016. (
• For further information on TPS, including guidance on the application process and additional information on eligibility, please visit the USCIS TPS Web page at
You can find specific information about Nicaragua's TPS extension by selecting “Nicaragua” from the menu on the left side of the TPS Web page.
• For questions concerning this Notice, you can also contact Jerry Rigdon, Chief of the Waivers and Temporary Services Branch, Service Center Operations Directorate, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529-2060; or by phone at 202-272-1533 (this is not a toll-free number). Note: The phone number provided here is solely for
• Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS Web site at
• Further information will also be available at local USCIS offices upon publication of this Notice.
• TPS is a temporary immigration status granted to eligible nationals of a country designated for TPS under the Immigration and Nationality Act (INA), or to eligible persons without nationality who last habitually resided in the designated country.
• During the TPS designation period, TPS beneficiaries are eligible to remain in the United States, may not be removed, and are authorized to work and obtain EADs so long as they continue to meet the requirements of TPS.
• TPS beneficiaries may also be granted travel authorization as a matter of discretion.
• The granting of TPS does not result in or lead to permanent resident status.
• To qualify for TPS, beneficiaries must meet the eligibility standards at INA section 244(c)(2), 8 U.S.C. 1254a(c)(2).
• When the Secretary terminates a country's TPS designation, although TPS benefits end, former TPS beneficiaries continue to hold any lawful immigration status they maintained or obtained while registered for TPS.
Following the destruction wrought by Hurricane Mitch, which struck Nicaragua in October of 1998, the Attorney General designated Nicaragua for TPS on January 5, 1999, environmental disaster grounds.
Section 244(b)(1) of the INA, 8 U.S.C. 1254a(b)(1), authorizes the Secretary, after consultation with appropriate agencies of the U.S. Government (Government), to designate a foreign state (or part thereof) for TPS if the Secretary determines that certain country conditions exist.
At least 60 days before the expiration of a country's TPS designation or extension, the Secretary, after consultation with appropriate Government agencies, must review the conditions in a foreign state designated for TPS to determine whether the conditions for the TPS designation continue to be met.
DHS and the Department of State (DOS) have reviewed conditions in Nicaragua. Based on the reviews and after consulting with DOS, the Secretary has determined that an 18-month extension is warranted because conditions in Nicaragua supporting its designation for TPS persist. Hurricane Mitch and subsequent environmental disasters have substantially disrupted living conditions in Nicaragua, such that Nicaragua remains unable, temporarily, to handle adequately the return of its nationals.
Hurricane Mitch made landfall in Nicaragua in October 1998. The storm killed 3,045 people and 885 were reported missing. The devastation of Hurricane Mitch affected nearly 868,000 people. Landslides and floods destroyed entire villages and caused extensive damages to the transportation network, housing, medical and educational facilities, water supply and sanitation facilities, and the agricultural sector. Overall damage estimates ranged between $1.3-1.5 billion.
Nicaragua continues to suffer from the residual effects of Hurricane Mitch, and subsequent disasters have caused additional damage and added to the country's fragility. The regions most devastated by Hurricane Mitch continue to be the poorest and least developed in the country. Nicaragua is particularly vulnerable to recurring natural disasters and the impact of climate change, and its resilience to such threats is severely limited by poverty, lack of infrastructure, and governance challenges.
Since the last extension of Nicaragua's TPS designation, Nicaragua has experienced a series of environmental disasters that have exacerbated the persisting disruptions caused by Hurricane Mitch and significantly compromised Nicaragua's ability to adequately handle the return of its nationals. Nicaragua suffered from heavy rains and extensive flooding in October 2014, May 2015, and June 2015. Significant earthquakes struck in Nicaragua and off its coast in April and October of 2014. Between early May and late July 2015, the Telica volcano erupted 426 times, causing respiratory problems in neighboring communities. Much of the country is suffering from a prolonged regional drought, which, combined with the coffee rust epidemic
Hurricane Mitch and subsequent environmental disasters have had a significant negative effect on Nicaragua's infrastructure. Only a fraction of the 41,000 homes that were damaged or destroyed by Hurricane Mitch have been reconstructed. Heavy rains, flooding, and earthquakes have continued to destroy or degrade the country's housing stock, leaving Nicaragua with a chronic housing deficit. Damages to roads and bridges accounted for approximately 60 percent of Mitch-related reconstruction costs. Approximately 1,500 kilometers of paved and 6,500 kilometers of unpaved roads were damaged and 3,800 meters of bridges were damaged or destroyed. Transportation infrastructure in the regions hardest hit by Hurricane Mitch has not been properly rehabilitated since the storm and has been damaged by subsequent flooding. Only 12 percent of Nicaragua's roads are paved, representing the lowest percentage in Central America. Damage to many schools and health care facilities caused by Hurricane Mitch continues to go unrepaired. Consequently, the need for reconstruction, infrastructure improvement, and disaster preparedness projects remains ongoing.
Based upon this review and after consultation with appropriate Government agencies, the Secretary has determined that:
• Conditions supporting the designation of Nicaragua for TPS continue to be met.
• There continues to be a substantial, but temporary, disruption in living conditions in Nicaragua as a result of an environmental disaster.
• Nicaragua continues to be unable, temporarily, to adequately handle the return of its nationals (or aliens having no nationality who last habitually resided in Nicaragua).
• The designation of Nicaragua for TPS should be extended for an 18-month period from July 6, 2016 through January 5, 2018.
• There are approximately 2,550 current Nicaragua TPS beneficiaries who are expected to file for re-registration under the extension.
By the authority vested in me as Secretary under INA section 244, 8 U.S.C. 1254a, I have determined, after consultation with the appropriate Government agencies that conditions supporting Nicaragua's designation for TPS continue to be met.
To register or re-register for TPS based on the designation of Nicaragua, you must submit each of the following applications:
1. Application for Temporary Protected Status (Form I-821).
• If you are filing an application for late initial registration, you must pay the fee for the Application for Temporary Protected Status (Form I-821).
• If you are filing an application for re-registration, you do not need to pay the fee for the Application for Temporary Protected Status (Form I-821).
2. Application for Employment Authorization (Form I-765).
• If you are applying for late initial registration and want an EAD, you must pay the fee for the Application for Employment Authorization (Form I-765) only if you are age 14 through 65. You do not need to pay this fee if you are under the age of 14 or are 66 or older.
• If you are applying for re-registration, you must pay the fee for the Application for Employment Authorization (Form I-765), regardless of your age, if you want an EAD.
• You do not pay the fee for the Application for Employment Authorization (Form I-765) if you are not requesting an EAD, regardless of whether you are applying for late initial registration or re-registration.
You must submit both completed application forms together. If you are unable to pay the application fee and/or biometrics fee, you may complete a Request for Fee Waiver (Form I-912) or submit a personal letter requesting a fee waiver with satisfactory supporting documentation. For more information on the application forms and fees for TPS, please visit the USCIS TPS Web page at
Biometrics (such as fingerprints) are required for all applicants 14 years and older. Those applicants must submit a biometric services fee. As previously stated, if you are unable to pay for the biometric services fee, you may complete a Request for Fee Waiver (Form I-912) or submit a personal letter requesting a fee waiver with satisfactory supporting documentation. For more information on the biometric services fee, please visit the USCIS Web site at
You should file as soon as possible within the 60-day re-registration period so USCIS can process your application and issue EADs promptly. Filing early will also allow you to have time to re-file your application before the deadline, should USCIS deny your fee waiver request. If, however, you receive a denial of your fee waiver request and are unable to re-file by the re-registration deadline, you may still re-file your application. This situation will be reviewed to determine whether you established good cause for late re-registration. However, you are urged to re-file within 45 days of the date on any USCIS fee waiver denial notice, if possible.
Mail your application for TPS to the proper address in Table 1.
If you were granted TPS by an Immigration Judge (IJ) or the Board of Immigration Appeals (BIA) and you wish to request an EAD or are re-registering for the first time following a grant of TPS by an IJ or the BIA, please mail your application to the appropriate mailing address in Table 1. When submitting a re-registration application and/or requesting an EAD based on an IJ/BIA grant of TPS, please include a copy of the IJ or BIA order granting you TPS with your application. This will aid in the verification of your grant of TPS and processing of your application, as USCIS may not have received records of your grant of TPS by either the IJ or the BIA.
In May 2016, USCIS will begin processing applications for Nicaragua TPS in its electronic immigration system. After you file by paper at the designated USCIS mailing address noted above, USCIS will scan your application(s) and supporting documents for adjudication electronically. You will receive a USCIS Account Acceptance Notice in the mail with instructions on how to create a USCIS online account. USCIS will continue processing your application for TPS Nicaragua even if you choose not to access your online account right away. USCIS also will continue to send you copies of notifications about your case by mail through the U.S. Postal Service.
Having a USCIS online account allows you to:
• Check the status of your case;
• Receive notifications and case updates;
• Respond to requests for evidence; and
• Manage your contact information online, including updating your address.
The filing instructions on the Application for Temporary Protected Status (Form I-821) list all the documents needed to establish basic eligibility for TPS. You may also find information on the acceptable documentation and other requirements for applying or registering for TPS on the USCIS Web site at
If one or more of the questions listed in Part 4, Question 2 of the Application for Temporary Protected Status (Form I-821) applies to you, then you must submit an explanation on a separate sheet(s) of paper and/or additional documentation.
To get case status information about your TPS application, including the status of a request for an EAD, you can check Case Status Online at
Provided that you currently have TPS under the designation of Nicaragua, this Notice automatically extends your EAD by 6 months if you:
• Are a national of Nicaragua (or an alien having no nationality who last habitually resided in Nicaragua);
• Received an EAD under the last extension of TPS for Nicaragua; and
• Have an EAD with a marked expiration date of July 5, 2016, bearing the notation “A-12” or “C-19” on the face of the card under “Category.”
Although this Notice automatically extends your EAD through January 5, 2017, you must re-register timely for TPS in accordance with the procedures described in this Notice if you would like to maintain your TPS.
You can find a list of acceptable document choices on the “Lists of Acceptable Documents” for Employment Eligibility Verification (Form I-9). You can find additional detailed information on the USCIS I-9 Central Web page at
You may present any document from List A (reflecting both your identity and employment authorization) or one document from List B (reflecting identity) together with one document from List C (reflecting employment authorization). An EAD is an acceptable document under “List A.” You may present an acceptable receipt for a List A, List B, or List C document as described in the Employment Eligibility Verification (Form I-9) Instructions. An acceptable receipt is one that shows an employee has applied to replace a document that was lost, stolen, or damaged. If you present an acceptable receipt, you must present your employer with the actual document within 90 days. Employers may not reject a document based on a future expiration date.
If your EAD has an expiration date of July 5, 2016, and states “A-12” or “C-19” under “Category,” it has been extended automatically for 6 months by virtue of this
Even though EADs with an expiration date of July 5, 2016, that state “A-12” or “C-19” under “Category” have been automatically extended for 6 months by this
By January 5, 2017, the expiration date of the automatic extension, your employer must reverify your employment authorization. At that time, you must present any unexpired document from List A or any unexpired document from List C on Employment Eligibility Verification (Form I-9) to reverify employment authorization, or an acceptable List A or List C receipt described in the Employment Eligibility Verification (Form I-9) instructions. Your employer is required to reverify on Employment Eligibility Verification (Form I-9) the employment authorization of current employees upon the automatically extended expiration date of a TPS-related EAD, which is January 5, 2017, in this case. Your employer should use either Section 3 of the Employment Eligibility Verification (Form I-9) originally completed for the employee or, if this section has already been completed or if the version of Employment Eligibility Verification (Form I-9) is no longer valid, complete Section 3 of a new Employment Eligibility Verification (Form I-9) using the most current version. Note that your employer may not specify which List A or List C document employees must present, and cannot reject an acceptable receipt. An acceptable receipt is one that shows an employee has applied to replace a document that was lost, stolen or damaged.
No. When completing Employment Eligibility Verification (Form I-9), including reverifying employment authorization, employers must accept any documentation that appears on the “Lists of Acceptable Documents” for Employment Eligibility Verification (Form I-9) that reasonably appears to be genuine and that relates to you or an acceptable List A, List B, or List C receipt. Employers may not request documentation that does not appear on the “Lists of Acceptable Documents.” Therefore, employers may not request proof of Nicaraguan citizenship or proof of re-registration for TPS when completing Employment Eligibility Verification (Form I-9) for new hires or reverifying the employment authorization of current employees. Refer to the “Note to Employees” section of this Notice for important information about your rights if your employer rejects lawful documentation, requires additional documentation, or otherwise discriminates against you based on your citizenship or immigration status or your national origin. Note that although you are not required to provide your employer with a copy of this
After January 5, 2017, employers may no longer accept the EADs that this
When using an automatically extended EAD to complete Employment Eligibility Verification (Form I-9) for a new job before January 5, 2017, you and your employer should do the following:
1. For Section 1, you should:
a. Check “An alien authorized to work;”
b. Write the automatically extended EAD expiration date (January 5, 2017) in the first space; and
c. Write your alien number (USCIS number or A-number) in the second space (your EAD or other document from DHS will have your USCIS number or A-number printed on it; the USCIS number is the same as your A-number without the A prefix).
2. For Section 2, employers should record the:
a. Document title;
b. Issuing authority;
c. Document number; and
d. Automatically extended EAD expiration date (January 5, 2017).
By January 5, 2017, employers must reverify the employee's employment authorization in Section 3 of the Employment Eligibility Verification (Form I-9).
If you are an existing employee who presented a TPS-related EAD that was valid when you first started your job but that EAD has now been automatically extended, your employer may reinspect your automatically extended EAD if the employer does not have a photocopy of the EAD on file, and you and your employer should correct your previously completed Employment Eligibility Verification (Form I-9) as follows:
1. For Section 1, you should:
a. Draw a line through the expiration date in the first space;
b. Write “January 5, 2017” above the previous date;
c. Write “TPS Ext.” in the margin of Section 1; and
d. Initial and date the correction in the margin of Section 1.
2. For Section 2, employers should:
a. Draw a line through the expiration date written in Section 2;
b. Write “January 5, 2017” above the previous date;
c. Write “EAD Ext.” in the margin of Section 2; and
d. Initial and date the correction in the margin of Section 2.
By January 5, 2017, when the automatic extension of EADs expires, employers must reverify the employee's employment authorization in Section 3.
If you are an employer who participates in E-Verify and you have an employee who is a TPS beneficiary who provided a TPS-related EAD when he or she first started working for you, you will receive a “Work Authorization Documents Expiring” case alert when this EAD is about to expire. Usually, this message is an alert to complete Section 3 of the Employment Eligibility Verification (Form I-9) to reverify an employee's employment authorization. For existing employees with TPS-related EADs that have been automatically extended, employers should dismiss this alert by clicking the red “X” in the “dismiss alert” column and follow the instructions above explaining how to correct the Employment Eligibility Verification (Form I-9). By January 5, 2017, employment authorization must be reverified in Section 3. Employers should not use E-Verify for reverification.
Employers are reminded that the laws requiring proper employment eligibility verification and prohibiting unfair immigration-related employment practices remain in full force. This Notice does not supersede or in any way limit applicable employment verification rules and policy guidance, including those rules setting forth reverification requirements. For general questions about the employment eligibility verification process, employers may call USCIS at 888-464-4218 (TTY 877-875-6028) or email
For general questions about the employment eligibility verification process, you may call USCIS at 888-897-7781 (TTY 877-875-6028) or email
To comply with the law, employers must accept any document or combination of documents from the Lists of Acceptable Documents if the documentation reasonably appears to be genuine and to relate to the employee, or an acceptable List A, List B, or List C receipt described in the Employment Eligibility Verification (Form I-9) Instructions. Employers may not require extra or additional documentation beyond what is required for Employment Eligibility Verification (Form I-9) completion. Further, employers participating in E-Verify who receive an E-Verify case result of “Tentative Nonconfirmation” (TNC) must promptly inform employees of the TNC and give such employees an opportunity to contest the TNC. A TNC case result means that the information entered into E-Verify from Employment Eligibility Verification (Form I-9) differs from Federal or state government records.
Employers may not terminate, suspend, delay training, withhold pay, lower pay, or take any adverse action against you based on your decision to contest a TNC or because the case is still pending with E-Verify. A Final Nonconfirmation (FNC) case result is received when E-Verify cannot verify your employment eligibility. An employer may terminate employment based on a case result of FNC. Work-authorized employees who receive an FNC may call USCIS for assistance at 888-897-7781 (TTY 877-875-6028). If you believe you were discriminated against by an employer in the E-Verify process based on citizenship or immigration status or based on national origin, you may contact OSC's Worker Information Hotline at 800-255-7688 (TTY 800-237-2515). Additional information about proper nondiscriminatory Employment Eligibility Verification (Form I-9) and E-Verify procedures is available on the OSC Web site at
While Federal Government agencies must follow the guidelines laid out by the Federal Government, State and local government agencies establish their own rules and guidelines when granting certain benefits. Each State may have different laws, requirements, and determinations about what documents you need to provide to prove eligibility for certain benefits. Whether you are applying for a Federal, State, or local government benefit, you may need to provide the government agency with documents that show you are a TPS beneficiary and/or show you are authorized to work based on TPS. Examples are:
(1) Your unexpired EAD;
(2) A copy of this
(3) A copy of your Application for Temporary Protected Status Notice of Action (Form I-797) for this re-registration;
(4) A copy of your past or current Application for Temporary Protected Status Approval Notice (Form I-797), if you received one from USCIS; and/or
(5) If there is an automatic extension of work authorization, a copy of the fact sheet from the USCIS TPS Web site that provides information on the automatic extension.
Check with the government agency regarding which document(s) the agency will accept. You may also provide the agency with a copy of this
Some benefit-granting agencies use the USCIS Systematic Alien Verification for Entitlements Program (SAVE) to verify the current immigration status of applicants for public benefits. If such an agency has denied your application based solely or in part on a SAVE response, the agency must offer you the opportunity to appeal the decision in accordance with the agency's procedures. If the agency has received and acted upon or will act upon a SAVE verification and you do not believe the response is correct, you may make an InfoPass appointment for an in-person interview at a local USCIS office. Detailed information on how to make corrections, make an appointment, or submit a written request to correct records under the Freedom of
U.S. Citizenship and Immigration Services, Department of Homeland Security.
30-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection notice was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until June 15, 2016. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, must be directed to the OMB USCIS Desk Officer via email at
You may wish to consider limiting the amount of personal information that you provide in any voluntary submission you make. For additional information please read the Privacy Act notice that is available via the link in the footer of
USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Samantha Deshommes, Acting Chief, 20 Massachusetts Avenue NW., Washington, DC 20529-2140, Telephone number (202) 272-8377 (This is not a toll-free number. Comments are not accepted via telephone message). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS Web site at
You may access the information collection instrument with instructions, or additional information by visiting the Federal eRulemaking Portal site at:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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(2)
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U.S. Citizenship and Immigration Services, Department of Homeland Security.
Notice.
Through this Notice, the Department of Homeland Security (DHS) announces that the Secretary of Homeland Security (Secretary) is extending the designation of Honduras for Temporary Protected Status (TPS) for 18 months, from July 6, 2016 through January 5, 2018.
The extension allows currently eligible TPS beneficiaries to retain TPS through January 5, 2018, so long as they otherwise continue to meet the eligibility requirements for TPS. The Secretary has determined that an extension is warranted because conditions in Honduras supporting its designation for TPS continue to be met.
Through this Notice, DHS also sets forth procedures necessary for eligible
For individuals who have already been granted TPS under Honduras' designation, the 60-day re-registration period runs from May 16, 2016 through July 15, 2016. USCIS will issue new EADs with a January 5, 2018, expiration date to eligible Honduras TPS beneficiaries who timely re-register and apply for EADs under this extension. Given the timeframes involved with processing TPS re-registration applications, DHS recognizes that not all re-registrants will receive new EADs before their current EADs expire on July 5, 2016. Accordingly, through this Notice, DHS automatically extends the validity of EADs issued under the TPS designation of Honduras for 6 months, through January 5, 2017, and explains how TPS beneficiaries and their employers may determine which EADs are automatically extended and the impact on Employment Eligibility Verification (Form I-9) and the E-Verify processes.
The 18-month extension of the TPS designation of Honduras is effective July 6, 2016, and will remain in effect through January 5, 2018. The 60-day re-registration period runs from May 16, 2016 through July 15, 2016.
• For further information on TPS, including guidance on the application process and additional information on eligibility, please visit the USCIS TPS Web page at
• For questions concerning this Notice, you can also contact Jerry Rigdon, Chief of the Waivers and Temporary Services Branch, Service Center Operations Directorate, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529-2060; or by phone at 202-272-1533 (this is not a toll-free number). Note: The phone number provided here is solely for questions regarding this TPS Notice. It is not for individual case status inquires.
• Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS Web site at
• Further information will also be available at local USCIS offices upon publication of this Notice.
• TPS is a temporary immigration status granted to eligible nationals of a country designated for TPS under the Immigration and Nationality Act (INA), or to eligible persons without nationality who last habitually resided in the designated country.
• During the TPS designation period, TPS beneficiaries are eligible to remain in the United States, may not be removed, and are authorized to work and obtain EADs so long as they continue to meet the requirements of TPS.
• TPS beneficiaries may also be granted travel authorization as a matter of discretion.
• The granting of TPS does not result in or lead to permanent resident status.
• To qualify for TPS, beneficiaries must meet the eligibility standards at INA section 244(c)(2), 8 U.S.C. 1254a(c)(2).
• When the Secretary terminates a country's TPS designation, although TPS benefits end, former TPS beneficiaries continue to hold any lawful immigration status they maintained or obtained while registered for TPS.
Following the destruction wrought by Hurricane Mitch, which struck Honduras in October of 1998, the Attorney General designated Honduras for TPS on January 5, 1999, on environmental disaster grounds. See
Section 244(b)(1) of the INA, 8 U.S.C. 1254a(b)(1), authorizes the Secretary, after consultation with appropriate agencies of the U.S. Government (Government), to designate a foreign state (or part thereof) for TPS if the Secretary determines that certain country conditions exist.
At least 60 days before the expiration of a country's TPS designation or extension, the Secretary, after consultation with appropriate Government agencies, must review the conditions in a foreign state designated for TPS to determine whether the conditions for the TPS designation
DHS and the Department of State (DOS) have reviewed conditions in Honduras. Based on the reviews and after consulting with DOS, the Secretary has determined that an 18-month extension is warranted because conditions in Honduras supporting its designation for TPS persist. Hurricane Mitch and subsequent environmental disasters have substantially disrupted living conditions in Honduras, such that Honduras remains unable, temporarily, to adequately handle the return of its nationals.
In October 1998, Hurricane Mitch's 250 kilometer-per-hour winds and torrential rains impacted and damaged all of Honduras' 18 departments. The hurricane killed 5,657 people and displaced approximately 1.1 million people. The storm destroyed approximately 70 percent of the roads, housing, communication infrastructure, and the water and sanitation systems in Honduras. Damages from Hurricane Mitch in Honduras were estimated at more than $5 billion.
Although some of the destroyed infrastructure and housing has been rebuilt, Honduras continues to suffer the residual effects of the storm. The United Nations Development Programme has stated that Hurricane Mitch set Honduras back economically and socially by 20 years. Despite rebuilding efforts, Honduras still has a housing deficit of 1.1 million homes, with 400,000 families requiring a new home and 750,000 homes in need of improvement. Honduras is one of the poorest countries in the Western Hemisphere, with over 65 percent of the population living in poverty.
Since the last extension of Honduras' TPS designation, Honduras has experienced a series of environmental disasters that have exacerbated the persisting disruptions caused by Hurricane Mitch and significantly compromised the Honduran state's ability to adequately handle the return of its nationals. Additionally, climate fluctuations between heavy rainfall and prolonged drought continue to challenge recovery efforts. Toward the end of 2014, Honduras suffered damage from severe rains, landslides, and flooding, as well as from the heavy winds associated with Tropical Storm Hanna. Partially due to the heavy rainfall, Honduras saw a dramatic increase in mosquito-borne diseases, particularly dengue and chikungunya, in 2014 and 2015. The system of public hospitals is failing under this threat; in July 2015 the president of Honduras' medical school warned that public hospitals in Honduras were barely able to provide medicine for common illnesses, let alone an epidemic of chikungunya. In rural areas, the health care system does not have the capacity to meet the needs of the local population.
A prolonged regional drought, which began in the summer of 2014, has heavily affected Honduras, leading to significant crop losses in 2014 and 2015, massive layoffs in the agricultural sector, negative impacts on hygiene, and an increase in food insecurity and health risks. The agricultural sector has also continued to suffer from the impacts of a regional coffee rust epidemic, resulting in lost livelihoods and weakening Honduras' economy.
Based upon this review and after consultation with appropriate Government agencies, the Secretary has determined that:
• Conditions supporting the designation of Honduras for TPS continue to be met.
• There continues to be a substantial, but temporary, disruption in living conditions in Honduras as a result of an environmental disaster.
• Honduras continues to be unable, temporarily, to adequately handle the return of its nationals (or aliens having no nationality who last habitually resided in Honduras).
• The designation of Honduras for TPS should be extended for an 18-month period from July 6, 2016 through January 5, 2018.
• There are approximately 57,000 current Honduras TPS beneficiaries who are expected to file for re-registration under the extension.
By the authority vested in me as Secretary under INA section 244, 8 U.S.C. 1254a, I have determined, after consultation with the appropriate Government agencies, that conditions supporting Honduras' designation for TPS continue to be met.
To register or re-register for TPS based on the designation of Honduras, you must submit each of the following applications:
1. Application for Temporary Protected Status (Form I-821).
• If you are filing an application for late initial registration, you must pay the fee for the Application for Temporary Protected Status (Form I-821).
• If you are filing an application for re-registration, you do not need to pay the fee for the Application for Temporary Protected Status (Form I-821).
2. Application for Employment Authorization (Form I-765).
• If you are applying for late initial registration and want an EAD, you must pay the fee for the Application for Employment Authorization (Form I-765) only if you are age 14 through 65. You do not need to pay this fee if you are under the age of 14 or are 66 or older.
• If you are applying for re-registration, you must pay the fee for the Application for Employment Authorization (Form I-765), regardless of your age, if you want an EAD.
• You do not pay the fee for the Application for Employment Authorization (Form I-765) if you are not requesting an EAD, regardless of whether you are applying for late initial registration or re-registration.
You must submit both completed application forms together. If you are unable to pay the application fee and/or biometrics fee, you may complete a Request for Fee Waiver (Form I-912) or submit a personal letter requesting a fee
Biometrics (such as fingerprints) are required for all applicants 14 years and older. Those applicants must submit a biometric services fee. As previously stated, if you are unable to pay for the biometric services fee, you may complete a Request for Fee Waiver (Form I-912) or submit a personal letter requesting a fee waiver with satisfactory supporting documentation. For more information on the biometric services fee, please visit the USCIS Web site at
You should file as soon as possible within the 60-day re-registration period so USCIS can process your application and issue any EADs promptly. Filing early will also allow you to have time to re-file your application before the deadline, should USCIS deny your fee waiver request. If, however, you receive a denial of your fee waiver request and are unable to re-file by the re-registration deadline, you may still re-file your application. This situation will be reviewed to determine whether you established good cause for late re-registration. However, you are urged to re-file within 45 days of the date on any USCIS fee waiver denial notice, if possible.
Mail your application for TPS to the proper address in Table 1.
If you were granted TPS by an Immigration Judge (IJ) or the Board of Immigration Appeals (BIA) and you wish to request an EAD or are re-registering for the first time following a grant of TPS by an IJ or the BIA, please mail your application to the appropriate mailing address in Table 1. When submitting a re-registration application and/or requesting an EAD based on an IJ/BIA grant of TPS, please include a copy of the IJ or BIA order granting you TPS with your application. This will aid in the verification of your grant of TPS and processing of your application, as USCIS may not have received records of your grant of TPS by either the IJ or the BIA.
You cannot electronically file your application when re-registering or submitting an initial registration for Honduras TPS. Please mail your application to the mailing address listed in Table 1.
The filing instructions on the Application for Temporary Protected Status (Form I-821) list all the documents needed to establish basic eligibility for TPS. You may also find information on the acceptable documentation and other requirements for applying or registering for TPS on the USCIS Web site at
If one or more of the questions listed in Part 4, Question 2 of the Application for Temporary Protected Status (Form I-821) applies to you, then you must submit an explanation on a separate sheet(s) of paper and/or additional documentation.
To get case status information about your TPS application, including the status of a request for an EAD, you can check Case Status Online at
Provided that you currently have TPS under the designation of Honduras, this Notice automatically extends your EAD by 6 months if you:
• Are a national of Honduras (or an alien having no nationality who last habitually resided in Honduras);
• Received an EAD under the last extension of TPS for Honduras; and
• Have an EAD with a marked expiration date of July 5, 2016, bearing the notation “A-12” or “C-19” on the face of the card under “Category.”
Although this Notice automatically extends your EAD through January 5, 2017, you must re-register timely for TPS in accordance with the procedures described in this Notice if you would like to maintain your TPS.
You can find a list of acceptable document choices on the “Lists of Acceptable Documents” for Employment Eligibility Verification (Form I-9). You can find additional detailed information on the USCIS I-9 Central Web page at
You may present any document from List A (reflecting both your identity and employment authorization) or one document from List B (reflecting identity) together with one document from List C (reflecting employment authorization). An EAD is an acceptable document under “List A.” You may present an acceptable receipt for a List A, List B, or List C document as described in the Employment Eligibility Verification (Form I-9) Instructions. An acceptable receipt is one that shows an employee has applied to replace a document that was lost, stolen, or damaged. If you present an acceptable receipt, you must present your employer with the actual document within 90 days. Employers may not reject a document based on a future expiration date.
If your EAD has an expiration date of July 5, 2016, and states “A-12” or “C-19” under “Category,” it has been extended automatically for 6 months by virtue of this
Even though EADs with an expiration date of July 5, 2016, that state “A-12” or “C-19” under “Category” have been automatically extended for 6 months by this
By January 5, 2017, the expiration date of the automatic extension, your employer must reverify your employment authorization. At that time, you must present any unexpired document from List A or any unexpired document from List C on Employment Eligibility Verification (Form I-9) to reverify employment authorization, or an acceptable List A or List C receipt described in the Employment Eligibility Verification (Form I-9) instructions. Your employer is required to reverify on Employment Eligibility Verification (Form I-9) the employment authorization of current employees upon the automatically extended expiration date of a TPS-related EAD, which is January 5, 2017, in this case. Your employer should use either Section 3 of the Employment Eligibility Verification (Form I-9) originally completed for the employee or, if this section has already been completed or if the version of Employment Eligibility Verification (Form I-9) is no longer valid, complete Section 3 of a new Employment Eligibility Verification (Form I-9) using the most current version. Note that your employer may not specify which List A or List C document employees must present, and cannot reject an acceptable receipt. An acceptable receipt is one that shows an employee has applied to replace a document that was lost, stolen or damaged.
No. When completing Employment Eligibility Verification (Form I-9), including reverifying employment authorization, employers must accept any documentation that appears on the “Lists of Acceptable Documents” for Employment Eligibility Verification (Form I-9) that reasonably appears to be genuine and that relates to you or an acceptable List A, List B, or List C receipt. Employers may not request documentation that does not appear on the “Lists of Acceptable Documents.” Therefore, employers may not request proof of Honduran citizenship or proof of re-registration for TPS when completing Employment Eligibility Verification (Form I-9) for new hires or reverifying the employment authorization of current employees. Refer to the “Note to Employees” section of this Notice for important information about your rights if your employer rejects lawful documentation, requires additional documentation, or otherwise discriminates against you based on your citizenship or immigration status or your national origin. Note that although you are not required to provide your employer with a copy of this
After January 5, 2017, employers may no longer accept the EADs that this
When using an automatically extended EAD to complete Employment Eligibility Verification (Form I-9) for a new job before January 5, 2017, you and your employer should do the following:
1. For Section 1, you should:
a. Check “An alien authorized to work;”
b. Write the automatically extended EAD expiration date (January 5, 2017) in the first space; and
c. Write your alien number (USCIS number or A-number) in the second space (your EAD or other document from DHS will have your USCIS number or A-number printed on it; the USCIS number is the same as your A-number without the A prefix).
2. For Section 2, employers should record the:
a. Document title;
b. Issuing authority;
c. Document number; and
d. Automatically extended EAD expiration date (January 5, 2017).
By January 5, 2017, employers must reverify the employee's employment authorization in Section 3 of the Employment Eligibility Verification (Form I-9).
If you are an existing employee who presented a TPS-related EAD that was valid when you first started your job but that EAD has now been automatically extended, your employer may reinspect your automatically extended EAD if the employer does not have a photocopy of the EAD on file, and you and your employer should correct your previously completed Employment Eligibility Verification (Form I-9) as follows:
1. For Section 1, you should:
a. Draw a line through the expiration date in the first space;
b. Write “January 5, 2017” above the previous date;
c. Write “TPS Ext.” in the margin of Section 1; and
d. Initial and date the correction in the margin of Section 1.
2. For Section 2, employers should:
a. Draw a line through the expiration date written in Section 2;
b. Write “January 5, 2017” above the previous date;
c. Write “EAD Ext.” in the margin of Section 2; and
d. Initial and date the correction in the margin of Section 2.
By January 5, 2017, when the automatic extension of EADs expires, employers must reverify the employee's employment authorization in Section 3.
If you are an employer who participates in E-Verify and you have an employee who is a TPS beneficiary who provided a TPS-related EAD when he or she first started working for you, you will receive a “Work Authorization Documents Expiring” case alert when this EAD is about to expire. Usually, this message is an alert to complete Section 3 of the Employment Eligibility Verification (Form I-9) to reverify an employee's employment authorization. For existing employees with TPS-related EADs that have been automatically extended, employers should dismiss this alert by clicking the red “X” in the “dismiss alert” column and follow the instructions above explaining how to correct the Employment Eligibility Verification (Form I-9). By January 5, 2017, employment authorization must be reverified in Section 3. Employers should not use E-Verify for reverification.
Employers are reminded that the laws requiring proper employment eligibility verification and prohibiting unfair immigration-related employment practices remain in full force. This Notice does not supersede or in any way limit applicable employment verification rules and policy guidance, including those rules setting forth reverification requirements. For general questions about the employment eligibility verification process, employers may call USCIS at 888-464-4218 (TTY 877-875-6028) or email
For general questions about the employment eligibility verification process, you may call USCIS at 888-897-7781 (TTY 877-875-6028) or email
To comply with the law, employers must accept any document or combination of documents from the Lists of Acceptable Documents if the documentation reasonably appears to be genuine and to relate to the employee, or an acceptable List A, List B, or List C receipt described in the Employment Eligibility Verification (Form I-9) Instructions. Employers may not require extra or additional documentation beyond what is required for Employment Eligibility Verification (Form I-9) completion. Further, employers participating in E-Verify who receive an E-Verify case result of “Tentative Nonconfirmation” (TNC) must promptly inform employees of the TNC and give such employees an opportunity to contest the TNC. A TNC case result means that the information entered into E-Verify from Employment Eligibility Verification (Form I-9) differs from Federal or State government records.
Employers may not terminate, suspend, delay training, withhold pay, lower pay, or take any adverse action against you based on your decision to contest a TNC or because the case is still pending with E-Verify. A Final Nonconfirmation (FNC) case result is received when E-Verify cannot verify your employment eligibility. An employer may terminate employment based on a case result of FNC. Work-authorized employees who receive an FNC may call USCIS for assistance at 888-897-7781 (TTY 877-875-6028). If you believe you were discriminated against by an employer in the E-Verify process based on citizenship or immigration status or based on national origin, you may contact OSC's Worker Information Hotline at 800-255-7688 (TTY 800-237-2515). Additional information about proper nondiscriminatory Employment Eligibility Verification (Form I-9) and E-Verify procedures is available on the OSC Web site at
While Federal Government agencies must follow the guidelines laid out by
(1) Your unexpired EAD;
(2) A copy of this
(3) A copy of your Application for Temporary Protected Status Notice of Action (Form I-797) for this re-registration;
(4) A copy of your past or current Application for Temporary Protected Status Approval Notice (Form I-797), if you received one from USCIS; and/or
(5) If there is an automatic extension of work authorization, a copy of the fact sheet from the USCIS TPS Web site that provides information on the automatic extension.
Check with the government agency regarding which document(s) the agency will accept. You may also provide the agency with a copy of this
Some benefit-granting agencies use the USCIS Systematic Alien Verification for Entitlements Program (SAVE) to verify the current immigration status of applicants for public benefits. If such an agency has denied your application based solely or in part on a SAVE response, the agency must offer you the opportunity to appeal the decision in accordance with the agency's procedures. If the agency has received and acted upon or will act upon a SAVE verification and you do not believe the response is correct, you may make an InfoPass appointment for an in-person interview at a local USCIS office. Detailed information on how to make corrections, make an appointment, or submit a written request to correct records under the Freedom of Information Act can be found at the SAVE Web site at
U.S. Citizenship and Immigration Services, Department of Homeland Security.
30-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection notice was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until June 15, 2016. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, must be directed to the OMB USCIS Desk Officer via email at
You may wish to consider limiting the amount of personal information that you provide in any voluntary submission you make. For additional information please read the Privacy Act notice that is available via the link in the footer of
USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Samantha Deshommes, Acting Chief, 20 Massachusetts Avenue NW., Washington, DC 20529-2140, Telephone number (202) 272-8377 (This is not a toll-free number. Comments are not accepted via telephone message). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS Web site at
You may access the information collection instrument with instructions, or additional information by visiting the Federal eRulemaking Portal site at:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
(7)
Office of the Assistant Secretary for Public and Indian Housing, PIH, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Room 4176, Washington, DC 20410-5000; telephone 202-402-5564 (this is not a toll-free number) or email at
Arlette Mussington, Office of Policy, Programs and Legislative Initiatives, PIH, Department of Housing and Urban Development, 451 7th Street SW., (L'Enfant Plaza, Room 2206), Washington, DC 20410; telephone 202-402-4109, (this is not a toll-free number). Persons with hearing or speech impairments may access this number via TTY by calling the Federal Information Relay Service at (800) 877-8339. Copies of available documents submitted to OMB may be obtained from Ms. Mussington.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35 as amended.
Office of Community Planning and Development, (HUD).
Notice of proposed information collection.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Room 4176, Washington, DC 20410-5000; telephone 202-402-3400 (this is not a toll-free number) or email at
Norm Suchar, Director, Office of Special Needs Assistance Programs, Office of Community Planning and Development, Department of Housing and Urban Development, 451 7th Street SW., Room 7262, Washington, DC 20410; telephone (202) 708-5015 (this is not a toll-free number). Persons with hearing or speech impairments may access this number through TTY by calling the toll-free Federal Relay Service at (800) 877-8339. Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Bureau of Land Management, Interior.
Notice of public meeting.
In accordance with the Federal Land Policy and Management Act and the Federal Advisory Committee Act of 1972, and the U.S. Department of the Interior, Bureau of Land Management (BLM), the Southeast Oregon Resource Advisory Council (RAC) will meet as indicated below:
The Southeast Oregon RAC will hold a public meeting Monday, June 13, 2016. The meeting begins at 8:00 a.m. and ends at 5:00 p.m. The agenda will be released online at
A public comment period will be available during the meeting at a time to be determined. Unless otherwise approved by the Southeast Oregon RAC Chair, the public comment period will last no longer than 30 minutes, and each speaker may address the Southeast Oregon RAC for a maximum of 5 minutes. Meeting times and the duration scheduled for public comment periods may be extended or altered when the authorized representative considers it necessary to accommodate necessary business and all who seek to be heard regarding matters before the Southeast Oregon RAC.
The meeting will be held at the Lakeview BLM offices, 1301 South G Street, Lakeview, OR 97630. The telephone conference line number for Monday and Wednesday is 1-866-524-6456, Participant Code: 608605.
Larry Moore, Public Affairs Specialist, BLM Vale District Office, 100 Oregon Street, Vale, Oregon 97918, (541) 473-6218 or
The Southeast Oregon RAC consists of 15 members chartered and appointed by the Secretary of the Interior. Their diverse perspectives are represented in commodity, conservation, and general interests. They provide advice to BLM and Forest Service resource managers regarding management plans and proposed resource actions on public land in southeast Oregon. This meeting is open to the public in its entirety. Information to be distributed to the Southeast Oregon RAC is requested prior to the start of each meeting.
Before including your address, phone number, email address, or other personal identifying information in your comments, please be aware that your entire comment-including your personal identifying information-may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on April 8, 2016, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of CTC Global Corporation of Irvine, California. An amended complaint was filed on April 26, 2016. The complaint, as amended, alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain electrical conductor composite cores and components thereof by reason of infringement of certain claims of U.S. Patent No. 7,211,319 (“the '319 patent”) and U.S. Patent No. 7,368,162 (“the '162 patent”). The complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337.
The complainant requests that the Commission institute an investigation and, after the investigation, issue a general exclusion order, or in the alternative a limited exclusion order, and cease and desist orders.
The complaint, except for any confidential information contained therein, is available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Room 112, Washington, DC 20436, telephone (202) 205-2000. Hearing impaired individuals are advised that information on this matter can be obtained 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 at
The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2560.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2015).
Scope of Investigation: Having considered the complaint, the U.S. International Trade Commission, on May 10, 2016,
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain electrical conductor composite cores and components thereof by reason of infringement of one or more of claims 1, 3-6, 9, 12-15, 20-23, 25-27, 29, 30, 36, 38, 44, 52, 59-62, 64-67, and 69-71 of the '319 patent and claims 1-3, 8-10, 20, 21, 26, 27, 29, 33-37, 51, 58, and 63-65 of the '162 patent, and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is: CTC Global Corporation, 2026 McGaw Avenue, Irvine, CA 92614,
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) The Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street SW., Suite 401, Washington, DC 20436; and
(3) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(e) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
Lisa R. Barton, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's Electronic Document Information System (EDIS) at EDIS,
General information concerning the Commission may also be obtained by accessing its Internet server at United States International Trade Commission (USITC) at USITC.
The Commission has received a complaint and a submission pursuant to section 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of Immersion Corporation. on May 10, 2016. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain L-tryptophan, L-tryptophan products, and their methods of production. The complaint names as respondents CJ CheilJedang Corp. of Korea; CJ America, Inc. of Downers Grove, IL; and PT CheilJedang Indonesia of Indonesia. The complainant requests that the Commission issue an exclusion order and cease and desist orders.
Proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five (5) pages in length, inclusive of attachments, on any public interest issues raised by the complaint or section 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to section 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the docket number (“Docket No. 3147”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of sections 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on April 14, 2016, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of Cambria Company LLC of Belle Plaine, Minnesota. The complaint, as supplemented, alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain quartz slabs and portions thereof by reason of infringement of the claims of U.S. Patent No. D712,670 (“the '670 patent”); U.S. Patent No. D713,154 (“the '154 patent”); U.S. Patent No. D737,058 (“the '058 patent”); U.S. Patent No. D737,576 (“the '576 patent”); U.S. Patent No. D737,577 (“the '577 patent”); and U.S. Patent No. D738,630 (“the '630 patent”). The complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337.
The complainant requests that the Commission institute an investigation and, after the investigation, issue a general exclusion order, or in the alternative a limited exclusion order, and cease and desist orders.
The complaint, except for any confidential information contained therein, is available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Room 112, Washington, DC 20436, telephone (202) 205-2000. Hearing impaired individuals are advised that information on this matter can be obtained 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 at
The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2560.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2015).
Scope of Investigation: Having considered the complaint, the U.S. International Trade Commission, on May 10, 2016,
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain quartz slabs and portions thereof by reason of infringement of the claim of the '670 patent; the claim of the '154 patent; the claim of the '058 patent; the claim of the '576 patent; the claim of the '577 patent; and the claim of the '630 patent, and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is: Cambria Company LLC, 805 Enterprise Drive East, Suite H, Belle Plaine, MN 56011.
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) The Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street SW., Suite 401, Washington, DC 20436; and
(3) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
Notice of registration.
Organix, Inc. applied to be registered as a manufacturer of certain basic classes of controlled substances. The Drug Enforcement Administration (DEA) grants Organix, Inc. registration as a manufacturer of those controlled substances.
By notice dated November 27, 2015, and published in the
The DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Organix, Inc. to manufacture the basic classes of controlled substances is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971. The DEA investigated the company's maintenance of effective controls against diversion by inspecting and testing the company's physical security systems, verifying the company's compliance with state and local laws, and reviewing the company's background and history.
Therefore, pursuant to 21 U.S.C. 823(a), and in accordance with 21 CFR 1301.33, the above-named company is granted registration as a bulk manufacturer of the following basic classes of controlled substances:
The company plans to manufacture reference standards for distribution to its research and forensics customers. In reference to drug codes 7360 (marihuana) and 7370 (THC) the company plans to manufacture these drugs as synthetic. No other activities for these drug codes are authorized for this registration.
Notice of registration.
Johnson Matthey Pharmaceutical Materials, Inc. applied to be registered as a manufacturer of certain basic classes of controlled substances. The Drug Enforcement Administration (DEA) grants Johnson Matthey Pharmaceutical Materials, Inc. registration as a manufacturer of those controlled substances.
By notice dated November 30, 2015, and published in the
The DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Johnson Matthey Pharmaceutical Materials, Inc. to manufacture the basic classes of controlled substances is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971. The DEA investigated the company's maintenance of effective controls against diversion by inspecting and testing the company's physical security systems, verifying the company's compliance with state and local laws, and reviewing the company's background and history.
Therefore, pursuant to 21 U.S.C. 823(a), and in accordance with 21 CFR 1301.33, the above-named company is granted registration as a bulk manufacturer of the following basic classes of controlled substances:
The company plans to utilize this facility to manufacture small quantities of the listed controlled substances in bulk and to conduct analytical testing in support of the company's primary manufacturing facility in West Deptford, New Jersey. The controlled substances manufactured in bulk at this facility will be distributed to its customers.
Notice of registration.
Siegfried USA, LLC applied to be registered as an importer of certain basic classes of controlled substances. The Drug Enforcement Administration (DEA) grants Siegfried USA, LLC registration as an importer of those controlled substances.
By notice dated January 11, 2016, and published in the
The DEA has considered the factors in 21 U.S.C. 823, 952(a) and 958(a) and determined that the registration of Siegfried USA, LLC to import the basic classes of controlled substances is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971. The DEA investigated the company's maintenance of effective controls against diversion by inspecting and testing the company's physical security systems, verifying the company's compliance with state and local laws, and reviewing the company's background and history.
Therefore, pursuant to 21 U.S.C. 952(a) and 958(a), and in accordance with 21 CFR 1301.34, the above-named company is granted registration as an importer of the following basic classes of controlled substances:
The company plans to import the listed controlled substances to manufacture bulk active pharmaceutical ingredients (API) for distribution to its customer.
Notice of registration.
AMRI Rensselaer, Inc. applied to be registered as a manufacturer of certain basic classes of controlled substances. The Drug Enforcement Administration (DEA) grants AMRI Rensselaer, Inc. registration as a manufacturer of those controlled substances.
By notice dated November 30, 2015, and published in the
The DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of AMRI Rensselaer, Inc. to manufacture the basic classes of controlled substances is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971. The DEA investigated the company's maintenance of effective controls against diversion by inspecting and testing the company's physical security systems, verifying the company's compliance with state and local laws, and reviewing the company's background and history.
Therefore, pursuant to 21 U.S.C. 823(a), and in accordance with 21 CFR 1301.33, the above-named company is granted registration as a bulk manufacturer of the following basic classes of controlled substances:
The company plans to manufacture bulk controlled substances for use in product development and for distribution to its customers.
In reference to drug codes 7360 (marihuana), and 7370 (THC), the company plans to bulk manufacture these drugs as synthetics. No other activity for these drug codes are authorized for this registration.
Notice of registration.
Johnson Matthey, Inc. applied to be registered as a manufacturer of certain basic classes of controlled substances. The Drug Enforcement Administration (DEA) grants Johnson Matthey, Inc. registration as a manufacturer of those controlled substances.
By notice dated December 9, 2015, and published in the
The DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Johnson Matthey, Inc. to manufacture the basic classes of controlled substances is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971. The DEA investigated the company's maintenance of effective controls against diversion by inspecting and testing the company's physical security systems, verifying the company's compliance with state and local laws, and reviewing the company's background and history.
Therefore, pursuant to 21 U.S.C. 823(a), and in accordance with 21 CFR 1301.33, the above-named company is granted registration as a bulk manufacturer of the following basic classes of controlled substances:
The company plans to manufacture the listed controlled substances in bulk for sale to its customers.
In reference to drug codes 7360 (marihuana) and 7370 (THC), the company plans to bulk manufacture these drugs as synthetics. No other activities for these drug codes are authorized for this registration.
On May 4, 2016, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the District of New Jersey in the lawsuit entitled
The United States filed this lawsuit under the Clean Air Act. The United States' complaint seeks injunctive relief and civil penalties for violations of the Clean Air Act provisions governing emission of ozone depleting substances at the defendant's scrap metal recycling facility in Clifton, New Jersey. The consent decree requires the defendant to perform injunctive relief, pay a $145,000 civil penalty, and complete a supplemental environmental project that will cost approximately $260,000.
The publication of this notice opens a period for public comment on the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the Consent Decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $10.75 (25 cents per page reproduction cost) payable to the United States Treasury.
On May 3, 2016, the Department of Justice lodged a proposed Settlement Agreement with the United States District Court for the Virgin Islands, Bankruptcy Division in
The publication of this notice opens a period for public comment on the Settlement Agreement. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the Settlement Agreement may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $3.50 (25 cents per page reproduction cost) payable to the United States Treasury.
On May 3, 2016, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the Virgin Islands, Bankruptcy Division in
The publication of this notice opens a period for public comment on the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer
During the public comment period, the Consent Decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $4.00 (25 cents per page reproduction cost) payable to the United States Treasury.
I, J. Patricia W. Smoot, of the United States Parole Commission, was present at a meeting of said Commission, which started at approximately 11:00 p.m., on Wednesday, May 11, 2016 at the U.S. Parole Commission, 90 K Street NE., Third Floor, Washington, DC 20530. The purpose of the meeting was to discuss two original jurisdiction cases pursuant to 28 CFR Section 2.27. Three Commissioners were present, constituting a quorum when the vote to close the meeting was submitted.
Public announcement further describing the subject matter of the meeting and certifications of the General Counsel that this meeting may be closed by votes of the Commissioners present were submitted to the Commissioners prior to the conduct of any other business. Upon motion duly made, seconded, and carried, the following Commissioners voted that the meeting be closed: J. Patricia W. Smoot, Patricia Cushwa and Charles T. Massarone.
Notice.
The Department of Labor (DOL) is submitting the Employment and Training Administration (ETA) sponsored information collection request (ICR) titled, “Equal Employment Opportunity in Apprenticeship Programs,” 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 June 15, 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-ETA, 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 Equal Employment Opportunity in Apprenticeship Programs information collection. Regulations 29 CFR part 30 sets forth policies and procedures to promote equal opportunity in apprenticeship programs registered with the DOL and recognized State Apprenticeship Agencies. This information collection also includes the requirements for a person who believes his or her rights under part 30 have been violated to a complaint, Form ETA-9039. National Apprenticeship Act of 1937 section 1 authorizes 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 May 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,
44 U.S.C. 3507(a)(1)(D).
Mine Safety and Health Administration, Labor.
Notice.
Section 101(c) of the Federal Mine Safety and Health Act of 1977 and Title 30 of the Code of Federal Regulations Part 44 govern the application, processing, and disposition of petitions for modification. This notice is a summary of petitions for modification submitted to the Mine Safety and Health Administration (MSHA) by the parties listed below.
All comments on the petitions must be received by the MSHA's Office of Standards, Regulations, and Variances on or before June 15, 2016.
You may submit your comments, identified by “docket number” on the subject line, by any of the following methods:
1.
2.
3.
MSHA will consider only comments postmarked by the U.S. Postal Service or proof of delivery from another delivery service such as UPS or Federal Express on or before the deadline for comments.
Barbara Barron, Office of Standards, Regulations, and Variances at 202-693-9447 (Voice),
Section 101(c) of the Federal Mine Safety and Health Act of 1977 (Mine Act) allows the mine operator or representative of miners to file a petition to modify the application of any mandatory safety standard to a coal or other mine if the Secretary of Labor determines that:
1. An alternative method of achieving the result of such standard exists which will at all times guarantee no less than the same measure of protection afforded the miners of such mine by such standard; or
2. That the application of such standard to such mine will result in a diminution of safety to the miners in such mine.
In addition, the regulations at 30 CFR 44.10 and 44.11 establish the requirements and procedures for filing petitions for modification.
(1) The trailing cables for the 480-volt DBT bolters will not be smaller than No. 2 AWG cable.
(2) All circuit breakers used to protect the No. 2 AWG trailing cable exceeding 700 feet in length will have instantaneous trip units calibrated to trip at 714 amperes +/− 5%. The trip setting of these circuit breakers will be sealed to ensure that the settings on these breakers cannot be changed, and these circuit breakers will have permanent, legible labels. Each label will identify the circuit breaker as being suitable for protecting the cables as listed above.
(3) Replacement circuit breakers and/or instantaneous trip units used to protect the No. 2 AWG trailing cable will be calibrated to trip at 714 amperes +/− 5%, and they will be sealed.
(4) All components that provide short-circuit protection will have a sufficient interruption rating in accordance with
(5) During each production day, the trailing cables and the circuit breakers will be examined in accordance with all 30 CFR provisions.
(6) Permanent warning labels will be installed and maintained on the load center identifying the location of each short-circuit protection device. These labels will warn miners not to change or alter the settings of these devices.
(7) If the affected trailing cables are damaged in any way during the shift, the cable will be de-energized and repairs made.
(8) The alternative method will not be implemented until all miners who have been designated to operate the bolters, or any other person designated to examine the trailing cables or trip settings on the circuit breakers, have received the proper training as to the performance of their duties.
(9) Within 60 days after the proposed decision and order becomes final, the petitioner will submit proposed revisions for their approved 30 CFR part 48 training plans to the District Manager. These revisions will specify task training for miners designated to examine the trailing cables for safe operating condition and verify that the short-circuit settings of the circuit-interrupting devices that protect the affected trailing cables do not exceed the settings specified previously in this petition. The training will include the following elements:
(a) The hazards of setting short-circuit interrupting device(s) too high to adequately protect the trailing cables.
(b) How to verify that the circuit interrupting device(s) protecting the trailing cable(s) are properly set and maintained.
(c) Mining methods and operating procedures that will protect the trailing cables against damage.
(d) Proper procedures for examining the trailing cables to ensure that the cables are in safe operating condition by visually inspecting the entire cable, observing the insulation, the integrity of splices, nicks and abrasions.
The petitioner asserts that the proposed alternative method will at all times guarantee no less than the same measure of protection afforded by the standard.
Mine Safety and Health Administration, Labor.
Notice; correction.
This notice amends a petition for modification published in the
Barbara Barron, Office of Standards, Regulations, and Variances at 202-693-9447 (Voice),
This notice corrects the Mine and Mine I.D. No. in the notice. The Mine and Mine I.D. No. referenced in the April 13, 2016
The petitioner requests a modification of the existing safety standard 30 CFR 77.214(a) to permit an alternative method for backfilling and reclamation of the abandoned portal area mine openings associated with the abandoned Marsh Fork Mine, MSHA I.D. No. 46-08551, using coal refuse as the backfill material. The petitioner specifically requests approval to backfill four abandoned mine openings associated with inactive Marsh Fork Mine, Cedar Grove coal seam portal area with coal refuse.
10:00 a.m., Thursday, May 19, 2016.
Board Room, 7th Floor, Room 7047, 1775 Duke Street (All visitors must use Diagonal Road Entrance), Alexandria, VA 22314-3428.
Open.
1. Corporate Stabilization Fund Quarterly Report.
2. Board Briefing, Call Report Modernization.
Gerard Poliquin, Secretary of the Board, Telephone: 703-518-6304.
National Science Foundation.
Request for comment notice.
The National Science Foundation (NSF) is announcing plans to request renewed clearance of this collection. In accordance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, we are providing opportunity for public comment on the NSF Proposal and Award Policies and Procedures Guide (PAPPG). The primary purpose of this revision is to update revise the PAPPG to incorporate a number of policy-related changes.
The draft NSF PAPPG is now available for your review and consideration on the NSF Web site at
After obtaining and considering public comment, NSF will prepare the submission requesting OMB clearance of this collection for no longer than 3 years.
In addition to the type of comments identified above, comments also 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 of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information on respondents, including through the use of automated collection techniques or other forms of information technology; and (d) ways to minimize the burden of the collection of information on respondents, including through the use
Written comments should be received by July 15, 2016 to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Written comments regarding the information collection and requests for copies of the proposed information collection request should be addressed to Suzanne Plimpton, Reports Clearance Officer, National Science Foundation, 4201 Wilson Blvd., Rm. 1265, Arlington, VA 22230, or by email to
Suzanne Plimpton on (703) 292-7556 or send email to
“To promote the progress of science; to advance the national health, prosperity, and welfare; to secure the national defense. . . .”
The Act authorized and directed NSF to initiate and support:
• Basic scientific research and research fundamental to the engineering process;
• Programs to strengthen scientific and engineering research potential;
• Science and engineering education programs at all levels and in all the various fields of science and engineering;
• Programs that provide a source of information for policy formulation; and
• Other activities to promote these ends.
NSF's core purpose resonates clearly in everything it does: Promoting achievement and progress in science and engineering and enhancing the potential for research and education to contribute to the Nation. While NSF's vision of the future and the mechanisms it uses to carry out its charges have evolved significantly over the last six decades, its ultimate mission remains the same.
Support is made primarily through grants, contracts, and other agreements awarded to approximately 2,000 colleges, universities, academic consortia, nonprofit institutions, and small businesses. The awards are based mainly on merit evaluations of proposals submitted to the Foundation.
The Foundation has a continuing commitment to monitor the operations of its information collection to identify and address excessive reporting burdens as well as to identify any real or apparent inequities based on gender, race, ethnicity, or disability of the proposed principal investigator(s)/project director(s) or the co-principal investigator(s)/co-project director(s).
May 16, 23, 30; June, 6, 13, 20, 2016.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and closed.
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of May 23, 2016.
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of June 6, 2016.
There are no meetings scheduled for the week of June 13, 2016.
The schedule for Commission meetings is subject to change on short notice. For more information or to verify the status of meetings, contact Denise McGovern at 301-415-0681 or via email at
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you
Members of the public may request to receive this information electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the Secretary, Washington, DC 20555 (301-415-1969), or email
Nuclear Regulatory Commission.
Early site permit and record of decision; issuance.
The U.S. Nuclear Regulatory Commission (NRC) has issued early site permit (ESP) number ESP-005 to PSEG Power, LLC and PSEG Nuclear, LLC (PSEG). In addition, the NRC has prepared a summary Record of Decision (ROD) that supports the NRC's decision to issue ESP No. ESP-005.
ESP No. ESP-005 became effective on May 5, 2016.
Please refer to Docket ID NRC-2010-0215 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
•
•
•
Prosanta Chowdhury, telephone: 301-415-1647, email:
Under Section 2.106 of title 10 of the
Accordingly, the ESP was issued on May 5, 2016, and became effective immediately.
The NRC has prepared a final safety evaluation report (FSER) and final environmental impact statement (FEIS) that document the information reviewed and the NRC's conclusions. The Atomic Safety and Licensing Board (ASLB) issued its Initial Decision on April 26, 2016, following the March 24, 2016, mandatory hearing on the staff's review, authorizing the NRC staff to issue to PSEG an ESP for the PSEG Site. The ASLB's Initial Decision constitutes the NRC's ROD. The NRC also prepared a document summarizing the ROD to accompany its actions on the ESP application; this Summary ROD incorporates by reference materials contained in the FEIS. The FSER, FEIS, Summary ROD, and accompanying documentation included in the ESP package, as well as the ASLB Initial Decision, are available online in the ADAMS Public Document collection at
The documents identified in the following table are available to interested persons through the ADAMS Public Documents collection. A copy of the early site permit application is also available for public inspection at the NRC's PDR and at
For the Nuclear Regulatory Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes is hereby filing with the U.S. Securities and Exchange Commission (“Commission”) a proposed rule change (the “Proposed Rule Change”) in connection with a proposed business transaction (the “Transaction”) involving the Exchange's ultimate, indirect, non-U.S. upstream owners, Deutsche Börse AG (“Deutsche Börse”) and Eurex Frankfurt AG (“Eurex Frankfurt”), and Nasdaq, Inc. (“Nasdaq”). Nasdaq is the parent company of The NASDAQ Stock Market LLC (“NASDAQ Exchange”), NASDAQ PHLX LLC (“Phlx Exchange”), NASDAQ BX, Inc. (“BX Exchange”), Boston Stock Exchange Clearing Corporation (“BSECC”) and Stock Clearing Corporation of Philadelphia (“SCCP”).
In order to effect the Transaction, the Exchange hereby seeks the Commission's approval of the following: (i) That certain corporate resolutions that were previously established by entities that will cease to be non-U.S. upstream owners of the Exchange after the Transaction will cease to be considered rules of the Exchange upon Closing; (ii) that certain governing documents of Nasdaq will be considered rules of the Exchange upon Closing; (iii) that the Third Amended and Restated Trust Agreement (the “Trust Agreement”) that currently exists among International Securities Exchange Holdings, Inc. (“ISE Holdings”), U.S. Exchange Holdings, and the Trustees (as defined therein) with respect to the “ISE Trust” will cease to be considered rules of the Exchange upon Closing and, thereafter, that the parties to the Trust Agreement would be permitted to take the corporate steps necessary to repeal the Trust Agreement and dissolve the ISE Trust; (iv) to amend and restate the Second Amended and Restated Certificate of Incorporation of ISE Holdings (“ISE Holdings COI”) to eliminate provisions relating to the Trust Agreement and the ISE Trust and, in this respect, to reinstate certain text of the ISE Holdings COI that existed prior to Deutsche Börse's ownership of ISE Holdings; (v) to amend and restate the Second Amended and Restated Bylaws of ISE Holdings (the “ISE Holdings Bylaws”) to waive certain voting and ownership restrictions in the ISE Holdings COI to permit Nasdaq to indirectly own 100% of the outstanding common stock of ISE Holdings as of and after Closing of the Transaction; and (vi) to amend and restate the Third Amended and Restated Certificate of Incorporation of U.S. Exchange Holdings (“U.S. Exchange Holdings COI”) to eliminate references therein to the Trust Agreement.
The Exchange requests that the Proposed Rule Change become operative at the Closing of the Transaction. The text of the proposed rule change is available at the Commission's Public Reference Room and on the Exchange's Internet 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 these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
The Exchange submits this Proposed Rule Change to seek the Commission's approval of various changes to the organizational and governance documents of the Exchange's current owners and related actions that are necessary in connection with the Closing of the Transaction, as described below. The Exchange will continue to conduct its regulated activities (including operating and regulating its market and Members) in the manner
On December 17, 2007, ISE Holdings, the sole, direct parent of the Exchange, became a direct, wholly-owned subsidiary of U.S. Exchange Holdings.
On March 9, 2016, a Stock Purchase Agreement (the “Agreement”) was entered into among Deutsche Börse, Eurex Frankfurt and Nasdaq. Pursuant to and subject to the terms of the Agreement, at the Closing, Deutsche Börse and Eurex Frankfurt will sell, transfer and deliver to Nasdaq, and Nasdaq will purchase, the capital stock of U.S. Exchange Holdings.
As a result of the Transaction, Nasdaq will directly own 100% of the equity interest of U.S. Exchange Holdings. U.S. Exchange Holdings will remain the sole, direct owner of ISE Holdings. ISE Holdings will remain the sole, direct owner of the Exchange. The Exchange will therefore become an indirect subsidiary of Nasdaq and Nasdaq will become the ultimate parent of the Exchange. The Exchange will become an affiliate of NASDAQ Exchange, Phlx Exchange, BX Exchange, BSECC and SCCP through common, ultimate ownership by Nasdaq. As a result of the Transaction, Deutsche Börse and Eurex Frankfurt will cease to be owners of the Exchange. The Exchange will therefore cease to have any Non-U.S. Upstream Owners. The Transaction will not have any effect on ISE Holdings' direct ownership of the Exchange. However, consummation of the Transaction is subject to approval of this Proposed Rule Change by the Commission, as described below.
Deutsche Börse and Eurex Frankfurt, as the Non-U.S. Upstream Owners of the Exchange, have previously taken appropriate steps to incorporate provisions regarding ownership, jurisdiction, books and records, and other issues related to their control of the Exchange. Specifically, each of such Non-U.S. Upstream Owners has adopted resolutions (“Non-U.S. Upstream Owner Resolutions”), which were previously approved by the Commission, to incorporate these concepts with respect to itself, as well as its board members, officers, employees, and agents (as applicable), to the extent that they are involved in the activities of the Exchange.
Section 19(b) of the Act,
Nasdaq will become the ultimate parent of the Exchange upon the Closing of the Transaction. As described above, Section 19(b) of the Act and Rule 19b-4 thereunder require an SRO to file proposed rule changes with the Commission. Although the Exchange's existing U.S. upstream owners are not SROs, their governing documents have previously been filed with the Commission as stated policies, practices, or interpretations of the Exchange and therefore are considered rules of the Exchange.
The Nasdaq Bylaws contain certain provisions regarding ownership, jurisdiction, books and records, and other issues, with respect to Nasdaq, as well as its board members, officers, employees, and agents (as applicable), relating to Nasdaq's control of any “Self-Regulatory Subsidiary” (
• Giving due regard to the preservation of the independence of the self-regulatory function of each of Nasdaq's Self-Regulatory Subsidiaries.
• Maintaining the confidentiality of all books and records of each Self-Regulatory Subsidiary reflecting confidential information pertaining to the self-regulatory function of such Self-Regulatory Subsidiary (including but not limited to disciplinary matters, trading data, trading practices and audit information) that comes into Nasdaq's possession, which shall not be used for any non-regulatory purposes; making such books and records available for inspection and copying by the Commission; and maintaining such books and records relating to each Self-Regulatory Subsidiary in the United States.
• To the extent they are related to the activities of a Self-Regulatory Subsidiary, the books, records, premises, officers, Directors, and employees of Nasdaq shall be deemed to be the books, records, premises, officers, directors, and employees of such Self-Regulatory Subsidiary for the purposes of, and subject to oversight pursuant to, the Act.
• Compliance by Nasdaq with the U.S. federal securities laws and the rules and regulations thereunder, cooperation by Nasdaq with the Commission and Nasdaq's Self-Regulatory Subsidiaries, and reasonable steps by Nasdaq necessary to cause its agents to cooperate with the Commission and, where applicable, the Self-Regulatory Subsidiaries pursuant to their regulatory authority.
• Consent by Nasdaq and its officers, Directors, and employees to the jurisdiction of the United States federal courts, the Commission, and each Self-Regulatory Subsidiary for the purposes of any suit, action or proceeding pursuant to the United States federal securities laws, and the rules and regulations thereunder, arising out of, or relating to, the activities of any Self-Regulatory Subsidiary.
• Reasonable steps by Nasdaq necessary to cause its current and future officers, Directors, and employees, to consent in writing to the applicability to them of certain provisions of the Nasdaq Bylaws, as applicable, with respect to their activities related to any Self-Regulatory Subsidiary.
• Approval by the Commission under Section 19 of the Act prior to any resolution of the Nasdaq Board to approve an exemption for any person from the ownership limitations of the Nasdaq COI.
• Filing with, or filing with and approval by, the Commission (as the case may be) under Section 19 of the Act prior to amending the Nasdaq COI or the Nasdaq Bylaws.
The Exchange believes that the provisions in the Nasdaq Bylaws should minimize the potential that a person could improperly interfere with, or restrict the ability of, the Commission or the Exchange to effectively carry out their regulatory oversight responsibilities under the Act.
Additionally, and similar to the ISE Holdings COI, the Nasdaq COI imposes limits on direct and indirect changes in control, which are designed to prevent any shareholder from exercising undue control over the operation of its SRO subsidiaries and to ensure that its SRO subsidiaries and the Commission are able to carry out their regulatory obligations under the Act. Specifically, no person who beneficially owns shares of common stock, preferred stock, or notes of Nasdaq in excess of 5% of the securities generally entitled to vote may vote the shares in excess of 5%.
The ISE Holdings COI currently contains certain ownership limits
As described above, Section 19(b) of the Act and Rule 19b-4 thereunder require an SRO to file proposed rule changes with the Commission. Although the ISE Trust is not an SRO, the Trust Agreement has previously been filed with the Commission as stated policies, practices, or interpretations of the Exchange and therefore is considered rules of the Exchange.
The ISE Holdings COI was amended in 2007 in relation to the ownership of the Exchange by Deutsche Börse.
As described above, the Exchange is proposing that the Trust Agreement will cease to be considered rules of the Exchange as of a date that corresponds to the Closing date of the Transaction. Accordingly, the Exchange proposes to remove provisions relating to the Trust Agreement and the ISE Trust from the ISE Holdings COI.
The changes to the ISE Holdings COI proposed herein would describe the corrective treatment of “Excess Shares” (
• The Exchange proposes to delete the current provisions in Article Fourth, Sections III(a)(ii), III(a)(iii) and III(b)(i) of the ISE Holdings COI that provide that the ISE Holdings Board of Directors shall deliver to the ISE Trust copies of certain written notice and updates thereto currently required under Sections III(a)(ii) and III(a)(iii) of Article FOURTH (
• The Exchange proposes to adopt new Article FOURTH, Section III(b)(iii) of the ISE Holdings COI, which would provide that, notwithstanding any other provisions contained in the ISE Holdings COI, to the fullest extent permitted by applicable law, any shares of capital stock of ISE Holdings (whether such shares are common stock or preferred stock) not entitled to be voted due to the restrictions set forth in Section III(b)(i) of Article FOURTH of the ISE Holdings COI (and not waived by the ISE Holdings Board of Directors and approved by the Commission pursuant to Section III(b)(i) of Article FOURTH of the ISE Holdings COI), shall not be deemed to be outstanding for purposes of determining a quorum or a minimum vote required for the transaction of any business at any meeting of stockholders of ISE Holdings, including, without limitation, when specified business is to be voted on by a class or a series voting as a class.
• As a result of the addition of new Article FOURTH, Section III(b)(iii) of the ISE Holdings COI, the Exchange proposes to renumber current Article FOURTH, Section III(b)(iii) as resulting Article FOURTH, Section III(b)(iv).
• The Exchange proposes several changes to Article FOURTH, Section III(c) of the ISE Holdings COI, which relates to violations of any Ownership Limits or Voting Limits and the treatment of Excess Shares, including the following:
• Addition of new text relating to the designation as “Excess Shares” for any shares held in excess of the relevant Ownership Limits; such designation and treatment being effective as of the close of business on the business day prior to the date of the purported transfer or other event leading to such Excess Shares.
• Deletion of current text requiring notification to the ISE Trust upon the occurrence of certain events and the transfer of Voting Shares to the ISE Trust.
• Addition of new text describing the treatment of “Excess Shares” upon any sale, transfer, assignment or pledge that, if effective would result in any Person, either alone or together with its Related Persons, owning shares in excess of any of the Ownership Limits. Specifically, the Exchange proposes within new Article FOURTH, Section III(c)(i) of the ISE Holdings COI that any such purported event shall be void ab initio as to such Excess Shares, and the intended transferee shall acquire no rights in such Excess Shares. Such Excess Shares shall be deemed to have been transferred to ISE Holdings (or to an entity appointed by ISE Holdings that is unaffiliated with ISE Holdings and any Person or its Related Persons owning such Excess Shares), as Special Trustee of the Charitable Trust for the exclusive benefit of the Charitable Beneficiary or Beneficiaries.
• Addition of new text describing the treatment of dividends or other distributions paid with respect to Excess Shares.
• Addition of new text describing the handling of any distribution of assets received in respect of the Excess Shares in any liquidation, dissolution or winding up of, or any distribution of the assets of ISE Holdings.
• Addition of new text describing the authority of the Special Trustee with respect to rescinding as void any votes cast by a purported transferee or holder of Excess Shares as well as recasting of votes in accordance with the desires of the Special Trustee acting for the benefit of ISE Holdings.
• Addition of new text describing the sale by the Special Trustee, to a Person or Persons designated by the Special Trustee whose ownership of Voting Shares will not violate any Ownership Limit or Voting Limit, of Excess Shares transferred to the Charitable Trust, within 20 days of receiving notice from ISE Holdings that Excess Shares have been so transferred.
• Addition of new text describing that Excess Shares shall be deemed to have been offered for sale to ISE Holdings on
• Deletion of current Article FOURTH, Section III(c)(v), which currently relates to the ISE Trust Beneficiary's right to reacquire Excess Shares from the ISE Trust under certain circumstances.
The Exchange is not proposing to reinstate all of the ISE Holdings COI text that existed prior to Deutsche Börse's ownership of ISE Holdings, as certain of such text would continue to not be applicable, even after the Transaction, given the Exchange's resulting ownership. For example, prior to Deutsche Börse's ownership of ISE Holdings, the ISE Holdings COI contained certain provisions that dealt with the publicly-traded nature of ISE Holdings' stock. This text was removed from the ISE Holdings COI upon Deutsche Börse's ownership of ISE Holdings, as ISE Holdings' stock ceased to be publicly-traded.
• Regulation 14A under the Act (pertaining to solicitations of proxies).
• the treatment of transactions of ISE Holdings stock on or through the facilities of any national securities exchange or national securities association.
• inspection of the ISE Holdings accounts and records by ISE Holdings stockholders.
• stockholder voting to amend, repeal or adopt provisions of the ISE Holdings COI or the ISE Holdings Bylaws.
• stockholder action called at annual or special meetings of stockholders.
• nominations for directors and the election thereof.
The Exchange also is not proposing to reinstate the ISE Holdings COI text that existed prior to Deutsche Börse's ownership of ISE Holdings that related to changes in terminology used throughout the ISE Holdings COI.
The Exchange proposes to remove the reference to the Trust Agreement in Article THIRTEENTH of the U.S. Exchange Holdings COI. As proposed herein, the Trust Agreement will cease to be considered rules of the Exchange as of the Closing of the Transaction and would be repealed in connection with the Transaction. The Exchange also proposes to retitle the document as the “Fourth” Amended and Restated Certificate of Incorporation of U.S. Exchange Holdings and update the effective date thereof.
The ISE Holdings COI Voting Limits restrict any person, either alone or together with its related persons, from having voting control, either directly or indirectly, over more than 20% of the outstanding capital stock of ISE Holdings. The ISE Holdings COI Ownership Limits restrict any person, either alone or together with its related persons, from directly or indirectly owning of record or beneficially more than 40% of the outstanding capital stock of ISE Holdings (or in the case of any Exchange member, acting alone or together with its related persons, from directly or indirectly owning of record or beneficially more than 20% of the outstanding capital stock of ISE Holdings).
The ISE Holdings COI and the ISE Holdings Bylaws provide that the board of directors of ISE Holdings may waive these voting and ownership restrictions in an amendment to the ISE Holdings Bylaws if the board makes the following three findings: (1) The waiver will not impair the ability of the Exchange to carry out its functions and responsibilities as an exchange under the Act and the rules thereunder; (2) the waiver is otherwise in the best interests of ISE Holdings, its stockholders, and the Exchange; and (3) the waiver will not impair the ability of the Commission to enforce the Act. However, the board of directors may not waive these voting and ownership restrictions as they apply to Exchange members. In addition, the board of directors may not waive these voting and ownership restrictions if such waiver would result in a person subject to a “statutory disqualification” owning or voting shares above the stated thresholds. Any waiver of these voting and ownership restrictions must be by way of an amendment to the Bylaws approved by the board of directors, which amendment must be approved by the Commission.
Acting pursuant to this waiver provision, the board of directors of ISE Holdings has approved the amendment to the ISE Holdings Bylaws to waive the Ownership Limits and Voting Limits in order to permit Nasdaq to indirectly own 100% of the outstanding common stock of ISE Holdings as of and after Closing of the Transaction.
The Exchange will continue to conduct its regulated activities (including operating and regulating its market and Members) in the manner currently conducted and will not make any changes to its regulated activities in connection with the Transaction. In addition, the Transaction will not impair the ability of the Exchange's, or any facility thereof, to carry out their respective functions and responsibilities under the Act and will not impair the ability of the Commission to enforce the Act. The Exchange therefore seeks approval of the waiver described herein with respect to the Ownership Limits and Voting Limits in order to permit Nasdaq to indirectly own 100% of the outstanding common stock of ISE Holdings as of and after Closing of the Transaction.
The Exchange will continue to conduct its regulated activities (including operating and regulating its market and Members) in the manner currently conducted and will not make any changes to its regulated activities in connection with the Transaction. The Transaction will not impair the ability of ISE Holdings, the Exchange, or any facility thereof, to carry out their respective functions and responsibilities under the Act. Moreover, the Transaction will not impair the ability of the Commission to enforce the Act with respect to the Exchange. As such, the Commission's plenary regulatory authority over the Exchange will not be affected by the approval of this Proposed Rule Change. The Exchange is requesting approval by the Commission of changes proposed herein in order to allow the Transaction to take place.
The Exchange believes that this proposal is consistent with Section 6(b)of the Act,
The Exchange also believes that this Proposed Rule Change furthers the objectives of Section 6(b)(5)
Approval of this Proposed Rule Change will enable ISE Holdings to continue its operations and the Exchange to continue its orderly discharge of regulatory duties to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest.
In addition, the Exchange expects that the Transaction will facilitate efficiencies and innovation for clients and efficient, transparent and well-regulated markets for issuers and clients, thus removing impediments to, and perfecting the mechanism of a free and open market and a national market system. The Transaction will benefit investors, the market as a whole, and shareholders by, among other things, enhancing competition among securities venues and reducing costs. In particular,
Furthermore, the Exchange will continue to conduct its regulated activities (including operating and regulating its market and Members) in the manner currently conducted and will not make any changes to its regulated activities in connection with the Transaction. Therefore, the Exchange believes that it will continue to satisfy the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange.
The Exchange believes it is consistent with the Act to allow Nasdaq to become the ultimate parent of the Exchange. Neither Nasdaq nor any of its related persons is subject to any statutory disqualification or is a Member of the Exchange. Moreover, the Nasdaq governing documents include certain provisions designed to maintain the independence of the Exchange's self-regulatory functions. Accordingly, the Exchange believes that Nasdaq's acquisition of ultimate ownership and exercise of voting control of the Exchange will not impair the ability of the Commission or the Exchange to discharge their respective responsibilities under the Act.
Although Nasdaq will not carry out regulatory functions, its activities with respect to the operation of the Exchange must be consistent with, and not interfere with, the Exchange's self-regulatory obligations. Nasdaq's governing documents include certain provisions that are designed to maintain the independence of the Exchange's self-regulatory functions, enable the Exchange to operate in a manner that complies with the U.S. federal securities laws, including the objectives and requirements of Sections 6(b) and 19(g) of the Act,
Further, Nasdaq (along with its respective board members, officers, and employees) and U.S. Exchange Holdings agree to keep confidential, to the fullest extent permitted by applicable law, all confidential information pertaining to the self-regulatory function of the Exchange, including, but not limited to, confidential information regarding disciplinary matters, trading data, trading practices, and audit information, contained in the books and records of the Exchange and not use such information for any non-regulatory purposes.
In addition, Nasdaq's books and records relating to the activities of the Exchange will at all times be made available for, and books and records of U.S. Exchange Holdings will be subject at all times to, inspection and copying by the Commission and the Exchange. Books and records of U.S. Exchange Holdings related to the activities of the Exchange also will continue to be maintained within the U.S. Moreover, for so long as Nasdaq directly or indirectly controls the Exchange, the books, records, officers, directors (or equivalent), and employees of Nasdaq shall be deemed to be the books, records, officers, directors, and employees of the Exchange.
To the extent involved in the activities of the Exchange, Nasdaq, its board members, officers, and employees irrevocably submit to the jurisdiction of the U.S. federal courts and the Commission for purposes of any action arising out of, or relating to, the activities of the Exchange. Likewise, U.S. Exchange Holdings, its officers and directors, and employees whose principal place of business and residence is outside of the U.S., to the extent such directors, officers, or employees are involved in the activities of the Exchange, irrevocably submit to the jurisdiction of the U.S. federal courts and the Commission for purposes of any action arising out of, or relating to, the activities of the Exchange.
The Nasdaq governing documents, the U.S. Exchange Holdings COI, and the U.S. Exchange Holdings Bylaws require that any change thereto must be submitted to the Exchange's Board. If such change must be filed with, or filed with and approved by, the Commission under Section 19 of the Act and the rules thereunder, then such change shall not be effective until filed with, or filed with and approved by, the Commission. This requirement to submit changes to the Exchange's Board continues for so long as Nasdaq or U.S. Exchange Holdings, as applicable, directly or indirectly, control the Exchange.
As Deutsche Börse and Eurex Frankfurt will both cease to be Non-U.S. Upstream Owners of the Exchange upon the Closing of the Transaction, the Exchange believes that its proposal that the resolutions of Deutsche Börse and Eurex Frankfurt will cease to be considered rules of the Exchange as of a date that corresponds to the Closing date of the Transaction is consistent with the Act.
The purpose for which the ISE Trust was formed will not be relevant after the Closing of the Transaction, given that the Exchange will no longer have Non-U.S. Upstream Owners and that the Exchange's current and resulting U.S. upstream owners' governing documents provide for similar protections (
Given the Exchange's proposal to repeal the Trust Agreement and dissolve the ISE Trust, the Exchange believes that the proposed changes to the ISE Holdings COI are consistent with the Act. The proposed changes would delete provisions of the ISE Holdings COI that will no longer be relevant and would reinstate certain provisions of the ISE Holdings COI that were removed upon introduction of the provisions relating to the ISE Trust and the Trust Agreement.
In accordance with Section 6(b)(8) of the Act,
The Exchange's conclusion that the Proposed Rule Change would not result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act is consistent with the Commission's prior conclusions about similar combinations involving multiple exchanges in a single corporate family.
The Exchange believes that there is considerable support for a finding that the Transaction is consistent with the Act with respect to competition. 14 exchanges currently compete for options trading business. Exchanges compete on technology, market model, trading venue, fees and fee structure. Additionally, low switching costs allow customers to easily move to another exchange, which customers do regularly, as reflected in constantly varying market shares among the existing exchange operators. In addition, the Commission has approved several, new registered options exchanges in recent history, which highlights an increase in competition in the market for listed options trading.
The Exchange believes that the Transaction will not change the competitive landscape for listed options trading and the changes proposed herein are consistent with other recent Commission approvals. For example, a similar proposed combination of Deutsche Börse and NYSE Euronext in 2011 received Commission approval and would have resulted in a combined greater than 40% market share of listed options volume among its three, respective options exchanges (based on 2010 data).
For these reasons, the Exchange believes that the proposal is consistent with the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
Within 45 days of the publication date of this notice or within such longer period (1) as the Commission may designate up to 45 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding or (2) as to which the self-regulatory organization consents, the Commission will:
(A) By order approve such Proposed Rule Change; or
(B) institute proceedings to determine whether the Proposed Rule Change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to the provisions of Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange filed a proposal to amend Rule 11.13, Order Execution and Routing, to delete the IOCM and ICMT routing options. The Exchange also proposes to amend its fee schedule to delete: (i) References to the IOCM and ICMT routing options under footnote 8; and (ii) fee code PX, which is yielded on orders routed using the RMPT routing option or routed to Bats EDGX Exchange, Inc. (“EDGX”) to execute against MidPoint Peg Orders
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend Rule 11.13, Order Execution and Routing, to delete the IOCM and ICMT routing options. The Exchange also proposes to amend its fee schedule to delete: (i) References to the IOCM and ICMT routing options under footnote 8; and (ii) fee code PX, which is yielded on orders routed using the RMPT routing option or routed to EDGX to execute against MidPoint Peg Orders on EDGX using ICMT or IOCM routing options.
Under Rule 11.13(b)(3)(O), an order utilizing the IOCM routing option checks the System
Footnote 8 of the fee schedule states that orders in securities priced below $1.00 that remove liquidity utilizing certain routing strategies, including IOCM and ICMT are charged a fee of $0.29% of the trade's total dollar value. Fee code PX is yielded on orders routed using the RMPT routing option or routed to EDGX to execute against MidPoint Peg Orders on EDGX using ICMT or IOCM routing options. Orders that yield fee code PX pay a fee of $0.0012 per share in securities priced at or above $1.00 and 0.29% of the trade's dollar value for securities priced below $1.00.
Because few Users elect the IOCM or ICMT routing options, the Exchange has determined that the current demand does not warrant the infrastructure and ongoing maintenance expenses required to support the products. Therefore, the Exchange proposes to delete the IOCM and ICMT routing options under Rule 11.13(b)(3)(O) and (P) as well as a reference to the IOCM and ICMT routing options under Rule 11.13(b)(3)(H). The Exchange also proposes to amend its fee schedule to delete: (i) References to the IOCM and ICMT routing options under footnote 8; and (ii) fee code PX, which is yielded on orders routed using the RMPT routing option or routed to EDGX to execute against MidPoint Peg Orders on EDGX using ICMT or IOCM routing options. Users seeking to route midpoint eligible orders to EDGX may use alternative methods, such as connecting to EDGX directly or through a third party service provider, or electing another routing option offered by the Exchange that enables a User to post an order to certain primary listing markets.
The Exchange intends to implement the proposed rule change on May 5, 2016.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange does not believe that this proposal will permit unfair discrimination among customers, brokers, or dealers because the IOCM and ICMT routing options will no longer be available to all Users. The Exchange has few Users electing the IOCM and ICMT routing options and has determined that the current demand does not warrant the infrastructure and ongoing maintenance expense required to support the products. Routing through the Exchange is voluntary and alternative routing options offered by the Exchange as well as other methods remain available to Users that wish to route midpoint eligible orders to EDGX.
The Exchange does not believe that the proposal will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not designed to address any competitive issues but rather avoid investor confusion by eliminating the IOCM and ICMT routing options that are to be discontinued by the Exchange.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to 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
The Exchange proposes to modify the maximum number of times an Order on PSX may be updated before the System cancels the Order.
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 will cancel an Order if it is updated a certain number of times during any given day. Pursuant to Rule 3301A(a), an Order will be cancelled if it is repriced and/or reentered 10,000 times for any reason.
Pursuant to Rule 3301A(b)(5)(A), a Market Maker Peg Order will be canceled if it is repriced 1,000 times. Pursuant to Rule 3301B(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.
The Exchange 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, the Exchange is proposing to eliminate rule text under Rules 3301A(a), 3301A(b)(5)(A), and 3301B(d) concerning cancellation based on Order updates and consolidate the concept under a new Rule 3306(a)(4).
Second, the Exchange 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 the Exchange 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.
The Exchange 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, the Exchange 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. The Exchange notes that all updates identified by the current process will be counted under the new process. The Exchange believes these changes will provide it with greater flexibility in addressing changes in volume, market participant behavior, and the Exchange's capacity to handle the message volume caused by Orders that update a significant number of times throughout the trading day.
The Exchange 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, the Exchange will keep the number of updates consistent with what is currently noted in the rules; however, the Exchange may shortly thereafter change the number of updates as needed to address market conditions.
Phlx is also making minor technical corrections to Rule 3301B(d) to change the word “they” to the word “the” in the first full paragraph below the bulleted list under the rule and to delete an erroneous quote from the end of the same paragraph.
The Exchange 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 the Exchange's System, which, if left unchecked, could potentially affect overall market quality. The Exchange will continue canceling Orders that reach a certain number of updates but, instead of the static number of updates stated in the rules, the Exchange is proposing to provide the number of updates by Order Type or Order Attribute on its public Web site. Web site posting will allow the Exchange to react more quickly to changes in the marketplace by changing the applicable number of updates that will trigger cancellation of an Order. The Exchange 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 [sic] investors and the public interest.
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, 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, the Exchange 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 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to modify the maximum number of times an Order on the Exchange may be updated before the System cancels the Order.
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 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.
The Exchange 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, the Exchange 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, the Exchange 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 the Exchange 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.
The Exchange 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, the Exchange 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. The Exchange notes that all updates identified by the current process will be counted under the new process. The Exchange believes these changes will provide it with greater flexibility in addressing changes in volume, market participant behavior, and the Exchange's capacity to handle the message volume caused by Orders that update a significant number of times throughout the trading day.
The Exchange 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, the Exchange will keep the number of updates consistent with what is currently noted in the rules; however, the Exchange may shortly thereafter change the number of updates as needed to address market conditions.
BX is also making minor technical corrections to Rule 4702(b)(7) to make “(A)” denoting subparagraph (A) under the rule not bold, and to insert missing spaces between words in the sixth paragraph of subparagraph (A) under the rule. BX is also changing the word “they” to the word “the” in the first full paragraph below the bulleted list under Rule 4703(d).
The Exchange 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 the Exchange's System, which, if left unchecked, could potentially affect overall market quality. The Exchange will continue canceling Orders that reach a certain number of updates but, instead of the static number of updates stated in the rules, the Exchange is proposing to provide the number of updates by Order Type or Order Attribute on its public Web site. Web site posting will allow the Exchange to react more quickly to changes in the marketplace by changing the applicable number of updates that will trigger cancellation of an Order. The Exchange 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 [sic] investors and the public interest.
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not
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, the Exchange 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 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission Advisory Committee on Small and Emerging Companies will hold a public meeting on Wednesday, May 18, 2016, in Multi-Purpose Room LL-006 at the Commission's headquarters, 100 F Street NE., Washington, DC.
The meeting will begin at 9:30 a.m. (EDT) and will be open to the public. Seating will be on a first-come, first-served basis. Doors will open at 9:00 a.m. Visitors will be subject to security checks. The meeting will be webcast on the Commission's Web site at
On May 4, 2016, the Commission published notice of the Committee meeting (Release No. 33-10074), indicating that the meeting is open to the public and inviting the public to submit written comments to the Committee. This Sunshine Act notice is being issued because a majority of the Commission may attend the meeting.
The agenda for the meeting includes matters relating to rules and regulations affecting small and emerging companies under the federal securities laws.
For further information, please contact the Brent J. Fields in the Office of the Secretary at (202) 551-5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to adopt Exchange Rule 11.27(a) to implement the quoting and trading provisions of the Regulation NMS Plan to Implement a Tick Size Pilot Program (“Plan”). The proposed rule change is substantially similar to a proposed rule change approved by the Commission by the Bats BZX Exchange, Inc. f/k/a BATS Exchange, Inc. (“BZX”) to adopt BZX Rule 11.27(a) which also implemented the quoting and trading provisions of the Plan.
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
On August 25, 2014, NYSE Group, Inc., on behalf of the Exchange, BZX, Chicago Stock Exchange, Inc., Bats EDGA Exchange, Inc. f/k/a EDGA Exchange, Inc., Bats EDGX Exchange, Inc. f/k/a EDGX Exchange, Inc., Financial Industry Regulatory Authority, Inc. (“FINRA”), NASDAQ OMX BX, Inc., NASDAQ OMX 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 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 with, 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 member organizations to comply with the applicable quoting and trading increments for Pilot Securities.
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 sampling.
The Plan requires the Exchange to establish, maintain, and enforce written policies and procedures that are reasonably designed to comply with applicable quoting and trading requirements specified in the Plan. Accordingly, the Exchange is proposing new paragraph (a) to Rule 11.27 (Compliance with Regulation NMS Plan to Implement a Tick Size Pilot Program) to require Members
Proposed Rule 11.27(a) (Compliance with Quoting and Trading Restrictions) sets forth the requirements for the Exchange and Members in meeting their obligations under the Plan. Rule 11.27(a)(1) will require Members to establish, maintain and enforce written policies and procedures that are reasonably designed to comply with the applicable quoting and trading requirements of the Plan. Rule 11.27(a)(2) provides that the Exchange Systems
Proposed Rule 11.27(a)(3) clarifies the treatment of Pilot Securities that drop below $1.00 during the Pilot Period. In particular, Rule 11.27(a)(3) provides that, if the price of a Pilot Security drops below $1.00 during regular trading hours on any trading day, such Pilot Security will continue to be a Pilot Security subject to the Plan. However, if the Closing Price of a Pilot Security on any given trading day is below $1.00, such Pilot Security will be moved out of its Pilot Test Group into the Control Group, and may then be quoted and traded at any price increment that is currently permitted for the remainder of the Pilot Period.
In approving the Plan, the Commission noted that the Participants had proposed additional selection criteria to minimize the likelihood that securities that trade with a share price of $1.00 or less would be included in the Pilot, and stated that, once established, the universe of Pilot Securities should stay as consistent as possible so that the analysis and data can be accurate throughout the Pilot Period.
Proposed Rule 11.27(a)(4) sets forth the applicable limitations for securities in Test Group One. Consistent with the language of the Plan, Rule 11.27(a)(4) provides that no Member may display, rank, or accept from any person any displayable or non-displayable bids or offers, orders, or indications of interest in any Pilot Security in Test Group One in increments other than $0.05. However, orders priced to execute at the midpoint of the national best bid and national best offer (“NBBO”) or best protected bid and best protected offer (“PBBO”)
Proposed Rule 11.27(a)(5) sets forth the applicable quoting and trading requirements for securities in Test Group Two. This provision states that no Member may display, rank, or accept from any person any displayable or non-displayable bids or offers, orders, or indications of interest in any Pilot Security in Test Group Two in increments other than $0.05. However, orders priced to execute at the midpoint of the NBBO or PBBO and orders entered in a Participant-operated retail liquidity program may be ranked and accepted in increments of less than $0.05.
Proposed Rule 11.27(a)(5) also sets forth the applicable trading restrictions for Test Group Two securities. Absent any of the exceptions listed in the Rule, no Member may execute orders in any Pilot Security in Test Group Two in price increments other than $0.05. The $0.05 trading increment will apply to all trades, including Brokered Cross Trades.
Consistent with the language of the Plan, the Rule provides that Pilot Securities in Test Group Two may trade in increments of less than $0.05 under the following circumstances: (1) trading may occur at the midpoint between the NBBO or the PBBO; (2) Retail Investor Orders may be provided with price improvement that is at least $0.005 better than the PBBO; and (3) Negotiated Trades may trade in increments of less than $0.05.
The Exchange also proposes to add an exception to Rule 11.27(a)(5) to permit Members to fill a customer order in a Pilot Security in Test Group Two at a non-nickel increment to comply with
Thus, the Exchange is proposing to add a customer order protection exception to Rule 11.27(a)(5) that would permit Members to trade Pilot Securities in Test Group Two in increments less than $0.05, and where the Member is executing a customer order to comply with Exchange Rule 12.6 following the execution of a proprietary trade by the Member at an increment other than $0.05 where such proprietary trade was permissible pursuant to an exception under the Plan. The Exchange believes that this approach best facilitates the ability of Members to continue to protect customer orders while retaining the flexibility to engage in proprietary trades that comply with an exception to the Plan.
Proposed Rule 11.27(a)(6) sets forth the applicable quoting and trading restrictions for Pilot Securities in Test Group Three. The rule provides that no Member may display, rank, or accept from any person any displayable or non-displayable bids or offers, orders, or indications of interest in any Pilot Security in Test Group Three in increments other than $0.05. However, orders priced to execute at the midpoint of the NBBO or PBBO and orders entered in a Participant-operated retail liquidity program may be ranked and accepted in increments of less than $0.05. The rule also states that, absent any of the applicable exceptions, no Member that operates a Trading Center may execute orders in any Pilot Security in Test Group Three in price increments other than $0.05. The $0.05 trading increment will apply to all trades, including Brokered Cross Trades.
Proposed Rule 11.27(a)(6)(C) sets forth the exceptions pursuant to which Pilot Securities in Test Group Three may trade in increments of less than $0.05. First, trading may occur at the midpoint between the NBBO or PBBO. Second, Retail Investor Orders may be provided with price improvement that is at least $0.005 better than the PBBO. Third, Negotiated Trades may trade in increments of less than $0.05.
Similar to that proposed under Rule 11.27(a)(5) described above, the Exchange also proposes to add an exception to Rule 11.27(a)(6) to permit Members to fill a customer order in a Pilot Security in Test Group Three at a non-nickel increment to comply with Exchange Rule 12.6 (Prohibition Against Trading Ahead of Customer Orders) under limited circumstances. Specifically, the exception would allow the execution of a customer order following a proprietary trade by the Member at an increment other than $0.05 in the same security, on the same side and at the same price as (or within the prescribed amount of) a customer order owed a fill pursuant to Exchange Rule 12.6, where the triggering proprietary trade was permissible pursuant to an exception under the Plan.
Proposed Rule 11.27(a)(6)(D) sets forth the “Trade-at Prohibition,” which is the prohibition against executions by a Member that operates a Trading Center of a sell order for a Pilot Security in Test Group Three at the price of a Protected Bid or the execution of a buy order for a Pilot Security in Test Group Three at the price of a Protected Offer during regular trading hours, absent any of the exceptions set forth in Rule 11.27(a)(6)(D). Consistent with the Plan, the rule reiterates that a Member that operates a Trading Center that is displaying a quotation, via either a processor or an SRO quotation feed, that is a Protected Bid or Protected Offer is permitted to execute orders at that level, but only up to the amount of its displayed size. A Member that operates a Trading Center that was not displaying a quotation that is the same price as a Protected Quotation, via either a processor or an SRO quotation feed, is prohibited from price-matching protected quotations unless an exception applies.
Consistent with the Plan, proposed Rule 11.27(a)(6)(D) also sets forth the exceptions to the Trade-at prohibition, pursuant to which a Member that operates a Trading Center may execute a sell order for a Pilot Security in Test Group Three at the price of a Protected Bid or execute a buy order for a Pilot Security in Test Group Three at the price of a Protected Offer. The first exception to the Trade-at Prohibition is the “display exception,” which allows a trade to occur at the price of the Protected Quotation, up to the Trading Center's full displayed size, if the order “is executed by a trading center that is displaying a quotation.”
In Rule 11.27(a)(6)(D), the Exchange proposes that a Member that utilizes the independent aggregation unit concept may satisfy the display exception only if the same independent aggregation unit that displays interest via either a processor or an SRO Quotation Feed also executes an order in reliance upon this exception. The rule provides that “independent aggregation unit” has the same meaning as provided under Rule 200(f) of SEC Regulation SHO.
As initially proposed by the Participants, the Plan contained an additional condition to the display exception, which would have required that, where the quotation is displayed through a national securities exchange, the execution at the size of the order must occur against the displayed size on that national securities exchange; and where the quotation is displayed through the Alternative Display Facility
In approving the Plan, the Commission modified the Trade-At Prohibition to remove the venue limitation.
Consistent with Plan and the SEC's determination to remove the venue limitation, the Exchange is making clear that the display exception applies to trades done by a Trading Center otherwise than on an exchange where the Trading Center has previously displayed a quotation in either an agency or a principal capacity. As part of the display exception, the Exchange also proposes that a Trading Center that is displaying a quotation as agent or riskless principal may only execute as agent or riskless principal, while a Trading Center displaying a quotation as principal (excluding riskless principal) may execute either as principal or agent or riskless principal. The Exchange believes this is consistent with the Plan and the objective of the Trade-at Prohibition, which is to promote the display of liquidity and generally to prevent any Trading Center that is not quoting from price-matching Protected Quotations. Providing that a Trading Center may not execute on a proprietary basis in reliance on a quotation representing customer interest (whether agency or riskless principal) ensures that the Trading Center cannot avoid compliance with the Trade-at Prohibition by trading on a proprietary basis in reliance on a quotation that does not represent such Trading Center's own interest. Where a Trading Center is displaying a quotation at the same price as a Protected Quotation in a proprietary capacity, transactions in any capacity at the price and up to the size of such Trading Center's displayed quotation would be permissible. Transactions executed pursuant to the display exception may occur on the venue on which such quotation is displayed or over the counter.
The proposal also excepts Block Size orders
Consistent with the Plan, the proposal also excepts an order that is a Retail Investor Order that is executed with at least $0.005 price improvement.
The exceptions set forth in proposed Rule 11.27(a)(6)(D)(ii) d. through n. are based on the exceptions found in Rule 611 of Regulation NMS.
The subparagraph h. exception applies when the order is identified as a Trade-at Intermarket Sweep Order. The subparagraph i. exception applies when the order is executed by a Trading Center that simultaneously routed Trade-at Intermarket Sweep Orders to execute against the full displayed size of a Protected Quotation with a price that is better than or equal to the limit price of the limit order identified as a Trade-at Intermarket Sweep Order. Depending on whether Rule 611 or the Trade-at requirement applies, an ISO may mean that the sender of the ISO has swept better-priced protected quotations, so that the recipient of that ISO may trade through the price of the protected quotation (Rule 611), or it could mean that the sender of the ISO has swept protected quotations at the same price that it wishes to execute at (in addition to any better-priced quotations), so the recipient of that ISO may trade at the price of the protected quotation (Trade-at). Given that the meaning of an ISO may differ under Rule 611 and Trade-at, the Exchange proposes Rule 11.27(a)(6)(D)(ii)(h) so that the recipient of an ISO in a Test Group Three security would know, upon receipt of that ISO, that the Trading Center that sent the ISO had already executed against the full size of displayed quotations at that price,
The Exchange proposes to further clarify the use of an ISO in connection with the Trade-at requirement by adopting, as part of proposed Rule 11.27(a)(7), a definition of “Trade-at Intermarket Sweep Order.” As set forth in the Plan and as noted above, the definition of a Trade-at ISO does not distinguish ISOs that are compliant with Rule 611 from ISOs that are compliant with Trade-at. The Exchange therefore proposes to define a Trade-at ISO as a limit order for a Pilot Security that meets the following requirements: (1) When routed to a Trading Center, the limit order is identified as a Trade-at
The exception under subparagraph j. of proposed Rule 11.27(a)(6)(D)(ii) applies when the order is executed as part of a Negotiated Trade. The subparagraph k. exception applies when the order is executed when the Trading Center displaying the Protected Quotation that was traded at had displayed, within one second prior to execution of the transaction that constituted the Trade-at, a Best Protected Bid or Best Protected Offer, as applicable, for the Pilot Security with a price that was inferior to the price of the Trade-at transaction.
The exception proposed in subparagraph l. applies to a “stopped order.” The stopped order exemption in Rule 611 of SEC Regulation NMS applies where “[t]he price of the trade-through transaction was, for a stopped buy order, lower than the national best bid in the NMS stock at the time of execution or, for a stopped sell order, higher than the national best offer in the NMS stock at the time of execution.”
To illustrate the application of the stopped order exemption as it currently operates under Rule 611 of SEC Regulation NMS and as it is currently proposed for Trade-at, assume the NBB is $10.00 and another protected quote is at $9.95. Under Rule 611 of SEC Regulation NMS, a stopped order to buy can be filled at $9.95 and the firm does not have to send an ISO to access the protected quote at $10.00 since the price of the stopped order must be lower than the NBB. For the stopped order to also be executed at $9.95 and satisfy the Trade-at requirements, the Trade-at exception would have to be revised to allow an order to execute at the price of a protected quote which, in this case, could be $9.95.
Based on the fact that a stopped order would be treated differently under the Regulation NMS Rule 611 exception than under the proposed Trade-at exception, the Exchange believes that it is appropriate to amend the Trade-at stopped order exception to ensure that the application of this exception will produce a consistent result under both Regulation NMS and the Plan. The Exchange therefore proposes to amend the stopped order exception to allow a transaction to satisfy the Trade-at requirement if the stopped order price, for a stopped buy order, is equal to or less than the NBB, and for a stopped sell order, is equal to or greater than the NBO, as long as such order is priced at an acceptable increment.
Proposed subparagraph l. to Rule 11.27(a)(6)(D)(ii) would define a “stopped order” as an order that is executed by a Trading Center which, at the time of order receipt, the Trading Center had guaranteed an execution at no worse than a specified price, where (1) the stopped order was for the account of a customer; (2) the customer agreed to the specified price on an order-by-order basis; and (3) the price of the Trade-at transaction was, for a stopped buy order, equal to or less than the National Best Bid in the Pilot Security at the time of execution or, for a stopped sell order, equal to or greater than the National Best Offer in the Pilot Security at the time of execution as long as such order is priced at an acceptable increment.
The subparagraph m. exception applies where the order is for a fractional share of a Pilot Security, provided that such fractional share order was not the result of breaking an order for one or more whole shares of a Pilot Security into orders for fractional shares or was not otherwise effected to evade the requirements of the Trade-at Prohibition or any other provisions of the Plan.
The subparagraph n. exception applies to bona fide errors transactions. Following the adoption of Rule 611 and its exceptions, the Commission issued exemptive relief that created exceptions from Rule 611 for certain error correction transactions.
As with the corresponding exception under Rule 611 of SEC Regulation NMS, the Exchange proposes to define a “bona fide error” as: (i) the inaccurate conveyance or execution of any term of an order including, but not limited to, price, number of shares or other unit of trading; identification of the security; identification of the account for which securities are purchased or sold; lost or otherwise misplaced order tickets; short sales that were instead sold long or vice versa; or the execution of an order on the wrong side of a market; (ii) the unauthorized or unintended purchase, sale, or allocation of securities, or the failure to follow specific client instructions; (iii) the incorrect entry of data into relevant systems, including reliance on incorrect cash positions, withdrawals, or securities positions reflected in an account; or (iv) a delay, outage, or failure of a communication system used to transmit market data prices or to facilitate the delivery or execution of an order. The bona fide error must be evidenced by objective facts and circumstances, the Trading Center must maintain documentation of such facts and circumstances, and the Trading Center must record the transaction in its error account. To avail itself of the exemption, the Trading Center must establish, maintain, and enforce written policies and procedures that are reasonably designed to address the occurrence of errors and, in the event of an error, the use and terms of a transaction to correct the error in compliance with this exemption. Finally, the Trading Center must regularly surveil to ascertain the effectiveness of its policies and procedures to address errors and transactions to correct errors and take
Consistent with the Plan, the final exception to the Trade-At Prohibition and its accompanying supplementary material applies to an order that is for a fractional share of a Pilot Security. The supplementary material provides that such fractional share orders may not be the result of breaking an order for one or more whole shares of a Pilot Security into orders for fractional shares or that otherwise were effected to evade the requirements of the Trade-at Prohibition or any other provisions of the Plan. In approving the Plan, the Commission noted that this exception was appropriate, as there could be potential difficulty in the routing and executing of fractional shares.
The proposed rule change will become operative upon the commencement of the Pilot Period.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act in general, and furthers the objectives of Section 6(b)(5) of the Act in particular, in that it is designed to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system and, in general, to protect investors and the public interest.
The Exchange believes that this proposal is consistent with the Act because it implements, interprets, and clarifies the provisions of the Plan, and is designed to assist the Exchange and Members in meeting regulatory obligations pursuant to 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. To the extent that this proposal implements, interprets, and clarifies the Plan and applies specific requirements to Members, 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.
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange 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 to the Plan. The Exchange also notes that the quoting and trading requirements of the Plan will apply equally to all Members that trade Pilot Securities.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (A) significantly affect the protection of investors or the public interest; (B) impose any significant burden on competition; and (C) by its terms, become operative for 30 days from the date on which it was filed or such shorter time as the Commission may designate it has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (1) necessary or appropriate in the public interest; (2) for the protection of investors; or (3) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to amend the fee schedule applicable to Members
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange maintains a Step-Up Tier that provides Members with an additional way to qualify for enhanced rebates where they increase their liquidity each month over a predetermined baseline. The Exchange currently offers a Step-Up Tier under footnote 2 of its Fee Schedule. Under the Step-Up Tier, a Member receives a rebate of $0.0030 per share where: (1) Their Step-Up Add TCV
The Exchange proposes to amend footnote 2 to change the Step-Up Tier to provide a Member a rebate of $0.0030 per share: (1) Where their Step-Up Add TCV from April 2016 is equal to or greater than 0.15%; and (2) their ADAV as a percentage of TCV is equal to or greater than 0.20%. Thus, while the Exchange is not proposing to modify the rebate provided, the Exchange is proposing to reset the starting date for the baseline measurement from August 2015 to April 2016. The Exchange is also proposing to increase the Step-Up Add TCV and to reduce the ADAV required to qualify for the tier.
The Exchange proposes to implement these amendments to its Fee Schedule effective May 2, 2016.
The Exchange believes that the proposed rule change is consistent with the objectives of section 6 of the Act,
Volume-based rebates such as that proposed herein have been widely adopted by exchanges, including the Exchange, and are equitable because they are open to all Members on an equal basis and provide additional benefits or discounts that are reasonably related to: (i) The value to an exchange's market quality; (ii) associated higher levels of market activity, such as higher levels of liquidity provision and/or growth patterns; and (iii) introduction of higher volumes of orders into the price and volume discovery processes. The Exchange believes that the proposed tier is a reasonable, fair and equitable, and not unfairly discriminatory allocation of fees and rebates because it will continue to provide Members with an incentive to reach certain thresholds on the Exchange.
In particular, the Exchange believes the modification to the Step-Up Tier is a reasonable means to encourage Members to increase their liquidity on the Exchange. The Exchange further believes that the proposed Step-Up Tier represents an equitable allocation of reasonable dues, fees, and other charges because the thresholds necessary to achieve the tier encourages Members to add increased liquidity to the BATS Book
The Exchange does not believe its proposed amendment to its Fee Schedule would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe that the proposed change represents a significant departure from previous pricing offered by the Exchange or pricing offered by the Exchange's competitors. Additionally, Members may opt to disfavor the Exchange's pricing if they believe that alternatives offer them better value. The Exchange does not believe that the modified tier would burden competition, but instead, enhances competition, as it is intended to increase the competitiveness of and draw additional volume to the Exchange. The Exchange does not believe the amended tier would burden intramarket competition as it would apply to all Members uniformly. Accordingly, the Exchange does not believe that the proposed change will impair the ability of Members or competing venues to maintain their competitive standing in the financial markets.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from Members or other interested parties.
The foregoing rule change has become effective pursuant to section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant
The Exchange filed a proposal to amend Rule 11.13, Order Execution and Routing, to delete references to the TRIM3 routing option. The Exchange also proposes to amend its fee schedule to delete references to the TRIM3 routing option under fee codes BY and TV.
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend Rule 11.13, Order Execution and Routing, to delete references to the TRIM3 routing option. The Exchange also proposes to amend its fee schedule to delete references to the TRIM3 routing option under fee codes BY and TV.
Exchange Rule 11.13(b)(3)(G) includes the TRIM3 routing option as one of the routing options under which an order checks the System
Fee code BY is yielded on orders routed to BYX using Destination Specific, TRIM, TRIM2, TRIM3 or SLIM routing strategy. Orders that yield fee code BY receive a rebate of $0.0015 per share. Fee Code TV is yielded on orders routed to NASDAQ BX LLC using TRIM, TRIM2 or TRIM3 routing strategy. Orders that yield fee code TV receive a rebate of $0.0010 per share.
Because few Users elect the TRIM3 routing option, the Exchange has determined that the current demand does not warrant the infrastructure and ongoing maintenance expenses required to support the product. Therefore, the Exchange proposes to delete reference to the TRIM3 routing option under Rule 11.13(b)(3)(G). The Exchange also proposes to amend its fee schedule to delete references to the TRIM3 routing option under fee codes BY and TV. Users seeking to route to BYX, NASDAQ BX, or DRT venues may use alternative methods, such as connecting to those exchanges directly or through a third party service provider, or electing another routing option offered by the Exchange that enables a User to post an order to certain primary listing markets.
In connection with the deletion of the TRIM3 routing option, the Exchange also proposes to amend Rule 11.13(b)(3)(G) to update a numerical reference to the SLIM routing option. Exchange Rule 11.13(b)(3)(G) currently states that in connection with SLIM routing option, currently listed as subsection (vii) of the Rule, a User may designate that an order first routes to BYX, checks the System for available shares, and then routes to other destinations on the System routing table. Upon deletion of the TRIM3 routing option, the SLIM routing option will be renumbered as section (vi) and the Exchange proposes to update Rule 11.13(b)(3)(G) accordingly.
The Exchange intends to implement the proposed rule change on May 6, 2016.
The Exchange believes that its proposal is consistent with section 6(b) of the Act
The Exchange does not believe that this proposal will permit unfair discrimination among customers, brokers, or dealers because the TRIM3 routing option will no longer be available to all Users. The Exchange has few Users electing the TRIM3 routing option and has determined that the current demand does not warrant the infrastructure and ongoing maintenance expense required to support the product. Routing through the Exchange is voluntary and alternative routing options offered by the Exchange as well as other methods remain available to Users that wish to route to BYX, NASDAQ BX, or DRT venues.
The Exchange does not believe that the proposal will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not designed to address any competitive issues but rather avoid investor confusion by eliminating the TRIM3 routing option that is to be discontinued by the Exchange.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to adopt Exchange Rule 11.22(a) to implement the quoting and trading provisions of the Regulation NMS Plan To Implement a Tick Size Pilot Program (“Plan”). The proposed rule change is substantially similar to a proposed rule change approved by the Commission by the Bats BZX Exchange, Inc. f/k/a BATS Exchange, Inc. (“BZX”) to adopt BZX Rule 11.27(a) which also implemented
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
On August 25, 2014, NYSE Group, Inc., on behalf of the Exchange, BZX, Chicago Stock Exchange, Inc., Bats BYX Exchange, Inc. f/k/a BATS Y-Exchange, Inc., Bats EDGA Exchange, Inc. f/k/a EDGA Exchange, Inc., Financial Industry Regulatory Authority, Inc. (“FINRA”), NASDAQ OMX BX, Inc., NASDAQ OMX 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 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 with, 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 member organizations to comply with the applicable quoting and trading increments for Pilot Securities.
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 sampling.
The Plan requires the Exchange to establish, maintain, and enforce written policies and procedures that are reasonably designed to comply with applicable quoting and trading requirements specified in the Plan. Accordingly, the Exchange is proposing new paragraph (a) to Rule 11.22 (Compliance with Regulation NMS Plan to Implement a Tick Size Pilot Program) to require Members
Proposed Rule 11.22(a) (Compliance with Quoting and Trading Restrictions) sets forth the requirements for the Exchange and Members in meeting their obligations under the Plan. Rule 11.22(a)(1) will require Members to establish, maintain and enforce written policies and procedures that are reasonably designed to comply with the applicable quoting and trading requirements of the Plan. Rule 11.22(a)(2) provides that the Exchange Systems
Proposed Rule 11.22(a)(3) clarifies the treatment of Pilot Securities that drop below $1.00 during the Pilot Period. In particular, Rule 11.22(a)(3) provides that, if the price of a Pilot Security drops below $1.00 during regular trading hours on any trading day, such Pilot Security will continue to be a Pilot Security subject to the Plan. However, if the Closing Price of a Pilot Security on any given trading day is below $1.00,
In approving the Plan, the Commission noted that the Participants had proposed additional selection criteria to minimize the likelihood that securities that trade with a share price of $1.00 or less would be included in the Pilot, and stated that, once established, the universe of Pilot Securities should stay as consistent as possible so that the analysis and data can be accurate throughout the Pilot Period.
Proposed Rule 11.22(a)(4) sets forth the applicable limitations for securities in Test Group One. Consistent with the language of the Plan, Rule 11.22(a)(4) provides that no Member may display, rank, or accept from any person any displayable or non-displayable bids or offers, orders, or indications of interest in any Pilot Security in Test Group One in increments other than $0.05. However, orders priced to execute at the midpoint of the national best bid and national best offer (“NBBO”) or best protected bid and best protected offer (“PBBO”)
Proposed Rule 11.22(a)(5) sets forth the applicable quoting and trading requirements for securities in Test Group Two. This provision states that no Member may display, rank, or accept from any person any displayable or non-displayable bids or offers, orders, or indications of interest in any Pilot Security in Test Group Two in increments other than $0.05. However, orders priced to execute at the midpoint of the NBBO or PBBO and orders entered in a Participant-operated retail liquidity program may be ranked and accepted in increments of less than $0.05.
Proposed Rule 11.22(a)(5) also sets forth the applicable trading restrictions for Test Group Two securities. Absent any of the exceptions listed in the Rule, no Member may execute orders in any Pilot Security in Test Group Two in price increments other than $0.05. The $0.05 trading increment will apply to all trades, including Brokered Cross Trades.
Consistent with the language of the Plan, the Rule provides that Pilot Securities in Test Group Two may trade in increments of less than $0.05 under the following circumstances: (1) Trading may occur at the midpoint between the NBBO or the PBBO; (2) Retail Investor Orders may be provided with price improvement that is at least $0.005 better than the PBBO; and (3) Negotiated Trades may trade in increments of less than $0.05.
The Exchange also proposes to add an exception to Rule 11.22(a)(5) to permit Members to fill a customer order in a Pilot Security in Test Group Two at a non-nickel increment to comply with Exchange Rule 12.6 (Prohibition Against Trading Ahead of Customer Orders) under limited circumstances. Specifically, the exception would allow the execution of a customer order following a proprietary trade by the Member at an increment other than $0.05 in the same security, on the same side and at the same price as (or within the prescribed amount of) a customer order owed a fill pursuant to Exchange Rule 12.6, where the triggering proprietary trade was permissible pursuant to an exception under the Plan.
Thus, the Exchange is proposing to add a customer order protection exception to Rule 11.22(a)(5) that would permit Members to trade Pilot Securities in Test Group Two in increments less than $0.05, and where the Member is executing a customer order to comply with Exchange Rule 12.6 following the execution of a proprietary trade by the Member at an increment other than $0.05 where such proprietary trade was permissible pursuant to an exception under the Plan. The Exchange believes that this approach best facilitates the ability of Members to continue to protect customer orders while retaining the flexibility to engage in proprietary trades that comply with an exception to the Plan.
Proposed Rule 11.22(a)(6) sets forth the applicable quoting and trading restrictions for Pilot Securities in Test Group Three. The rule provides that no Member may display, rank, or accept from any person any displayable or non-displayable bids or offers, orders, or indications of interest in any Pilot Security in Test Group Three in increments other than $0.05. However, orders priced to execute at the midpoint of the NBBO or PBBO and orders entered in a Participant-operated retail liquidity program may be ranked and
Proposed Rule 11.22(a)(6)(C) sets forth the exceptions pursuant to which Pilot Securities in Test Group Three may trade in increments of less than $0.05. First, trading may occur at the midpoint between the NBBO or PBBO. Second, Retail Investor Orders may be provided with price improvement that is at least $0.005 better than the PBBO. Third, Negotiated Trades may trade in increments of less than $0.05.
Similar to that proposed under Rule 11.22(a)(5) described above, the Exchange also proposes to add an exception to Rule 11.22(a)(6) to permit Members to fill a customer order in a Pilot Security in Test Group Three at a non-nickel increment to comply with Exchange Rule 12.6 (Prohibition Against Trading Ahead of Customer Orders) under limited circumstances. Specifically, the exception would allow the execution of a customer order following a proprietary trade by the Member at an increment other than $0.05 in the same security, on the same side and at the same price as (or within the prescribed amount of) a customer order owed a fill pursuant to Exchange Rule 12.6, where the triggering proprietary trade was permissible pursuant to an exception under the Plan.
Proposed Rule 11.22(a)(6)(D) sets forth the “Trade-at Prohibition,” which is the prohibition against executions by a Member that operates a Trading Center of a sell order for a Pilot Security in Test Group Three at the price of a Protected Bid or the execution of a buy order for a Pilot Security in Test Group Three at the price of a Protected Offer during regular trading hours, absent any of the exceptions set forth in Rule 11.22(a)(6)(D). Consistent with the Plan, the rule reiterates that a Member that operates a Trading Center that is displaying a quotation, via either a processor or an SRO quotation feed, that is a Protected Bid or Protected Offer is permitted to execute orders at that level, but only up to the amount of its displayed size. A Member that operates a Trading Center that was not displaying a quotation that is the same price as a Protected Quotation, via either a processor or an SRO quotation feed, is prohibited from price-matching protected quotations unless an exception applies.
Consistent with the Plan, proposed Rule 11.22(a)(6)(D) also sets forth the exceptions to the Trade-at prohibition, pursuant to which a Member that operates a Trading Center may execute a sell order for a Pilot Security in Test Group Three at the price of a Protected Bid or execute a buy order for a Pilot Security in Test Group Three at the price of a Protected Offer. The first exception to the Trade-at Prohibition is the “display exception,” which allows a trade to occur at the price of the Protected Quotation, up to the Trading Center's full displayed size, if the order “is executed by a trading center that is displaying a quotation.”
In Rule 11.22(a)(6)(D), the Exchange proposes that a Member that utilizes the independent aggregation unit concept may satisfy the display exception only if the same independent aggregation unit that displays interest via either a processor or an SRO Quotation Feed also executes an order in reliance upon this exception. The rule provides that “independent aggregation unit” has the same meaning as provided under Rule 200(f) of SEC Regulation SHO.
As initially proposed by the Participants, the Plan contained an additional condition to the display exception, which would have required that, where the quotation is displayed through a national securities exchange, the execution at the size of the order must occur against the displayed size on that national securities exchange; and where the quotation is displayed through the Alternative Display Facility or another facility approved by the Commission that does not provide execution functionality, the execution at the size of the order must occur against the displayed size in accordance with the rules of the Alternative Display Facility of such approved facility (“venue limitation”).
In approving the Plan, the Commission modified the Trade-At Prohibition to remove the venue limitation.
Consistent with Plan and the SEC's determination to remove the venue limitation, the Exchange is making clear that the display exception applies to trades done by a Trading Center otherwise than on an exchange where the Trading Center has previously displayed a quotation in either an
The proposal also excepts Block Size orders
Consistent with the Plan, the proposal also excepts an order that is a Retail Investor Order that is executed with at least $0.005 price improvement.
The exceptions set forth in proposed Rule 11.22(a)(6)(D)(ii) d. through n. are based on the exceptions found in Rule 611 of Regulation NMS.
The subparagraph h. exception applies when the order is identified as a Trade-at Intermarket Sweep Order. The subparagraph i. exception applies when the order is executed by a Trading Center that simultaneously routed Trade-at Intermarket Sweep Orders to execute against the full displayed size of a Protected Quotation with a price that is better than or equal to the limit price of the limit order identified as a Trade-at Intermarket Sweep Order. Depending on whether Rule 611 or the Trade-at requirement applies, an ISO may mean that the sender of the ISO has swept better-priced protected quotations, so that the recipient of that ISO may trade through the price of the protected quotation (Rule 611), or it could mean that the sender of the ISO has swept protected quotations at the same price that it wishes to execute at (in addition to any better-priced quotations), so the recipient of that ISO may trade at the price of the protected quotation (Trade-at). Given that the meaning of an ISO may differ under Rule 611 and Trade-at, the Exchange proposes Rule 11.22(a)(6)(D)(ii)(h) so that the recipient of an ISO in a Test Group Three security would know, upon receipt of that ISO, that the Trading Center that sent the ISO had already executed against the full size of displayed quotations at that price,
The Exchange proposes to further clarify the use of an ISO in connection with the Trade-at requirement by adopting, as part of proposed Rule 11.22(a)(7), a definition of “Trade-at Intermarket Sweep Order.” As set forth in the Plan and as noted above, the definition of a Trade-at ISO does not distinguish ISOs that are compliant with Rule 611 from ISOs that are compliant with Trade-at. The Exchange therefore proposes to define a Trade-at ISO as a limit order for a Pilot Security that meets the following requirements: (1) When routed to a Trading Center, the limit order is identified as a Trade-at Intermarket Sweep Order; (2) simultaneously with the routing of the limit order identified as a Trade-at Intermarket Sweep Order, one or more additional limit orders, as necessary, are routed to execute against the full displayed size of any protected bid, in the case of a limit order to sell, or the full displayed size of any protected offer, in the case of a limit order to buy, for the Pilot Security with a price that is better than or equal to the limit price of the limit order identified as a Trade-at Intermarket Sweep Order. These additional routed orders also must be marked as Trade-at Intermarket Sweep Orders. The Exchange believes that this proposed change will further clarify to recipients of ISOs in Group Three securities whether the ISO satisfies the requirements of Rule 611 or Trade-at.
The exception under subparagraph j. of proposed Rule 11.22(a)(6)(D)(ii) applies when the order is executed as part of a Negotiated Trade. The subparagraph k. exception applies when the order is executed when the Trading Center displaying the Protected Quotation that was traded at had displayed, within one second prior to execution of the transaction that constituted the Trade-at, a Best Protected Bid or Best Protected Offer, as applicable, for the Pilot Security with a price that was inferior to the price of the Trade-at transaction.
The exception proposed in subparagraph l. applies to a “stopped order.” The stopped order exemption in Rule 611 of SEC Regulation NMS applies where “[t]he price of the trade-through transaction was, for a stopped buy order, lower than the national best bid in the NMS stock at the time of execution or, for a stopped sell order, higher than the national best offer in the NMS stock at the time of execution.”
To illustrate the application of the stopped order exemption as it currently operates under Rule 611 of SEC Regulation NMS and as it is currently proposed for Trade-at, assume the NBB is $10.00 and another protected quote is at $9.95. Under Rule 611 of SEC Regulation NMS, a stopped order to buy can be filled at $9.95 and the firm does not have to send an ISO to access the protected quote at $10.00 since the price of the stopped order must be lower than the NBB. For the stopped order to also be executed at $9.95 and satisfy the Trade-at requirements, the Trade-at exception would have to be revised to allow an order to execute at the price of a protected quote which, in this case, could be $9.95.
Based on the fact that a stopped order would be treated differently under the Regulation NMS Rule 611 exception than under the proposed Trade-at exception, the Exchange believes that it is appropriate to amend the Trade-at stopped order exception to ensure that the application of this exception will produce a consistent result under both Regulation NMS and the Plan. The Exchange therefore proposes to amend the stopped order exception to allow a transaction to satisfy the Trade-at requirement if the stopped order price, for a stopped buy order, is equal to or less than the NBB, and for a stopped sell order, is equal to or greater than the NBO, as long as such order is priced at an acceptable increment.
Proposed subparagraph l. to Rule 11.22(a)(6)(D)(ii) would define a “stopped order” as an order that is executed by a Trading Center which, at the time of order receipt, the Trading Center had guaranteed an execution at no worse than a specified price, where (1) the stopped order was for the account of a customer; (2) the customer agreed to the specified price on an order-by-order basis; and (3) the price of the Trade-at transaction was, for a stopped buy order, equal to or less than the National Best Bid in the Pilot Security at the time of execution or, for a stopped sell order, equal to or greater than the National Best Offer in the Pilot Security at the time of execution as long as such order is priced at an acceptable increment.
The subparagraph m. exception applies where the order is for a fractional share of a Pilot Security, provided that such fractional share order was not the result of breaking an order for one or more whole shares of a Pilot Security into orders for fractional shares or was not otherwise effected to evade the requirements of the Trade-at Prohibition or any other provisions of the Plan.
The subparagraph n. exception applies to bona fide errors transactions. Following the adoption of Rule 611 and its exceptions, the Commission issued exemptive relief that created exceptions from Rule 611 for certain error correction transactions.
As with the corresponding exception under Rule 611 of SEC Regulation NMS, the Exchange proposes to define a “bona fide error” as: (i) The inaccurate conveyance or execution of any term of an order including, but not limited to, price, number of shares or other unit of trading; identification of the security; identification of the account for which securities are purchased or sold; lost or otherwise misplaced order tickets; short sales that were instead sold long or vice versa; or the execution of an order on the wrong side of a market; (ii) the unauthorized or unintended purchase, sale, or allocation of securities, or the failure to follow specific client instructions; (iii) the incorrect entry of data into relevant systems, including reliance on incorrect cash positions, withdrawals, or securities positions reflected in an account; or (iv) a delay, outage, or failure of a communication system used to transmit market data prices or to facilitate the delivery or execution of an order. The bona fide error must be evidenced by objective facts and circumstances, the Trading Center must maintain documentation of such facts and circumstances, and the Trading Center must record the transaction in its error account. To avail itself of the exemption, the Trading Center must establish, maintain, and enforce written policies and procedures that are reasonably designed to address the occurrence of errors and, in the event of an error, the use and terms of a transaction to correct the error in compliance with this exemption. Finally, the Trading Center must regularly surveil to ascertain the effectiveness of its policies and procedures to address errors and transactions to correct errors and take prompt action to remedy deficiencies in such policies and procedures.
Consistent with the Plan, the final exception to the Trade-At Prohibition and its accompanying supplementary material applies to an order that is for a fractional share of a Pilot Security. The supplementary material provides that such fractional share orders may not be the result of breaking an order for one or more whole shares of a Pilot Security into orders for fractional shares or that otherwise were effected to evade the requirements of the Trade-at Prohibition or any other provisions of the Plan. In approving the Plan, the Commission noted that this exception was appropriate, as there could be potential difficulty in the routing and executing of fractional shares.
The proposed rule change will become operative upon the commencement of the Pilot Period.
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, interprets, and clarifies the provisions of the Plan, and is designed to assist the Exchange and Members in meeting regulatory obligations pursuant to the Plan. In approving the Plan, the SEC noted that the Pilot was an appropriate, data-
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange 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 to the Plan. The Exchange also notes that the quoting and trading requirements of the Plan will apply equally to all Members that trade Pilot Securities.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (A) Significantly affect the protection of investors or the public interest; (B) impose any significant burden on competition; and (C) by its terms, become operative for 30 days from the date on which it was filed or such shorter time as the Commission may designate it has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (1) Necessary or appropriate in the public interest; (2) for the protection of investors; or (3) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to 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 a proposal to adopt a new Limit Up-Limit Down Pricing Program under Rule 7014 to improve liquidity during Limit Up-Limit Down events through incentive rebates.
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 Exchange is proposing to adopt a new Limit Up-Limit Down Pricing Program under Rule 7014 to improve liquidity during Limit Up-Limit Down events pursuant to Rule 4120(a)(12) through incentive rebates.
On May 6, 2010, the U.S. markets experienced excessive volatility in an abbreviated time period, commonly referred to as the “flash crash.” Many of the almost 8,000 equity securities and exchange-traded funds (“ETFs”) traded that day experienced rapid price declines and reversals within a short period of time. Staff of the SEC and the U.S. Commodity Futures Trading Commission (“CFTC”) (collectively, “Staff”) worked together to study the events of the flash crash, issuing a report of their findings (“Report”) to the Joint CFTC-SEC Advisory Committee on Emerging Regulatory Issues (“Committee”).
While the withdrawal of a single participant may not significantly impact the entire market, a liquidity crisis can develop if many market participants withdraw at the same time. This, in turn, can lead to the breakdown of a fair and orderly price-discovery process, and in the extreme case trades can be executed at stub-quotes used by market makers to fulfill their continuous two-sided obligations.
The Committee, in turn, issued a series of recommendations based on its analysis of Staff's findings.
In response to the market structure issues uncovered by the flash crash and the recommendations of the Committee, the exchanges and FINRA (collectively, the “SROs”) implemented market-wide measures designed to restore investor confidence by reducing the potential for excessive market volatility. One such measure was the adoption of a pilot plan for stock-by-stock trading pauses by SROs. On May 31, 2012, the SEC approved the National Market System Plan to Address Extraordinary Market Volatility, commonly referred to as the “Limit Up-Limit Down Plan.”
The Limit Up-Limit Down Plan prevents trades in individual NMS Stocks from occurring outside of the Price Bands by applying Limit States,
The Primary Listing Exchange must declare a Trading Pause if a [sic] NMS Stock does not exit a Limit State within fifteen seconds of entry during Regular Market Hours. The Primary Listing Exchange may also declare a Trading Pause for an NMS Stock if the NMS Stock is in a Straddle State, which is when the NBB is below the Lower Price Band or the NBO is above the Upper Price Band, the NMS Stock is not in a Limit State, and trading in that NMS Stock deviates from normal trading characteristics such that declaring a Trading Pause would support the Plan's goal to address extraordinary market volatility. The Primary Listing Exchange is responsible for declaring a Trading Pause in an NMS Stock and informing the Processor and during a Trading Pause the Processor disseminates Trading Pause information to the public. During a Trading Pause, no trades in a NMS Stock may occur, but all bids and offers may be displayed. A Trading Pause will conclude in one of two ways. First, if after five minutes from declaration of the Trading Pause the Primary Listing Exchange has not declared a Regulatory Halt, it will initiate established re-opening procedures. The Trading Pause will conclude when the Primary Listing Exchange reports a Reopening Price. Alternatively, a Trading Pause will conclude if the Primary Listing Exchange does not report a Reopening Price within ten minutes after the declaration of a Trading Pause in a NMS Stock, and has not declared a Regulatory Halt. When trading resumes after a Trading Pause, the Processor then will update the Prices Bands.
The Exchange believes that the Limit Up-Limit Down Plan has been successful at addressing extraordinary
The Exchange is proposing to implement a new rebate program designed to provide incentive to market participants to provide liquidity during Limit States, Straddle States and Trading Pause [sic] in a select group of NMS Stocks chosen by the Exchange (“LULD Liquidity Symbols”). The new incentive program is being proposed in light of the Committee's recommendation that exchanges adopt a “peak load” pricing model as a solution to encouraging liquidity during turbulent markets.
The Exchange agrees with the Committee that more must be done to encourage liquidity during times of market stress, and providing market participants with incentives to provide liquidity may further that goal. While the Exchange is limited in the level of fee-based disincentives that it can assess for liquidity removal during turbulent markets, the Exchange is able to adopt incentives to address the Committee's concern that there are insufficient incentives to market participants to provide displayed liquidity in such markets. Specifically, the Exchange is proposing to provide two new incentives that are focused on promoting liquidity when a LULD Liquidity Symbol is in a Limit State, Straddle State, or a Trading Pause.
First, for LULD Liquidity Symbol securities priced $1 or more the Exchange is adopting an incentive in the form of a $0.0010 per share executed rebate to Exchange market makers that enter displayed orders to buy (other than Designated Retail Orders, as defined in Rule 7018) when the LULD Liquidity Symbol security enters a Limit State based on an NBO that equals the lower price band and does not cross the NBB (“Limit Down Limit State”). To be eligible, the market maker must be registered as a market maker for the LULD Liquidity Symbol. The Exchange believes the incentive will promote liquidity in LULD Liquidity Symbols during times of significant price declines in those securities, which is typically a time when buy liquidity is scarce. The rebate will be provided to all buy orders entered by an Exchange market maker priced at or higher than the Lower Price Band of the Limit Down Limit State entered after initiation thereof until its conclusion, and that add liquidity at any time during continuous trading.
The following is an example of how the rebate will be applied. For this example market maker refers to an Exchange market maker registered in symbol ABC. Assume symbol ABC has a lower price band of $10.00 and is a LULD Liquidity Symbol. Further
Second, the Exchange is proposing to provide an incentive to all market participants that enter Orders in an LULD Liquidity Symbol during a Trading Pause and receive an execution of that Order. The Exchange will provide a $0.0005 per share executed rebate, which will be provided upon execution of the eligible Order in the reopening process at the conclusion of the Trading Pause. The rebate will be provided in lieu of the fee assessed under Rule 7018(f) for execution of quotes and orders executed halt crosses.
The Exchange believes that the proposed rule change is consistent with Section 6 of the Act,
The Exchange believes that the proposed $0.0010 per share executed rebate is reasonable because it rewards market makers for providing liquidity when the price of a security is falling significantly and many market participants have withdrawn. As discussed above, a stock that is in a Limit Down Limit State or Limit Down Straddle State has experienced a significant drop in a relatively short time. It has been the Exchange's observation that Limit Down Limit States and Limit Down Straddle States on the lower band are often characterized by a significant disparity between the number of buyers and sellers. Orders that provide buy side liquidity promote price discovery and help to normalize trading. The proposed rebate is designed to support buy side liquidity during Limit Down Limit States and Limit Down Straddle States in LULD Liquidity Symbols by providing market makers with an incentive to provide bids at or above the Limit Down Price band. The proposed rebate may also provide incentive to Members to register as market makers in the LULD Liquidity Symbols so that they may avail themselves of the rebate, thereby potentially improving overall market quality in such securities. Moreover, the Exchange believes that the proposed $0.0010 per share executed rebate is reasonable because it is consistent with rebates of other market quality incentive programs under Rule 7014. While the Exchange acknowledges that the $0.0010 per share executed rebate is significantly higher than provided by most incentive programs under Rule 7014, which provide additional rebates ranging from $0.0001 to $0.0004 per share executed, the Exchange notes that the Lead Market Maker (“LMM”) Program under Rule 7014 provides rebates in Qualified Securities to LMMs for adding displayed liquidity ranging from $0.0040 to $0.0046 per share executed, depending on the qualification criteria met.
The Exchange believes that the proposed rebate is an equitable allocation and is not unfairly discriminatory because the Exchange will provide the same rebate to all similarly situated market makers. The Exchange believes that limiting the $0.0010 per share executed rebate to registered market makers is an equitable allocation and is not unfairly discriminatory because the incentive may encourage Members to register as
The Exchange believes that the proposed $0.0005 per share executed rebate provided to members that enter Orders in a LULD Liquidity Symbol during a Trading Pause and receive an execution of that Order is reasonable because it may provide incentive to all market participants to provide liquidity during a Trading Pause in the securities of the program. The Exchange believes that all participants that provide liquidity during a Trading Pause should be rewarded for taking on the risk of entering orders during a volatile market. These orders promote price discovery, which may in turn help reestablish normal trading in a security covered by the program. Moreover, the Exchange believes that the proposed $0.0005 per share executed rebate is reasonable because it is consistent with rebates of other market quality incentive programs under Rule 7014, which provide additional rebates ranging from $0.0001 to $0.0004 per share executed. Unlike those rebates, which are provided in addition to any fee or other rebate the member may receive under Rule 7018, the proposed $0.0005 per share executed rebate is provided in lieu of the $0.0010 per share executed fee assessed for executions in halt crosses, including a Limit Up-Limit Down trading pause halt cross. As a consequence, a member that qualifies for the proposed new rebate will receive a net benefit of $0.0015 per share executed. The Exchange notes that this net benefit is similar to the net benefit provided LMMs under the LMM Program. Specifically, an LMM that meets the highest performance criteria under the LMM Program is eligible to receive no charge for executions in the Halt Cross, Opening Cross and Closing Cross. In certain circumstances, a member may be assessed a charge of $0.0015 per share executed for participation in the Opening and Closing Crosses. Thus, the net benefit provided by the proposed $0.0005 per share executed rebate is reasonable. The Exchange believes that the proposed $0.0005 per share executed rebate is an equitable allocation and is not unfairly discriminatory because the Exchange will provide the rebate to all members that provide orders during a Trading Pause in a LULD Liquidity Symbol that receive an execution
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. In terms of inter-market competition, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more favorable. In such an environment, the Exchange must continually adjust its fees to remain competitive with other exchanges and with alternative trading systems that have been exempted from compliance with the statutory standards applicable to exchanges. Because competitors are free to modify their own fees in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited.
In this instance, the Exchange is offering rebates in an effort to improve market quality during times of high volatility. The Exchange does not believe that the proposed change will place a burden on inter-market competition because the Limit Up-Limit Down Pricing Program is designed to improve market quality for all market participants by promoting price discovery for LULD Liquidity Symbols that have triggered Limit Up-Limit Down processes, and other exchanges are free to offer similar programs. If successful, the proposed Limit Up-Limit Down Pricing Program may promote competition among exchanges to provide incentives of their own to address low liquidity in NMS Stocks during a Limit Up-Limit Down process. Further, the Exchange does not believe that the proposed incentive program imposes a burden on competition among market participants because participation in the market during a Limit Up-Limit Down Limit State, Straddle State, or Trading Pause is completely voluntary. Moreover, the proposed incentive program will not be a burden on competition among market participants because the Exchange is offering a rebate to all members that qualify under the program. The Exchange notes that it is limiting the $0.0010 per share executed rebate to Exchange market makers registered in LULD Liquidity Symbols as an incentive to such market makers to provide liquidity priced better than they otherwise would be required to do so as market makers. In addition, the proposal may incentivize market participants to register as market makers with the Exchange. Providing incentive to members to become market makers will benefit all market participants trading in LULD Liquidity Symbols for the reasons discussed above. In this regard, all member firms may register as market makers in the LULD Liquidity Symbols if they choose to meet the qualification criteria. Accordingly, the Exchange does not believe that the proposed changes will impair the ability of members or competing order execution venues to maintain their competitive standing in the financial markets.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if
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-2016-065 and should be submitted on or before June 6, 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 (the “Act”),
The Exchange is hereby filing with the U.S. Securities and Exchange Commission (“Commission”) a proposed rule change (the “Proposed Rule Change”) in connection with a proposed business transaction (the “Transaction”) involving the Exchange's ultimate, indirect, non-U.S. upstream owners, Deutsche Börse AG (“Deutsche Börse”) and Eurex Frankfurt AG (“Eurex Frankfurt”), and Nasdaq, Inc. (“Nasdaq”). Nasdaq is the parent company of The NASDAQ Stock Market LLC (“NASDAQ Exchange”), NASDAQ PHLX LLC (“Phlx Exchange”), NASDAQ BX, Inc. (“BX Exchange”), Boston Stock Exchange Clearing Corporation (“BSECC”) and Stock Clearing Corporation of Philadelphia (“SCCP”).
In order to effect the Transaction, the Exchange hereby seeks the Commission's approval of the following: (i) That certain corporate resolutions that were previously established by entities that will cease to be non-U.S. upstream owners of the Exchange after the Transaction will cease to be considered rules of the Exchange upon Closing; (ii) that certain governing documents of Nasdaq will be considered rules of the Exchange upon Closing; (iii) that the Third Amended and Restated Trust Agreement (the “Trust Agreement”) that currently exists among International Securities Exchange Holdings, Inc. (“ISE Holdings”), U.S. Exchange Holdings, and the Trustees (as defined therein) with respect to the “ISE Trust” will cease to be considered rules of the Exchange upon Closing and, thereafter, that the parties to the Trust Agreement would be permitted to take the corporate steps necessary to repeal the Trust Agreement and dissolve the ISE Trust; (iv) to amend and restate the Second Amended and Restated Certificate of Incorporation of ISE Holdings (“ISE Holdings COI”) to eliminate provisions relating to the Trust Agreement and the ISE Trust and, in this respect, to reinstate certain text of the ISE Holdings COI that existed prior to Deutsche Börse's ownership of ISE Holdings; (v) to amend and restate the Second Amended and Restated Bylaws of ISE Holdings (the “ISE Holdings Bylaws”) to waive certain voting and ownership restrictions in the ISE Holdings COI to permit Nasdaq to indirectly own 100% of the outstanding
The Exchange requests that the Proposed Rule Change become operative at the Closing of the Transaction. The text of the proposed rule change is available at the Commission's Public Reference Room and on the Exchange's Internet 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 these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
The Exchange submits this Proposed Rule Change to seek the Commission's approval of various changes to the organizational and governance documents of the Exchange's current owners and related actions that are necessary in connection with the Closing of the Transaction, as described below. The Exchange will continue to conduct its regulated activities (including operating and regulating its market and Members) in the manner currently conducted and will not make any changes to its regulated activities in connection with the Transaction. The Exchange is not proposing any amendments to its trading or regulatory rules at this time relating to the Transaction.
On December 17, 2007, ISE Holdings, the sole, direct parent of the Exchange, became a direct, wholly-owned subsidiary of U.S. Exchange Holdings.
On March 9, 2016, a Stock Purchase Agreement (the “Agreement”) was entered into among Deutsche Börse, Eurex Frankfurt and Nasdaq. Pursuant to and subject to the terms of the Agreement, at the Closing, Deutsche Börse and Eurex Frankfurt will sell, transfer and deliver to Nasdaq, and Nasdaq will purchase, the capital stock of U.S. Exchange Holdings.
As a result of the Transaction, Nasdaq will directly own 100% of the equity interest of U.S. Exchange Holdings. U.S. Exchange Holdings will remain the sole, direct owner of ISE Holdings. ISE Holdings will remain the sole, direct owner of the Exchange. The Exchange will therefore become an indirect subsidiary of Nasdaq and Nasdaq will become the ultimate parent of the Exchange. The Exchange will become an affiliate of NASDAQ Exchange, Phlx Exchange, BX Exchange, BSECC and SCCP through common, ultimate ownership by Nasdaq. As a result of the Transaction, Deutsche Börse and Eurex Frankfurt will cease to be owners of the Exchange. The Exchange will therefore cease to have any Non-U.S. Upstream Owners. The Transaction will not have any effect on ISE Holdings' direct ownership of the Exchange. However, consummation of the Transaction is subject to approval of this Proposed Rule Change by the Commission, as described below.
Deutsche Börse and Eurex Frankfurt, as the Non-U.S. Upstream Owners of the Exchange, have previously taken appropriate steps to incorporate provisions regarding ownership, jurisdiction, books and records, and other issues related to their control of the Exchange. Specifically, each of such Non-U.S. Upstream Owners has adopted resolutions (“Non-U.S. Upstream Owner Resolutions”), which were previously approved by the Commission, to incorporate these concepts with respect to itself, as well as its board members, officers, employees, and agents (as applicable), to the extent that they are involved in the activities of the Exchange.
Section 19(b) of the Act,
Nasdaq will become the ultimate parent of the Exchange upon the Closing of the Transaction. As described above, section 19(b) of the Act and Rule 19b-4 thereunder require an SRO to file proposed rule changes with the Commission. Although the Exchange's existing U.S. upstream owners are not SROs, their governing documents have previously been filed with the Commission as stated policies, practices, or interpretations of the Exchange and therefore are considered rules of the Exchange.
The Nasdaq Bylaws contain certain provisions regarding ownership, jurisdiction, books and records, and other issues, with respect to Nasdaq, as well as its board members, officers, employees, and agents (as applicable), relating to Nasdaq's control of any “Self-Regulatory Subsidiary” (
• Giving due regard to the preservation of the independence of the self-regulatory function of each of Nasdaq's Self-Regulatory Subsidiaries.
• Maintaining the confidentiality of all books and records of each Self-Regulatory Subsidiary reflecting confidential information pertaining to the self-regulatory function of such Self-Regulatory Subsidiary (including but not limited to disciplinary matters, trading data, trading practices and audit information) that comes into Nasdaq's possession, which shall not be used for any non-regulatory purposes; making such books and records available for inspection and copying by the Commission; and maintaining such books and records relating to each Self-Regulatory Subsidiary in the United States.
• To the extent they are related to the activities of a Self-Regulatory Subsidiary, the books, records, premises, officers, Directors, and employees of Nasdaq shall be deemed to be the books, records, premises, officers, directors, and employees of such Self-Regulatory Subsidiary for the purposes of, and subject to oversight pursuant to, the Act.
• Compliance by Nasdaq with the U.S. federal securities laws and the rules and regulations thereunder, cooperation by Nasdaq with the Commission and Nasdaq's Self-Regulatory Subsidiaries, and reasonable steps by Nasdaq necessary to cause its agents to cooperate with the Commission and, where applicable, the Self-Regulatory Subsidiaries pursuant to their regulatory authority.
• Consent by Nasdaq and its officers, Directors, and employees to the jurisdiction of the United States federal courts, the Commission, and each Self-Regulatory Subsidiary for the purposes of any suit, action or proceeding pursuant to the United States federal securities laws, and the rules and regulations thereunder, arising out of, or relating to, the activities of any Self-Regulatory Subsidiary.
• Reasonable steps by Nasdaq necessary to cause its current and future officers, Directors, and employees, to consent in writing to the applicability to them of certain provisions of the Nasdaq Bylaws, as applicable, with respect to their activities related to any Self-Regulatory Subsidiary.
• Approval by the Commission under section 19 of the Act prior to any resolution of the Nasdaq Board to approve an exemption for any person from the ownership limitations of the Nasdaq COI.
• Filing with, or filing with and approval by, the Commission (as the case may be) under section 19 of the Act prior to amending the Nasdaq COI or the Nasdaq Bylaws.
The Exchange believes that the provisions in the Nasdaq Bylaws should minimize the potential that a person could improperly interfere with, or restrict the ability of, the Commission or the Exchange to effectively carry out their regulatory oversight responsibilities under the Act.
Additionally, and similar to the ISE Holdings COI, the Nasdaq COI imposes limits on direct and indirect changes in control, which are designed to prevent any shareholder from exercising undue control over the operation of its SRO subsidiaries and to ensure that its SRO subsidiaries and the Commission are
The ISE Holdings COI currently contains certain ownership limits (“Ownership Limits”) and voting limits (“Voting Limits”) with respect to the outstanding capital stock of ISE Holdings.
As described above, section 19(b) of the Act and Rule 19b-4 thereunder require an SRO to file proposed rule changes with the Commission. Although the ISE Trust is not an SRO, the Trust Agreement has previously been filed with the Commission as stated policies, practices, or interpretations of the Exchange and therefore is considered rules of the Exchange.
The ISE Holdings COI was amended in 2007 in relation to the ownership of ISE by Deutsche Börse.
As described above, the Exchange is proposing that the Trust Agreement will cease to be considered rules of the Exchange as of a date that corresponds to the Closing date of the Transaction.
The changes to the ISE Holdings COI proposed herein would describe the corrective treatment of “Excess Shares” (
• The Exchange proposes to delete the current provisions in Article Fourth, Sections III(a)(ii), III(a)(iii) and III(b)(i) of the ISE Holdings COI that provide that the ISE Holdings Board of Directors shall deliver to the ISE Trust copies of certain written notice and updates thereto currently required under Sections III(a)(ii) and III(a)(iii) of Article FOURTH (
• The Exchange proposes to adopt new Article FOURTH, Section III(b)(iii) of the ISE Holdings COI, which would provide that, notwithstanding any other provisions contained in the ISE Holdings COI, to the fullest extent permitted by applicable law, any shares of capital stock of ISE Holdings (whether such shares are common stock or preferred stock) not entitled to be voted due to the restrictions set forth in Section III(b)(i) of Article FOURTH of the ISE Holdings COI (and not waived by the ISE Holdings Board of Directors and approved by the Commission pursuant to Section III(b)(i) of Article FOURTH of the ISE Holdings COI), shall not be deemed to be outstanding for purposes of determining a quorum or a minimum vote required for the transaction of any business at any meeting of stockholders of ISE Holdings, including, without limitation, when specified business is to be voted on by a class or a series voting as a class.
• As a result of the addition of new Article FOURTH, Section III(b)(iii) of the ISE Holdings COI, the Exchange proposes to renumber current Article FOURTH, Section III(b)(iii) as resulting Article FOURTH, section III(b)(iv).
• The Exchange proposes several changes to Article FOURTH, section III(c) of the ISE Holdings COI, which relates to violations of any Ownership Limits or Voting Limits and the treatment of Excess Shares, including the following:
• Addition of new text relating to the designation as “Excess Shares” for any shares held in excess of the relevant Ownership Limits; such designation and treatment being effective as of the close of business on the business day prior to the date of the purported transfer or other event leading to such Excess Shares.
• Deletion of current text requiring notification to the ISE Trust upon the occurrence of certain events and the transfer of Voting Shares to the ISE Trust.
• Addition of new text describing the treatment of “Excess Shares” upon any sale, transfer, assignment or pledge that, if effective would result in any Person, either alone or together with its Related Persons, owning shares in excess of any of the Ownership Limits. Specifically, the Exchange proposes within new Article FOURTH, section III(c)(i) of the ISE Holdings COI that any such purported event shall be void ab initio as to such Excess Shares, and the intended transferee shall acquire no rights in such Excess Shares. Such Excess Shares shall be deemed to have been transferred to ISE Holdings (or to an entity appointed by ISE Holdings that is unaffiliated with ISE Holdings and any Person or its Related Persons owning such Excess Shares), as Special Trustee of the Charitable Trust for the exclusive benefit of the Charitable Beneficiary or Beneficiaries.
• Addition of new text describing the treatment of dividends or other distributions paid with respect to Excess Shares.
• Addition of new text describing the handling of any distribution of assets received in respect of the Excess Shares in any liquidation, dissolution or winding up of, or any distribution of the assets of ISE Holdings.
• Addition of new text describing the authority of the Special Trustee with respect to rescinding as void any votes cast by a purported transferee or holder of Excess Shares as well as recasting of votes in accordance with the desires of the Special Trustee acting for the benefit of ISE Holdings.
• Addition of new text describing the sale by the Special Trustee, to a Person or Persons designated by the Special Trustee whose ownership of Voting Shares will not violate any Ownership Limit or Voting Limit, of Excess Shares transferred to the Charitable Trust, within 20 days of receiving notice from ISE Holdings that Excess Shares have been so transferred.
• Addition of new text describing that Excess Shares shall be deemed to have been offered for sale to ISE Holdings on the date of the transaction or event resulting in such Excess Shares.
• Deletion of current Article FOURTH, section III(c)(v), which currently relates to the ISE Trust Beneficiary's right to reacquire Excess Shares from the ISE Trust under certain circumstances.
The Exchange is not proposing to reinstate all of the ISE Holdings COI text that existed prior to Deutsche Börse's ownership of ISE Holdings, as certain of such text would continue to not be applicable, even after the Transaction, given the Exchange's resulting ownership. For example, prior to Deutsche Börse's ownership of ISE Holdings, the ISE Holdings COI contained certain provisions that dealt with the publicly-traded nature of ISE Holdings' stock. This text was removed from the ISE Holdings COI upon Deutsche Börse's ownership of ISE Holdings, as ISE Holdings' stock ceased to be publicly-traded.
• Regulation 14A under the Act (pertaining to solicitations of proxies).
• the treatment of transactions of ISE Holdings stock on or through the facilities of any national securities exchange or national securities association.
• inspection of the ISE Holdings accounts and records by ISE Holdings stockholders.
• stockholder voting to amend, repeal or adopt provisions of the ISE Holdings COI or the ISE Holdings Bylaws.
• stockholder action called at annual or special meetings of stockholders.
• nominations for directors and the election thereof.
The Exchange also is not proposing to reinstate the ISE Holdings COI text that existed prior to Deutsche Börse's ownership of ISE Holdings that related to changes in terminology used throughout the ISE Holdings COI.
The Exchange proposes to remove the reference to the Trust Agreement in Article THIRTEENTH of the U.S. Exchange Holdings COI. As proposed herein, the Trust Agreement will cease to be considered rules of the Exchange as of the Closing of the Transaction and would be repealed in connection with the Transaction. The Exchange also proposes to retitle the document as the “Fourth” Amended and Restated Certificate of Incorporation of U.S. Exchange Holdings and update the effective date thereof.
The ISE Holdings COI Voting Limits restrict any person, either alone or together with its related persons, from having voting control, either directly or indirectly, over more than 20% of the outstanding capital stock of ISE Holdings. The ISE Holdings COI Ownership Limits restrict any person, either alone or together with its related persons, from directly or indirectly owning of record or beneficially more than 40% of the outstanding capital stock of ISE Holdings (or in the case of any Exchange member, acting alone or together with its related persons, from directly or indirectly owning of record or beneficially more than 20% of the outstanding capital stock of ISE Holdings).
The ISE Holdings COI and the ISE Holdings Bylaws provide that the board of directors of ISE Holdings may waive these voting and ownership restrictions in an amendment to the ISE Holdings Bylaws if the board makes the following three findings: (1) The waiver will not impair the ability of the Exchange to carry out its functions and responsibilities as an exchange under the Act and the rules thereunder; (2) the waiver is otherwise in the best interests of ISE Holdings, its stockholders, and the Exchange; and (3) the waiver will not impair the ability of the Commission to enforce the Act. However, the board of directors may not waive these voting and ownership restrictions as they apply to Exchange members. In
Acting pursuant to this waiver provision, the board of directors of ISE Holdings has approved the amendment to the ISE Holdings Bylaws to waive the Ownership Limits and Voting Limits in order to permit Nasdaq to indirectly own 100% of the outstanding common stock of ISE Holdings as of and after Closing of the Transaction.
The Exchange will continue to conduct its regulated activities (including operating and regulating its market and Members) in the manner currently conducted and will not make any changes to its regulated activities in connection with the Transaction. In addition, the Transaction will not impair the ability of the Exchange's, or any facility thereof, to carry out their respective functions and responsibilities under the Act and will not impair the ability of the Commission to enforce the Act. The Exchange therefore seeks approval of the waiver described herein with respect to the Ownership Limits and Voting Limits in order to permit Nasdaq to indirectly own 100% of the outstanding common stock of ISE Holdings as of and after Closing of the Transaction.
The Exchange will continue to conduct its regulated activities (including operating and regulating its market and Members) in the manner currently conducted and will not make any changes to its regulated activities in connection with the Transaction. The Transaction will not impair the ability of ISE Holdings, the Exchange, or any facility thereof, to carry out their respective functions and responsibilities under the Act. Moreover, the Transaction will not impair the ability of the Commission to enforce the Act with respect to the Exchange. As such, the Commission's plenary regulatory authority over the Exchange will not be affected by the approval of this Proposed Rule Change. The Exchange is requesting approval by the Commission of changes proposed herein in order to allow the Transaction to take place.
The Exchange believes that this proposal is consistent with section 6(b) of the Act,
The Exchange also believes that this Proposed Rule Change furthers the objectives of section 6(b)(5)
Approval of this Proposed Rule Change will enable ISE Holdings to continue its operations and the Exchange to continue its orderly discharge of regulatory duties to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest.
In addition, the Exchange expects that the Transaction will facilitate efficiencies and innovation for clients and efficient, transparent and well-regulated markets for issuers and clients, thus removing impediments to, and perfecting the mechanism of a free and open market and a national market system. The Transaction will benefit investors, the market as a whole, and shareholders by, among other things, enhancing competition among securities venues and reducing costs. In particular, the Transaction will contribute to streamlined and efficient operations, thereby intensifying competition for transaction order flow with other exchange and non-exchange trading centers, as well as potentially in other areas, such as proprietary market data products and listings. This enhanced level of competition among trading centers will benefit investors through new or more competitive product offerings and, ultimately, lower costs.
Furthermore, the Exchange will continue to conduct its regulated activities (including operating and regulating its market and Members) in the manner currently conducted and will not make any changes to its regulated activities in connection with the Transaction. Therefore, the Exchange believes that it will continue to satisfy the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange.
The Exchange believes it is consistent with the Act to allow Nasdaq to become the ultimate parent of the Exchange. Neither Nasdaq nor any of its related persons is subject to any statutory disqualification or is a Member of the Exchange. Moreover, the Nasdaq governing documents include certain provisions designed to maintain the independence of the Exchange's self-regulatory functions. Accordingly, the Exchange believes that Nasdaq's acquisition of ultimate ownership and exercise of voting control of the Exchange will not impair the ability of the Commission or the Exchange to discharge their respective responsibilities under the Act.
Although Nasdaq will not carry out regulatory functions, its activities with respect to the operation of the Exchange must be consistent with, and not interfere with, the Exchange's self-regulatory obligations. Nasdaq's governing documents include certain provisions that are designed to maintain the independence of the Exchange's self-regulatory functions, enable the Exchange to operate in a manner that complies with the U.S. federal securities laws, including the objectives and requirements of sections 6(b) and 19(g) of the Act,
Further, Nasdaq (along with its respective board members, officers, and employees) and U.S. Exchange Holdings agree to keep confidential, to the fullest extent permitted by applicable law, all confidential information pertaining to the self-regulatory function of the Exchange, including, but not limited to, confidential information regarding disciplinary matters, trading data, trading practices, and audit information, contained in the books and records of the Exchange and not use such information for any non-regulatory purposes.
In addition, Nasdaq's books and records relating to the activities of the Exchange will at all times be made available for, and books and records of U.S. Exchange Holdings will be subject at all times to, inspection and copying by the Commission and the Exchange. Books and records of U.S. Exchange Holdings related to the activities of the Exchange also will continue to be maintained within the U.S. Moreover, for so long as Nasdaq directly or indirectly controls the Exchange, the books, records, officers, directors (or equivalent), and employees of Nasdaq shall be deemed to be the books, records, officers, directors, and employees of the Exchange.
To the extent involved in the activities of the Exchange, Nasdaq, its board members, officers, and employees irrevocably submit to the jurisdiction of the U.S. federal courts and the Commission for purposes of any action arising out of, or relating to, the activities of the Exchange. Likewise, U.S. Exchange Holdings, its officers and directors, and employees whose principal place of business and residence is outside of the U.S., to the extent such directors, officers, or employees are involved in the activities of the Exchange, irrevocably submit to the jurisdiction of the U.S. federal courts and the Commission for purposes of any action arising out of, or relating to, the activities of the Exchange.
The Nasdaq governing documents, the U.S. Exchange Holdings COI, and the U.S. Exchange Holdings Bylaws require that any change thereto must be submitted to the Exchange's Board. If such change must be filed with, or filed with and approved by, the Commission under section 19 of the Act and the rules thereunder, then such change shall not be effective until filed with, or filed with and approved by, the Commission. This requirement to submit changes to the Exchange's Board continues for so long as Nasdaq or U.S. Exchange
As Deutsche Börse and Eurex Frankfurt will both cease to be Non-U.S. Upstream Owners of the Exchange upon the Closing of the Transaction, the Exchange believes that its proposal that the resolutions of Deutsche Börse and Eurex Frankfurt will cease to be considered rules of the Exchange as of a date that corresponds to the Closing date of the Transaction is consistent with the Act.
The purpose for which the ISE Trust was formed will not be relevant after the Closing of the Transaction, given that the Exchange will no longer have Non-U.S. Upstream Owners and that the Exchange's current and resulting U.S. upstream owners' governing documents provide for similar protections (
Given the Exchange's proposal to repeal the Trust Agreement and dissolve the ISE Trust, the Exchange believes that the proposed changes to the ISE Holdings COI are consistent with the Act. The proposed changes would delete provisions of the ISE Holdings COI that will no longer be relevant and would reinstate certain provisions of the ISE Holdings COI that were removed upon introduction of the provisions relating to the ISE Trust and the Trust Agreement.
In accordance with section 6(b)(8) of the Act,
The Exchange's conclusion that the Proposed Rule Change would not result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act is consistent with the Commission's prior conclusions about similar combinations involving multiple exchanges in a single corporate family.
The Exchange believes that there is considerable support for a finding that the Transaction is consistent with the Act with respect to competition. 14 exchanges currently compete for options trading business. Exchanges compete on technology, market model, trading venue, fees and fee structure. Additionally, low switching costs allow customers to easily move to another exchange, which customers do regularly, as reflected in constantly varying market shares among the existing exchange operators. In addition, the Commission has approved several, new registered options exchanges in recent history, which highlights an increase in competition in the market for listed options trading.
The Exchange believes that the Transaction will not change the competitive landscape for listed options trading and the changes proposed herein are consistent with other recent Commission approvals. For example, a similar proposed combination of Deutsche Börse and NYSE Euronext in 2011 received Commission approval and would have resulted in a combined greater than 40% market share of listed options volume among its three, respective options exchanges (based on 2010 data).
For these reasons, the Exchange believes that the proposal is consistent with the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
Within 45 days of the publication date of this notice or within such longer period (1) as the Commission may designate up to 45 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding or (2) as to which the self-regulatory organization consents, the Commission will:
(A) By order approve such Proposed Rule Change; or
(B) institute proceedings to determine whether the Proposed Rule Change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On February 29, 2016, the Financial Industry Regulatory Authority, Inc. (“FINRA”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA proposed Rule 4554 to impose additional reporting requirements on trading venues that have filed a Form ATS with the Commission.
Specifically, proposed Rule 4554 sets forth four categories of reporting requirements: (1) Data to be reported by all ATSs at the time of order receipt; (2) data to be reported by all ATSs at the time of order execution; (3) data to be reported by ATSs that display subscriber orders; and (4) data to be reported by ATSs that are registered as ADF Trading Centers. The proposed requirements would apply to order and execution information for NMS stocks. ATSs would be required to report this information to FINRA consistent with current OATS reporting requirements.
Proposed Rule 4554 would require, among other things, each ATS to indicate on all orders received whether it displays subscriber orders outside of the ATS (other than to ATS employees).
For purposes of this rule, the term “order” includes a broker-dealer's proprietary quotes that are transmitted to an ATS.
Each ATS would also be required to indicate whether it is an ADF Trading Center as defined in Rule 6220, whether a specific order can be routed away from the ATS for execution, and whether there are any counter-party restrictions on the order. ATSs would also be required to provide FINRA with a
An ATS also would be required to report, for all orders, the NBBO (or relevant reference price) in effect at the time of order receipt and the timestamp of when the ATS captured the effective NBBO (or relevant reference price); as part of this report, the ATS must identify the market data feed it used to obtain the NBBO (or relevant reference price). These two data elements will enable FINRA to ascertain if the NBBO changed between the time of order receipt and the time the ATS captured the effective NBBO.
The second category of proposed changes applies to all ATSs when reporting the execution of an order to OATS. Specifically, each ATS must record and report the NBBO (or relevant reference price) in effect at the time of order execution, and the timestamp of when the ATS captured the effective NBBO (or relevant reference price). An ATS must identify the market data feed used by the ATS to obtain the NBBO (or other reference price).
The third category of changes applies only to display ATSs and requires that those ATSs report the following order receipt information: (1) Whether the order is hidden or displayable; (2) display quantity; (3) reserve quantity, if applicable; (4) displayed price; and (5) the price entered. If the matching engine re-prices a displayed order or changes the display quantity of a displayed order, the ATS must report the time of the modification and the applicable new display price or size. FINRA stated that it needs this information from display ATSs to have an accurate, time sequenced audit trail to reconstruct the displayed market and noted that the pricing and size changes are being displayed to others.
Finally, FINRA proposed to require ADF Trading Centers to report the quote identifier provided to the ADF if a change to the displayed size or price of an order resulted in a new quote being transmitted to the ADF. If an order held by the ADF Trading Center becomes associated with a quote identifier based on an action by the matching engine related to a different order(s), (
The Commission received one comment letter
In its response to these comments, FINRA clarified that an ATS would comply with this NBBO timestamp requirement by reporting the time the ATS captured the NBBO, and not the time the ATS actually received the NBBO. In regard to the requirement to identify the market data feed used by the ATS to record the NBBO (or other reference price), FINRA stated that it will consider the commenter's suggestion when developing the technical specifications to implement the proposal.
The commenter also suggested that FINRA eliminate the requirement to submit order type information to OATS and the corresponding requirement for ATSs to provide FINRA with advance notice of order types and changes.
In its response to these comments, FINRA noted that the order type requirement set forth in its proposal is independent of the Commission's proposed action with respect to order types, and that FINRA has fully explained and justified its requirement in the proposal. FINRA stated that the reference to the Commission's proposed action was solely for background purposes. In addition, FINRA believes that the 20-day advance notice requirement is consistent with current reporting obligations under Regulation ATS and thus would not increase the reporting burden on ATSs.
Finally, the commenter requested clarification on technical reporting aspects of counter-party restrictions and sequence numbers.
In its response to these comments, FINRA clarified that the requirement to identify any counter-party restrictions is a yes or no response, and that the ATS would not be required to provide the specific counter-party restriction.
After careful review of the proposal, the comment letter received, and FINRA's response, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities association.
The Commission believes that the stated objectives of the proposal—to enhance FINRA's ability to surveil activity occurring within an ATS, and by extension FINRA's ability to surveil for potentially abusive algorithmic trading activity more generally across markets—are consistent with the purposes of the Act and with FINRA's responsibility to enforce compliance by its members with its rules and with the Act. The additional information provided by ATSs will better enable FINRA to reconstruct an ATS order book and more effectively conduct quotation-based surveillance. FINRA will integrate the additional information into its surveillance patterns to support the generation and analysis of alerts, which will increase FINRA's ability to detect a wide range of potential market-specific and cross-market manipulative activities.
The Commission further believes that applying this proposal to NMS stocks is consistent with the Act because the potentially abusive trading activity that the proposal is designed to detect is of particular concern with respect to NMS stocks. The Commission believes that gaps in ATS order book data should be addressed in the near-term to ensure effective surveillance of ATSs and, by extension, abusive algorithmic trading activity more generally across markets. The Commission believes that FINRA adequately responded to the issues raised in the comment letter.
Accordingly, for the reasons discussed above, the Commission finds that the proposed rule change is consistent with Section 15A of the Act.
It Is Therefore Ordered pursuant to Section 19(b)(2) of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to adopt Exchange Rule 11.21(a) to implement the quoting and trading provisions of the Regulation NMS Plan to Implement a Tick Size Pilot Program (“Plan”). The proposed rule change is substantially similar to a proposed rule change approved by the Commission by the Bats BZX Exchange, Inc. f/k/a BATS Exchange, Inc. (“BZX”) to adopt BZX Rule 11.27(a) which also implemented the quoting and trading provisions of the Plan.
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
On August 25, 2014, NYSE Group, Inc., on behalf of the Exchange, BZX, Chicago Stock Exchange, Inc., Bats BYX Exchange, Inc. f/k/a BATS Y-Exchange, Inc., Bats EDGX Exchange, Inc. f/k/a EDGX Exchange, Inc., Financial Industry Regulatory Authority, Inc. (“FINRA”), NASDAQ OMX BX, Inc., NASDAQ OMX 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
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 with, 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 member organizations to comply with the applicable quoting and trading increments for Pilot Securities.
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 sampling.
The Plan requires the Exchange to establish, maintain, and enforce written policies and procedures that are reasonably designed to comply with applicable quoting and trading requirements specified in the Plan. Accordingly, the Exchange is proposing new paragraph (a) to Rule 11.21 (Compliance with Regulation NMS Plan to Implement a Tick Size Pilot Program) to require Members
Proposed Rule 11.21(a) (Compliance with Quoting and Trading Restrictions) sets forth the requirements for the Exchange and Members in meeting their obligations under the Plan. Rule 11.21(a)(1) will require Members to establish, maintain and enforce written policies and procedures that are reasonably designed to comply with the applicable quoting and trading requirements of the Plan. Rule 11.21(a)(2) provides that the Exchange Systems
Proposed Rule 11.21(a)(3) clarifies the treatment of Pilot Securities that drop below $1.00 during the Pilot Period. In particular, Rule 11.21(a)(3) provides that, if the price of a Pilot Security drops below $1.00 during regular trading hours on any trading day, such Pilot Security will continue to be a Pilot Security subject to the Plan. However, if the Closing Price of a Pilot Security on any given trading day is below $1.00, such Pilot Security will be moved out of its Pilot Test Group into the Control Group, and may then be quoted and traded at any price increment that is currently permitted for the remainder of the Pilot Period.
In approving the Plan, the Commission noted that the Participants had proposed additional selection criteria to minimize the likelihood that securities that trade with a share price of $1.00 or less would be included in the Pilot, and stated that, once established, the universe of Pilot Securities should stay as consistent as possible so that the analysis and data can be accurate throughout the Pilot
Proposed Rule 11.21(a)(4) sets forth the applicable limitations for securities in Test Group One. Consistent with the language of the Plan, Rule 11.21(a)(4) provides that no Member may display, rank, or accept from any person any displayable or non-displayable bids or offers, orders, or indications of interest in any Pilot Security in Test Group One in increments other than $0.05. However, orders priced to execute at the midpoint of the national best bid and national best offer (“NBBO”) or best protected bid and best protected offer (“PBBO”)
Proposed Rule 11.21(a)(5) sets forth the applicable quoting and trading requirements for securities in Test Group Two. This provision states that no Member may display, rank, or accept from any person any displayable or non-displayable bids or offers, orders, or indications of interest in any Pilot Security in Test Group Two in increments other than $0.05. However, orders priced to execute at the midpoint of the NBBO or PBBO and orders entered in a Participant-operated retail liquidity program may be ranked and accepted in increments of less than $0.05.
Proposed Rule 11.21(a)(5) also sets forth the applicable trading restrictions for Test Group Two securities. Absent any of the exceptions listed in the Rule, no Member may execute orders in any Pilot Security in Test Group Two in price increments other than $0.05. The $0.05 trading increment will apply to all trades, including Brokered Cross Trades.
Consistent with the language of the Plan, the Rule provides that Pilot Securities in Test Group Two may trade in increments of less than $0.05 under the following circumstances: (1) Trading may occur at the midpoint between the NBBO or the PBBO; (2) Retail Investor Orders may be provided with price improvement that is at least $0.005 better than the PBBO; and (3) Negotiated Trades may trade in increments of less than $0.05.
The Exchange also proposes to add an exception to Rule 11.21(a)(5) to permit Members to fill a customer order in a Pilot Security in Test Group Two at a non-nickel increment to comply with Exchange Rule 12.6 (Prohibition Against Trading Ahead of Customer Orders) under limited circumstances. Specifically, the exception would allow the execution of a customer order following a proprietary trade by the Member at an increment other than $0.05 in the same security, on the same side and at the same price as (or within the prescribed amount of) a customer order owed a fill pursuant to Exchange Rule 12.6, where the triggering proprietary trade was permissible pursuant to an exception under the Plan.
Thus, the Exchange is proposing to add a customer order protection exception to Rule 11.21(a)(5) that would permit Members to trade Pilot Securities in Test Group Two in increments less than $0.05, and where the Member is executing a customer order to comply with Exchange Rule 12.6 following the execution of a proprietary trade by the Member at an increment other than $0.05 where such proprietary trade was permissible pursuant to an exception under the Plan. The Exchange believes that this approach best facilitates the ability of Members to continue to protect customer orders while retaining the flexibility to engage in proprietary trades that comply with an exception to the Plan.
Proposed Rule 11.21(a)(6) sets forth the applicable quoting and trading restrictions for Pilot Securities in Test Group Three. The rule provides that no Member may display, rank, or accept from any person any displayable or non-displayable bids or offers, orders, or indications of interest in any Pilot Security in Test Group Three in increments other than $0.05. However, orders priced to execute at the midpoint of the NBBO or PBBO and orders entered in a Participant-operated retail liquidity program may be ranked and accepted in increments of less than $0.05. The rule also states that, absent any of the applicable exceptions, no Member that operates a Trading Center may execute orders in any Pilot Security in Test Group Three in price increments other than $0.05. The $0.05 trading increment will apply to all trades, including Brokered Cross Trades.
Proposed Rule 11.21(a)(6)(C) sets forth the exceptions pursuant to which Pilot Securities in Test Group Three may trade in increments of less than $0.05. First, trading may occur at the midpoint between the NBBO or PBBO. Second, Retail Investor Orders may be provided with price improvement that is at least $0.005 better than the PBBO. Third, Negotiated Trades may trade in increments of less than $0.05.
Similar to that proposed under Rule 11.21(a)(5) described above, the Exchange also proposes to add an exception to Rule 11.21(a)(6) to permit Members to fill a customer order in a Pilot Security in Test Group Three at a non-nickel increment to comply with Exchange Rule 12.6 (Prohibition Against Trading Ahead of Customer Orders) under limited circumstances. Specifically, the exception would allow the execution of a customer order following a proprietary trade by the Member at an increment other than $0.05 in the same security, on the same side and at the same price as (or within the prescribed amount of) a customer order owed a fill pursuant to Exchange Rule 12.6, where the triggering proprietary trade was permissible pursuant to an exception under the Plan.
Proposed Rule 11.21(a)(6)(D) sets forth the “Trade-at Prohibition,” which is the prohibition against executions by a Member that operates a Trading Center of a sell order for a Pilot Security in Test Group Three at the price of a Protected Bid or the execution of a buy order for a Pilot Security in Test Group Three at the price of a Protected Offer during regular trading hours, absent any of the exceptions set forth in Rule 11.21(a)(6)(D). Consistent with the Plan, the rule reiterates that a Member that operates a Trading Center that is displaying a quotation, via either a processor or an SRO quotation feed, that is a Protected Bid or Protected Offer is permitted to execute orders at that level, but only up to the amount of its displayed size. A Member that operates a Trading Center that was not displaying a quotation that is the same price as a Protected Quotation, via either a processor or an SRO quotation feed, is prohibited from price-matching protected quotations unless an exception applies.
Consistent with the Plan, proposed Rule 11.21(a)(6)(D) also sets forth the exceptions to the Trade-at prohibition, pursuant to which a Member that operates a Trading Center may execute a sell order for a Pilot Security in Test Group Three at the price of a Protected Bid or execute a buy order for a Pilot Security in Test Group Three at the price of a Protected Offer. The first exception to the Trade-at Prohibition is the “display exception,” which allows a trade to occur at the price of the Protected Quotation, up to the Trading Center's full displayed size, if the order “is executed by a trading center that is displaying a quotation.”
In Rule 11.21(a)(6)(D), the Exchange proposes that a Member that utilizes the independent aggregation unit concept may satisfy the display exception only if the same independent aggregation unit that displays interest via either a processor or an SRO Quotation Feed also executes an order in reliance upon this exception. The rule provides that “independent aggregation unit” has the same meaning as provided under Rule 200(f) of SEC Regulation SHO.
As initially proposed by the Participants, the Plan contained an additional condition to the display exception, which would have required that, where the quotation is displayed through a national securities exchange, the execution at the size of the order must occur against the displayed size on that national securities exchange; and where the quotation is displayed through the Alternative Display Facility or another facility approved by the Commission that does not provide execution functionality, the execution at the size of the order must occur against the displayed size in accordance with the rules of the Alternative Display Facility of such approved facility (“venue limitation”).
In approving the Plan, the Commission modified the Trade-At Prohibition to remove the venue limitation.
Consistent with Plan and the SEC's determination to remove the venue limitation, the Exchange is making clear that the display exception applies to trades done by a Trading Center otherwise than on an exchange where the Trading Center has previously displayed a quotation in either an agency or a principal capacity. As part of the display exception, the Exchange also proposes that a Trading Center that is displaying a quotation as agent or riskless principal may only execute as agent or riskless principal, while a Trading Center displaying a quotation as principal (excluding riskless principal) may execute either as principal or agent or riskless principal. The Exchange believes this is consistent with the Plan and the objective of the Trade-at Prohibition, which is to promote the display of liquidity and generally to prevent any Trading Center that is not quoting from price-matching Protected Quotations. Providing that a Trading Center may not execute on a proprietary basis in reliance on a quotation representing customer interest (whether agency or riskless principal) ensures that the Trading Center cannot avoid compliance with the Trade-at Prohibition by trading on a proprietary basis in reliance on a quotation that does not represent such Trading Center's own interest. Where a Trading Center is displaying a quotation at the same price as a Protected Quotation in a proprietary capacity, transactions in any capacity at the price and up to the size of such Trading Center's displayed quotation would be permissible. Transactions executed pursuant to the display exception may occur on the venue on which such quotation is displayed or over the counter.
The proposal also excepts Block Size orders
Consistent with the Plan, the proposal also excepts an order that is a Retail Investor Order that is executed with at least $0.005 price improvement.
The exceptions set forth in proposed Rule 11.21(a)(6)(D)(ii) d. through n. are based on the exceptions found in Rule 611 of Regulation NMS.
The subparagraph h. exception applies when the order is identified as a Trade-at Intermarket Sweep Order. The subparagraph i. exception applies when the order is executed by a Trading Center that simultaneously routed Trade-at Intermarket Sweep Orders to execute against the full displayed size of a Protected Quotation with a price that is better than or equal to the limit price of the limit order identified as a Trade-at Intermarket Sweep Order. Depending on whether Rule 611 or the Trade-at requirement applies, an ISO may mean that the sender of the ISO has swept better-priced protected quotations, so that the recipient of that ISO may trade through the price of the protected quotation (Rule 611), or it could mean that the sender of the ISO has swept protected quotations at the same price that it wishes to execute at (in addition to any better-priced quotations), so the recipient of that ISO may trade at the price of the protected quotation (Trade-at). Given that the meaning of an ISO may differ under Rule 611 and Trade-at, the Exchange proposes Rule 11.21(a)(6)(D)(ii)(h) so that the recipient of an ISO in a Test Group Three security would know, upon receipt of that ISO, that the Trading Center that sent the ISO had already executed against the full size of displayed quotations at that price,
The Exchange proposes to further clarify the use of an ISO in connection with the Trade-at requirement by adopting, as part of proposed Rule 11.21(a)(7), a definition of “Trade-at Intermarket Sweep Order.” As set forth in the Plan and as noted above, the definition of a Trade-at ISO does not distinguish ISOs that are compliant with Rule 611 from ISOs that are compliant with Trade-at. The Exchange therefore proposes to define a Trade-at ISO as a limit order for a Pilot Security that meets the following requirements: (1) When routed to a Trading Center, the limit order is identified as a Trade-at Intermarket Sweep Order; (2) simultaneously with the routing of the limit order identified as a Trade-at Intermarket Sweep Order, one or more additional limit orders, as necessary, are routed to execute against the full displayed size of any protected bid, in the case of a limit order to sell, or the full displayed size of any protected offer, in the case of a limit order to buy, for the Pilot Security with a price that is better than or equal to the limit price of the limit order identified as a Trade-at Intermarket Sweep Order. These additional routed orders also must be marked as Trade-at Intermarket Sweep Orders. The Exchange believes that this proposed change will further clarify to recipients of ISOs in Group Three securities whether the ISO satisfies the requirements of Rule 611 or Trade-at.
The exception under subparagraph j. of proposed Rule 11.21(a)(6)(D)(ii) applies when the order is executed as part of a Negotiated Trade. The subparagraph k. exception applies when the order is executed when the Trading Center displaying the Protected Quotation that was traded at had displayed, within one second prior to execution of the transaction that constituted the Trade-at, a Best Protected Bid or Best Protected Offer, as applicable, for the Pilot Security with a price that was inferior to the price of the Trade-at transaction.
The exception proposed in subparagraph l. applies to a “stopped order.” The stopped order exemption in Rule 611 of SEC Regulation NMS applies where “[t]he price of the trade-through transaction was, for a stopped buy order, lower than the national best bid in the NMS stock at the time of execution or, for a stopped sell order, higher than the national best offer in the NMS stock at the time of execution.”
To illustrate the application of the stopped order exemption as it currently operates under Rule 611 of SEC Regulation NMS and as it is currently proposed for Trade-at, assume the NBB is $10.00 and another protected quote is at $9.95. Under Rule 611 of SEC Regulation NMS, a stopped order to buy can be filled at $9.95 and the firm does not have to send an ISO to access the protected quote at $10.00 since the price of the stopped order must be lower than the NBB. For the stopped order to also be executed at $9.95 and satisfy the Trade-at requirements, the Trade-at exception would have to be revised to allow an order to execute at the price of a protected quote which, in this case, could be $9.95.
Based on the fact that a stopped order would be treated differently under the Regulation NMS Rule 611 exception than under the proposed Trade-at exception, the Exchange believes that it is appropriate to amend the Trade-at stopped order exception to ensure that the application of this exception will produce a consistent result under both Regulation NMS and the Plan. The Exchange therefore proposes to amend the stopped order exception to allow a transaction to satisfy the Trade-at requirement if the stopped order price, for a stopped buy order, is equal to or less than the NBB, and for a stopped sell order, is equal to or greater than the NBO, as long as such order is priced at an acceptable increment.
Proposed subparagraph l. to Rule 11.21(a)(6)(D)(ii) would define a “stopped order” as an order that is executed by a Trading Center which, at the time of order receipt, the Trading Center had guaranteed an execution at no worse than a specified price, where (1) the stopped order was for the account of a customer; (2) the customer agreed to the specified price on an
The subparagraph m. exception applies where the order is for a fractional share of a Pilot Security, provided that such fractional share order was not the result of breaking an order for one or more whole shares of a Pilot Security into orders for fractional shares or was not otherwise effected to evade the requirements of the Trade-at Prohibition or any other provisions of the Plan.
The subparagraph n. exception applies to bona fide errors transactions. Following the adoption of Rule 611 and its exceptions, the Commission issued exemptive relief that created exceptions from Rule 611 for certain error correction transactions.
As with the corresponding exception under Rule 611 of SEC Regulation NMS, the Exchange proposes to define a “bona fide error” as: (i) The inaccurate conveyance or execution of any term of an order including, but not limited to, price, number of shares or other unit of trading; identification of the security; identification of the account for which securities are purchased or sold; lost or otherwise misplaced order tickets; short sales that were instead sold long or vice versa; or the execution of an order on the wrong side of a market; (ii) the unauthorized or unintended purchase, sale, or allocation of securities, or the failure to follow specific client instructions; (iii) the incorrect entry of data into relevant systems, including reliance on incorrect cash positions, withdrawals, or securities positions reflected in an account; or (iv) a delay, outage, or failure of a communication system used to transmit market data prices or to facilitate the delivery or execution of an order. The bona fide error must be evidenced by objective facts and circumstances, the Trading Center must maintain documentation of such facts and circumstances, and the Trading Center must record the transaction in its error account. To avail itself of the exemption, the Trading Center must establish, maintain, and enforce written policies and procedures that are reasonably designed to address the occurrence of errors and, in the event of an error, the use and terms of a transaction to correct the error in compliance with this exemption. Finally, the Trading Center must regularly surveil to ascertain the effectiveness of its policies and procedures to address errors and transactions to correct errors and take prompt action to remedy deficiencies in such policies and procedures.
Consistent with the Plan, the final exception to the Trade-At Prohibition and its accompanying supplementary material applies to an order that is for a fractional share of a Pilot Security. The supplementary material provides that such fractional share orders may not be the result of breaking an order for one or more whole shares of a Pilot Security into orders for fractional shares or that otherwise were effected to evade the requirements of the Trade-at Prohibition or any other provisions of the Plan. In approving the Plan, the Commission noted that this exception was appropriate, as there could be potential difficulty in the routing and executing of fractional shares.
The proposed rule change will become operative upon the commencement of the Pilot Period.
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, interprets, and clarifies the provisions of the Plan, and is designed to assist the Exchange and Members in meeting regulatory obligations pursuant to 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. To the extent that this proposal implements, interprets, and clarifies the Plan and applies specific requirements to Members, 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.
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange 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 to the Plan. The Exchange also notes that the quoting and trading requirements of the Plan will apply equally to all Members that trade Pilot Securities.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (A) Significantly affect the protection of investors or the public interest; (B) impose any significant burden on competition; and (C) by its terms, become operative for 30 days from the date on which it was filed or such shorter time as the Commission may designate it has become effective pursuant to Section 19(b)(3)(A) of the
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (1) Necessary or appropriate in the public interest; (2) for the protection of investors; or (3) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange is hereby filing with the U.S. Securities and Exchange Commission (“Commission”) a proposed rule change (the “Proposed Rule Change”) in connection with a proposed business transaction (the “Transaction”) involving the Exchange's ultimate, indirect, non-U.S. upstream owners, Deutsche Börse AG (“Deutsche Börse”) and Eurex Frankfurt AG (“Eurex Frankfurt”), and Nasdaq, Inc. (“Nasdaq”). Nasdaq is the parent company of The NASDAQ Stock Market LLC (“NASDAQ Exchange”), NASDAQ PHLX LLC (“Phlx Exchange”), NASDAQ BX, Inc. (“BX Exchange”), Boston Stock Exchange Clearing Corporation (“BSECC”) and Stock Clearing Corporation of Philadelphia (“SCCP”).
In order to effect the Transaction, the Exchange hereby seeks the Commission's approval of the following: (i) That certain corporate resolutions that were previously established by entities that will cease to be non-U.S. upstream owners of the Exchange after the Transaction will cease to be considered rules of the Exchange upon Closing; (ii) that certain governing documents of Nasdaq will be considered rules of the Exchange upon Closing; (iii) that the Third Amended and Restated Trust Agreement (the “Trust Agreement”) that currently exists among International Securities Exchange Holdings, Inc. (“ISE Holdings”), U.S. Exchange Holdings, and the Trustees (as defined therein) with respect to the “ISE Trust” will cease to be considered rules of the Exchange upon Closing and, thereafter, that the parties to the Trust Agreement would be permitted to take the corporate steps necessary to repeal the Trust Agreement and dissolve the ISE Trust; (iv) to amend and restate the Second Amended and Restated
The Exchange requests that the Proposed Rule Change become operative at the Closing of the Transaction. The text of the proposed rule change is available at the Commission's Public Reference Room and on the Exchange's Internet 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 these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
The Exchange submits this Proposed Rule Change to seek the Commission's approval of various changes to the organizational and governance documents of the Exchange's current owners and related actions that are necessary in connection with the Closing of the Transaction, as described below. The Exchange will continue to conduct its regulated activities (including operating and regulating its market and Members) in the manner currently conducted and will not make any changes to its regulated activities in connection with the Transaction. The Exchange is not proposing any amendments to its trading or regulatory rules at this time relating to the Transaction.
On December 17, 2007, ISE Holdings, the sole, direct parent of the Exchange, became a direct, wholly-owned subsidiary of U.S. Exchange Holdings.
On March 9, 2016, a Stock Purchase Agreement (the “Agreement”) was entered into among Deutsche Börse, Eurex Frankfurt and Nasdaq. Pursuant to and subject to the terms of the Agreement, at the Closing, Deutsche Börse and Eurex Frankfurt will sell, transfer and deliver to Nasdaq, and Nasdaq will purchase, the capital stock of U.S. Exchange Holdings.
As a result of the Transaction, Nasdaq will directly own 100% of the equity interest of U.S. Exchange Holdings. U.S. Exchange Holdings will remain the sole, direct owner of ISE Holdings. ISE Holdings will remain the sole, direct owner of the Exchange. The Exchange will therefore become an indirect subsidiary of Nasdaq and Nasdaq will become the ultimate parent of the Exchange. The Exchange will become an affiliate of NASDAQ Exchange, Phlx Exchange, BX Exchange, BSECC and SCCP through common, ultimate ownership by Nasdaq. As a result of the Transaction, Deutsche Börse and Eurex Frankfurt will cease to be owners of the Exchange. The Exchange will therefore cease to have any Non-U.S. Upstream Owners. The Transaction will not have any effect on ISE Holdings' direct ownership of the Exchange. However, consummation of the Transaction is subject to approval of this Proposed Rule Change by the Commission, as described below.
Deutsche Börse and Eurex Frankfurt, as the Non-U.S. Upstream Owners of the Exchange, have previously taken appropriate steps to incorporate provisions regarding ownership, jurisdiction, books and records, and other issues related to their control of the Exchange. Specifically, each of such Non-U.S. Upstream Owners has adopted resolutions (“Non-U.S. Upstream Owner Resolutions”), which were previously approved by the Commission, to incorporate these concepts with respect to itself, as well as its board members, officers, employees, and agents (as applicable), to the extent that they are involved in the activities of the Exchange.
Section 19(b) of the Act,
Nasdaq will become the ultimate parent of the Exchange upon the Closing of the Transaction. As described above, Section 19(b) of the Act and Rule 19b-4 thereunder require an SRO to file proposed rule changes with the Commission. Although the Exchange's existing U.S. upstream owners are not SROs, their governing documents have previously been filed with the Commission as stated policies, practices, or interpretations of the Exchange and therefore are considered rules of the Exchange.
The Nasdaq Bylaws contain certain provisions regarding ownership, jurisdiction, books and records, and other issues, with respect to Nasdaq, as well as its board members, officers, employees, and agents (as applicable), relating to Nasdaq's control of any “Self-Regulatory Subsidiary” (
• Giving due regard to the preservation of the independence of the self-regulatory function of each of Nasdaq's Self-Regulatory Subsidiaries.
• Maintaining the confidentiality of all books and records of each Self-Regulatory Subsidiary reflecting confidential information pertaining to the self-regulatory function of such Self-Regulatory Subsidiary (including but not limited to disciplinary matters, trading data, trading practices and audit information) that comes into Nasdaq's possession, which shall not be used for any non-regulatory purposes; making such books and records available for inspection and copying by the Commission; and maintaining such books and records relating to each Self-Regulatory Subsidiary in the United States.
• To the extent they are related to the activities of a Self-Regulatory Subsidiary, the books, records, premises, officers, Directors, and employees of Nasdaq shall be deemed to be the books, records, premises, officers, directors, and employees of such Self-Regulatory Subsidiary for the purposes of, and subject to oversight pursuant to, the Act.
• Compliance by Nasdaq with the U.S. federal securities laws and the rules and regulations thereunder, cooperation by Nasdaq with the Commission and Nasdaq's Self-Regulatory Subsidiaries, and reasonable steps by Nasdaq necessary to cause its agents to cooperate with the Commission and, where applicable, the Self-Regulatory Subsidiaries pursuant to their regulatory authority.
• Consent by Nasdaq and its officers, Directors, and employees to the jurisdiction of the United States federal courts, the Commission, and each Self-Regulatory Subsidiary for the purposes of any suit, action or proceeding pursuant to the United States federal securities laws, and the rules and regulations thereunder, arising out of, or relating to, the activities of any Self-Regulatory Subsidiary.
• Reasonable steps by Nasdaq necessary to cause its current and future officers, Directors, and employees, to consent in writing to the applicability to them of certain provisions of the Nasdaq Bylaws, as applicable, with respect to their activities related to any Self-Regulatory Subsidiary.
• Approval by the Commission under Section 19 of the Act prior to any resolution of the Nasdaq Board to approve an exemption for any person from the ownership limitations of the Nasdaq COI.
• Filing with, or filing with and approval by, the Commission (as the case may be) under Section 19 of the Act prior to amending the Nasdaq COI or the Nasdaq Bylaws.
The Exchange believes that the provisions in the Nasdaq Bylaws should minimize the potential that a person could improperly interfere with, or restrict the ability of, the Commission or the Exchange to effectively carry out their regulatory oversight responsibilities under the Act.
Additionally, and similar to the ISE Holdings COI, the Nasdaq COI imposes limits on direct and indirect changes in control, which are designed to prevent any shareholder from exercising undue control over the operation of its SRO subsidiaries and to ensure that its SRO subsidiaries and the Commission are able to carry out their regulatory obligations under the Act. Specifically, no person who beneficially owns shares of common stock, preferred stock, or notes of Nasdaq in excess of 5% of the securities generally entitled to vote may vote the shares in excess of 5%.
The ISE Holdings COI currently contains certain ownership limits (“Ownership Limits”) and voting limits (“Voting Limits”) with respect to the outstanding capital stock of ISE Holdings.
As described above, Section 19(b) of the Act and Rule 19b-4 thereunder require an SRO to file proposed rule changes with the Commission. Although the ISE Trust is not an SRO, the Trust Agreement has previously been filed with the Commission as stated policies, practices, or interpretations of the Exchange and therefore is considered rules of the Exchange.
The ISE Holdings COI was amended in 2007 in relation to the ownership of ISE by Deutsche Börse.
As described above, the Exchange is proposing that the Trust Agreement will cease to be considered rules of the Exchange as of a date that corresponds to the Closing date of the Transaction. Accordingly, the Exchange proposes to remove provisions relating to the Trust Agreement and the ISE Trust from the ISE Holdings COI.
The changes to the ISE Holdings COI proposed herein would describe the corrective treatment of “Excess Shares” (
• The Exchange proposes to delete the current provisions in Article Fourth, Sections III(a)(ii), III(a)(iii) and III(b)(i) of the ISE Holdings COI that provide that the ISE Holdings Board of Directors shall deliver to the ISE Trust copies of certain written notice and updates thereto currently required under Sections III(a)(ii) and III(a)(iii) of Article FOURTH (
• The Exchange proposes to adopt new Article FOURTH, Section III(b)(iii) of the ISE Holdings COI, which would provide that, notwithstanding any other provisions contained in the ISE Holdings COI, to the fullest extent permitted by applicable law, any shares of capital stock of ISE Holdings (whether such shares are common stock or preferred stock) not entitled to be voted due to the restrictions set forth in Section III(b)(i) of Article FOURTH of the ISE Holdings COI (and not waived by the ISE Holdings Board of Directors and approved by the Commission pursuant to Section III(b)(i) of Article FOURTH of the ISE Holdings COI), shall not be deemed to be outstanding for purposes of determining a quorum or a minimum vote required for the transaction of any business at any meeting of stockholders of ISE Holdings, including, without limitation, when specified business is to be voted on by a class or a series voting as a class.
• As a result of the addition of new Article FOURTH, Section III(b)(iii) of the ISE Holdings COI, the Exchange proposes to renumber current Article FOURTH, Section III(b)(iii) as resulting Article FOURTH, Section III(b)(iv).
• The Exchange proposes several changes to Article FOURTH, Section III(c) of the ISE Holdings COI, which relates to violations of any Ownership Limits or Voting Limits and the treatment of Excess Shares, including the following:
• Addition of new text relating to the designation as “Excess Shares” for any shares held in excess of the relevant Ownership Limits; such designation and treatment being effective as of the close of business on the business day prior to the date of the purported transfer or other event leading to such Excess Shares.
• Deletion of current text requiring notification to the ISE Trust upon the occurrence of certain events and the transfer of Voting Shares to the ISE Trust.
• Addition of new text describing the treatment of “Excess Shares” upon any sale, transfer, assignment or pledge that, if effective would result in any Person, either alone or together with its Related Persons, owning shares in excess of any of the Ownership Limits. Specifically, the Exchange proposes within new Article FOURTH, Section III(c)(i) of the ISE Holdings COI that any such purported event shall be void ab initio as to such Excess Shares, and the intended transferee shall acquire no rights in such Excess Shares. Such Excess Shares shall be deemed to have been transferred to ISE Holdings (or to an entity appointed by ISE Holdings that is unaffiliated with ISE Holdings
• Addition of new text describing the treatment of dividends or other distributions paid with respect to Excess Shares.
• Addition of new text describing the handling of any distribution of assets received in respect of the Excess Shares in any liquidation, dissolution or winding up of, or any distribution of the assets of ISE Holdings.
• Addition of new text describing the authority of the Special Trustee with respect to rescinding as void any votes cast by a purported transferee or holder of Excess Shares as well as recasting of votes in accordance with the desires of the Special Trustee acting for the benefit of ISE Holdings.
• Addition of new text describing the sale by the Special Trustee, to a Person or Persons designated by the Special Trustee whose ownership of Voting Shares will not violate any Ownership Limit or Voting Limit, of Excess Shares transferred to the Charitable Trust, within 20 days of receiving notice from ISE Holdings that Excess Shares have been so transferred.
• Addition of new text describing that Excess Shares shall be deemed to have been offered for sale to ISE Holdings on the date of the transaction or event resulting in such Excess Shares.
• Deletion of current Article FOURTH, Section III(c)(v), which currently relates to the ISE Trust Beneficiary's right to reacquire Excess Shares from the ISE Trust under certain circumstances.
The Exchange is not proposing to reinstate all of the ISE Holdings COI text that existed prior to Deutsche Börse's ownership of ISE Holdings, as certain of such text would continue to not be applicable, even after the Transaction, given the Exchange's resulting ownership. For example, prior to Deutsche Börse's ownership of ISE Holdings, the ISE Holdings COI contained certain provisions that dealt with the publicly-traded nature of ISE Holdings' stock. This text was removed from the ISE Holdings COI upon Deutsche Börse's ownership of ISE Holdings, as ISE Holdings' stock ceased to be publicly-traded.
• Regulation 14A under the Act (pertaining to solicitations of proxies).
• the treatment of transactions of ISE Holdings stock on or through the facilities of any national securities exchange or national securities association.
• inspection of the ISE Holdings accounts and records by ISE Holdings stockholders.
• stockholder voting to amend, repeal or adopt provisions of the ISE Holdings COI or the ISE Holdings Bylaws.
• stockholder action called at annual or special meetings of stockholders.
• nominations for directors and the election thereof.
The Exchange also is not proposing to reinstate the ISE Holdings COI text that existed prior to Deutsche Börse's ownership of ISE Holdings that related to changes in terminology used throughout the ISE Holdings COI.
The Exchange proposes to remove the reference to the Trust Agreement in Article THIRTEENTH of the U.S. Exchange Holdings COI. As proposed herein, the Trust Agreement will cease to be considered rules of the Exchange as of the Closing of the Transaction and would be repealed in connection with the Transaction. The Exchange also proposes to retitle the document as the “Fourth” Amended and Restated Certificate of Incorporation of U.S. Exchange Holdings and update the effective date thereof.
The ISE Holdings COI Voting Limits restrict any person, either alone or together with its related persons, from having voting control, either directly or indirectly, over more than 20% of the outstanding capital stock of ISE Holdings. The ISE Holdings COI Ownership Limits restrict any person, either alone or together with its related persons, from directly or indirectly owning of record or beneficially more than 40% of the outstanding capital stock of ISE Holdings (or in the case of any Exchange member, acting alone or together with its related persons, from directly or indirectly owning of record or beneficially more than 20% of the outstanding capital stock of ISE Holdings).
The ISE Holdings COI and the ISE Holdings Bylaws provide that the board of directors of ISE Holdings may waive these voting and ownership restrictions in an amendment to the ISE Holdings Bylaws if the board makes the following three findings: (1) The waiver will not impair the ability of the Exchange to
Acting pursuant to this waiver provision, the board of directors of ISE Holdings has approved the amendment to the ISE Holdings Bylaws to waive the Ownership Limits and Voting Limits in order to permit Nasdaq to indirectly own 100% of the outstanding common stock of ISE Holdings as of and after Closing of the Transaction.
The Exchange will continue to conduct its regulated activities (including operating and regulating its market and Members) in the manner currently conducted and will not make any changes to its regulated activities in connection with the Transaction. In addition, the Transaction will not impair the ability of the Exchange's, or any facility thereof, to carry out their respective functions and responsibilities under the Act and will not impair the ability of the Commission to enforce the Act. The Exchange therefore seeks approval of the waiver described herein with respect to the Ownership Limits and Voting Limits in order to permit Nasdaq to indirectly own 100% of the outstanding common stock of ISE Holdings as of and after Closing of the Transaction.
The Exchange will continue to conduct its regulated activities (including operating and regulating its market and Members) in the manner currently conducted and will not make any changes to its regulated activities in connection with the Transaction. The Transaction will not impair the ability of ISE Holdings, the Exchange, or any facility thereof, to carry out their respective functions and responsibilities under the Act. Moreover, the Transaction will not impair the ability of the Commission to enforce the Act with respect to the Exchange. As such, the Commission's plenary regulatory authority over the Exchange will not be affected by the approval of this Proposed Rule Change. The Exchange is requesting approval by the Commission of changes proposed herein in order to allow the Transaction to take place.
The Exchange believes that this proposal is consistent with Section 6(b)of the Act,
The Exchange also believes that this Proposed Rule Change furthers the objectives of Section 6(b)(5)
Approval of this Proposed Rule Change will enable ISE Holdings to continue its operations and the Exchange to continue its orderly discharge of regulatory duties to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest.
In addition, the Exchange expects that the Transaction will facilitate efficiencies and innovation for clients and efficient, transparent and well-regulated markets for issuers and clients, thus removing impediments to, and perfecting the mechanism of a free and open market and a national market system. The Transaction will benefit investors, the market as a whole, and shareholders by, among other things, enhancing competition among securities venues and reducing costs. In particular, the Transaction will contribute to streamlined and efficient operations, thereby intensifying competition for transaction order flow with other exchange and non-exchange trading centers, as well as potentially in other areas, such as proprietary market data products and listings. This enhanced level of competition among trading centers will benefit investors through new or more competitive product offerings and, ultimately, lower costs.
Furthermore, the Exchange will continue to conduct its regulated activities (including operating and regulating its market and Members) in the manner currently conducted and will not make any changes to its regulated activities in connection with the Transaction. Therefore, the Exchange believes that it will continue to satisfy the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange.
The Exchange believes it is consistent with the Act to allow Nasdaq to become the ultimate parent of the Exchange. Neither Nasdaq nor any of its related persons is subject to any statutory disqualification or is a Member of the Exchange. Moreover, the Nasdaq governing documents include certain provisions designed to maintain the independence of the Exchange's self-regulatory functions. Accordingly, the Exchange believes that Nasdaq's acquisition of ultimate ownership and exercise of voting control of the Exchange will not impair the ability of the Commission or the Exchange to discharge their respective responsibilities under the Act.
Although Nasdaq will not carry out regulatory functions, its activities with respect to the operation of the Exchange must be consistent with, and not interfere with, the Exchange's self-regulatory obligations. Nasdaq's governing documents include certain provisions that are designed to maintain the independence of the Exchange's self-regulatory functions, enable the Exchange to operate in a manner that complies with the U.S. federal securities laws, including the objectives and requirements of Sections 6(b) and 19(g) of the Act,
Further, Nasdaq (along with its respective board members, officers, and employees) and U.S. Exchange Holdings agree to keep confidential, to the fullest extent permitted by applicable law, all confidential information pertaining to the self-regulatory function of the Exchange, including, but not limited to, confidential information regarding disciplinary matters, trading data, trading practices, and audit information, contained in the books and records of the Exchange and not use such information for any non-regulatory purposes.
In addition, Nasdaq's books and records relating to the activities of the Exchange will at all times be made available for, and books and records of U.S. Exchange Holdings will be subject at all times to, inspection and copying by the Commission and the Exchange. Books and records of U.S. Exchange Holdings related to the activities of the Exchange also will continue to be maintained within the U.S. Moreover, for so long as Nasdaq directly or indirectly controls the Exchange, the books, records, officers, directors (or equivalent), and employees of Nasdaq shall be deemed to be the books, records, officers, directors, and employees of the Exchange.
To the extent involved in the activities of the Exchange, Nasdaq, its board members, officers, and employees irrevocably submit to the jurisdiction of the U.S. federal courts and the Commission for purposes of any action arising out of, or relating to, the activities of the Exchange. Likewise, U.S. Exchange Holdings, its officers and directors, and employees whose principal place of business and residence is outside of the U.S., to the extent such directors, officers, or employees are involved in the activities of the Exchange, irrevocably submit to the jurisdiction of the U.S. federal courts and the Commission for purposes of any action arising out of, or relating to, the activities of the Exchange.
The Nasdaq governing documents, the U.S. Exchange Holdings COI, and the
As Deutsche Börse and Eurex Frankfurt will both cease to be Non-U.S. Upstream Owners of the Exchange upon the Closing of the Transaction, the Exchange believes that its proposal that the resolutions of Deutsche Börse and Eurex Frankfurt will cease to be considered rules of the Exchange as of a date that corresponds to the Closing date of the Transaction is consistent with the Act.
The purpose for which the ISE Trust was formed will not be relevant after the Closing of the Transaction, given that the Exchange will no longer have Non-U.S. Upstream Owners and that the Exchange's current and resulting U.S. upstream owners' governing documents provide for similar protections (
Given the Exchange's proposal to repeal the Trust Agreement and dissolve the ISE Trust, the Exchange believes that the proposed changes to the ISE Holdings COI are consistent with the Act. The proposed changes would delete provisions of the ISE Holdings COI that will no longer be relevant and would reinstate certain provisions of the ISE Holdings COI that were removed upon introduction of the provisions relating to the ISE Trust and the Trust Agreement.
In accordance with Section 6(b)(8) of the Act,
The Exchange's conclusion that the Proposed Rule Change would not result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act is consistent with the Commission's prior conclusions about similar combinations involving multiple exchanges in a single corporate family.
The Exchange believes that there is considerable support for a finding that the Transaction is consistent with the Act with respect to competition. 14 exchanges currently compete for options trading business. Exchanges compete on technology, market model, trading venue, fees and fee structure. Additionally, low switching costs allow customers to easily move to another exchange, which customers do regularly, as reflected in constantly varying market shares among the existing exchange operators. In addition, the Commission has approved several, new registered options exchanges in recent history, which highlights an increase in competition in the market for listed options trading.
The Exchange believes that the Transaction will not change the competitive landscape for listed options trading and the changes proposed herein are consistent with other recent Commission approvals. For example, a similar proposed combination of Deutsche Börse and NYSE Euronext in 2011 received Commission approval and would have resulted in a combined greater than 40% market share of listed options volume among its three, respective options exchanges (based on 2010 data).
For these reasons, the Exchange believes that the proposal is consistent with the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
Within 45 days of the publication date of this notice or within such longer period (1) as the Commission may designate up to 45 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding or (2) as to which the self-regulatory organization consents, the Commission will:
(A) by order approve such Proposed Rule Change; or
(B) institute proceedings to determine whether the Proposed Rule Change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act.
• 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.
To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Small Business Administration.
30-Day notice.
The Small Business Administration (SBA) is publishing this notice to comply with requirements of the Paperwork Reduction Act (PRA) (44 U.S.C. Chapter 35), which requires agencies to submit proposed reporting and recordkeeping requirements to OMB for review and approval, and to publish a notice in the
Submit comments on or before June 15, 2016.
Comments should refer to the information collection by name and/or OMB Control Number and should be sent to:
Curtis Rich, Agency Clearance Officer, (202) 205-7030
The Emerging Leaders Initiative aims to assist established small businesses located in historically challenged communities with increasing their sustainability, attracting outside investment, and strengthening each community's economic base by creating jobs and providing valuable goods and services. These objectives are pursued by offering eligible business executives a 7-month intensive course focused on the skills essential to develop their companies, expand their resource networks, and increase their confidence and motivation. The course is designed to be hands-on and is composed of classroom sessions, out-of-class preparation work, and executive mentoring groups where participants can discuss their challenges. A broad range of topics is covered in the curriculum, including financial measures of business health, strategies for marketing, access to funding, and employee management and recruitment.
SBA plans to conduct annual performance-monitoring activities to assess the short- and intermediate-term outcomes of participants in the Emerging Leaders Initiative. The broad outcomes assessed will include satisfaction, changes in management behavior, and changes in economic outcomes, such as loans obtained and jobs created. Specifically, SBA plans to implement three instruments with the participants in each cohort: An intake assessment form at the start of the program to document baseline conditions, a satisfaction-oriented feedback form at the end of the program, and an annual outcome-oriented survey for 3 years after program completion. The latter instrument will document changes in key outcomes over a longer period, because job growth, revenue growth, profitability, and other economic outcomes of program participation are expected to manifest in the intermediate and long terms.
The U.S. National Commission for UNESCO will hold a conference call on Friday, June 3, 2016, from 11:00 a.m. until 12:00 p.m. Eastern Daylight Time. The purpose of the teleconference meeting is to consider the recommendations of the Commission's National Committee for the Intergovernmental Oceanographic Commission (IOC). The call will also be an opportunity to provide an update on recent and upcoming Commission and UNESCO activities. The Commission will accept brief oral comments during a portion of this conference call. The public comment period will be limited to approximately 10 minutes in total, with two minutes allowed per speaker. For more information, or to arrange to participate in the conference call, individuals must make arrangements
The National Commission may be contacted via email at
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), E.O. 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the objects covered under this notice, contact the Office of Public Diplomacy and Public Affairs in the Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT).
Notice of Sixth RTCA Special Committee 233 meeting.
The FAA is issuing this notice to advise the public of the Sixth RTCA Special Committee 233 meeting.
The meeting will be held June 21-23, 2016 from 9:00 a.m.-5:00 p.m.
The meeting will be held at FedEx World Headquarters Conference Center, 3670 Hacks Cross Road, Building G (3rd Floor), Memphis, TN 38125-8800. Tel: (202) 330-0662.
The RTCA Secretariat, 1150 18th Street NW., Suite 910, Washington, DC 20036, or by telephone at (202) 833-9339, fax at (202) 833-9434, 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.), notice is hereby given for a meeting of RTCA Special Committee 233. The agenda will include the following:
Attendance is open to the interested public but limited to space availability. With the approval of the chairman, members of the public may present oral statements at the meeting. Plenary information will be provided upon request. Persons who wish to present statements or obtain information should contact the person listed in the
Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT).
Notice of Tenth RTCA Special Committee 231 Meeting.
The FAA is issuing this notice to advise the public of the Tenth RTCA Special Committee 231 meeting.
The meeting will be held June 7-10, 2016 from 9:00 a.m.-5:00 p.m.
The meeting will be held at RTCA, Inc., 1150 18th Street NW., Suite 910, Washington, DC 20036, Tel: (202) 330-0662.
The RTCA Secretariat, 1150 18th Street NW., Suite 910, Washington, DC 20036, or by telephone at (202) 833-9339, fax at (202) 833-9434, or Web site at
Pursuant to section 10(a)(2) of the Federal
Attendance is open to the interested public but limited to space availability. With the approval of the chairman, members of the public may present oral statements at the meeting. Plenary information will be provided upon request. Persons who wish to present statements or obtain information should contact the person listed in the
Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT).
Notice of Twenty-Third RTCA Special Committee 222 meeting.
The FAA is issuing this notice to advise the public of the Twenty-Third RTCA Special Committee 222 meeting.
The meeting will be held June 8-9, 2016 from 9:00 a.m.-5:00 p.m.
The meeting will be held at Noordwijk, Netherlands (ESA).
The RTCA Secretariat, 1150 18th Street NW., Suite 910, Washington, DC 20036, or by telephone at (202) 833-9339, fax at (202) 833-9434, 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.), notice is hereby given for a meeting of RTCA Special Committee 222. The agenda will include the following:
This is a joint meeting with EUROCAE WG-82. The physical meeting is in Noordwijk, Netherlands (ESA). Dress is business casual. For details please contact Armin Schlereth, Chair of Eurocae WG-82
Federal Aviation Administration, DOT.
Notice of Noise Exposure Maps, Correction.
This action corrects the noise exposure map notice and receipt of noise compatibility program and request for review published on May 10, 2016. In that document, the FAA has determinied that the noise exposure maps submitted by the City of Boise, ID, for the Boise Air Terminal (Gowen Field), Boise, ID, are in compliance with applicable requirements, and that it is reviewing a proposed noise compatibility program that was submitted for Boise Air Terminal (Gowen Field) under part 150 in conjunction with the Noise Exposure Map, and that this program be approved or disapproved on or before October 29, 2016. This document corrects an error in the
The comment period ends July 1, 2016.
Scott Eaton, Community Planner, HLN-612, Federal Aviation Administration, Helena Airports District Office, FAA Building, Ste 2, 2725 Skyway Drive, Helena, MT 59502, telephone (406) 449-5291, facsimile, (406) 449-5274.
On May 10, 2016, the FAA published a notice titled “Noise Exposure Map Notice; Receipt of Noise Compatibility Program and Request for Review” (81 FR 28933). In that Notice, the FAA announces its compliance with noise exposure maps submitted for Boise Air Terminal (Gowen Field), Boise, ID, and also announces that it is reviewing a proposed noise compatibility program submitted in conjunction with the noise exposure map.
In the
On page 28933, column 2, line 22, remove Great Falls International Airport and add in its place Boise Air Terminal (Gowen Field).
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of application for and extension of exemption; request for comments; correction.
The FMCSA published a document in the
Comments must be received on or before June 8, 2016.
For information concerning this notice, contact Ms. Pearlie Robinson, FMCSA Driver and Carrier Operations Division; Office of Carrier, Driver and Vehicle Safety Standards; Telephone: (202) 366-4325. Email:
1. In the
Department of Transportation (DOT), Office of the Secretary of Transportation (OST), Office of Small and Disadvantaged Business Utilization (OSDBU).
Notice of funding availability for the Mid-South Atlantic Region SBTRC.
The Department of Transportation (DOT), Office of the Secretary (OST), Office of Small and Disadvantaged Business Utilization (OSDBU) announces the opportunity for, business centered community-based organizations, transportation-related trade associations, colleges and universities, community colleges, or chambers of commerce, registered with the Internal Revenue Service as 501C(6) or 501C(3) tax-exempt organizations, to compete for participation in OSDBU's Small Business Transportation Resource Center (SBTRC) program in the Mid-South Atlantic Region (Georgia, South Carolina, and Tennessee).
OSDBU will enter into Cooperative Agreements with these organizations to provide outreach to the small business community in their designated region and provide financial and technical assistance, business training programs, business assessment, management training, counseling, marketing and outreach, and the dissemination of information, to encourage and assist small businesses to become better prepared to compete for, obtain, and manage DOT funded transportation-related contracts and subcontracts at the federal, state and local levels. Throughout this notice, the term “small business” will refer to: 8(a), small disadvantaged businesses (SDB), disadvantaged business enterprises (DBE), women owned small businesses (WOSB), HubZone, service disabled veteran owned businesses (SDVOB), and veteran owned small businesses (VOSB). Throughout this notice, “transportation-related” is defined as the maintenance, rehabilitation, restructuring, improvement, or revitalization of any of the nation's modes of transportation.
Complete Proposals must be received on or before June 17, 2016, 6:00 p.m. Eastern Standard Time (EST). Proposals received after the deadline will be considered non-responsive and will not be reviewed.
Applications must be electronically submitted through
For further information concerning this notice, contact Mr. Adam Dorsey, Program Analyst, U.S. Department of Transportation, Office of Small and Disadvantaged Business Utilization, 1200 New Jersey Avenue SE., Washington, DC 20590. Telephone: (202) 366-1930. Email:
The national SBTRC program utilizes Cooperative Agreements with chambers of commerce, trade associations, educational institutions and business-centered community based organizations to establish SBTRCs to provide business training, technical assistance and information to DOT grantees and recipients, prime contractors and subcontractors. In order to be effective and serve their target audience, the SBTRCs must be active in the local transportation community in order to identify and communicate opportunities and provide the required technical assistance. SBTRCs must already have, or demonstrate the ability to, establish working relationships with the state and local transportation agencies and technical assistance agencies (
Effective outreach is critical to the success of the SBTRC program. In order for their outreach efforts to be effective, SBTRCs must be familiar with DOT's Operating Administrations, its funding sources, and how funding is awarded to DOT grantees, recipients, contractors, subcontractors, and its financial assistance programs. SBTRCs must provide outreach to the regional small business transportation community to disseminate information and distribute DOT-published marketing materials, such as Short Term Lending Program (STLP) Information, Bonding Education Program (BEP) information, SBTRC brochures and literature, DOT Procurement Forecasts; Contracting with DOT booklets, Women and Girls in Transportation Initiative (WITI) information, and any other materials or resources that DOT or OSDBU may develop for this purpose. To maximize outreach, the SBTRC may be called upon to participate in regional and national conferences and seminars. Quantities of DOT publications for on-hand inventory and dissemination at conferences and seminars will be available upon request from the OSDBU office.
The DOT established OSDBU in accordance with Public Law 95-507, an amendment to the Small Business Act and the Small Business Investment Act of 1958. The mission of OSDBU at DOT is to ensure that the small and disadvantaged business policies and goals of the Secretary of Transportation are developed and implemented in a fair, efficient and effective manner to serve small and disadvantaged businesses throughout the country. The OSDBU also administers the provisions of Title 49, Section, 332, the Minority Resource Center (MRC) which includes the duties of advocacy, outreach and financial services on behalf of small and disadvantaged business and those certified under DVR 49 parts 23 and 26 as Disadvantaged Business Enterprises (DBE) and the development of programs to encourage, stimulate, promote and assist small businesses to become better prepared to compete for, obtain and manage transportation-related contracts and subcontracts.
The Regional Assistance Division of OSDBU, through the SBTRC program, allows OSDBU to partner with local organizations to offer a comprehensive delivery system of business training, technical assistance and dissemination of information, targeted towards small business transportation enterprises in their regions. The SBTRCs are established and funded through Cooperative Agreements between eligible applicants and OSDBU. The SBTRCs function as regional offices of OSDBU and fully execute the mission of the OSDBU nationally.
OSDBU enters into Cooperative Agreements with recipients to establish and fund a regional SBTRC. Under the Cooperative Agreement OSDBU will be “substantially involved” with the overall operations of the SBTRC. This involvement includes directing SBTRC staff to travel and represent OSDBU on panels and events. OSDBU will make one award under this announcement. Award ceiling for this announcement is $170,000. The recipient will begin performing on the award on July 1, 2016 and the period of performance (POP) will be July 1, 2016 to June 30, 2017. This is a 1 year grant with an option to renew for 2 additional years at the discretion of U.S. DOT.
Cooperative agreement awards will be distributed to the region(s) as follows:
Cooperative agreement awards by region are based upon an analysis of DBEs, Certified Small Businesses, and US DOT transportation dollars in each region.
It is OSDBU's intent to maximize the benefits received by the small business transportation community through the SBTRC. Funding will reimburse an on-site Project Director for
1. To be eligible, an organization must be an established, nonprofit, community-based organization, transportation-related trade association, chamber of commerce, college or
In addition, to be eligible, the applicant organization must:
(A) Be an established 501c(3) or 501c(6) tax-exempt organization and provide documentation as verification. No application will be accepted without proof of tax-exempt status;
(B) Have at least one year of documented and continuous experience prior to the date of application in providing advocacy, outreach, and technical assistance to small businesses within the region in which proposed services will be provided. Prior performance providing services to the transportation community is preferable, but not required; and
(C) Have an office physically located within the proposed city in the designated headquarters state in the region for which they are submitting the proposal that is readily accessible to the public.
Conduct an assessment of small businesses in the SBTRC region to determine their training and technical assistance needs, and use information that is available at no cost to structure programs and services that will enable small businesses to become better prepared to compete for and receive transportation-related contract awards.
Utilize OSDBU's Intake Form to document each small business assisted by the SBTRC and type of service(s) provided. A complete list of businesses that have filled out the form shall be submitted as part of the SBTRC report, submitted via email to the Regional Assistance Division on a regular basis (using the SBTRC report). This report will detail SBTRC activities and performance results. The data provided must be supported by the narrative (if asked).
Ensure that an array of information is made available for distribution to the small business transportation community that is designed to inform and educate the community on DOT/OSDBU services and opportunities.
Coordinate efforts with OSDBU in order to maintain an on-hand inventory of DOT/OSDBU informational materials for general dissemination and for distribution at transportation-related conferences and other events.
Collaborate with agencies, such as State, Regional, and Local Transportation Government Agencies, SBA, U.S. Department of Commerce's Minority Business Development Centers (MBDCs), Service Corps of Retired Executives (SCORE), Procurement Technical Assistance Centers (PTACs), and Small Business Development Centers (SBDCs), to offer a broad range of counseling services to transportation-related small business enterprises.
Create a technical assistance plan that will provide each counseled participant with the knowledge and skills necessary to improve the management of their own small business to expand their transportation-related contracts and subcontracts portfolio.
Provide a minimum of 20 hours of individual or group counseling sessions to small businesses per month. This counseling includes in-person meetings or over the phone, and does not include any time taken to do email correspondence.
Establish a Regional Planning Committee consisting of at least 10 members that includes representatives from the regional community and federal, state, and local agencies. The highway, airport, and transit authorities for the SBTRCs headquarters state must have representation on the planning committee. The committee shall be established no later than 60 days after the execution of the Cooperative Agreement between the OSDBU and the selected SBTRC.
Provide a forum for the federal, state, and local agencies to disseminate information about upcoming DOT procurements and SBTRC activities.
Hold either monthly or quarterly meetings at a time and place agreed upon by SBTRC and planning committee members (conference calls and/or video conferences are acceptable).
Use the initial session hosted by the SBTRC to explain the mission of the committee and identify roles of staff and the members of the group. Responsibility for the agenda and direction of the Planning Committee should be handled by the SBTRC Project Director or his/her designee.
Utilize the services of the System for Award Management (SAM) and other sources to construct a database of regional small businesses that currently are or may in the future participate in DOT direct and DOT funded transportation related contracts, and make this database available to OSDBU upon request. Utilize the database of regional transportation-related small businesses to match opportunities identified through the planning committee forum, FedBiz Opps (a web-based system for posting solicitations and other Federal procurement-related documents on the Internet), and other sources to eligible small businesses and inform the small business community about those opportunities.
Develop a “targeted” database of firms (100-150) that have the capacity and capabilities, and are ready, willing and able to participate in DOT contracts and subcontracts immediately. This control group will receive ample resources from the SBTRC,
Identify regional, state and local conferences where a significant number of small businesses, with transportation related capabilities, are expected to be in attendance. Maintain and submit a list of those events to the regional Assistance Division for review and posting on the OSDBU Web site on a regular basis. Clearly identity the events designated for SBTRC participation and include recommendations for OSDBU participation. This information can be submitted as part of the SBTRC report.
Conduct outreach and disseminate information to small businesses at regional transportation-related conferences, seminars, and workshops. In the event that the SBTRC is requested to participate in an event, the OSDBU will provide DOT materials, the OSDBU banner and other information that is deemed necessary for the event.
Submit a conference summary report within the “Events” section of the SBTRC Report. The conference summary report should summarize the activity, contacts made, outreach results, and recommendations for continued or discontinued participation in future similar events sponsored by that organization.
Upon request by OSDBU, coordinate efforts with DOT's grantees and recipients at the state and/or local levels
Participate in the SBTRC Monthly teleconference call, hosted by the OSDBU Regional Assistance Division.
Work with STLP participating banks and if not available, other institutions to deliver a minimum of five (5) seminars/workshops per year on the STLP, and/or other financial assistance programs, to the transportation-related small business community. Seminars/workshops must cover the entire STLP/loan process, form completion of STLP/loan applications and preparation of the loan package.
Provide direct support, technical support, and advocacy services to potential STLP applicants to increase the probability of STLP loan approval and generate a minimum of four (4) completed STLP applications per year.
Provide direct support, technical support, and advocacy services to Small and Disadvantaged Businesses interested in obtaining a loan from another type of Government Lending Program. Government Lending Programs include Federal, State, and Local level programs. The SBTRC will be required to generate a minimum of three (3) completed Government Lending Program applications per year.
Work with OSDBU, bonding industry partners, local small business transportation stakeholders, and local bond producers/agents in your egion to deliver a minimum of two (2) complete Bonding Education Programs and secure 3% of the total DBE contract value for each transportation project. The BEP consists of the following components: (1) The stakeholder's meeting; (2) the educational workshops component; (3) the bond readiness component; and (4) follow-on assistance to BEP participants to provide technical and procurement assistance based on the prescriptive plan determined by the BEP. For each BEP event, work with the local bond producers/agents in your region and the disadvantaged business participants to deliver a minimum of ten (10) disadvantaged business participants in the BEP with either access to bonding or a increase in the bonding capacity. The programs will be funded separately and in addition to the amount listed in 1.3 of the solicitation.
Pursuant to
Each region will establish a Women In Transportation Advisory Committee. The committee will provide a forum to identify and provide workable solutions to barriers that women-owned businesses encounter in transportation-related careers. The committee will have 5 members (including the SBTRC Project Director) with a 1 year membership. Meetings will be conducted on a quarterly basis at an agreeable place and time.
(A) Provide consultation and technical assistance in planning, implementing, and evaluating activities under this announcement.
(B) Provide orientation and training to the applicant organization.
(C) Monitor SBTRC activities, cooperative agreement compliance, and overall SBTRC performance.
(D) Assist SBTRC to develop or strengthen its relationships with federal, state, and local transportation authorities, other technical assistance organizations, and DOT grantees.
(E) Facilitate the exchange and transfer of successful program activities and information among all SBTRC regions.
(F) Provide the SBTRC with DOT/OSDBU materials and other relevant transportation related information for dissemination.
(G) Maintain effective communication with the SBTRC and inform them of transportation news and contracting opportunities to share with small businesses in their region.
(H) Provide all required forms to be used by the SBTRC for reporting purposes under the program.
(I) Perform an annual performance evaluation of the SBTRC. Satisfactory performance is a condition of continued participation of the organization as an SBTRC and execution of all option years.
(A) Format for Proposals
Each proposal must be submitted to Grants.gov in the format set forth in the application form attached as Appendix A to this announcement.
(B) Address; Number of Copies; Deadlines for Submission
Any eligible organization, as defined in Section C of this announcement, will submit only one proposal per region for consideration by OSDBU. Applications must be double spaced, and printed in a font size not smaller than 12 points. Applications will not exceed 35 single-sided pages, not including any requested attachments. All pages should be numbered at the top of each page. All documentation, attachments, or other information pertinent to the application must be included in a single submission. Proposal packages must be submitted electronically to Grants.gov.
(C) Each applicant must be registered in System for Award Management (SAM) and provide their unique Entity Identifier with the proposal.
(D) Proposals must be received in Grants.gov no later than June 17, 2016, 6:00 p.m. Eastern Standard Time (EST).
OSDBU will award the cooperative agreement on a best value basis, using the following criteria to rate and rank applications:
Applications will be evaluated using a point system (maximum number of points = 100);
The applicant must describe their strategy to achieve the overall mission of the SBTRC as described in this solicitation and service the small
The applicant must describe their established relationships within their geographic region and demonstrate their ability to coordinate and establish effective networks with DOT grant recipients and local/regional technical assistance agencies to maximize resources. OSDBU will consider innovative aspects of the applicant's approach and strategy to build upon their existing relationships and establish networks with existing resources in their geographical area. The applicant should describe their strategy to obtain and collaboration on SBTRC from DOT grantees and recipients, transportation prime contractors and subcontractors, the SBA, U.S. Department of Commerce's Minority Business Development Centers (MBDCs), Service Corps of Retired Executives (SCORE), State DOTs, and State Highway supportive services contractors. In rating this factor, OSDBU will consider the extent to which the applicant demonstrates ability to multidimensional. The applicant must demonstrate that they have the ability to access a broad range of supportive services to effectively serve a broad range of transporation-related small businesses within their respective geographical region. Emphasis will also be placed on the extent to which the applicant identifies a clear outreach strategy related to the identified needs that can be successfully carried out within the period of this agreement and a plan for involving the Planning Committee in the execution of that strategy.
The applicant must demonstrate that they have the organizational capability to meet the program requirements set forth in Section C. The applicant organization must have sufficient resources and past performance experience to successfully provide outreach to transportation-related small businesses in their geographical area and carry out the mission of the SBTRC. In rating this factor, OSDBU will consider the extent to which the applicant's organization has recent, relevant and successful experience in advocating for and addressing the needs of small businesses. Applicants will be given points for demonstrated past transportation-related performance. The applicant must also describe technical and administrative resources it plans to use in achieving proposed objectives. In their description, the applicant must describe their facilities, computer and technical facilities, ability to tap into volunteer staff time, and a plan for sufficient matching alternative financial resources to fund the general and administrative costs of the SBTRC. The applicant must also describe their administrative and financial staff. It will be the responsibility of the successful candidate to not only provide the services outlined herein to small business in the transportation industry, but to also successfully manage and maintain their internal financial, payment, and invoicing process with their financial management offices. OSDBU will place an emphasis on capabilities of the applicant's financial management staff. Additionally, a site visit will be required prior to award for those candidates that are being strongly considered. A member of the OSDBU team will contact those candidates to schedule the site visits prior to the award of the agreement.
The applicant organization must provide a list of proposed personnel for the project, with salaries, fringe benefit burden factors, education levels and previous experience clearly delineated. The applicant's project team must be well-qualified, knowledgeable, and able to effectively serve the diverse and broad range of small businesses in their geographical region. The Executive Director and the Project Director shall be deemed key personnel. Detailed resumes must be submitted for all proposed key personnel and outside consultants and subcontractors. Proposed key personnel must have detailed demonstrated experience providing services similar in scope and nature to the proposed effort. The proposed Project Director will serve as the responsible individual for the program. 100% of the Project Director's time must be dedicated to the SBTRC. Both the Executive and Project Directors must be located on-site. In this element, OSDBU will consider the extent to which the applicant's proposed Staffing Plan; (a) clearly meets the education and experience requirements to accomplish the objectives of the cooperative agreement; (b) delineates staff responsibilities and accountability for all work required and; (c) presents a clear and feasible ability to execute the applicant's proposed approach and strategy.
Applicants must submit the total proposed cost of establishing and administering the SBTRC in the applicant's geographical region for a 12 month period, inclusive of costs funded through alternative matching resources. The applicant's budget must be adequate to support the proposed strategy and costs must be reasonable in relation to project objectives. The portion of the submitted budget funded by OSDBU cannot exceed the ceiling outlined in Section B. Applicants are encouraged to provide in-kind costs and other innovative cost approaches.
A review panel will score each application based upon the evaluation criteria listed above. Points will be given for each evaluation criteria category, not to exceed the maximum number of points allowed for each category. Proposals which are deemed non-responsive, do not meet the established criteria, or incomplete at the time of submission will be disqualified.
OSDBU will perform a responsibility determination of the prospective awardee in the region, which will include a site visit, before awarding the cooperative agreement.
Applicants must submit signed statements by key personnel and all organization principals indicating that they, or members of their immediate funded transportation project, nor any relationships with local or state transportation agencies that may have the appearance of a conflict of interest.
Following the evaluation outlined in Section E, the OSDBU will announce
All awards will be administered pursuant to the Uniform Administrative Cost Principles and Audit Requirements for Federal Awards found in
For further information this notice please contact the OSDBU program staff via email at
All information submitted as part of or in support of any application shall use publicly available data or data that can be made public and methodologies that are accepted by industry practice and standards, to the extent possible. If the application includes information you consider to be a trade secret or confidential commercial or financial information, the applicant should do the following: (1) Note on the front cover that the submission “Contains Confidential Business Information (CBI)”; (2) mark each affected page “CBI”; and (3) highlight or otherwise denote the CBI portions. DOT protects such information from disclosure to the extent allowed under applicable law. In the event DOT received a Freedom of Information Act (FOIA) request for the information, DOT will follow the procedures described in its FOIA regulation as
Department of Transportation (DOT), Office of the Secretary of Transportation (OST), Office of Small and Disadvantaged Business Utilization (OSDBU).
Notice of funding availability for the Southeast Region SBTRC.
The Department of Transportation (DOT), Office of the Secretary (OST), Office of Small and Disadvantaged Business Utilization (OSDBU) announces the opportunity for, business centered community-based organizations, transportation-related trade associations, colleges and universities, community colleges, or chambers of commerce, registered with the Internal Revenue Service as 501C(6) or 501C(3) tax-exempt organizations, to compete for participation in OSDBU's Small Business Transportation Resource Center (SBTRC) program in the Southeast Region (Alabama, Florida, U.S. Virgin Islands, and Puerto Rico).
OSDBU will enter into Cooperative Agreements with these organizations to provide outreach to the small business community in their designated region and provide financial and technical assistance, business training programs, business assessment, management training, counseling, marketing and outreach, and the dissemination of information, to encourage and assist small businesses to become better prepared to compete for, obtain, and manage DOT funded transportation-related contracts and subcontracts at the federal, state and local levels. Throughout this notice, the term “small business” will refer to: 8(a), small disadvantaged businesses (SDB), disadvantaged business enterprises (DBE), women owned small businesses (WOSB), HubZone, service disabled veteran owned businesses (SDVOB), and veteran owned small businesses (VOSB). Throughout this notice, “transportation-related” is defined as the maintenance, rehabilitation, restructuring, improvement, or revitalization of any of the nation's modes of transportation.
Complete Proposals must be received on or before June 17, 2016, 6:00 p.m. Eastern Standard Time (EST). Proposals received after the deadline will be considered non-responsive and will not be reviewed.
Applications must be electronically submitted through
For further information concerning this notice, contact Mr. Adam Dorsey, Program Analyst, U.S. Department of Transportation, Office of Small and Disadvantaged Business Utilization, 1200 New Jersey Avenue SE., Washington, DC 20590. Telephone: (202) 366-1930. Email:
The national SBTRC program utilizes Cooperative Agreements with chambers of commerce, trade associations, educational institutions and business-centered community based organizations to establish SBTRCs to provide business training, technical assistance and information to DOT grantees and recipients, prime contractors and subcontractors. In order to be effective and serve their target audience, the SBTRCs must be active in the local transportation community in order to identify and communicate opportunities and provide the required technical assistance. SBTRCs must already have, or demonstrate the ability to, establish working relationships with the state and local transportation agencies and technical assistance agencies (
Effective outreach is critical to the success of the SBTRC program. In order for their outreach efforts to be effective, SBTRCs must be familiar with DOT's Operating Administrations, its funding sources, and how funding is awarded to DOT grantees, recipients, contractors, subcontractors, and its financial assistance programs. SBTRCs must provide outreach to the regional small business transportation community to disseminate information and distribute DOT-published marketing materials, such as Short Term Lending Program (STLP) Information, Bonding Education Program (BEP) information, SBTRC brochures and literature, DOT Procurement Forecasts; Contracting with DOT booklets, Women and Girls in Transportation Initiative (WITI) information, and any other materials or resources that DOT or OSDBU may develop for this purpose. To maximize outreach, the SBTRC may be called upon to participate in regional and national conferences and seminars. Quantities of DOT publications for on-hand inventory and dissemination at conferences and seminars will be available upon request from the OSDBU office.
The DOT established OSDBU in accordance with Public Law 95-507, an amendment to the Small Business Act and the Small Business Investment Act of 1958. The mission of OSDBU at DOT is to ensure that the small and disadvantaged business policies and goals of the Secretary of Transportation are developed and implemented in a fair, efficient and effective manner to serve small and disadvantaged businesses throughout the country. The OSDBU also administers the provisions of Title 49, Section 332, the Minority Resource Center (MRC) which includes the duties of advocacy, outreach and financial services on behalf of small and disadvantaged business and those certified under DVR 49 parts 23 and 26 as Disadvantaged Business Enterprises (SBE) and the development of programs to encourage, stimulate, promote and assist small businesses to become better prepared to compete for, obtain and manage transportation-related contracts and subcontracts.
The Regional Assistance Division of OSDBU, through the SBTRC program, allows OSDBU to partner with local organizations to offer a comprehensive delivery system of business training, technical assistance and dissemination of information, targeted towards small business transportation enterprises in their regions. The SBTRCs are established and funded through Cooperative Agreements between eligible applicants and OSDBU. The SBTRCs function as regional offices of OSDBU and fully execute the mission of the OSDBU nationally.
OSDBU enters into Cooperative Agreements with recipients to establish and fund a regional SBTRC. Under the Cooperative Agreement OSDBU will be “substantially involved” with the overall operations of the SBTRC. This involvement includes directing SBTRC staff to travel and represent OSDBU on panels and events. OSDBU will make one award under this announcement. Award ceiling for this announcement is $170,000. The recipient will begin performing on the award on July 1, 2016 and the period of performance (POP) will be July 1, 2016 to June 30, 2017. This is a 1 year grant with an option to renew for 2 additional years at the discretion of U.S. DOT.
Cooperative agreement awards will be distributed to the region(s) as follows:
Cooperative agreement awards by region are based upon an analysis of DBEs, Certified Small Businesses, and U.S. DOT transportation dollars in each region.
It is OSDBU's intent to maximize the benefits received by the small business transportation community through the SBTRC. Funding will reimburse an on-site Project Director for
1. To be eligible, an organization must be an established, nonprofit, community-based organization, transportation-related trade association, chamber of commerce, college or university, community college, and any other qualifying transportation-related non-profit organization which has the
In addition, to be eligible, the applicant organization must:
(A) Be an established 501C(3) or 501C(6) tax-exempt organization and provide documentation as verification. No application will be accepted without proof of tax-exempt status;
(B) Have at least one year of documented and continuous experience prior to the date of application in providing advocacy, outreach, and technical assistance to small businesses within the region in which proposed services will be provided. Prior performance providing services to the transportation community is preferable, but not required; and
(C) Have an office physically located within the proposed city in the designated headquarters state in the region for which they are submitting the proposal that is readily accessible to the public.
Conduct an assessment of small businesses in the SBTRC region to determine their training and technical assistance needs, and use information that is available at no cost to structure programs and services that will enable small businesses to become better prepared to compete for and receive transportation-related contract awards.
Utilize OSDBU's Intake Form to document each small business assisted by the SBTRC and type of service(s) provided. A complete list of businesses that have filled out the form shall be submitted as part of the SBTRC report, submitted via email to the Regional Assistance Division on a regular basis (using the SBTRC report). This report will detail SBTRC activities and performance results. The data provided must be supported by the narrative (if asked).
Ensure that an array of information is made available for distribution to the small business transportation community that is designed to inform and educate the community on DOT/OSDBU services and opportunities. Coordinate efforts with OSDBU in order to maintain an on-hand inventory of DOT/OSDBU informational materials for general dissemination and for distribution at transportation-related conferences and other events.
Collaborate with agencies, such as State, Regional, and Local Transportation Government Agencies, SBA, U.S. Department of Commerce's Minority Business Development Centers (MBDCs), Service Corps of Retired Executives (SCORE), Procurement Technical Assistance Centers (PTACs), and Small Business Development Centers (SBDCs), to offer a broad range of counseling services to transportation-related small business enterprises. Create a technical assistance plan that will provide each counseled participant with the knowledge and skills necessary to improve the management of their own small business to expand their transportation-related contracts and subcontracts portfolio.
Provide a minimum of 20 hours of individual or group counseling sessions to small businesses per month. This counseling includes in-person meetings or over the phone, and does not include any time taken to do email correspondence.
Establish a Regional Planning Committee consisting of at least 10 members that includes representatives from the regional community and federal, state, and local agencies. The highway, airport, and transit authorities for the SBTRCs headquarters state must have representation on the planning committee. The committee shall be established no later than 60 days after the execution of the Cooperative Agreement between the OSDBU and the selected SBTRC.
Provide a forum for the federal, state, and local agencies to disseminate information about upcoming DOT procurements and SBTRC activities. Hold either monthly or quarterly meetings at a time and place agreed upon by SBTRC and planning committee members (conference calls and/or video conferences are acceptable).
Use the initial session hosted by the SBTRC to explain the mission of the committee and identify roles of staff and the members of the group. Responsibility for the agenda and direction of the Planning Committee should be handled by the SBTRC Project Director or his/her designee.
Utilize the services of the System for Award Management (SAM) and other sources to construct a database of regional small businesses that currently are or may in the future participate in DOT direct and DOT funded transportation related contracts, and make this database available to OSDBU upon request. Utilize the database of regional transportation-related small businesses to match opportunities identified through the planning committee forum, FedBiz Opps (a Web-based system for posting solicitations and other Federal procurement-related documents on the Internet), and other sources to eligible small businesses and inform the small business community about those opportunities.
Develop a “targeted” database of firms (100-150) that have the capacity and capabilities, and are ready, willing and able to participate in DOT contracts and subcontracts immediately. This control group will receive ample resources from the SBTRC,
Identify regional, state and local conferences where a significant number of small businesses, with transportation related capabilities, are expected to be in attendance. Maintain and submit a list of those events to the regional Assistance Division for review and posting on the OSDBU Web site on a regular basis. Clearly identity the events designated for SBTRC participation and include recommendations for OSDBU participation. This information can be submitted as part of the SBTRC report.
Conduct outreach and disseminate information to small businesses at regional transportation-related conferences, seminars, and workshops. In the event that the SBTRC is requested to participate in an event, the OSDBU will provide DOT materials, the OSDBU banner and other information that is deemed necessary for the event.
Submit a conference summary report within the “Events” section of the SBTRC Report. The conference summary report should summarize the activity, contacts made, outreach results, and recommendations for continued or discontinued participation in future similar events sponsored by that organization.
Upon request by OSDBU, coordinate efforts with DOT's grantees and recipients at the state and/or local levels to sponsor or cosponsor and OSDBU transportation related conference in the region (commonly referred to as “Small Business Summits”).
Participate in the SBTRC Monthly teleconference call, hosted by the OSDBU Regional Assistance Division.
Work with STLP participating banks and if not available, other institutions to deliver a minimum of five (5) seminars/workshops per year on the STLP, and/or other financial assistance programs, to the transportation-related small business community. Seminars/workshops must cover the entire STLP/loan process, form completion of STLP/loan applications and preparation of the loan package.
Provide direct support, technical support, and advocacy services to potential STLP applicants to increase the probability of STLP loan approval and generate a minimum of four (4) completed STLP applications per year. Provide direct support, technical support, and advocacy services to Small and Disadvantaged Businesses interested in obtaining a loan from another type of Government Lending Program. Government Lending Programs include Federal, State, and Local level programs. The SBTRC will be required to generate a minimum of three (3) completed Government Lending Program applications per year.
Work with OSDBU, bonding industry partners, local small business transportation stakeholders, and local bond producers/agents in your egion to deliver a minimum of two (2) complete Bonding Education Programs and secure 3% of the total DBE contract value for each transportation project. The BEP consists of the following components; (1) the stakeholder's meeting; (2) the educational workshops component; (3) the bond readiness component; and (4) follow-on assistance to BEP participants to provide technical and procurement assistance based on the prescriptive plan determined by the BEP. For each BEP event, work with the local bond producers/agents in your region and the disadvantaged business participants to deliver a minimum of ten (10) disadvantaged business participants in the BEP with either access to bonding or a increase in the bonding capacity. The programs will be funded separately and in addition to the amount listed in 1.3 of the solicitation.
Pursuant to
Each region will establish a Women In Transportation Advisory Committee. The committee will provide a forum to identify and provide workable solutions to barriers that women-owned businesses encounter in transportation-related careers. The committee will have 5 members (including the SBTRC Project Director) with a 1 year membership. Meetings will be conducted on a quarterly basis at an agreeable place and time.
(A) Provide consultation and technical assistance in planning, implementing, and evaluating activities under this announcement.
(B) Provide orientation and training to the applicant organization.
(C) Monitor SBTRC activities, cooperative agreement compliance, and overall SBTRC performance.
(D) Assist SBTRC to develop or strengthen its relationships with federal, state, and local transportation authorities, other technical assistance organizations, and DOT grantees.
(E) Facilitate the exchange and transfer of successful program activities and information among all SBTRC regions.
(F) Provide the SBTRC with DOT/OSDBU materials and other relevant transportation related information for dissemination.
(G) Maintain effective communication with the SBTRC and inform them of transportation news and contracting opportunities to share with small businesses in their region.
(H) Provide all required forms to be used by the SBTRC for reporting purposes under the program.
(I) Perform an annual performance evaluation of the SBTRC. Satisfactory performance is a condition of continued participation of the organization as an SBTRC and execution of all option years.
Each proposal must be submitted to Grants.gov in the format set forth in the application form attached as Appendix A to this announcement.
Any eligible organization, as defined in Section C of this announcement, will submit only one proposal per region for consideration by OSDBU.
Applications must be double spaced, and printed in a font size not smaller than 12 points. Applications will not exceed 35 single-sided pages, not including any requested attachments. All pages should be numbered at the top of each page. All documentation, attachments, or other information pertinent to the application must be included in a single submission. Proposal packages must be submitted electronically to
(C) Each applicant must be registered in System for Award Management (SAM) and provide their unique Entity Identifier with the proposal.
(D) Proposals must be received in Grants.gov no later than June 17, 2016, 6:00 p.m. Eastern Standard Time (EST).
OSDBU will award the cooperative agreement on a best value basis, using the following criteria to rate and rank applications:
Applications will be evaluated using a point system (maximum number of points = 100);
The applicant must describe their strategy to achieve the overall mission of the SBTRC as described in this solicitation and service the small business community in their entire geographic regional area. The applicant must also describe how the specific activities outlined in Section C will be implemented and executed in the organization's regional area. OSDBU
The applicant must describe their established relationships within their geographic region and demonstrate their ability to coordinate and establish effective networks with DOT grant recipients and local/regional technical assistance agencies to maximize resources. OSDBU will consider innovative aspects of the applicant's approach and strategy to build upon their existing relationships and establish networks with existing resources in their geographical area. The applicant should describe their strategy to obtain and collaboration on SBTRC from DOT grantees and recipients, transportation prime contractors and subcontractors, the SBA, U.S. Department of Commerce's Minority Business Development Centers (MBDCs), Service Corps of Retired Executives (SCORE), State DOTs, and State Highway supportive services contractors. In rating this factor, OSDBU will consider the extent to which the applicant demonstrates ability to multidimensional. The applicant must demonstrate that they have the ability to access a broad range of supportive services to effectively serve a broad range of transporation-related small businesses within their respective geographical region. Emphasis will also be placed on the extent to which the applicant identifies a clear outreach strategy related to the identified needs that can be successfully carried out within the period of this agreement and a plan for involving the Planning Committee in the execution of that strategy.
The applicant must demonstrate that they have the organizational capability to meet the program requirements set forth in Section C. The applicant organization must have sufficient resources and past performance experience to successfully provide outreach to transportation-related small businesses in their geographical area and carry out the mission of the SBTRC. In rating this factor, OSDBU will consider the extent to which the applicant's organization has recent, relevant and successful experience in advocating for and addressing the needs of small businesses. Applicants will be given points for demonstrated past transportation-related performance. The applicant must also describe technical and administrative resources it plans to use in achieving proposed objectives. In their description, the applicant must describe their facilities, computer and technical facilities, ability to tap into volunteer staff time, and a plan for sufficient matching alternative financial resources to fund the general and administrative costs of the SBTRC. The applicant must also describe their administrative and financial staff. It will be the responsibility of the successful candidate to not only provide the services outlined herein to small business in the transportation industry, but to also successfully manage and maintain their internal financial, payment, and invoicing process with their financial management offices. OSDBU will place an emphasis on capabilities of the applicant's financial management staff. Additionally, a site visit will be required prior to award for those candidates that are being strongly considered. A member of the OSDBU team will contact those candidates to schedule the site visits prior to the award of the agreement.
The applicant organization must provide a list of proposed personnel for the project, with salaries, fringe benefit burden factors, education levels and previous experience clearly delineated. The applicant's project team must be well-qualified, knowledgeable, and able to effectively serve the diverse and broad range of small businesses in their geographical region. The Executive Director and the Project Director shall be deemed key personnel. Detailed resumes must be submitted for all proposed key personnel and outside consultants and subcontractors. Proposed key personnel must have detailed demonstrated experience providing services similar in scope and nature to the proposed effort. The proposed Project Director will serve as the responsible individual for the program. 100% of the Project Director's time must be dedicated to the SBTRC. Both the Executive and Project Directors must be located on-site. In this element, OSDBU will consider the extent to which the applicant's proposed Staffing Plan; (a) clearly meets the education and experience requirements to accomplish the objectives of the cooperative agreement; (b) delineates staff responsibilities and accountability for all work required and; (c) presents a clear and feasible ability to execute the applicant's proposed approach and strategy.
Applicants must submit the total proposed cost of establishing and administering the SBTRC in the applicant's geographical region for a 12 month period, inclusive of costs funded through alternative matching resources. The applicant's budget must be adequate to support the proposed strategy and costs must be reasonable in relation to project objectives. The portion of the submitted budget funded by OSDBU cannot exceed the ceiling outlined in Section B. Applicants are encouraged to provide in-kind costs and other innovative cost approaches.
A review panel will score each application based upon the evaluation criteria listed above. Points will be given for each evaluation criteria category, not to exceed the maximum number of points allowed for each category. Proposals which are deemed non-responsive, do not meet the established criteria, or incomplete at the time of submission will be disqualified.
OSDBU will perform a responsibility determination of the prospective awardee in the region, which will include a site visit, before awarding the cooperative agreement.
Applicants must submit signed statements by key personnel and all organization principals indicating that they, or members of their immediate funded transportation project, nor any relationships with local or state transportation agencies that may have the appearance of a conflict of interest.
Following the evaluation outlined in Section E, the OSDBU will announce the awarded applicant with a written Notice of Funding Award. The NOFA will also include the cooperative agreement for signature.
All awards will be administered pursuant to the Uniform Administrative Cost Principles and Audit Requirements for Federal Awards found in
Performance Reporting—The recipient of this cooperative agreement must collect information and report on the cooperative agreement performance with respect to the relevant deliverables that are expected to be achieved through the cooperative agreement. Performance indicators will include formal goals or targets, but will include baseline measures for an agreed-upon timeline, and will be used to evaluate and monitor the results that the cooperative agreement funds achieve to ensure that funds achieve the intended long-term outcomes of the cooperative agreement program.
Progress Reporting—The recipient for this cooperative agreement funding must submit quarterly progress reports and annual Federal Financial Report (SF-425) on the financial condition of the cooperative agreement and its progress, as well as an Annual Budget Review and Implementation Plan to monitor the use of Federal funds and ensure accountability and financial transparency in the program.
For further information this notice please contact the OSDBU program staff via email at
All information submitted as part of or in support of any application shall use publicly available data or data that can be made public and methodologies that are accepted by industry practice and standards, to the extent possible. If the application includes information you consider to be a trade secret or confidential commercial or financial information, the applicant should do the following: (1) Note on the front cover that the submission “Contains Confidential Business Information (CBI)”; (2) mark each affected page “CBI”; and (3) highlight or otherwise denote the CBI portions. DOT protects such information from disclosure to the extent allowed under applicable law. In the event DOT received a Freedom of Information Act (FOIA) request for the information, DOT will follow the procedures described in its FOIA regulation as
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the name of one individual whose property and interests in property have been blocked pursuant to the Foreign Narcotics Kingpin Designation Act (Kingpin Act) (21 U.S.C. 1901-1908, 8 U.S.C. 1182).
The designation by the Acting Director of OFAC of one individual identified in this notice pursuant to section 805(b) of the Kingpin Act is effective on May 11, 2016.
Assistant Director, Sanctions Compliance & Evaluation, Office of Foreign Assets Control, U.S. Department of the Treasury, Washington, DC 20220, Tel: (202) 622-2490.
This document and additional information concerning OFAC are available on OFAC's Web site at
The Kingpin Act became law on December 3, 1999. The Kingpin Act provides a statutory framework for the imposition of sanctions against significant foreign narcotics traffickers and their organizations on a worldwide basis, with the objective of denying their businesses and agents access to the U.S. financial system and the benefits of trade and transactions involving U.S. companies and individuals.
The Kingpin Act blocks all property and interests in property, subject to U.S. jurisdiction, owned or controlled by significant foreign narcotics traffickers as identified by the President. In addition, the Kingpin Act provides that the Secretary of the Treasury, in consultation with the Attorney General, the Director of the Central Intelligence Agency, the Director of the Federal Bureau of Investigation, the Administrator of the Drug Enforcement Administration, the Secretary of Defense, the Secretary of State, and the Secretary of Homeland Security, may designate and block the property and interests in property, subject to U.S. jurisdiction, of persons who are found to be: (1) Materially assisting in, or providing financial or technological support for or to, or providing goods or services in support of, the international narcotics trafficking activities of a person designated pursuant to the Kingpin Act; (2) owned, controlled, or directed by, or acting for or on behalf of, a person designated pursuant to the Kingpin Act; or (3) playing a significant role in international narcotics trafficking.
On May 11, 2016, the Acting Director of OFAC designated the following individual whose property and interests in property are blocked pursuant to section 805(b) of the Kingpin Act.
1. ESPINOZA AGUILAR, Diana (a.k.a. ESPINOZA AGUILAR, Altagracia; a.k.a. ESPINOZA AGUILAR, Diana Altagracia); DOB 17 Jul 1970; POB Matachi, Chihuahua, Mexico; C.U.R.P. EIAD700717MCHSGN09 (Mexico) (individual) [SDNTK] (Linked To: CARO QUINTERO, Rafael). Designated for acting for or on behalf of Rafael CARO QUINTERO, and therefore meets the criteria for designation pursuant to section 805(b)(3) of the Kingpin Act, 21 U.S.C. 1904(b)(3).
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Summary presentation of final rules.
This document summarizes the Federal Acquisition Regulation (FAR) rules agreed to by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) in this Federal Acquisition Circular (FAC) 2005-88. A companion document, the
For effective dates see the separate documents, which follow.
The analyst whose name appears in the table below in relation to the FAR case. Please cite FAC 2005-88 and the specific FAR case number. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755.
Summaries for each FAR rule follow. For the actual revisions and/or amendments made by these rules, refer to the specific item numbers and subjects set forth in the documents following these item summaries. FAC 2005-88 amends the FAR as follows:
This final rule implements Executive branch policy in the President's Climate Action Plan to procure, when feasible, alternatives to high global warming potential—hydrofluorocarbons (HFCs). The rule also requires contractors to report annually the amount of HFCs contained in equipment delivered to the Government or added or taken out of Government equipment under service contracts. This will allow agencies to better meet the greenhouse gas emission reduction goals and reporting requirements of the Executive Order 13693 on Planning for Sustainability in the Next Decade. This rule applies to small entities because about three-quarters of the affected contractors are small businesses and precluding them would undermine the overall intent of this policy. However, to minimize the impact this rule could have on all businesses, especially small businesses, this rule only requires tracking and reporting on equipment that normally contain 50 or more pounds of HFCs. In addition, this rule does not impose a labeling requirement for products that contain or are manufactured with HFCs, unlike the labeling requirement that is required by statute for ozone-depleting substances.
This final rule amends the FAR to implement 41 U.S.C. 153, which establishes a higher simplified acquisition threshold (SAT) for overseas acquisitions in support of humanitarian or peacekeeping operations. When FAR Case 2003-022 was published as a rule in 2004, the definition for SAT at FAR 2.101 was changed, but the drafters of the rule also inadvertently deleted the reference to overseas humanitarian or peacekeeping missions and the requisite doubling of the SAT in those circumstances. This rule reinstates the increased SAT for overseas acquisitions for peacekeeping or humanitarian operations. Accordingly, this rule provides contracting officers with more flexibility when contracting in support of overseas humanitarian or peacekeeping operations. This final rule does not place any new requirements on small entities.
This final rule amends the FAR to add a new FAR subpart 4.19 and contract clause 52.204-21 for the basic safeguarding of covered contractor information systems,
This final rule revises the FAR to implement section 814 of the Carl Levin and Howard P. `Buck' McKeon National Defense Authorization Act for Fiscal Year 2015. When a two-phase design-build construction acquisition is valued at greater than $4 million, section 814 requires the head of the contracting
Editorial changes are made at FAR 1.106.
Federal Acquisition Circular (FAC) 2005-88 is issued under the authority of the Secretary of Defense, the Administrator of General Services, and the Administrator for the National Aeronautics and Space Administration.
Unless otherwise specified, all Federal Acquisition Regulation (FAR) and other directive material contained in FAC 2005-88 is effective May 16, 2016 except for items I, II, III, and IV, which are effective June 15, 2016.
Dated: May 4, 2016.
Dated: May 5, 2016.
Dated: April 28, 2016.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to implement Executive branch policy in the President's Climate Action Plan to procure, when feasible, alternatives to high global warming potential (GWP) hydrofluorocarbons (HFCs). This final rule will allow agencies to better meet the greenhouse gas emission reduction goals and reporting requirements of the Executive Order on Planning for Sustainability in the Next Decade.
Mr. Charles Gray, Procurement Analyst, at 703-795-6328, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755. Please cite FAC 2005-88, FAR Case 2014-026.
DoD, GSA, and NASA published a proposed rule at 80 FR 26883, on May 11, 2015, to implement Executive branch policy in the President's Climate Action Plan to procure, when feasible, alternatives to high GWP HFCs. This final rule will allow agencies to better meet the greenhouse gas emission reduction goals and reporting requirements of the Executive Order 13693, Planning for Federal Sustainability in the Next Decade, of March 25, 2015.
Sixteen respondents submitted comments on the proposed rule.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (the Councils) reviewed the public comments in the development of the final rule. A discussion of the comments and the changes made to the rule as a result of those comments are provided as follows:
In response to public comments received, the final rule contains the following changes from the proposed rule:
• Clarified the definition of “high global warming potential hydrofluorocarbons” to make it specific to a particular end use.
• Included the use of reclaimed HFCs as products that minimize or eliminate the use, release, or emission of high GWP HFCs.
• Clarified that the clause prescription exception is for supplies that will be delivered outside the United States and its outlying areas as well as for contracts for services performed outside the United States and its outlying areas.
• Added in the clauses at 52.223-20 and 52.223-21 environmental, technical, and economic factors to consider when determining feasibility.
Various respondents commented on the definition of “high global warming potential hydrofluorocarbons.” One of these respondents questioned whether the identification of a lower GWP HFC alternative pursuant to the SNAP program meant that the Government would be required to use the alternative.
With regard to the required use of a lower GWP HFC product identified in the SNAP list of alternatives products, the Government's decision to do so must take into consideration the feasibility of moving on to an alternative. This decision will require the assessment of a number of factors, including lifecycle costs and the overall energy efficiency achieved through the substitution of a lower GWP HFC product.
In its recent final rule, published at 80 FR 42869, on July 20, 2015, EPA modified the listings for certain HFCs and HFC blends in various end uses in the aerosols, foam blowing, and refrigeration and air conditioning sectors where other alternatives were available or potentially available that posed lower overall risk to human health and the environment. Pursuant to the guiding principles of the SNAP program, the action did not specify that any HFCs are unacceptable across all sectors and end uses. Consistent with section 612 of the Clean Air Act (42 U.S.C. 7671k) as EPA has historically interpreted it under the SNAP program, EPA made the modifications based on evaluation of the substitutes addressed in that action using the SNAP criteria for evaluation and considering the current suite of other available and potentially available substitutes.
For the refrigerant and foam blowing agent end uses, equipment design is critical. Thus, there is a range of thermal conductivity and insulation values among the acceptable alternatives, with some having lower values than the HFCs previously used (as well as ozone-depleting substances (ODS)) some having higher values, and others having comparable values. In EPA's recent rulemaking published at 80 FR 42869, on July 20, 2015, EPA noted that no information provided to EPA suggests that the alternatives that remain acceptable result in lower energy efficiency. In fact, as stated in the preamble to the rule, available information indicates that the opposite can be true, that the acceptable alternatives not subject to a status change have been used in equipment or used to produce insulating foam that provide for better energy efficiency.
In response to the respondent who disagreed that the definition of high GWP HFCs should refer just to the SNAP program, the Councils note that the definition does not bind the end user to select any specific alternative or to ignore assessment of the unique needs that end user may be facing. Rather, requiring activities can use the information provided by the SNAP list of alternatives, including information on the GWP of alternatives, in addition to other factors, in the selection of products and equipment that best meet their needs. Please see related response below regarding comments on the feasibility of moving to alternatives.
In response to the respondent who commented that the term “high global warming potential hydrofluorocarbons” was defined solely in terms of relative GWP (compared to other alternatives approved under the EPA's SNAP program) and was concerned that this failed to take into account other major causes of climate impact, the term is intended to reflect differences in GWP. This is consistent with how climate impacts are considered under the SNAP program (See section VII.A.3., GWP Considerations, in the preamble to the recent EPA SNAP final rule published at 80 FR 42870 at 42937, on July 20, 2015). Users may take into account additional factors, such as energy efficiency, in deciding which of the lower-GWP alternatives listed as acceptable under SNAP meet their needs. For clarification, please also see the response below that discusses other factors such as energy efficiency, which are related to the performance of the equipment, whereas GWP relates to the intrinsic characteristic and potential environmental impact of the chemical itself.
“Climate-friendly” alternative means an alternative that is listed as acceptable under the EPA's SNAP program (40 CFR part 82, subpart G) that has a GWP of less than 150.
“Lowest GWP alternative” means an alternative that is identified as acceptable under the EPA's SNAP program and has the lowest GWP compared to all other acceptable alternatives for the relevant end use and has a GWP under 150 for new equipment and a GWP at least 50 percent lower than the current refrigerant for retrofits.
The respondent further recommended a policy that would avoid procurement of mid-range GWP alternatives (from 300 to 1500 GWP) if truly low GWP alternatives have been proven and commercialized, because use of mid-range alternatives would set up a circumstance where a future phase-out in just a few years will be necessary to remove these mid-range GWP alternatives due to their impact on the climate. Consistent with the definition recommended by the respondent, the respondent also recommended that the Government should not purchase any new equipment or product unless it has a refrigerant with a GWP of less than 150 and for retrofits, higher GWP refrigerants can be used if they have GWPs of at least 50 percent less than the current refrigerant that will be replaced. Otherwise, the respondent recommended that the old system should be decommissioned and replaced.
Various respondents commented on the timing of when the FAR rule should take effect.
Many of the respondents recommended consideration of the total life-cycle of an alternative product, such as in-use emission rates and energy efficiency benefits.
• With regard to refrigerants, a respondent commented that the majority of the climate impact from refrigerant used results from the energy consumed by the air conditioning system (
• With regard to foam insulation, a respondent commented on the importance of the use of thermal insulation for increased energy efficiency to reduce global warming. Likewise, another respondent pointed out the need to consider the life-cycle benefits of products, because if less energy efficient insulation products are used in the construction of a building the result may be increased greenhouse gas emissions over the life of the building or facility.
Several respondents commented on the need to consider key product attributes that affect safety, such as
Several respondents commented on the necessity to consider technical capability of the proposed alternative to avoid inadvertently selecting a product that will prove to be less energy efficient.
Several respondents commented on the need for alternatives to be commercially available. One respondent recommended that absence of commercially available alternatives should constitute a viable exemption from the provisions of the rule. One respondent recommended that decisions on feasibility of low GWP alternatives need to be assessed based on available technologies.
Several respondents mentioned cost as another factor for consideration. One respondent asked whether the taxpayer should be forced to pay more than the general public, by adopting lower GWP products earlier than required.
One of the respondents recommended defining “feasibility” as “a commercially available alternative with a GWP lower than that of the currently used substance in the relevant application, that (1) is identified by EPA as an acceptable alternative under 40 CFR part 82, which increases the total cost of the installation or bid by not more than 10 percent more than would be the cost if high GWP substances were used.”
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There are also environmental benefits to promoting the use of reclaimed material over virgin production. Both newly-produced and reclaimed refrigerants must meet the same purity requirements and thus reclaimed refrigerant can be used instead of newly produced refrigerants. This final rule
Various respondents commented on the exception in the proposed rule for contracts that will be performed outside the United States and its outlying areas.
In addition, the FAR clauses state that a contractor shall transition to lower GWP alternatives “unless otherwise specified in the contract.” In those cases where a Federal agency has critical uses where only qualified high GWP HFCs may be used, these would be specified in a contract and unqualified lower GWP alternatives would not be allowed.
• One respondent sent information on a low GWP substitute for HFC-134a.
• One respondent included a list of some examples of available low GWP replacements for high GWP HFCs by application (
• Another respondent was concerned that the rule does not require an alternative to the most commonly used refrigerant, HCFC-22, which is both an ODS and has a high GWP, because it is determined to be acceptable by EPA under SNAP.
This rule will apply to all acquisitions inside the United States and its outlying areas of products or services containing or using high GWP HFCs, including—
• Acquisitions that do not exceed the simplified acquisition threshold; and
• Commercial items (including commercially available off-the-shelf items) that use FAR part 12 procedures.
A majority of the acquisitions involving high GWP HFCs do not exceed the simplified acquisition threshold. Applicability of the requirements below the simplified acquisition threshold is necessary to be effective and to cover a significant number of actions and dollars that fall below this threshold. However, the reporting requirement applies only for delivery of, or maintenance, service, repair and disposal of, equipment or appliances normally containing 50 pounds or more of HFCs or refrigerant blends containing HFCs.
Likewise, a majority of the acquisitions involving high GWP HFCs involve the acquisition of commercial items. Applicability of the requirements to commercial items is necessary to be effective and include a significant number of actions and dollars for commercial item acquisitions.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
DoD, GSA, and NASA have prepared a Final Regulatory Flexibility Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 U.S.C. 601,
This rule is necessary to implement Executive branch policy stated in the President's Climate Action Plan. The objective of this rule is to require Federal agencies to procure climate-friendly chemical alternatives to high global warming potential (GWP) hydrofluorocarbons (HFCs) and allow agencies to better meet the greenhouse gas emission reduction goals and reporting requirements of Executive Order 13693, Planning for Sustainability in the Next Decade.
There were no issues raised by the public comments in response to the initial regulatory flexibility analysis.
Based on FPDS data for Fiscal Year 2015, this rule will apply to approximately 1400 small business contractors that provide certain supplies (including equipment and appliances) that contain HFCs to the Federal Government and about 347 small business contractors that provide maintenance, service, repair, or disposal of refrigeration equipment or air conditioners. In addition, although the clauses at 52.223-20, Aerosols, and 52.223-21, Foams, do not contain any reporting requirements, these clauses also apply respectively to solicitations and contracts that involve repair or maintenance of electronic or mechanical devices and construction of buildings and facilities.
DoD, GSA, and NASA estimate an average reporting burden of about 8 hours per year for each small business providing supplies that contain high GWP HFCs or maintenance, repair, or disposal of refrigeration equipment or air conditioners.
DoD, GSA, and NASA did not identify any significant alternatives to the rule that would accomplish the stated objectives of the President's Climate Action Plan and the Executive Order.
It is necessary for the rule to apply to small entities, because about three-quarters of the affected contractors are small businesses and excluding them would minimize the importance of this policy and may prevent the Government from meeting the objective of this policy. Every effort has been made to minimize the burdens imposed. For example, this rule only requires tracking and reporting on equipment that normally contain 50 or more pounds of HFCs. In addition, this rule does not impose a labeling requirement for products that contain or are manufactured with HFCs, unlike the labeling requirement that is required by statute for ozone-depleting substances.
Interested parties may obtain a copy of the FRFA from the Regulatory Secretariat Division. The Regulatory Secretariat Division has submitted a copy of the FRFA to the Chief Counsel for Advocacy of the Small Business Administration.
The Paperwork Reduction Act (44 U.S.C. Chapter 35) applies. The rule contains information collection requirements. OMB has cleared this information collection requirement under OMB Control Number 9000-0191, titled: “High Global Warming Potential Hydrofluorocarbons.”
Government procurement.
Therefore, DoD, GSA and NASA amend 48 CFR parts 1, 2, 7, 11, 23, 25, and 52 as set forth below:
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.
(b) * * *
(2) * * *
(1) PSC 5510, Lumber and Related Basic Wood Materials;
(2) Product or service group (PSG) 87, Agricultural Supplies;
(3) PSG 88, Live Animals;
(4) PSG 89, Subsistence;
(5) PSC 9410, Crude Grades of Plant Materials;
(6) PSC 9430, Miscellaneous Crude Animal Products, Inedible;
(7) PSC 9440, Miscellaneous Crude Agricultural and Forestry Products;
(8) PSC 9610, Ores;
(9) PSC 9620, Minerals, Natural and Synthetic; and
(10) PSC 9630, Additive Metal Materials.
(p) * * *
(2) Comply with the policy in 11.002(d) regarding procurement of biobased products, products containing recovered materials, environmentally preferable products and services (including Electronic Product Environmental Assessment Tool (EPEAT®)-registered electronic products, nontoxic or low-toxic alternatives), ENERGY STAR® and Federal Energy Management Program-designated products, renewable energy, water-efficient products, non-ozone-depleting products, and products and services that minimize or eliminate, when feasible, the use, release, or emission of high global warming potential hydrofluorocarbons, such as by using reclaimed instead of virgin hydrofluorocarbons;
(d)(1) * * *
(vi) Non-ozone-depleting substances, and products and services that minimize or eliminate, when feasible, the use, release, or emission of high global warming potential hydrofluorocarbons, such as by using reclaimed instead of virgin hydrofluorocarbons (subpart 23.8).
(d) Acquiring energy-efficient and water-efficient products and services, environmentally preferable (including EPEAT®-registered, and non-toxic and less toxic) products, products containing recovered materials, biobased products, non-ozone-depleting products, and products and services that minimize or eliminate, when feasible, the use, release, or emission of high global warming potential hydrofluorocarbons, such as by using reclaimed instead of virgin hydrofluorocarbons;
This subpart sets forth policies and procedures for the acquisition of items that—
(a) Contain, use, or are manufactured with ozone-depleting substances; or
(b) Contain or use high global warming potential hydrofluorocarbons.
(a) Title VI of the Clean Air Act (42 U.S.C. 7671,
(b) Section 706 of division D, title VII of the Omnibus Appropriations Act, 2009 (Public Law 111-8).
(c) Executive Order 13693 of March 25, 2015, Planning for Federal Sustainability in the Next Decade.
(d) Environmental Protection Agency (EPA) regulations, Protection of Stratospheric Ozone (40 CFR part 82).
It is the policy of the Federal Government that Federal agencies—
(a) Implement cost-effective programs to minimize the procurement of materials and substances that contribute to the depletion of stratospheric ozone and/or result in the use, release or emission of high global warming potential hydrofluorocarbons; and
(b) Give preference to the procurement of acceptable
(1) The depletion of ozone in the upper atmosphere; and
(2) The potential use, release, or emission of high global warming potential hydrofluorocarbons.
In preparing specifications and purchase descriptions, and in the acquisition of products and services, agencies shall—
(a) Comply with the requirements of title VI of the Clean Air Act, section 706 of division D, title VII of Public Law 111-8, Executive Order 13693, and 40 CFR 82.84(a)(2), (3), (4), and (5);
(b) Substitute acceptable alternatives to ozone-depleting substances, as identified under 42 U.S.C. 7671k, to the maximum extent practicable, as provided in 40 CFR 82.84(a)(1), except in the case of Class I substances being used for specified essential uses, as identified under 40 CFR 82.4(n);
(c) Unless a particular contract requires otherwise, specify that, when feasible, contractors shall use another acceptable alternative in lieu of a high global warming potential hydrofluorocarbon in products and services in a particular end use for which EPA's Significant New Alternatives Policy (SNAP) program has identified other acceptable alternatives that have lower global warming potential; and
(d) Refer to EPA's SNAP program for the list of alternatives, found at 40 CFR part 82, subpart G, as well as supplemental tables of alternatives (available at
Except for contracts for supplies that will be delivered outside the United States and its outlying areas, or contracts for services that will be performed outside the United States and its outlying areas, insert the following clauses:
(a) 52.223-11, Ozone-Depleting Substances and High Global Warming Potential Hydrofluorocarbons, in solicitations and contracts for—
(1) Refrigeration equipment (in product or service code (PSC) 4110);
(2) Air conditioning equipment (PSC 4120);
(3) Clean agent fire suppression systems/equipment (
(4) Bulk refrigerants and fire suppressants (in PSC 6830);
(5) Solvents, dusters, freezing compounds, mold release agents, and any other miscellaneous chemical specialty that may contain ozone-depleting substances or high global warming potential hydrofluorocarbons (in PSC 6850);
(6) Corrosion prevention compounds, foam sealants, aerosol mold release agents, and any other preservative or sealing compound that may contain ozone-depleting substances or high global warming potential hydrofluorocarbons (in PSC 8030);
(7) Fluorocarbon lubricants (primarily aerosols) (in PSC 9150); and
(8) Any other manufactured end products that may contain or be manufactured with ozone-depleting substances.
(b) 52.223-12, Maintenance, Service, Repair, or Disposal of Refrigeration Equipment and Air Conditioners, in solicitations and contracts that include the maintenance, service, repair, or disposal of—
(1) Refrigeration equipment, such as refrigerators, chillers, or freezers; or
(2) Air conditioners, including air conditioning systems in motor vehicles.
(c) 52.223-20, Aerosols, in solicitations and contracts—
(1) For products that may contain high global warming potential hydrofluorocarbons as a propellant, or as a solvent; or
(2) That involve maintenance or repair of electronic or mechanical devices.
(d) 52.223-21, Foams, in solicitations and contracts for—
(1) Products that may contain high global warming potential hydrofluorocarbons or refrigerant blends containing hydrofluorocarbons as a foam blowing agent, such as building foam insulation or appliance foam insulation; or
(2) Construction of buildings or facilities.
The revision and additions reads as follows:
(b) * * *
____(36) 52.223-11, Ozone-Depleting Substances and High Global Warming Potential Hydrofluorocarbons (June, 2016) (E.O. 13693).
____(37) 52.223-12, Maintenance, Service, Repair, or Disposal of Refrigeration Equipment and Air Conditioners (June, 2016) (E.O. 13693).
____(43) 52.223-20, Aerosols (June, 2016) (E.O. 13693).
____(44) 52.223-21, Foams (June, 2016) (E.O. 13693).
The revision and additions read as follows:
(b) * * *
(1) * * *
(xi) 52.223-11, Ozone-Depleting Substances and High Global Warming Potential Hydrofluorocarbons (June, 2016)
(xii) 52.223-12, Maintenance, Service, Repair, or Disposal of Refrigeration Equipment and Air Conditioners (June, 2016) (E.O. 13693) (Applies to maintenance, service, repair, or disposal of refrigeration equipment and air conditioners).
(xiv) 52.223-20, Aerosols (June, 2016) (E.O. 13693) (Applies to contracts for products that may contain high global warming potential hydrofluorocarbons as a propellant or as a solvent; or contracts for maintenance or repair of electronic or mechanical devices).
(xv) 52.223-21, Foams (June, 2016) (E.O. 13693) (Applies to contracts for products that may contain high global warming potential hydrofluorocarbons or refrigerant blends containing hydrofluorocarbons as a foam blowing agent; or contracts for construction of buildings or facilities.
(a)
(1) Class I, including, but not limited to, chlorofluorocarbons, halons, carbon tetrachloride, and methyl chloroform; or
(2) Class II, including, but not limited to, hydrochlorofluorocarbons.
(b) The Contractor shall label products that contain or are manufactured with ozone-depleting substances in the manner and to the extent required by 42 U.S.C. 7671j (b), (c), (d), and (e) and 40 CFR part 82, subpart E, as follows:
Warning: Contains (or manufactured with, if applicable) *_______, a substance(s) which harm(s) public health and environment by destroying ozone in the upper atmosphere.
* The Contractor shall insert the name of the substance(s).
(c)
(1) Track on an annual basis, between October 1 and September 30, the amount in pounds of hydrofluorocarbons or refrigerant blends containing hydrofluorocarbons contained in the equipment and appliances delivered to the Government under this contract by—
(i) Type of hydrofluorocarbon (
(ii) Contract number; and
(iii) Equipment/appliance;
(2) Report that information to the Contracting Officer for FY16 and to
(i) Annually by November 30 of each year during contract performance; and
(ii) At the end of contract performance.
(d) The Contractor shall refer to EPA's SNAP program (available at
(End of clause)
(a)
(b) The Contractor shall comply with the applicable requirements of sections 608 and 609 of the Clean Air Act (42 U.S.C. 7671g and 7671h) as each or both apply to this contract.
(c) Unless otherwise specified in the contract, the Contractor shall reduce the use, release, or emissions of high global warming potential hydrofluorocarbons under this contract by—
(1) Transitioning over time to the use of another acceptable alternative in lieu of high global warming potential hydrofluorocarbons in a particular end use for which EPA's SNAP program has identified other acceptable alternatives that have lower global warming potential.
(2) Preventing and repairing refrigerant leaks through service and maintenance during contract performance;
(3) Implementing recovery, recycling, and responsible disposal programs that avoid release or emissions during equipment service and as the equipment reaches the end of its useful life; and
(4) Using reclaimed hydrofluorocarbons, where feasible.
(d) For equipment and appliances that normally each contain 50 or more pounds of hydrofluorocarbons or refrigerant blends containing hydrofluorocarbons, that will be maintained, serviced, repaired, or disposed under this contract, the Contractor shall—
(1) Track on an annual basis, between October 1 and September 30, the amount in pounds of hydrofluorocarbons or refrigerant blends containing hydrofluorocarbons added or taken out of equipment or appliances under this contract by—
(i) Type of hydrofluorocarbon (
(ii) Contract number;
(iii) Equipment/appliance; and
(2) Report that information to the Contracting Officer for FY16 and to
(i) No later than November 30 of each year during contract performance; and
(ii) At the end of contract performance.
(e) The Contractor shall refer to EPA's SNAP program to identify alternatives. The SNAP list of alternatives is found at 40 CFR part 82, subpart G, with supplemental tables available at
(End of clause)
As prescribed in 23.804(c), insert the following clause:
(a)
(b) Unless otherwise specified in the contract, the Contractor shall reduce its use, release, or emissions of high global warming
(1) In-use emission rates, energy efficiency;
(2) Safety, such as flammability or toxicity;
(3) Ability to meet technical performance requirements; and
(4) Commercial availability at a reasonable cost.
(c) The Contractor shall refer to EPA's SNAP program to identify alternatives. The SNAP list of alternatives is found at 40 CFR part 82, subpart G, with supplemental tables available at
(End of clause)
As prescribed in 23.804(d), insert the following clause:
(a)
(b) Unless otherwise specified in the contract, the Contractor shall reduce its use, release, and emissions of high global warming potential hydrofluorocarbons and refrigerant blends containing hydrofluorocarbons, when feasible, from foam blowing agents, under this contract. When determining feasibility of using a particular alternative, the Contractor shall consider environmental, technical, and economic factors such as—
(1) In-use emission rates, energy efficiency, and safety;
(2) Ability to meet performance requirements; and
(3) Commercial availability at a reasonable cost.
(c) The Contractor shall refer to EPA's SNAP program to identify alternatives. The SNAP list of alternatives is found at 40 CFR part 82, subpart G, with supplemental tables available at
(End of clause)
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
DoD, GSA, and NASA are issuing a final rule to amend the Federal Acquisition Regulation (FAR) to implement a section of U.S. Code which establishes a higher simplified acquisition threshold for overseas acquisitions in support of humanitarian or peacekeeping operations.
Effective June 15, 2016.
Ms. Camara Francis, Procurement Analyst, at 202-550-0935, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755. Please cite FAC 2005-88, FAR Case 2015-020.
DoD, GSA, and NASA published a proposed rule in the
One public comment was received.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (the Councils) reviewed the public comment in development of the final rule.
There were no changes made to the rule as a result of the comment received. There were no comments on the Initial Regulatory Flexibility Analysis.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
DoD, GSA and NASA have prepared a Final Regulatory Flexibility Analysis (FRFA) consistent with the Regulatory
The final rule, in order to implement 41 U.S.C. 153, sets forth a higher simplified acquisition threshold (SAT) for overseas acquisitions in support of humanitarian or peacekeeping operations.
There were no significant issues raised by the public in response to the Initial Regulatory Flexibility Analysis provided in the proposed rule.
The rule applies only to overseas acquisitions in support of humanitarian or peacekeeping operations. In Fiscal Year 2014, 1545 awards were made in support of humanitarian or peacekeeping operations, and 585 (37.86 percent) of those were to small businesses. Additionally, only 81 (5.24 percent) of the awards were valued between the former threshold of $150,000 and the new threshold of $300,000. Therefore, it is not anticipated that this rule will have a significant economic impact on small businesses.
Interested parties may obtain a copy of the FRFA from the Regulatory Secretariat Division. The Regulatory Secretariat Division has submitted a copy of the FRFA to the Chief Counsel for Advocacy of the Small Business Administration.
This rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Therefore, DoD, GSA, and NASA are amending 48 CFR parts 2, 4, 13, 18, and 19 as set forth below:
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.
(1) Acquisitions of supplies or services that, as determined by the head of the agency, are to be used to support a contingency operation or to facilitate defense against or recovery from nuclear, biological, chemical, or radiological attack (41 U.S.C. 1903), the term means—
(i) $300,000 for any contract to be awarded and performed, or purchase to be made, inside the United States; and
(ii) $1 million for any contract to be awarded and performed, or purchase to be made, outside the United States; and
(2) Acquisitions of supplies or services that, as determined by the head of the agency, are to be used to support a humanitarian or peacekeeping operation (10 U.S.C. 2302), the term means $300,000 for any contract to be awarded and performed, or purchase to be made, outside the United States.
(a) A humanitarian or peacekeeping operation is defined in 2.101.
(b)
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to add a new subpart and contract clause for the basic safeguarding of contractor information systems that process, store or transmit Federal contract information. The clause does not relieve the contractor of any other specific safeguarding requirement specified by Federal agencies and departments as it relates to covered contractor information systems generally or other Federal requirements for safeguarding Controlled Unclassified Information (CUI) as established by Executive Order (E.O.). Systems that contain classified information, or CUI such as personally identifiable information, require more than the basic level of protection.
Ms. Cecelia L. Davis, Procurement Analyst, at 202-219-0202, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755. Please cite FAC 2005-88, FAR Case 2011-020.
This final rule has basic safeguarding measures that are generally employed as part of the routine course of doing business. DoD, GSA, and NASA published a proposed rule in the
This rule, which focuses on ensuring a basic level of safeguarding for any contractor system with Federal information, reflective of actions a prudent business person would employ, is just one step in a series of coordinated regulatory actions being taken or planned to strengthen protections of information systems. Last summer, OMB issued proposed guidance to enhance and clarify cybersecurity protections in Federal acquisitions related to CUI in systems that contractors operate on behalf of the Government as well as in systems that are not operated on behalf of an agency but are used incidental to providing a product or service for an agency with particular focus on security controls, incident reporting, information system assessments, and information security continuous monitoring. DOD, GSA, and NASA will be developing FAR changes to implement the OMB guidance when it is finalized.
In addition, we plan to develop regulatory changes for the FAR in coordination with National Archives and Records Administration (NARA) which is separately finalizing a rule to implement E.O. 13556 addressing CUI. The E.O. established the CUI program to standardize the way the executive branch handles information (other than classified information) that requires safeguarding or dissemination controls.
All of these actions should help, among other things, clarify the application of the Federal Information Security Management Act (FISMA) and the National Institute of Standards and Technology (NIST) information systems requirements to contractors and, by doing so, help to create greater consistency, where appropriate, in safeguarding practices across agencies. Prior to all of these actions occurring, DOD has updated a DFARS rule addressing enhanced safeguarding for certain sensitive DOD information in those systems.
Sixteen respondents submitted comments on this proposed rule.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (the Councils) reviewed the comments in the development of the final rule. A discussion of the comments and the changes made to the rule as a result of those comments are provided as follows:
• Provides for safeguarding the contractor information system, rather than specific information contained in the system.
• Revises the title of the case and throughout the final rule to add the term “covered” to “contractor information system,” thus indicating that the policy applies only to contractor information systems that contain Federal contract information.
• Deletes the safeguarding requirements and procedures in the clause that relate to transmitting electronic information, transmitting voice and fax information, and information transfer limitations.
• Replaces the other safeguarding requirements with comparable security requirements from NIST SP 800-171.
• Adds definitions of “covered contractor information system” and “Federal contract information.”
• Deletes definitions of “public information” and all other proposed definitions in the clause, except “information,” “information system,” and “safeguarding.”
Makes the final rule—
• Applicable below the simplified acquisition threshold.
• Not applicable to the acquisition of commercially available off-the-shelf (COTS) items.
Clarifies that the clause does not relieve the contractor from complying with any other specific safeguarding requirements and procedures specified by Federal agencies and departments relating to covered contractor information systems generally or other Federal requirements for safeguarding CUI as established by E.O. 13556.
One respondent urged the FAR Council to withhold release of a final rule until NARA implements E.O. 13556, Controlled Unclassified Information. Without such coordination, contractors may be required to establish conflicting protections that may later conflict or be revised by the Governmentwide NARA program.
Several respondents were also concerned about the broad potential scope of the information subject to these requirements. One respondent stated that the rule would cover nearly all information and all information systems of any company that holds even a single Government contract. One respondent questioned whether “generated for the Government” just applied to information that is part of a contract deliverable, or whether it also covered information about the contractor's own proprietary practices that is submitted to the Government. Another respondent was concerned that agencies have tended to broadly expand FISMA requirements to information developed under Federal contracts, regardless of whether the information is a deliverable under the contract (
One respondent is concerned that the Government may send non-public information to a recipient, who may be unaware that it is in their possession on any device, in any form. The information could be temporarily exposed, even if transferred and not retained.
Further, respondents were concerned about interpretation of the definition of “public information.” Several respondents considered that the definition of “public information” was too narrow, because it requires the actual disclosure, dissemination, or disposition of information. One respondent stated that the Government has significant volumes of data that have not yet been made public, but that may be subject to obligations for disclosure under a variety of statutes. Several respondents stated that contractors cannot readily determine what information is categorized as public information, because it is almost impossible for contractors to keep track of what information has been released to the public.
One respondent stated that the Government should proactively mark protected materials.
Since the safeguarding applies to the contractor information system, not to specific information within the system, it is irrelevant whether there is also contractor information in the system. However, if the contractor stores pre-existing proprietary data or trade secrets in a separate information system, the contractor can decide how to protect its own information.
The definition of “public information” has been deleted, as it is no longer necessary.
• One respondent stated that the proposed rule severely downgrades existing recommendations in place by NIST regarding the proper procedures and controls for protection of Federal information systems. According to the respondent, the rule should require contractors to adhere to same standards required of Federal agencies by the NIST SP 800 x series and the FISMA.
• Another respondent noted that Federal agencies are required to adhere to information security standards and guidelines published by NIST in Federal Information Processing Standards (FIPS) and Special Publications (SP). These publications explicitly state that the same standards apply to outsourced external service providers. Agencies and their contractors are also required to implement the configuration control settings at a “bits and bytes” level contained in the security configuration control checklists found in the National Security Program (NSP), which is co-hosted by NIST and the Department of Homeland Security (DHS).
• One respondent stated that the only proposed intrusion-protection safeguards relate to malware protection services and security-relevant software upgrades. According to the respondent, these types of safeguards are generally not considered sufficient to provide a reasonable level of protection in a sophisticated enterprise environment.
• One respondent recommended that if hardware reaches its end of life and is no longer supported by the manufacturer, there should be a clause imposing a 6 month to 1 year deadline to upgrade the security system.
• Training. One respondent recommended that contractor information security employees be required to obtain the same levels of certification and training as provided in the DOD 8570 guidelines. Another respondent recommended security awareness training, as required by 44 U.S.C. 3544(b)(4).
• Penetration or vulnerability testing, evaluation, and reporting. Several respondents recommended a requirement for periodic testing of the effectiveness of information security policies in accordance with 44 U.S.C. 3544(c).
• Detecting, reporting, and responding to security incidents. One respondent stated that under FISMA it is mandatory for contractors to report security incidents to law enforcement if Federal contract information is resident on or passing through the contractor information system. This respondent also expressed concern about how personally identifiable information (PII) notifications would be properly made, without reporting requirements.
• DFARS rule. One respondent recommended that this FAR rule should include procedures similar to those in the draft DFARS rule 2011-D039, Safeguarding Unclassified DoD Information.
• Encryption at rest. One respondent recommended that data be stored in an encrypted manner, rather than encrypting exclusively for the purpose of transit.
• Cyber security insurance. One respondent also recommended requiring Government contractors to carry insurance that specifically covers the protection of intangible property such as data. Another respondent thought that the rule would already require small businesses to maintain cyber liability insurance.
• One respondent was concerned that it would be difficult to know when to use the clause because contracting officers have limited insight into offerors' existing information systems.
• One respondent recommended incorporating the clause into the list of clauses at FAR 52.212-5 instead of separately prescribing it at 12.301 for use in solicitations and contracts for the acquisition of commercial items.
It is not possible to include FAR clause 52.204-21 in 52.212-5 because the clause is not necessary to implement statute or E.O.
Some respondents were concerned that the lack of clarity imposes significant risks of disputes, and increases costs, since a contractor must design to the most stringent standard in an attempt to assure compliance. For example, several respondents were concerned that the potentially broad definition of “information” would significantly increase the compliance burden for contractors. Another respondent noted that the vagueness
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
DoD, GSA, and NASA have prepared a Final Regulatory Flexibility Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 U.S.C. 601,
This action is being implemented to revise the Federal Acquisition Regulation (FAR) to safeguard contractor information systems that process, store, or transmit Federal contract information. The objective of this rule is to require contractors to employ basic security measures, as identified in the clause, for any covered contractor information system.
Various respondents were concerned with the general impact of the rule and, in particular, the impact of the rule on small business concerns. The final rule has been amended in response to the public comments, such that the particular requirements that were mentioned as imposing a greater burden have been clarified or deleted. As a result, the burden on all businesses, including small businesses, should not be significant.
This final rule applies to all Federal contractors and appropriate subcontractors, including those below the simplified acquisition threshold, if the contractor has Federal contract information residing in or transiting through its information system. The final rule is not applicable to the acquisition of commercially available off-the-shelf (COTS) items. In FY 2013, the Federal Government awarded over 250,000 contracts to almost 40,000 unique small business concerns. Of those awards, about half were for commercial items awarded to about 25,000 unique small business concerns. It is not known what percentage of those awards were for COTS items.
There are no reporting or recordkeeping requirements associated with the rule. The other compliance requirements will not have a significant cost impact, since these are the basic safeguarding measures (
There are no known significant alternatives to the rule that would further minimize any economic impact of the rule on small entities and still meet the objectives of the rule. DoD, GSA, and NASA considered excluding acquisitions below the simplified acquisition threshold, but rejected this alternative because there are many acquisitions below the simplified acquisition threshold where the Government nevertheless has a significant interest in requiring basic safeguarding of the contractor information system (
This final rule does not apply to the acquisition of COTS items, because it is unlikely that acquisitions of COTS items will involve Federal contract information residing in or transiting through the contractor information system. Excluding acquisitions of COTS items reduces the number of small entities to which the rule will apply.
Interested parties may obtain a copy of the FRFA from the Regulatory Secretariat Division. The Regulatory Secretariat Division has submitted a copy of the FRFA to the Chief Counsel for Advocacy of the Small Business Administration.
The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 4, 7, 12, and 52 as set forth below:
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.
As used in this subpart—
This subpart applies to all acquisitions, including acquisitions of commercial items other than commercially available off-the-shelf items, when a contractor's information system may contain Federal contract information.
The contracting officer shall insert the clause at 52.204-21, Basic Safeguarding of Covered Contractor Information Systems, in solicitations and contracts when the contractor or a subcontractor at any tier may have Federal contract information residing in or transiting through its information system.
(b) * * *
(18)
(ii) For information technology acquisitions, discuss how agency information security requirements will be met.
(iii) For acquisitions requiring routine contractor physical access to a Federally-controlled facility and/or routine access to a Federally-controlled information system, discuss how agency requirements for personal identity verification of contractors will be met (see subpart 4.13).
(iv) For acquisitions that may require Federal contract information to reside in or transit through contractor information systems, discuss compliance with subpart 4.19.
(d) * * *
(3) Insert the clause at 52.204-21, Basic Safeguarding of Covered Contractor Information Systems, in solicitations and contracts (except for acquisitions of COTS items), as prescribed in 4.1903.
As prescribed in 4.1903, insert the following clause:
(a)
(b)
(i) Limit information system access to authorized users, processes acting on behalf of authorized users, or devices (including other information systems).
(ii) Limit information system access to the types of transactions and functions that authorized users are permitted to execute.
(iii) Verify and control/limit connections to and use of external information systems.
(iv) Control information posted or processed on publicly accessible information systems.
(v) Identify information system users, processes acting on behalf of users, or devices.
(vi) Authenticate (or verify) the identities of those users, processes, or devices, as a prerequisite to allowing access to organizational information systems.
(vii) Sanitize or destroy information system media containing Federal Contract Information before disposal or release for reuse.
(viii) Limit physical access to organizational information systems, equipment, and the respective operating environments to authorized individuals.
(ix) Escort visitors and monitor visitor activity; maintain audit logs of physical access; and control and manage physical access devices.
(x) Monitor, control, and protect organizational communications (
(xi) Implement subnetworks for publicly accessible system components that are physically or logically separated from internal networks.
(xii) Identify, report, and correct information and information system flaws in a timely manner.
(xiii) Provide protection from malicious code at appropriate locations within organizational information systems.
(xiv) Update malicious code protection mechanisms when new releases are available.
(xv) Perform periodic scans of the information system and real-time scans of files from external sources as files are downloaded, opened, or executed.
(2)
(c)
(End of clause)
The revisions and addition read as follows:
(June, 2016)
(a) * * *
(2) * * *
(viii) 52.244-6, Subcontracts for Commercial Items (June, 2016).
(2) * * *
(i) 52.204-21, Basic Safeguarding of Covered Contractor Information Systems (June, 2016) (Applies to contracts when the contractor or a subcontractor at any tier may have Federal contract information residing in or transiting through its information system.
The revisions and addition read as follows:
(June, 2016)
(a) * * *
(c)(1) * * *
(iii) 52.204-21, Basic Safeguarding of Covered Contractor Information Systems (June, 2016), other than subcontracts for commercially available off-the-shelf items, if flow down is required in accordance with paragraph (c) of FAR clause 52.204-21.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to implement section 814 of the Carl Levin and Howard P. `Buck' McKeon National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2015 that requires the head of the contracting activity to approve any determinations to select more than five offerors to submit phase-two proposals for a two-phase design-build construction acquisition that is valued at greater than $4 million.
Mr. Curtis E. Glover, Sr., Procurement Analyst, at 202-501-1448, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755. Please cite FAC 2005-88, FAR Case 2015-018.
DoD, GSA, and NASA published a proposed rule in the
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (the Councils) reviewed the public comments in the development of the final rule. One change was made to the rule as a result of those comments. A discussion of the comments is provided as follows:
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
DoD, GSA, and NASA have prepared a Final Regulatory Flexibility Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 U.S.C. 601,
This rule implements section 814 of the Carl Levin and Howard P. `Buck' McKeon National Defense Authorization Act for Fiscal Year 2015. Section 814 is entitled Improvement in Defense Design-Build Construction Process. Section 814 requires the head of the contracting activity, delegable to a level no lower than the senior contracting official, to approve any determinations to select more than five offerors to submit phase-two proposals for a two-phase design-build construction acquisition that is valued at greater than $4 million.
No comments were received by the public comments in response to the initial regulatory flexibility analysis. The number of design-build construction awards is not currently tracked by the Federal government's business systems. In Fiscal Year 2014, the Federal Government awarded 3,666 construction awards to 2,239 unique small business vendors. It is unknown what percentage of these contracts involved design-build construction services.
This rule does not impose new recordkeeping or reporting requirements. The new approval requirement for advancing more than five contractors to phase two of a two-phase design-build selection procedure only affects the internal operating procedures of the Government. For acquisitions valued over $4 million, the head of the contracting activity (HCA) is required to now make a determination that it is in the best interest of the Government to select more than five offerors to proceed to phase two. Any burden caused by this rule is expected to be minimal and will not be any greater on small businesses than it is on large businesses.
No alternative approaches were considered. The new approval requirement for advancing more than five contractors to phase two of a two-phase design-build selection procedure only affects the internal operating procedures of the Government. It is not anticipated that the proposed rule will have a significant economic impact on small entities.
Interested parties may obtain a copy of the FRFA from the Regulatory Secretariat Division. The Regulatory Secretariat Division has submitted a copy of the FRFA to the Chief Counsel for Advocacy of the Small Business Administration.
The final rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Therefore, DoD, GSA, and NASA amend 48 CFR part 36 as set forth below:
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.
(a) * * *
(4) A statement of the maximum number of offerors that will be selected to submit phase-two proposals. The maximum number specified in the solicitation shall not exceed five unless the contracting officer determines, for that particular solicitation, that a number greater than five is in the Government's interest and is consistent with the purposes and objectives of the two-phase design-build selection procedures. The contracting officer shall document this determination in the contract file. For acquisitions greater than $4 million, the determination shall be approved by the head of the contracting activity, delegable to a level no lower than the senior contracting official within the contracting activity. In civilian agencies, for this paragraph (a)(4), the senior contracting official is the advocate for competition for the procuring activity, unless the agency designates a different position in agency procedures. The approval shall be documented in the contract file.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
This document makes amendments to the Federal Acquisition Regulation (FAR) in order to make editorial changes.
Ms. Hada Flowers, Regulatory Secretariat Division (MVCB), 1800 F Street NW., 2nd Floor, Washington, DC 20405, 202-501-4755. Please cite FAC 2005-88, Technical Amendments.
In order to update certain elements in 48 CFR part 1 this document makes editorial changes to the FAR.
Government procurement.
Therefore, DoD, GSA, and NASA amend 48 CFR part 1 as set forth below:
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Small Entity Compliance Guide.
This document is issued under the joint authority of DOD, GSA, and NASA. This
May 16, 2016.
For clarification of content, contact the analyst whose name appears in the table below. Please cite FAC 2005-88 and the FAR case number. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755.
Summaries for each FAR rule follow. For the actual revisions and/or amendments made by these rules, refer to the specific item numbers and subjects set forth in the documents following these item summaries. FAC 2005-88 amends the FAR as follows:
This final rule implements Executive branch policy in the President's Climate Action Plan to procure, when feasible, alternatives to high global warming potential-hydrofluorocarbons (HFCs). The rule also requires contractors to report annually the amount of HFCs contained in equipment delivered to the Government or added or taken out of Government equipment under service contracts. This will allow agencies to better meet the greenhouse gas emission reduction goals and reporting requirements of the Executive Order 13693 on Planning for Sustainability in the Next Decade. This rule applies to small entities because about three-quarters of the affected contractors are small businesses and precluding them would undermine the overall intent of this policy. However, to minimize the impact this rule could have on all businesses, especially small businesses, this rule only requires tracking and reporting on equipment that normally contain 50 or more pounds of HFCs. In addition, this rule does not impose a labeling requirement for products that contain or are manufactured with HFCs, unlike the labeling requirement that is required by statute for ozone-depleting substances.
This final rule amends the FAR to implement 41 U.S.C. 153, which establishes a higher simplified acquisition threshold (SAT) for overseas acquisitions in support of humanitarian or peacekeeping operations. When FAR Case 2003-022 was published as a rule in 2004, the definition for SAT at FAR 2.101 was changed, but the drafters of the rule also inadvertently deleted the reference to overseas humanitarian or peacekeeping missions and the requisite doubling of the SAT in those circumstances. This rule reinstates the increased SAT for overseas acquisitions for peacekeeping or humanitarian operations. Accordingly, this rule provides contracting officers with more flexibility when contracting in support of overseas humanitarian or peacekeeping operations. This final rule does not place any new requirements on small entities.
This final rule amends the FAR to add a new FAR subpart 4.19 and contract clause 52.204-21 for the basic safeguarding of covered contractor information systems,
This final rule revises the FAR to implement section 814 of the Carl Levin and Howard P. `Buck' McKeon National Defense Authorization Act for Fiscal Year 2015. When a two-phase design-build construction acquisition is valued at greater than $4 million, section 814 requires the head of the contracting activity to approve a contracting officer determination to select more than five offerors to submit phase-two proposals. The approval level is delegable no lower than the senior contracting official within the contracting activity. This rule change does not place any new requirements on small entities.
Editorial changes are made at FAR 1.106.
Environmental Protection Agency (EPA).
Direct final rule.
EPA is promulgating significant new use rules (SNURs) under the Toxic Substances Control Act (TSCA) for 55 chemical substances which were the subject of premanufacture notices (PMNs). Ten of these chemical substances are subject to TSCA section 5(e) consent orders issued by EPA. This action requires persons who intend to manufacture (defined by statute to include import) or process any of these 55 chemical substances for an activity that is designated as a significant new use by this rule to notify EPA at least 90 days before commencing that activity. The required notification will provide EPA with the opportunity to evaluate the intended use and, if necessary, to prohibit or limit that activity before it occurs.
This rule is effective on July 15, 2016. For purposes of judicial review, this rule shall be promulgated at 1 p.m. (e.s.t.) on May 31, 2016.
Written adverse or critical comments, or notice of intent to submit adverse or critical comments, on one or more of these SNURs must be received on or before June 15, 2016 (see Unit VI. of the
For additional information on related reporting requirement dates, see Units I.A., VI., and VII. of the
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2015-0810, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
You may be potentially affected by this action if you manufacture (defined by statute to include import), process, or use the chemical substances contained in this rule. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Manufacturers, or processors of one or more subject chemical substances (NAICS codes 325 and 324110),
This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA. Chemical importers are subject to the TSCA section 13 (15 U.S.C. 2612) import certification requirements promulgated at 19 CFR 12.118 through 12.127 and 19 CFR 127.28. Chemical importers must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA. Importers of chemicals subject to these SNURs must certify their compliance with the SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, any persons who export or intend to export a chemical substance that is the subject of a proposed or final rule are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)) (see § 721.20), and must comply with the export notification requirements in 40 CFR part 707, subpart D.
1.
2.
EPA is promulgating these SNURs using direct final procedures. These SNURs will require persons to notify EPA at least 90 days before commencing the manufacture or processing of a chemical substance for any activity designated by these SNURs as a significant new use. Receipt of such notices allows EPA to assess risks that may be presented by the intended uses and, if appropriate, to regulate the proposed use before it occurs. Additional rationale and background to these rules are more fully set out in the preamble to EPA's first direct final SNUR published in the
Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to determine
General provisions for SNURs appear in 40 CFR part 721, subpart A. These provisions describe persons subject to the rule, recordkeeping requirements, exemptions to reporting requirements, and applicability of the rule to uses occurring before the effective date of the rule. Provisions relating to user fees appear at 40 CFR part 700. According to § 721.1(c), persons subject to these SNURs must comply with the same SNUN requirements and EPA regulatory procedures as submitters of PMNs under TSCA section 5(a)(1)(A). In particular, these requirements include the information submission requirements of TSCA section 5(b) and 5(d)(1), the exemptions authorized by TSCA section 5(h)(1), (h)(2), (h)(3), and (h)(5), and the regulations at 40 CFR part 720. Once EPA receives a SNUN, EPA may take regulatory action under TSCA section 5(e), 5(f), 6, or 7 to control the activities for which it has received the SNUN. If EPA does not take action, EPA is required under TSCA section 5(g) to explain in the
Section 5(a)(2) of TSCA states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors, including:
• The projected volume of manufacturing and processing of a chemical substance.
• The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance.
• The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.
• The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.
In addition to these factors enumerated in TSCA section 5(a)(2), the statute authorized EPA to consider any other relevant factors.
To determine what would constitute a significant new use for the 55 chemical substances that are the subject of these SNURs, EPA considered relevant information about the toxicity of the chemical substances, likely human exposures and environmental releases associated with possible uses, and the four bulleted TSCA section 5(a)(2) factors listed in this unit.
EPA is establishing significant new use and recordkeeping requirements for 55 chemical substances in 40 CFR part 721, subpart E. In this unit, EPA provides the following information for each chemical substance:
• PMN number.
• Chemical name (generic name, if the specific name is claimed as CBI).
• Chemical Abstracts Service (CAS) Registry number (assigned for non-confidential chemical identities).
• Basis for the TSCA section 5(e) consent order or the basis for the TSCA non-section 5(e) SNURs (
• Tests recommended by EPA to provide sufficient information to evaluate the chemical substance (see Unit VIII. for more information).
• CFR citation assigned in the regulatory text section of this rule.
The regulatory text section of this rule specifies the activities designated as significant new uses. Certain new uses, including production volume limits (
This rule includes 10 PMN substances (P-11-150, P-11-484, P-11-543, P-14-67, P-15-59, P-15-60, P-15-104, P-15-154, P-15-328, and P-15-502) that are subject to “risk-based” consent orders under TSCA section 5(e)(1)(A)(ii)(I) where EPA determined that activities associated with the PMN substances may present unreasonable risk to human health or the environment. Those consent orders require protective measures to limit exposures or otherwise mitigate the potential unreasonable risk. The so-called “TSCA section 5(e) SNURs” on these PMN substances are promulgated pursuant to § 721.160, and are based on and consistent with the provisions in the underlying consent orders. The TSCA section 5(e) SNURs designate as a “significant new use” the absence of the protective measures required in the corresponding consent orders.
Where EPA determined that the PMN substance may present an unreasonable risk of injury to human health via inhalation exposure, the underlying TSCA section 5(e) consent order usually requires, among other things, that potentially exposed employees wear specified respirators unless actual measurements of the workplace air show that air-borne concentrations of the PMN substance are below a New Chemical Exposure Limit (NCEL) that is established by EPA to provide adequate protection to human health. In addition to the actual NCEL concentration, the comprehensive NCELs provisions in TSCA section 5(e) consent orders, which are modeled after Occupational Safety and Health Administration (OSHA) Permissible Exposure Limits (PELs) provisions, include requirements addressing performance criteria for sampling and analytical methods, periodic monitoring, respiratory protection, and recordkeeping. However, no comparable NCEL provisions currently exist in 40 CFR part 721, subpart B, for SNURs. Therefore, for these cases, the individual SNURs in 40 CFR part 721, subpart E, will state that persons subject to the SNUR who wish to pursue NCELs as an alternative to the § 721.63 respirator requirements may request to do so under § 721.30. EPA expects that persons whose § 721.30 requests to use the NCELs approach for SNURs are approved by EPA will be required to comply with NCELs provisions that are comparable to those contained in the corresponding TSCA section 5(e) consent order for the same chemical substance.
This rule also includes SNURs on 45 PMN substances that are not subject to consent orders under TSCA section 5(e). In these cases, for a variety of reasons, EPA did not find that the use scenario described in the PMN triggered the determinations set forth under TSCA section 5(e). However, EPA does believe that certain changes from the use scenario described in the PMN could result in increased exposures, thereby constituting a “significant new use.” These so-called “TSCA non-section 5(e) SNURs” are promulgated pursuant to § 721.170. EPA has determined that every activity designated as a “significant new use” in all TSCA non-section 5(e) SNURs issued under § 721.170 satisfies the two requirements stipulated in § 721.170(c)(2),
1. Hazard communication. Establishment and use of a hazard communication program, including human health precautionary statements on each label and the Material Safety Data Sheet (MSDS).
2. Use of personal protective equipment including a National Institute of Occupational Safety and Health (NIOSH)-certified respirator with an assigned protection factor (APF) of at least 10 or compliance with a New Chemicals Exposure Limit (NCEL) of 2.4 milligrams/cubic meter (mg/m
3. Submission of certain toxicity testing on the PMN substance prior to exceeding the confidential production volume limit as specified in the consent order of the PMN substance.
1. Risk notification. If as a result of the test data required, the company becomes aware that the PMN substances may present a risk of injury to human health or the environment, the company must incorporate this new information, and any information on methods for protecting against such risk into an MSDS, within 90 days.
2. Submission of certain physical/chemical property, human health and environmental toxicity, and environmental fate testing prior to exceeding the confidential production volume limits specified in the consent order.
3. Recording and reporting of certain fluorinated impurities in the starting raw material; and manufacture of the PMN substances not to exceed the maximum established impurity levels of certain fluorinated impurities.
4. Use of the PMN substances only for the confidential uses specified in the consent order, where use in consumer products that could be spray applied are prohibited.
5. Disposal of the PMN substance according to the incineration conditions specified in the consent order.
6. Comply with the release to water provisions specified in the consent order.
1. Risk notification. If as a result of the test data required, the company becomes aware that the PMN substance may present a risk of injury to human health or the environment, the company must incorporate this new information, and any information on methods for protecting against such risk into an MSDS, within 90 days.
2. Submission of certain environmental fate testing on the PMN substance prior to exceeding the confidential production volume limit as specified in the consent order of the PMN substance.
3. No use of the PMN substance in consumer spray products.
1. Use of impervious gloves to prevent dermal exposures, where there is a potential for dermal exposures.
2. Submission of certain material characterization data on P-15-59 by the time triggers specified in the consent order.
3. Manufacture, process, or use the PMN substances only in a liquid formulation.
4. Manufacture, process, and use P-15-59 only as a down converter for an optical filter for light emitting diodes used in displays.
5. Manufacture, process, and use of P-15-60 and P-15-104 only as chemical intermediates.
6. Disposal of the PMN substances only by incineration in a permitted hazardous waste incinerator.
1. Risk notification. If as a result of the test data required, the company becomes aware that the PMN substances may present a risk of injury to human health or the environment, the company must incorporate this new information, and any information on methods for protecting against such risk into an MSDS, within 90 days.
2. Manufacture of the PMN substance: (a) According to the chemical composition section of the consent order, including analyzing and reporting certain starting raw material impurities to EPA; and (b) within the maximum established limits of certain fluorinated impurities of the PMN substance as stated in the consent order.
3. Submission of certain toxicity, physical-chemical property, and environmental fate testing on the PMN substance prior to exceeding the confidential production volume limits as specified in the consent order.
1. Hazard communication. Establishment and use of a hazard communication program, including human health precautionary statements on each label and the MSDS.
2. Use of personal protective equipment including a NIOSH-certified respirator with an APF of at least 10 or compliance with a NCEL of 5 mg/m
3. Manufacture, processing or use of the PMN substance only for the use specified in the consent order.
The SNUR designates as a “significant new use” the absence of these protective measures.
1. Risk notification. If as a result of the test data required, the company becomes aware that the PMN substance may present a risk of injury to human health or the environment, the company must incorporate this new information, and any information on methods for protecting against such risk into an MSDS, within 90 days.
2. Submission of certain environmental fate testing on the PMN substance prior to exceeding the confidential production volume limit as specified in the consent order of the PMN substance.
3. No use of the PMN substance in consumer spray products.
The SNUR designates as a “significant new use” the absence of these protective measures.
During review of the PMNs submitted for the chemical substances that are subject to these SNURs, EPA concluded that for 10 of the 55 chemical substances, regulation was warranted under TSCA section 5(e), pending the development of information sufficient to make reasoned evaluations of the health or environmental effects of the chemical substances. The basis for such findings is outlined in Unit IV. Based on these findings, TSCA section 5(e) consent orders requiring the use of appropriate exposure controls were negotiated with the PMN submitters. The SNUR provisions for these chemical substances are consistent with the provisions of the TSCA section 5(e) consent orders. These SNURs are promulgated pursuant to § 721.160 (see Unit VI.).
In the other 45 cases, where the uses are not regulated under a TSCA section 5(e) consent order, EPA determined that one or more of the criteria of concern established at § 721.170 were met, as discussed in Unit IV.
EPA is issuing these SNURs for specific chemical substances which have undergone premanufacture review because the Agency wants to achieve the following objectives with regard to the significant new uses designated in this rule:
• EPA will receive notice of any person's intent to manufacture or process a listed chemical substance for the described significant new use before that activity begins.
• EPA will have an opportunity to review and evaluate data submitted in a SNUN before the notice submitter begins manufacturing or processing a listed chemical substance for the described significant new use.
• EPA will be able to regulate prospective manufacturers or processors of a listed chemical substance before the described significant new use of that chemical substance occurs, provided that regulation is warranted pursuant to TSCA sections 5(e), 5(f), 6, or 7.
• EPA will ensure that all manufacturers and processors of the same chemical substance that is subject to a TSCA section 5(e) consent order are subject to similar requirements.
Issuance of a SNUR for a chemical substance does not signify that the chemical substance is listed on the TSCA Chemical Substance Inventory (TSCA Inventory). Guidance on how to determine if a chemical substance is on the TSCA Inventory is available on the Internet at
EPA is issuing these SNURs as a direct final rule, as described in § 721.160(c)(3) and § 721.170(d)(4). In accordance with § 721.160(c)(3)(ii) and § 721.170(d)(4)(i)(B), the effective date of this rule is July 15, 2016 without further notice, unless EPA receives written adverse or critical comments, or notice of intent to submit adverse or critical comments before June 15, 2016.
If EPA receives written adverse or critical comments, or notice of intent to submit adverse or critical comments, on one or more of these SNURs before June 15, 2016, EPA will withdraw the relevant sections of this direct final rule before its effective date. EPA will then issue a proposed SNUR for the chemical substance(s) on which adverse or critical comments were received, providing a 30-day period for public comment.
This rule establishes SNURs for a number of chemical substances. Any person who submits adverse or critical comments, or notice of intent to submit adverse or critical comments, must identify the chemical substance and the new use to which it applies. EPA will not withdraw a SNUR for a chemical substance not identified in the comment.
To establish a significant new use, EPA must determine that the use is not ongoing. The chemical substances subject to this rule have undergone premanufacture review. In cases where EPA has not received a notice of commencement (NOC) and the chemical substance has not been added to the TSCA Inventory, no person may commence such activities without first submitting a PMN. Therefore, for chemical substances for which an NOC has not been submitted EPA concludes that the designated significant new uses are not ongoing.
When chemical substances identified in this rule are added to the TSCA Inventory, EPA recognizes that, before the rule is effective, other persons might engage in a use that has been identified as a significant new use. However, TSCA section 5(e) consent orders have been issued for 10 of the 55 chemical substances, and the PMN submitters are prohibited by the TSCA section 5(e) consent orders from undertaking activities which would be designated as significant new uses. The identities of 41 of the 55 chemical substances subject to this rule have been claimed as confidential and EPA has received no post-PMN
Therefore, EPA designates May 16, 2016 as the cutoff date for determining whether the new use is ongoing. Persons who begin commercial manufacture or processing of the chemical substances for a significant new use identified as of that date would have to cease any such activity upon the effective date of the final rule. To resume their activities, these persons would have to first comply with all applicable SNUR notification requirements and wait until the notice review period, including any extensions, expires. If such a person met the conditions of advance compliance under § 721.45(h), the person would be considered exempt from the requirements of the SNUR. Consult the
EPA recognizes that TSCA section 5 does not require developing any particular test data before submission of a SNUN. The two exceptions are:
1. Development of test data is required where the chemical substance subject to the SNUR is also subject to a test rule under TSCA section 4 (see TSCA section 5(b)(1)).
2. Development of test data may be necessary where the chemical substance has been listed under TSCA section 5(b)(4) (see TSCA section 5(b)(2)).
In the absence of a TSCA section 4 test rule or a TSCA section 5(b)(4) listing covering the chemical substance, persons are required only to submit test data in their possession or control and to describe any other data known to or reasonably ascertainable by them (see 40 CFR 720.50). However, upon review of PMNs and SNUNs, the Agency has the authority to require appropriate testing. In cases where EPA issued a TSCA section 5(e) consent order that requires or recommends certain testing, Unit IV. lists those tests. Unit IV. also lists recommended testing for non-5(e) SNURs. Descriptions of tests are provided for informational purposes. EPA strongly encourages persons, before performing any testing, to consult with the Agency pertaining to protocol selection. To access the OCSPP test guidelines referenced in this document electronically, please go to
In the TSCA section 5(e) consent orders for several of the chemical substances regulated under this rule, EPA has established production volume limits in view of the lack of data on the potential health and environmental risks that may be posed by the significant new uses or increased exposure to the chemical substances. These limits cannot be exceeded unless the PMN submitter first submits the results of toxicity tests that would permit a reasoned evaluation of the potential risks posed by these chemical substances. Under recent TSCA section 5(e) consent orders, each PMN submitter is required to submit each study before reaching the specified production limit. Listings of the tests specified in the TSCA section 5(e) consent orders are included in Unit IV. The SNURs contain the same production volume limits as the TSCA section 5(e) consent orders. Exceeding these production limits is defined as a significant new use. Persons who intend to exceed the production limit must notify the Agency by submitting a SNUN at least 90 days in advance of commencement of non-exempt commercial manufacture or processing.
The recommended tests specified in Unit IV. may not be the only means of addressing the potential risks of the chemical substance. However, submitting a SNUN without any test data may increase the likelihood that EPA will take action under TSCA section 5(e), particularly if satisfactory test results have not been obtained from a prior PMN or SNUN submitter. EPA recommends that potential SNUN submitters contact EPA early enough so that they will be able to conduct the appropriate tests.
SNUN submitters should be aware that EPA will be better able to evaluate
• Human exposure and environmental release that may result from the significant new use of the chemical substances.
• Potential benefits of the chemical substances.
• Information on risks posed by the chemical substances compared to risks posed by potential substitutes.
By this rule, EPA is establishing certain significant new uses which have been claimed as CBI subject to Agency confidentiality regulations at 40 CFR part 2 and 40 CFR part 720, subpart E. Absent a final determination or other disposition of the confidentiality claim under 40 CFR part 2 procedures, EPA is required to keep this information confidential. EPA promulgated a procedure to deal with the situation where a specific significant new use is CBI, at 40 CFR 721.1725(b)(1).
Under these procedures a manufacturer or processor may request EPA to determine whether a proposed use would be a significant new use under the rule. The manufacturer or processor must show that it has a
If EPA determines that the use identified in the
According to § 721.1(c), persons submitting a SNUN must comply with the same notification requirements and EPA regulatory procedures as persons submitting a PMN, including submission of test data on health and environmental effects as described in 40 CFR 720.50. SNUNs must be submitted on EPA Form No. 7710-25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in 40 CFR 720.40 and § 721.25. E-PMN software is available electronically at
EPA has evaluated the potential costs of establishing SNUN requirements for potential manufacturers and processors of the chemical substances subject to this rule. EPA's complete economic analysis is available in the docket under docket ID number EPA-HQ-OPPT-2015-0810.
This action establishes SNURs for several new chemical substances that were the subject of PMNs, or TSCA section 5(e) consent orders. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993).
According to PRA (44 U.S.C. 3501
The information collection requirements related to this action have already been approved by OMB pursuant to PRA under OMB control number 2070-0012 (EPA ICR No. 574). This action does not impose any burden requiring additional OMB approval. If an entity were to submit a SNUN to the Agency, the annual burden is estimated to average between 30 and 170 hours per response. This burden estimate includes the time needed to review instructions, search existing data sources, gather and maintain the data needed, and complete, review, and submit the required SNUN.
Send any comments about the accuracy of the burden estimate, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques, to the Director, Collection Strategies Division, Office of Environmental Information (2822T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001. Please remember to include the OMB control number in any correspondence, but do not submit any completed forms to this address.
On February 18, 2012, EPA certified pursuant to RFA section 605(b) (5 U.S.C. 601
1. A significant number of SNUNs would not be submitted by small entities in response to the SNUR.
2. The SNUR submitted by any small entity would not cost significantly more than $8,300.
This action is within the scope of the February 18, 2012 certification. Based on the Economic Analysis discussed in Unit XI. and EPA's experience promulgating SNURs (discussed in the certification), EPA believes that the following are true:
• A significant number of SNUNs would not be submitted by small entities in response to the SNUR.
• Submission of the SNUN would not cost any small entity significantly more than $8,300.
Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reasons to believe that any State, local, or Tribal government will be impacted by this action. As such, EPA has determined that this action does not impose any enforceable duty, contain any unfunded mandate, or otherwise have any effect on small governments subject to the requirements of UMRA sections 202, 203, 204, or 205 (2 U.S.C. 1501
This action will not have a substantial direct effect on 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, entitled “Federalism” (64 FR 43255, August 10, 1999).
This action does not have Tribal implications because it is not expected to have substantial direct effects on Indian Tribes. This action does not significantly nor uniquely affect the communities of Indian Tribal governments, nor does it involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), do not apply to this action.
This action is not subject to Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because this is not an economically significant regulatory action as defined by Executive Order 12866, and this action does not address environmental health or safety risks disproportionately affecting children.
This action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because this action is not expected to affect energy supply, distribution, or use and because this action is not a significant regulatory action under Executive Order 12866.
In addition, since this action does not involve any technical standards, NTTAA section 12(d) (15 U.S.C. 272 note), does not apply to this action.
This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Reporting and recordkeeping requirements.
Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping requirements.
Therefore, 40 CFR parts 9 and 721 are amended as follows:
7 U.S.C. 135
15 U.S.C. 2604, 2607, and 2625(c).
(a)
(2) The significant new uses are:
(i)
(
(
(
(
(
(B) As an alternative to the respiratory requirements listed here, a manufacturer or processor may choose to follow the New Chemical Exposure Limit (NCEL) provisions listed in the TSCA section 5(e) consent order for this substance. The NCEL is 2.4 mg/m
(ii)
(iii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii)
(iii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii)
(iii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(A) If as a result of the test data required under TSCA section 5(e) consent order for the substance, the employer becomes aware that the substance may present a risk of injury to human health or the environment, the employer must incorporate this new information, and any information on methods for protecting against such risk, into a MSDS as described in § 721.72(c) within 90 days from the time the employer becomes aware of the new information. If the substance is not being manufactured, processed, or used in the employer's workplace, the employer must add the new information to a MSDS before the substance is reintroduced into the workplace.
(B) The employer must ensure that persons who will receive the PMN substance from the employer, or who have received the PMN substance from the employer within 5 years from the date the employer becomes aware of the new information described in paragraph (a)(2)(i)(A) of this section, are provided an MSDS containing the information required under paragraph (a)(2)(i)(A) of this section within 90 days from the time the employer becomes aware of the new information.
(ii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved].
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved].
(3) The significant new uses for any use other than as chemical intermediated, additives for flotation products, or adhesion promoters for use in asphalt applications are:
(i)
(ii) [Reserved].
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved].
(3) The significant new uses for any use other than as chemical intermediated, additives for flotation products, or adhesion promoters for use in asphalt applications are:
(i)
(ii) [Reserved].
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved].
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved].
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved].
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved].
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved].
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved].
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii)
(iii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii)
(iii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii)
(iii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved].
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved].
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved].
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(A) If as a result of the test data required under TSCA section 5(e) consent order for the substance, the employer becomes aware that the substance may present a risk of injury to human health or the environment, the employer must incorporate this new information, and any information on methods for protecting against such risk, into a MSDS as described in § 721.72(c) within 90 days from the time the employer becomes aware of the new information. If the substance is not being manufactured, processed, or used in the employer's workplace, the employer must add the new information to a MSDS before the substance is reintroduced into the workplace.
(B) The employer must ensure that persons who will receive the PMN substance from the employer, or who have received the PMN substance from the employer within 5 years from the date the employer becomes aware of the new information described in paragraph (a)(2)(i)(A) of this section, are provided an MSDS containing the information required under paragraph (a)(2)(i)(A) of this section within 90 days from the time the employer becomes aware of the new information.
(ii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved].
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved].
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(A) NIOSH-certified power air- purifying respirator with a hood or helmet and with appropriate gas/vapor (acid gas, organic vapor, or substance specific) cartridges in combination with HEPA filters.
(B) NIOSH-certified continuous flow supplied-air respirator equipped with a loose fitting facepiece, hood, or helmet.
(C) NIOSH-certified negative pressure (demand) supplied-air respirator with a full facepiece.
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(A) NIOSH-certified air-purifying elastomeric half-mask respirator equipped with N100 (if oil aerosols absent), R100, or P100 filters.
(B) NIOSH-certified N100 (if oil aerosols absent), R100, or P100 filtering facepiece respirator.
(ii)
(ii) [Reserved].
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved].
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii)
(iii)
(iv)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii)
(iii)
(iv)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved].
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved].
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved].
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved].
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(A) NIOSH-certified power air-purifying respirator with a hood or helmet and with appropriate gas/vapor (acid gas, organic vapor, or substance specific) cartridges in combination with HEPA filters.
(B) NIOSH-certified continuous flow supplied-air respirator equipped with a loose fitting face piece, hood, or helmet.
(C) NIOSH-certified negative pressure (demand) supplied-air respirator with a full face piece.
As an alternative to the respiratory requirements listed here, a manufacturer or processor may choose to follow the New Chemical Exposure Limit (NCEL) provisions listed in the TSCA section 5(e) consent order for this substance. The NCEL is 5 mg/m
(ii)
(iii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(A) NIOSH-certified power air- purifying respirator with a hood or helmet and with appropriate gas/vapor (acid gas, organic vapor, or substance specific) cartridges in combination with HEPA filters.
(B) NIOSH-certified continuous flow supplied-air respirator equipped with a loose fitting facepiece, hood, or helmet.
(C) NIOSH-certified negative pressure (demand) supplied-air respirator with a full facepiece.
(ii)
(iii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved].
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(A) NIOSH-certified power air-purifying respirator with a hood or helmet and with appropriate gas/vapor (acid gas, organic vapor, or substance specific) cartridges in combination with HEPA filters.
(B) NIOSH-certified continuous flow supplied-air respirator equipped with a loose fitting facepiece, hood, or helmet.
(C) NIOSH-certified negative pressure (demand) supplied-air respirator with a full facepiece.
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved].
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved].
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved].
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii)
(iii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(A) If as a result of the test data required under TSCA section 5(e) consent order for the substance, the employer becomes aware that the substances may present a risk of injury to human health or the environment, the employer must incorporate this new information, and any information on methods for protecting against such risk, into a MSDS as described in § 721.72(c) within 90 days from the time the employer becomes aware of the new information. If the substance is not being manufactured, processed, or used in the employer's workplace, the employer must add the new information to a MSDS before the substance is reintroduced into the workplace.
(B) The employer must ensure that persons who will receive the PMN substance from the employer, or who have received the PMN substance from the employer within 5 years from the date the employer becomes aware of the new information described in paragraph (a)(2)(i)(A) of this section, are provided an MSDS containing the information required under paragraph (a)(2)(i)(A) of this section within 90 days from the time the employer becomes aware of the new information.
(ii)
(b)
(1)
(2)
(3) Determining whether a specific use is subject to this section. The provisions of § 721.1725(b)(1) apply to paragraph (a)(2)(ii) of this section.
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved].
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved].
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(A) NIOSH-certified powered air-purifying respirator with a tight-fitting half mask and HEPA filters.
(B) NIOSH-certified continuous flow supplied-air respirator equipped with a tight-fitting half mask.
(C) NIOSH-certified negative pressure (demand) supplied-air respirator equipped with a full facepiece.
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved].
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved].
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved].
(b)
(1)
(2)
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