| Page Range | 25503-25713 | |
| FR Document |
| Page and Subject | |
|---|---|
| 82 FR 25532 - Bifenthrin; Pesticide Tolerances for Emergency Exemptions | |
| 82 FR 25616 - Tribal Listening Session; Oklahoma City Probate Hearings Division Field Office | |
| 82 FR 25567 - Notification of Submission to the Secretaries of Agriculture and Health and Human Services; Pesticides; Technical Amendment to Data Requirements for Antimicrobial Pesticides | |
| 82 FR 25627 - Government In The Sunshine Act Meeting Notice | |
| 82 FR 25597 - Change in Comment Deadline for Section 232 National Security Investigation of Imports of Aluminum | |
| 82 FR 25511 - Special Local Regulations; Sector Ohio Valley Annual and Recurring Special Local Regulations Update | |
| 82 FR 25642 - Self-Regulatory Organizations; Fixed Income Clearing Corporation; Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change To Implement the Capped Contingency Liquidity Facility in the Government Securities Division Rulebook | |
| 82 FR 25602 - Procurement List; Deletions | |
| 82 FR 25602 - Procurement List; Proposed Additions and Deletions | |
| 82 FR 25648 - Proposed Collection; Comment Request | |
| 82 FR 25521 - Special Local Regulation; Motor City Mile; Detroit River; Detroit, MI | |
| 82 FR 25604 - Environmental Impact Statements; Notice of Availability | |
| 82 FR 25517 - Safety Zone; East River and Buttermilk Channel, Brooklyn, NY | |
| 82 FR 25519 - Safety Zone; Lower Mississippi River, Vidalia, LA | |
| 82 FR 25604 - Receipt of Information Under the Toxic Substances Control Act | |
| 82 FR 25529 - Pesticides; Certification of Pesticide Applicators; Delay of Effective Date | |
| 82 FR 25568 - Restoring Internet Freedom | |
| 82 FR 25618 - Notice of Inventory Completion: U.S. Department of the Interior, National Park Service, Lava Beds National Monument, Tulelake, CA | |
| 82 FR 25626 - Notice of Intent To Repatriate Cultural Items: U.S. Department of the Interior, National Park Service, Ocmulgee National Monument, Macon, GA | |
| 82 FR 25623 - Notice of Intent To Repatriate Cultural Items: U.S. Department of the Interior, National Park Service, Ocmulgee National Monument, GA | |
| 82 FR 25621 - Notice of Intent To Repatriate Cultural Items: U.S. Department of the Interior, National Park Service, Ocmulgee National Monument, Macon, GA | |
| 82 FR 25625 - Notice of Inventory Completion for Native American Human Remains and Associated Funerary Objects in the Control of the U.S. Department of the Interior, National Park Service, Ocmulgee National Monument, Macon, GA; Correction | |
| 82 FR 25622 - Notice of Inventory Completion for Native American Human Remains and Associated Funerary Objects in the Control of the U.S. Department of the Interior, National Park Service, Ocmulgee National Monument, Macon, GA; Correction | |
| 82 FR 25619 - Notice of Inventory Completion: U.S. Department of the Interior, National Park Service, Ocmulgee National Monument, Macon, GA | |
| 82 FR 25624 - Notice of Intent To Repatriate Cultural Items: Allen County-Fort Wayne Historical Society, Fort Wayne, IN | |
| 82 FR 25620 - Notice of Inventory Completion: Kansas State Historical Society, Topeka, KS | |
| 82 FR 25615 - Endangered Species; Receipt of Applications for Permit | |
| 82 FR 25654 - In the Matter of the Designation of Abu Nidal Organization, Also Known as ANO, Also Known as Black September, Also Known as the Fatah Revolutionary Council, Also Known as the Arab Revolutionary Council, Also Known as the Arab Revolutionary Brigades, Also Known as the Revolutionary Organization of Socialist Muslims as a Specially Designated Global Terrorist Pursuant Section 1(b) of Executive Order 13224, as Amended | |
| 82 FR 25654 - In the Matter of the Designation of Abu Nidal Organization, Also Known as ANO, Also Known as Black September, Also Known as the Fatah Revolutionary Council, Also Known as the Arab Revolutionary Council, Also Known as the Arab Revolutionary Brigades, Also Known as the Revolutionary Organization of Socialist Muslims Pursuant to Section 219 of the Immigration and Nationality Act, as Amended | |
| 82 FR 25616 - 30-Day Extension of Nomination Period for the Royalty Policy Committee | |
| 82 FR 25657 - Multiemployer Pension Plan Application To Reduce Benefits | |
| 82 FR 25633 - Submission for OMB Review; Comment Request for Review of a Revised Information Collection: Multi-State Plan Program External Review Case Intake Form, OPM Form 1840 | |
| 82 FR 25606 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
| 82 FR 25617 - 2017 Final Fee Rate and Fingerprint Fees | |
| 82 FR 25630 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Consumer Price Index Commodities and Services Survey | |
| 82 FR 25607 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
| 82 FR 25600 - Fisheries of the South Atlantic; Southeast Data, Assessment, and Review (SEDAR); Public Meetings | |
| 82 FR 25601 - Pacific Fishery Management Council; Public Meeting | |
| 82 FR 25608 - Agency Information Collection Activities: Submission for OMB Review; Comment Request | |
| 82 FR 25515 - Safety Zone; Detroit Symphony Orchestra Fireworks, Lake St. Clair, Grosse Pointe Shores, MI | |
| 82 FR 25654 - Notice of Railroad-Shipper Transportation Advisory Council Vacancy | |
| 82 FR 25590 - Elimination of Main Studio Rule | |
| 82 FR 25598 - Certain New Pneumatic Off-the-Road Tires From India: Notice of Correction to Antidumping Duty Order | |
| 82 FR 25632 - Notice of Information Collection | |
| 82 FR 25631 - California State Plan; New Operational Status Agreement | |
| 82 FR 25610 - Agency Information Collection Activities: Submission for OMB Review; Comment Request | |
| 82 FR 25655 - Agency Information Collection Activities: Submission for OMB Review; Joint Comment Request | |
| 82 FR 25599 - Initiation of Five-Year (Sunset) Reviews | |
| 82 FR 25535 - Jurisdictional Separations and Referral to the Federal-State Joint Board | |
| 82 FR 25597 - Foreign-Trade Zone (FTZ) 114-Peoria, Illinois; Notification of Proposed Production Activity; Bell Sports, Inc.; Subzone 114F; (Sports Equipment); Rantoul, Illinois | |
| 82 FR 25596 - Foreign-Trade Zone (FTZ) 64-Jacksonville, Florida; Notification of Proposed Production Activity; Hans-Mill Corporation; Subzone 64D; (Household Trash Cans and Plastic Storage Totes); Jacksonville, Florida | |
| 82 FR 25634 - Computer Matching and Privacy Protection Act of 1988; Report of Matching Program: RRB and State Medicare/Medicaid Agencies (Renewal) | |
| 82 FR 25630 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Extension of Currently Approved Collection #1121-0277: OJJDP National Training and Technical Assistance Center (NTTAC) Feedback Form Package | |
| 82 FR 25629 - Agency Information Collection Activities; Proposed eCollection; eComments Requested; Extension With or Without Change, of a Previously Approved Collection: Drug Questionnaire (DEA-341) | |
| 82 FR 25605 - Notice of Regular Meeting | |
| 82 FR 25603 - Agency Information Collection Activities; Comment Request; U.S. Department of Education Supplemental Information for the SF-424 Form | |
| 82 FR 25633 - National Endowment for the Arts; Proposed Collection; Comment Request | |
| 82 FR 25658 - Advisory Committee on Prosthetic and Special Disabilities; Notice of Meeting Cancellation | |
| 82 FR 25596 - Notice of Public Meeting of the Texas Advisory Committee | |
| 82 FR 25648 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing of Proposed Rule Change Relating to the First Trust Municipal High Income ETF | |
| 82 FR 25639 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change To Eliminate Requirements That Will Be Duplicative of CAT | |
| 82 FR 25635 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing of Proposed Rule Change To Eliminate Requirements That Will Be Duplicative of CAT | |
| 82 FR 25607 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding Company | |
| 82 FR 25611 - 30-Day Notice of Proposed Information Collection: Small Area Fair Market Rent Demonstration Evaluation | |
| 82 FR 25609 - Proposed Collection; 60-Day Comment Request: Chimpanzee Research Use Form (Office of the Director) | |
| 82 FR 25628 - Tool Chests and Cabinets From China and Vietnam | |
| 82 FR 25627 - Certain Digital Cameras, Software, and Components Thereof; Institution of Investigation | |
| 82 FR 25595 - Notice of Request for Approval of Information Collection | |
| 82 FR 25539 - Availability of Funds and Collection of Checks | |
| 82 FR 25509 - Special Conditions: Pilatus Aircraft Limited Models PC-12, PC-12/45, PC-12/47; Autothrust System | |
| 82 FR 25605 - Information Collection Being Reviewed by the Federal Communications Commission | |
| 82 FR 25612 - Proposed Habitat Conservation Plan for South Sacramento County, California; Joint Draft Environmental Impact Statement/Environmental Impact Report | |
| 82 FR 25568 - Determination To Approve Alternative Final Cover Request for Phase 2 of the City of Wolf Point, Montana, Landfill | |
| 82 FR 25532 - Approval of Alternative Final Cover Request for Phase 2 of the City of Wolf Point, Montana, Landfill | |
| 82 FR 25564 - Schedules of Controlled Substances: Temporary Placement of Acryl Fentanyl Into Schedule I | |
| 82 FR 25559 - Proposed Amendment VOR Federal Airways V-66, V-189, V-260, and V-266; in the Vicinity of Franklin, VA | |
| 82 FR 25561 - Proposed Amendment of Class D and Class E Airspace; Cheyenne, WY | |
| 82 FR 25563 - Proposed Establishment of Class E Airspace, Dixon, WY | |
| 82 FR 25547 - Airworthiness Directives; The Boeing Company Airplanes | |
| 82 FR 25545 - Airworthiness Directives; Bombardier, Inc., Airplanes | |
| 82 FR 25550 - Airworthiness Directives; The Boeing Company Airplanes | |
| 82 FR 25552 - Airworthiness Directives; Airbus Airplanes | |
| 82 FR 25556 - Airworthiness Directives; Bombardier, Inc., Airplanes | |
| 82 FR 25554 - Airworthiness Directives; Bombardier, Inc., Airplanes | |
| 82 FR 25523 - Air Plan Approval; Air Plan Approval and Air Quality Designation; GA; Redesignation of the Atlanta, Georgia 2008 8-Hour Ozone Nonattainment Area to Attainment | |
| 82 FR 25660 - Business Data Services in an Internet Protocol Environment; Technology Transitions; Special Access for Price Cap Local Exchange Carriers; AT&T Corporation Petition for Rulemaking To Reform Regulation of Incumbent Local Exchange Carrier Rates for Interstate Special Access Services | |
| 82 FR 25658 - Departmental Offices; Renewal of the Treasury Borrowing Advisory Committee of the Securities Industry and Financial Markets Association | |
| 82 FR 25542 - Airworthiness Directives; Airbus Airplanes | |
| 82 FR 25503 - Rules of Procedure Governing Cases Before the Office of Hearings and Appeals |
Office of Advocacy and Outreach
Foreign-Trade Zones Board
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Centers for Medicare & Medicaid Services
National Institutes of Health
Substance Abuse and Mental Health Services Administration
Coast Guard
Fish and Wildlife Service
Hearings and Appeals Office, Interior Department
National Indian Gaming Commission
National Park Service
Drug Enforcement Administration
Occupational Safety and Health Administration
National Endowment for the Arts
Federal Aviation Administration
Comptroller of the Currency
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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U.S. Small Business Administration.
Final rule.
The U.S. Small Business Administration (SBA) is amending the rules of practice of its Office of Hearings and Appeals (OHA) to implement section 869 of the National Defense Authorization Act for Fiscal Year 2016 and section 1833 of the National Defense Authorization Act for Fiscal Year 2017. This legislation authorizes OHA to decide Petitions for Reconsideration of Size Standards (Size Standard Petitions or Petitions). This rule also revises the rules of practice for OHA appeals of agency employee disputes.
Linda (Lin) DiGiandomenico, Attorney Advisor, at (202) 401-8206 or
This rule amends the rules of practice for the SBA's Office of Hearings and Appeals (OHA) in order to implement section 869(b) of the National Defense Authorization Act for Fiscal Year 2016, Public Law 114-92, 129 Stat. 726, November 25, 2015 (NDAA 2016). This legislation added new paragraph 3(a)(9) to the Small Business Act, 15 U.S.C. 632(a)(9), to authorize OHA to hear and decide Petitions for Reconsideration of Size Standards (Size Standard Petitions or Petitions). A Size Standard Petition may be filed at OHA after SBA publishes a final rule in the
This rule also revises the rules of practice for OHA appeals of agency employee disputes in subpart H of part 134, to comport with SBA's revisions of its Standard Operating Procedure (SOP) 37 71, The Employee Dispute Resolution Process.
On October 7, 2016, SBA published in the
On December 23, 2016, President Obama signed into law the National Defense Authorization Act for Fiscal Year 2017, Public Law 114-328 (NDAA 2017). Section 1833(b) of NDAA 2017 added new subparagraph 3(a)(9)(E) to the Small Business Act, 15 U.S.C. 632(a)(9)(E). This provision authorizes OHA to accept Size Standard Petitions after SBA issues rules or guidance for processing these cases; SBA is issuing those procedural rules today, in this final rule. Until this final rule, SBA had no specific rules or guidance for processing Size Standard Petitions, and thus OHA dismissed without prejudice the Size Standard Petitions that were filed. This new statutory provision also provides that Size Standard Petitions pertaining to size standards revised, modified, or established in a final rule published during the interval between November 25, 2015, and the effective date of this final rule will be considered timely if filed within 30 calendar days of that effective date.
SBA proposed adding new paragraphs (e), (f), and (g) to § 121.102 to include Size Standard Petitions as part of SBA's process for establishing size standards. New paragraph (e) requires SBA to include instructions for filing a Size Standard Petition in any final rule revising, modifying, or establishing a size standard. There were no comments on it and SBA is adopting it exactly as proposed.
New paragraph (f) requires SBA to publish a notice in the
In response, SBA notes that OHA has no online tracking system as yet; however, systems already in place will enable the public to track Size Standard Petition cases. First, notices for
Proposed new paragraph (g) would require SBA to publish a document in the
SBA proposed to revise four sections contained in subparts A and B of part 134. These are §§ 134.101 (Definitions) and 134.102 (Jurisdiction of OHA) in subpart A; and §§ 134.201 (Scope of the rules in this subpart B) and 134.227 (Finality of decisions) in subpart B. SBA received no comments on any of these sections. SBA added a definition to clarify that Step One and Step Two refer to the Employee Dispute Resolution Process described in SBA Standard Operating Procedure, 37 71, as denoted in § 134.801(a). All other revisions are exactly as proposed.
SBA proposed to revise §§ 134.801, 134.803, 134.804, 134.805, 134.807, 134.808, and 134.809 of subpart H. All of these sections concern OHA appeals of SBA employee disputes. SBA received no comments regarding the proposed revision of any of these sections, and is adopting these revisions exactly as proposed, with three minor changes. In § 134.805(d), the words “at his or her home address” are being removed as unnecessary since service is by email. In § 134.807(a), the words “it wishes” are being replaced with “SBA wishes” for clarity. In § 134.809(a), an official's title is being corrected.
SBA proposed to add subpart I setting forth the rules of practice before OHA for Petitions for Reconsideration of Size Standards. SBA received no comments regarding the proposed new §§ 134.901 (Scope of the rules in this subpart I), 134.905 (Notice and order), 134.907 (Filing and service), 134.908 (The administrative record), 134.909 (Standard of review), 134.911 (Response to the Size Standard Petition), 134.912 (Discovery and oral hearings), 134.913 (New evidence), 134.914 (The decision), 134.915 (Remand), 134.917 (Equal Access to Justice Act), and 134.918 (Judicial review). SBA is adopting these new sections as proposed, with one minor change to the first sentence in § 134.914, where the second “the” is being deleted.
Proposed § 134.902 provides that any person “adversely affected” by a new, revised, or modified size standard has standing to file a Petition within 30 days from the date of publication of the final rule promulgating that size standard. Paragraph (b) provides that a business entity is not “adversely affected” unless it conducts business in the industry associated with the size standard being challenged, and it either qualified as a small business concern before the size standard was revised or modified, or it would qualify as a small business concern under the size standard as revised or modified.
SBA received two comments. One comment supported the proposed rule because it precludes businesses that are large under both the existing and the modified or revised size standard from filing Size Standard Petitions. The second comment opposed the proposed rule for that same reason, asserting that the statute does not limit the availability of an OHA review only to small or would-be small businesses, but was meant to include all adversely-affected businesses, including large businesses. The second commenter believes that it is adversely affected by a change in a size standard that favors its competitors, and asserts that concerns also should be able to request review on SBA's decision in a rulemaking not to modify or revise a size standard, but to keep it the same.
SBA disagrees with the second comment. The statute provides that SBA's OHA, in deciding Size Standard Petitions, “shall use the same process it uses to decide challenges to the size of a small business concern.” Small Business Act section 3(a)(9)(C), 15 U.S.C. 632(a)(9)(C). A challenge to a concern's small business size status, also called a size protest, occurs when a competitive procurement or order has been restricted to or reserved for small businesses or a particular group of small businesses. The size protest, filed by either a disappointed offeror or the Government, is initially decided by an SBA Area Office in a size determination which may be appealed to OHA. At both the protest (Area Office) and the appeal (OHA) stages, the process of deciding challenges to a concern's small business size status requires a non-Government person bringing the challenge to have standing as a small business offeror remaining in the competition and still eligible for award. See 13 CFR 121.1001(a)(1) (“Any offeror whom the contracting officer has not eliminated for reasons unrelated to size”), 13 CFR 134.302(a) (“Appeals from size determinations . . . may be filed with OHA by the following, as applicable: Any person adversely affected by a size determination . . . .”);
Section 134.903(a) reiterates the statutory 30-day deadline for filing a Petition, requires dismissal of an untimely Petition, and clarifies that the days counted are calendar days. Section 134.903(b) requires dismissal as premature a Petition filed in response to a proposed rule. The retention of an existing size standard is not considered to be the revision, modification, or establishment of a size standard and is not subject to these procedures, and so § 134.903(c) requires OHA to dismiss a petition challenging the retention of an existing size standard.
There were two comments. One comment expressed support for the 30-day deadline and summary dismissal provisions. The second comment requested a process whereby one may comment on and request a review of a size standard change at any time, not just within 30 days of the change, so long as the change has produced a negative financial impact on businesses. SBA notes, with respect to the second comment, that the 30-day deadline for filing a Petition is statutory and thus SBA may not change it. As for opportunities to comment on size standards, there is a public comment period each time SBA publishes a proposed rule, and during this public comment period any person may submit a comment for SBA to consider and address in formulating the final rule. During the public comment period, commenters need not demonstrate standing, and may comment on any size standard being proposed, regardless of whether the proposed rule would modify or revise that size standard. Outside of public comment periods, persons may address their concerns about any size standard at any time to SBA's Size Standards Office pursuant to § 121.102(d). SBA is adopting new § 134.903 exactly as proposed.
Section 134.904 sets out the requirements for a Size Standard Petition. Among these, the Petition must include any public comments the Petitioner had submitted during the rulemaking on the challenged size standard, and the Petitioner also must demonstrate standing for each challenged size standard. One commenter suggested an additional requirement, that the Petitioner must actually have submitted a public
Section 134.906 permits interested persons with a direct stake in the outcome of the case to intervene and obtain a copy of the Petition, under a protective order if necessary. One commenter requested SBA to change this provision to require potential intervenors to meet the same standing requirement as petitioners, in order to prevent large businesses from having a “back door” into the size standard review process. SBA disagrees with this comment. The proposed rule requires only “a direct stake in the outcome” and the OHA Judge will make that determination on a case-by-case basis. SBA is adopting new § 134.906 exactly as proposed.
Section 134.910 requires OHA to dismiss a Petition under four scenarios. One commenter stated support for dismissal under those scenarios. SBA is adopting new § 134.910 exactly as proposed.
Section 134.916 sets out the effects of OHA's decision in a Size Standard Petition case. Paragraph (a) provides that if the challenged size standard is a modified or revised size standard, and OHA grants the Size Standard Petition, SBA will rescind the challenged size standard and restore the prior size standard, which will remain in effect until SBA issues a new size standard. If the challenged size standard is newly established, and OHA grants the Size Standard Petition, the challenged size standard remains in effect. Paragraph (b) provides that if OHA denies a Size Standard Petition, the challenged size standard remains in effect.
One commenter requested clarification of the effect that OHA's grant of a Size Standard Petition would have on procurement actions. The commenter posed the hypothetical of a concern that is a small business under the revised size standard but is not a small business under the prior size standard. The concern self-certifies as small under the revised size standard with its initial offer including price. Later, OHA grants a Size Standard Petition and SBA rescinds the revised size standard, restoring the prior size standard, under which that concern is not a small business. Would contract award to that concern as a small business be valid even though the prior size standard has been restored?
SBA responds to this comment by stating that the contract award to that concern as a small business is valid despite SBA's rescission of the revised, higher size standard. This result is consistent with the general rule, stated in § 121.404(a), that a concern's small business eligibility is determined on the self-certification date and is based on the size standard in effect at that time. Thus, the procuring agency may count the award toward its small business goals. On the other hand, if the procuring agency amends the solicitation and requires new self-certifications, those self-certifications will be based on the size standard in effect on the day they are made. SBA is revising the text of § 134.916(a) to clarify the intended effect of an OHA decision granting a Size Standard Petition in light of this public comment, and also to provide that, on remand, SBA may take any appropriate action to rescind the challenged revised or modified size standard.
OMB has determined that this rule does not constitute a “significant regulatory action” under Executive Order 12866. This rule is also not a major rule under the Congressional Review Act, 5 U.S.C. 800. This rule establishes the procedures for Petitions for Reconsideration of Size Standards at SBA's Office of Hearings and Appeals (OHA) and revises procedural rules at OHA for agency employee disputes. As such, the rule has no effect on the amount or dollar value of any Federal contract requirements or of any financial assistance provided through SBA. Therefore, the rule is not likely to have an annual economic effect of $100 million or more, result in a major increase in costs or prices, or have a significant adverse effect on competition or the United States economy. In addition, this rule does not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency, materially alter the budgetary impact of entitlements, grants, user fees, loan programs or the rights and obligations of such recipients, nor raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
This action meets applicable standards set forth in section 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. The action does not have retroactive or preemptive effect.
For the purposes of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, SBA has determined that this final rule will not have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. Therefore, SBA determines that this final rule does not require consultations with tribal officials or warrant the publication of a Tribal Summary Impact Statement.
This rule does not have Federalism implications as defined in Executive Order 13132. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in the Executive Order. As such it does not warrant the preparation of a Federalism Assessment.
The SBA has determined that this rule does not impose additional reporting or recordkeeping requirements under the Paperwork Reduction Act, 44 U.S.C. Chapter 35.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. Small entities include small businesses, small not-for-profit organizations, and small governmental jurisdictions. Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities.
This final rule revises the regulations governing cases before SBA's Office of Hearings and Appeals (OHA), SBA's administrative tribunal. These
The Small Business Size Regulations provide that persons requesting to change existing size standards or to establish new size standards may address these requests to SBA's Office of Size Standards. 13 CFR 121.102(d). Over the past five years, fewer than ten letters concerning size standards have been submitted per year, supporting SBA's belief that this final rule will not affect a substantial number of small entities. Further, a business adversely affected by a final rule revising a size standard has always had (and would continue to have) the option of judicial review in Federal court, yet the SBA knows of no such lawsuit ever having been filed.
In addition to establishing rules of practice for Size Standard Petitions, this rule revises OHA's rules of practice for SBA Employee Disputes. This rulemaking is procedural, would impose no significant additional requirements on small entities, and would have minimal, if any, effect on small entities.
Therefore, the Administrator of SBA certifies under 5 U.S.C. 605(b) that this final rule does not have a significant economic impact on a substantial number of small entities.
Administrative practice and procedure, Government procurement, Government property, Grant programs—business, Individuals with disabilities, Loan programs—business, Small businesses.
Administrative practice and procedure, Claims, Equal access to justice, Lawyers, Organization and functions (government agencies).
For the reasons stated in the preamble, the U.S. Small Business Administration amends 13 CFR parts 121 and 134 as follows:
15 U.S.C. 632, 634(b)(6), 662, and 694a(9).
(e) When SBA publishes a final rule in the
(f) Within 14 calendar days after a petition for reconsideration of a size standard is filed, unless it appears OHA will dismiss the petition for reconsideration, SBA will publish a document in the
(g) Where OHA grants a petition for reconsideration of a size standard that had been revised or modified, OHA will remand the case to SBA's Office of Size Standards for further action in accordance with § 134.916(a) of this chapter.
5 U.S.C. 504; 15 U.S.C. 632, 634(b)(6), 634(i), 637(a), 648(l), 656(i), and 687(c); E.O. 12549, 51 FR 6370, 3 CFR, 1986 Comp., p. 189.
(r) Appeals from SBA Employee Dispute Resolution Process cases (Employee Disputes) under Standard Operating Procedure (SOP) 37 71 (available at
(t) Petitions for reconsideration of revised, modified, or established size standards pursuant to 15 U.S.C. 632(a)(9).
The addition reads as follows:
(b) * * *
(7) For Size Standard Petitions, in subpart I of this part (§§ 134.901
The addition reads as follows:
(b) * * *
(4) Size Standard Petitions; and
(a) An appeal from a Step Two decision must be commenced by filing an appeal petition within 15 calendar days from the date the Employee receives the Step Two decision.
(b) If the Step Two Official does not issue a decision within 15 calendar days of receiving the SBA Dispute Form from the Employee, the Employee must file his/her appeal petition at OHA no later than 15 calendar days from the date the Step Two decision was due.
The revisions read as follows:
(a) * * *
(1) The completed SBA Dispute Form;
(2) A copy of the Step One and Step Two decisions, if any;
(3) Statement of why the Step Two decision (or Step One decision, if no Step Two decision was received), is alleged to be in error;
(b) * * *
(1) The Step Two Official;
(a) If the Chief Human Capital Officer, General Counsel for SBA, or Counsel to the Inspector General (IG) believes OHA's decision is contrary to law, rule, regulation, or SBA policy, that official may file a Petition for Review (PFR) of the decision with the Deputy Administrator (or IG for disputes by OIG employees) for a final SBA Decision. Only the Chief Human Capital Officer, General Counsel, or Counsel to the IG may file a PFR of an OHA decision; the Employee may not.
(b) To file a PFR, the official must request a complete copy of the dispute file from the Assistant Administrator for OHA (AA/OHA) within five calendar days of receiving the decision. The AA/OHA will provide a copy of the dispute file to the official, the Employee, and the Employee's representative within five calendar days of the official's request. The official's PFR is due no later than 15 calendar days from the date the official receives the dispute file. The PFR must specify the objections to OHA's decision.
(a) The rules of practice in this subpart apply to Size Standard Petitions.
(b) Except where inconsistent with this subpart, the provisions of subparts A and B of this part apply to Size Standard Petitions listed in paragraph (a) of this section.
(a) A Size Standard Petition may be filed with OHA by any person that is adversely affected by the Administrator's decision to revise, modify, or establish a size standard.
(b) A business entity is not adversely affected unless it conducts business in the industry associated with the size standard that is being challenged and:
(1) The business entity qualified as a small business concern before the size standard was revised or modified; or
(2) The business entity qualifies as a small business under the size standard as revised or modified.
(a) A Size Standard Petition must be filed at OHA not later than 30 calendar days after the publication in the
(b) A Size Standard Petition filed in response to a notice of proposed rulemaking is premature and will be dismissed.
(c) A Size Standard Petition challenging a size standard that has not been revised, modified, or established through publication in the
(a)
(1) A copy of the final rule published in the
(2) A full and specific statement as to which size standard(s) in the final rule the Petitioner is challenging and why the process that was used to revise, modify, or establish each challenged size standard is alleged to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law, together with argument supporting such allegation;
(3) A copy of any comments the Petitioner submitted in response to the proposed notice of rulemaking that pertained to the size standard(s) in question, or a statement that no such comments were submitted; and
(4) The name, mailing address, telephone number, facsimile number, email address, and signature of the Petitioner or its attorney.
(b)
(c)
(d)
(1) SBA's Office of Size Standards, U.S. Small Business Administration, 409 3rd Street SW., Washington, DC 20416; facsimile number (202) 205-6390; or
(2) SBA's Office of General Counsel, Associate General Counsel for Procurement Law, U.S. Small Business Administration, 409 3rd Street SW., Washington, DC 20416; facsimile number (202) 205-6873; or
(e)
Upon receipt of a Size Standard Petition, OHA will assign the matter to a Judge in accordance with § 134.218. Unless it appears that the Size Standard Petition will be dismissed under § 134.910, the presiding Judge will issue a notice and order initiating the publication required by § 121.102(f) of this chapter; specifying a date for the Office of Size Standards to transmit to OHA a copy of the administrative record supporting the revision, modification, or establishment of the challenged size standard(s); and establishing a date for the close of record. Typically, the administrative record will be due seven calendar days after issuance of the notice and order, and the record will close 45 calendar days from the date of OHA's receipt of the Size Standard Petition.
In accordance with § 134.210(b), interested persons with a direct stake in the outcome of the case may contact OHA to intervene in the proceeding and obtain a copy of the Size Standard Petition. In the event that the Size Standard Petition contains confidential information and the intervener is not a governmental entity, the Judge may require that the intervener's attorney be admitted to a protective order before obtaining a complete copy of the Size Standard Petition.
The provisions of § 134.204 apply to the filing and service of all pleadings and other submissions permitted under this subpart unless otherwise indicated in this subpart.
The Office of Size Standards will transmit to OHA a copy of the documentation and analysis supporting the revision, modification, or establishment of the challenged size standard by the date specified in the notice and order. The Chief, Office of Size Standards, will certify and authenticate that the administrative record, to the best of his or her knowledge, is complete and correct. The Petitioner and any interveners may, upon request, review the administrative record submitted to OHA. The administrative record will include the documentation and analysis supporting the revision, modification, or establishment of the challenged size standard.
The standard of review for deciding a Size Standard Petition is whether the process employed by the Administrator to revise, modify, or establish the size standard was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. OHA will not adjudicate arguments that a different size standard should have been selected. The Petitioner bears the burden of proof.
The Judge must dismiss the Size Standard Petition if:
(a) The Size Standard Petition does not, on its face, allege specific facts that if proven to be true, warrant remand of the size standard;
(b) The Petitioner is not adversely affected by the final rule revising, modifying, or establishing a size standard;
(c) The Size Standard Petition is untimely or premature pursuant to § 134.903 or is not otherwise filed in accordance with the requirements in subparts A and B of this part; or
(d) The matter has been decided or is the subject of adjudication before a court of competent jurisdiction over such matters.
Although not required, any intervener may file and serve a response supporting or opposing the Size Standard Petition at any time prior to the close of record. SBA may intervene as of right at any time in any case until 15 days after the close of record, or the issuance of a decision, whichever comes first. The response must present argument.
Discovery will not be permitted. Oral hearings will not be held unless the Judge determines that the dispute cannot be resolved except by the taking of live testimony and the confrontation of witnesses.
Disputes under this subpart ordinarily will be decided based on the pleadings and the administrative record. The Judge may admit additional evidence upon a motion establishing good cause.
The Judge will issue his or her decision within 45 calendar days after close of record, as practicable. The Judge's decision is final and will not be reconsidered.
If OHA grants a Size Standard Petition, OHA will remand the matter to the Office of Size Standards for further analysis. Once remanded, OHA no
(a) If OHA grants a Size Standard Petition of a modified or revised size standard, SBA will take appropriate action to rescind that size standard and to restore the one that was in effect before the one challenged in the Size Standard Petition. The restored size standard will remain in effect until SBA issues a new size standard. The OHA decision does not affect the validity of a concern's size representation made under the challenged size standard prior to the effective date of the SBA action rescinding that challenged size standard. Such a concern remains eligible for award as a small business, and the procuring agency may count the award towards its small business goals. If the procuring agency amends the solicitation and requires new self-certifications, those self-certifications will be based on the size standard in effect on the day those self-certifications are made. If the size standard in question was newly established, the challenged size standard remains in effect while SBA conducts its further analysis on remand.
(b) If OHA denies a Size Standard Petition, the size standard remains as published in the Code of Federal Regulations.
A prevailing Petitioner is not entitled to recover attorney's fees. Size Standard Petitions are not proceedings that are required to be conducted by an Administrative Law Judge under § 134.603.
The publication of a final rule in the
Federal Aviation Administration (FAA), DOT.
Final special condition.
This special condition is for the Pilatus Aircraft Limited PC-12, PC-12/45, and PC-12/47 airplanes. These airplanes, as modified by Innovative Solutions & Support, Inc., will have a novel or unusual design feature associated with the use of an autothrust system. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. This special condition contains the additional safety standards the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
This special condition is effective June 2, 2017 and is applicable beginning May 24, 2017.
Jeff Pretz, Federal Aviation Administration, Small Airplane Directorate, Aircraft Certification Service, 901 Locust, Room 301, Kansas City, MO 64106; telephone (816) 329-3239; facsimile (816) 329-4090.
On April 4, 2016, Innovative Solutions & Support applied for a supplemental type certificate for installation of an autothrust system in the PC-12, PC-12/45, and PC-12/47 airplanes. The autothrust system is capable of setting forward thrust based on operation in either a pilot selectable torque or airspeed mode. Operation is limited to use only when above 400 feet above ground level (AGL) after takeoff, and requires disengagement at decision height (DH) or minimum decision altitude (MDA) on approach. The PC-12, PC-12/45, and PC-12/47 airplanes are nine-passenger, two-crewmember, single-engine turbo-propeller airplanes with a 30,000-foot service ceiling and a maximum takeoff weight of 9,039 to 10,450 pounds—depending on airplane model. These airplanes are powered by a single Pratt & Whitney PT6A-67 engine.
The Innovative Solutions & Support, Inc., modification installs an autothrust system in the PC-12, PC-12/45, and PC-12/47 airplanes to reduce pilot workload. The autothrust system is useable in all phases of flight from 400 feet AGL after takeoff down to the decision height on approach. The system includes a torque and airspeed mode along with monitors to prevent the system from exceeding critical engine or airspeed limits. A stepper motor provides throttle movement by acting through a linear actuator, which acts as a link between the stepper motor and throttle. The pilot can override the linear actuator by moving the throttle, which automatically disengages the autothrust system upon disagreement in the expected throttle position versus the actual position.
Under the provisions of 14 CFR 21.101, Innovative Solutions & Support must show that the PC-12, PC-12/45, and PC-12/47 airplanes, as changed, continues to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A78EU. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in A78EU are as follows: 14 CFR part 23, amendments 23-1 through 23-42.
If the Administrator finds the applicable airworthiness regulations (
In addition to the applicable airworthiness regulations and special conditions, the PC-12, PC-12/45, and PC-12/47 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 14 CFR 11.19, in accordance with § 11.38 and they become part of the type certification basis under § 21.101. Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the
The PC-12, PC-12/45, and PC-12/47 airplanes will incorporate the following novel or unusual design feature:
As discussed in the summary section, this modification makes use of an autothrust system, which is a novel design for this type of airplane. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. Mandating additional requirements—developed in part—by adapting relevant portions of 14 CFR 25.1329,
The FAA has previously issued this proposed special condition to part 23 turbojet airplanes, but not for turbo-propeller airplanes. The PC-12, PC-12/45, and PC-12/47 airplanes are unique with respect to other turbo-propeller designs in that the basic design does not include a separate propeller control lever. Future use of these special conditions on other turbo-propeller designs will require evaluation of the engine and propeller control system to determine their appropriateness.
Notice of proposed special conditions No. 23-17-01-SC for the Pilatus Aircraft Limited PC-12, PC-12/45, and PC-12/47 airplanes was published in the
As discussed above, this special condition is applicable to the PC-12, PC-12/45, and PC-12/47 airplanes. Should Innovative Solutions & Support, Ltd. apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A78EU to incorporate the same novel or unusual design feature, the FAA would apply these special conditions to that model as well.
Under standard practice, the effective date of final special conditions would be 30 days after the date of publication in the
This action affects only certain novel or unusual design features on PC-12, PC-12/45, and PC-12/47 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.
Aircraft, Aviation safety, Signs and symbols.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(f), 106(g); 40113 and 44701; 14 CFR 21.16 and 21.101; and 14 CFR 11.38 and 11.19.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special condition is issued as part of the type certification basis for Pilatus Aircraft Ltd., PC-12, PC-12/45, and PC-12/47 airplanes modified by Innovative Solutions & Support, Inc.
In addition to the requirements of §§ 23.143, 23.1309, and 23.1329, the following apply:
(a) Quick disengagement controls for the autothrust function must be provided for each pilot. The autothrust quick disengagement controls must be located on the thrust control levers. Quick disengagement controls must be readily accessible to each pilot while operating the thrust control levers.
(b) The effects of a failure of the system to disengage the autothrust function when manually commanded by the pilot must be assessed in accordance with the requirements of § 23.1309.
(c) Engagement or switching of the flight guidance system, a mode, or a sensor may not cause the autothrust system to affect a transient response that alters the airplane's flight path any greater than a minor transient, as defined in paragraph (l)(1) of this special condition.
(d) Under normal conditions, the disengagement of any automatic control function of a flight guidance system may not cause a transient response of the airplane's flight path any greater than a minor transient.
(e) Under rare normal and non-normal conditions, disengagement of any automatic control function of a flight guidance system may not result in a transient any greater than a significant transient, as defined in paragraph (l)(2) of this special condition.
(f) The function and direction of motion of each command reference control, such as heading select or vertical speed, must be plainly indicated on—or adjacent to—each control if necessary to prevent inappropriate use or confusion.
(g) Under any condition of flight appropriate to its use, the flight guidance system may not produce hazardous loads on the airplane, nor create hazardous deviations in the flight path. This applies to both fault-free operation and in the event of a malfunction, and assumes that the pilot begins corrective action within a reasonable time.
(h) When the flight guidance system is in use, a means must be provided to avoid excursions beyond an acceptable margin from the speed range of the normal flight envelope. If the airplane experiences an excursion outside this range, a means must be provided to prevent the flight guidance system from providing guidance or control to an unsafe speed.
(i) The flight guidance system functions, controls, indications, and alerts must be designed to minimize flightcrew errors and confusion concerning the behavior and operation of the flight guidance system. A means must be provided to indicate the current mode of operation, including any armed modes, transitions, and reversions. Selector switch position is not an acceptable means of indication. The controls and indications must be grouped and presented in a logical and consistent manner. The indications must be visible to each pilot under all expected lighting conditions.
(j) Following disengagement of the autothrust function, a caution (visual and auditory) must be provided to each pilot.
(k) During autothrust operation, it must be possible for the flightcrew to move the thrust levers without requiring excessive force. The autothrust may not create a potential hazard when the flightcrew applies an override force to the thrust levers.
(l) For purposes of this section, a transient is a disturbance in the control or flight path of the airplane that is not
(1) A minor transient would not significantly reduce safety margins and would involve flightcrew actions that are well within their capabilities. A minor transient may involve a slight increase in flightcrew workload or some physical discomfort to passengers or cabin crew.
(2) A significant transient may lead to a significant reduction in safety margins, an increase in flightcrew workload, discomfort to the flightcrew, or physical distress to the passengers or cabin crew, possibly including non-fatal injuries. Significant transients do not require—in order to remain within or recover to the normal flight envelope—any of the following:
(i) Exceptional piloting skill, alertness, or strength.
(ii) Forces applied by the pilot which are greater than those specified in § 23.143(c).
(iii) Accelerations or attitudes in the airplane that might result in further hazard to secured or non-secured occupants.
Coast Guard, DHS.
Final rule.
The Coast Guard is amending and updating its special local regulations relating to recurring marine parades, regattas, and other events that take place in the Coast Guard Sector Ohio Valley area of responsibility (AOR). This rule informs the public of regularly scheduled events that require additional safety measures through the establishing of a special local regulation. Through this rulemaking the current list of recurring special local regulations is updated with revisions, additional events, and removal of events that no longer take place in Sector Ohio Valley's AOR. When these special local regulations are enforced, certain restrictions are placed on marine traffic in specified areas.
This rule is effective June 2, 2017.
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 Petty Officer James Robinson, Sector Ohio Valley, U.S. Coast Guard; telephone (502) 779-5347, email
The Captain of the Port (COTP) Ohio Valley is establishing, amending, and updating its current list of recurring special local regulations codified under 33 CFR 100.801 in Table no. 1, for the COTP Ohio Valley zone.
On March 27, 2017, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Sector Ohio Valley Annual and Recurring Special Local Regulations Update (82 FR 15174). During the comment period that ended April 26, 2017, no comments were received.
We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the
The Coast Guard's authority for establishing a special local regulation is contained at 33 U.S.C. 1233. The Coast Guard is amending and updating the special local regulations under 33 CFR part 100 to include the most up to date list of recurring special local regulations for events held on or around navigable waters within the Sector Ohio Valley AOR. These events include marine parades, boat races, swim events, and others. The current list under 33 CFR 100.801 requires amending to provide new information on existing special local regulations, include new special local regulations expected to recur annually or biannually, and to remove special local regulations that are no longer required. Issuing individual regulations for each new special local regulation, amendment, or removal of an existing special local regulation creates unnecessary administrative costs and burdens. This rulemaking reduces administrative overhead and provides the public with notice through publication in the
No comments were received. No changes to the proposed rule have been made.
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.
The Coast Guard expects the economic impact of this rule to be minimal, and therefore a full regulatory evaluation is unnecessary. This rule establishes special local regulations limiting access to certain areas under 33 CFR part 100 within Sector Ohio Valley's AOR. The effect of this rulemaking will not be significant because these special local regulations are limited in scope and duration. Additionally, the public is given advance notification through local forms of notice, the
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received 0 comments from the Small Business Administration on this rulemaking. 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.
This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit the special local regulation areas during periods of enforcement. The special local regulations will not have a significant economic impact on a substantial number of small entities because they are limited in scope and will be in effect for short periods of time. Before the enforcement period, the Coast Guard COTP will issue maritime advisories widely available to waterway users. Deviation from the special local regulations established through this rulemaking may be requested from the appropriate COTP and requests will be considered on a case-by-case basis.
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 the establishment of special local regulations related to marine event permits for marine parades, regattas, and other marine events. It is categorically excluded from further review under paragraph 34(h) of Figure 2-1 of the Commandant Instruction. A Record of Environmental Consideration (REC) supporting this determination is available in the docket where indicated in the
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Marine safety, Navigation (water), Reporting and recordkeeping requirements, and Waterways.
For the reasons discussed in the preamble, the U.S. Coast Guard amends 33 CFR part 100 as follows:
33 U.S.C. 1233.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for navigable waters within a 600-foot radius of a portion of Lake St. Clair, Grosse Point, MI. This zone is necessary to protect spectators and vessels from potential hazards associated with the Detroit Symphony Orchestra Fireworks. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Detroit.
This temporary final rule is effective from 10:15 p.m. on July 7, 2017, through 10:45 p.m. on July 8, 2017.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this temporary rule, call or email Tracy Girard, Prevention Department, Sector Detroit, Coast Guard; telephone 313-568-9564, or 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 for good cause finds that 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 doing so would be impracticable. The Coast Guard did not receive the final details of this fireworks display until there was insufficient time remaining before the event to publish an NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be impracticable because it would inhibit the Coast Guard's ability to protect participants, mariners and vessels from the hazards associated with this event.
The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Detroit (COTP) has determined that potential hazard associated with fireworks from 10:15 p.m. to 10:45 p.m. on July 7 and from 10:15 p.m. to 10:45 p.m. on July 8, 2017 will be a safety concern to anyone within a 600-foot radius of the launch site. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the fireworks are being displayed.
This rule establishes a safety zone from 10:15 p.m. through 10:45 p.m. on July 7 and July 8, 2017. The safety zone will encompass all U.S. navigable waters of Lake St. Clair, Grosse Point Shores, MI, within a 600-foot radius of position 42°27.25′ N., 082°51.8′ W. (NAD 83). 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 these statutes and executive orders.
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.
As this rule is not a significant regulatory action, this rule is exempt from the requirements of Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).
This regulatory action determination is based on the size, location, duration, and time-of-year of the safety zone. Vessel traffic will be able to safely transit around this safety zone which will impact a small designated area of Lake St. Clair from 10:15 p.m. to 10:45 p.m. on July 7 and from 10:15 p.m. to 10:45 p.m. on July 8, 2017. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission to enter the zone.
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 less than thirty minutes that will prohibit entry within 600-feet firework launch site. It is categorically excluded under section 2.B.2, figure 2-1, paragraph 34(g) of the Commandant Instruction. A Record of Environmental Consideration (REC) supporting this determination is available in the docket where indicated in the
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) The safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Detroit or his on-scene representative.
(3) The “on-scene representative” of the Captain of the Port Detroit is any Coast Guard commissioned, warrant or petty officer or a Federal, State, or local law enforcement officer designated by or assisting the Captain of the Port Detroit to act on his behalf.
(4) Vessel operators shall contact the Captain of the Port Detroit or his on-scene representative to obtain permission to enter or operate within the safety zone. The Captain of the Port Detroit or his on-scene representative may be contacted via VHF Channel 16 or at 313—568-9464. Vessel operators given permission to enter or operate in the regulated area must comply with all directions given to them by the Captain of the Port Detroit or his on-scene representative.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for navigable waters of the Brooklyn half of the East River, south of Dupont Street in Greenpoint, Brooklyn and East 25th Street in Manhattan, and Buttermilk Channel, north of the Buttermilk Channel Entrance Lighted Gong Buoy 1 (LLNR 36985). The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards associated with a dielectric oil spill response and shoreside repair operations. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port New York.
This rule is effective without actual notice from June 2, 2017 through 5 p.m. on July 14, 2017. For the purposes of enforcement, actual notice will be used from 4 p.m. on May 8, 2017 June 2, 2017.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Mr. Jeff Yunker, Sector New York Waterways Management Division; telephone 718-354-4195, 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 for good cause finds that 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 it would be impracticable and contrary to the public interest to delay this rule to let a comment period run. It would be impracticable and contrary to the public interest because waiting for a comment period to run would inhibit the Coast Guard's response to protecting the environment and public from the dangers associated with a maritime pollution response and shoreside repair efforts.
We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The COTP has determined that the emergency pollution response activities pose hazards to the boating public within the Brooklyn, NY half of the East River and Buttermilk Channel. The COTP has determined that this rule is necessary to protect the public from these hazards.
This rule establishes a safety zone from 4 p.m. on May 8, 2017 through 5 p.m. on July 14, 2017. The safety zone will cover all navigable waters of the Brooklyn, NY half of the East River and Buttermilk Channel. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the dielectric fluid is being recovered and necessary shoreside repair operations are ongoing. No person or vessel will be permitted to enter the safety zone unless 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
This regulatory action determination is based on the size, location, and duration of the safety zone. Vessel traffic will be able to safely transit around this safety zone which will impact a small designated area of the East River and Buttermilk Channel for approximately two months. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission to enter the zone if the response activities are completed in less than two months.
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 recreational 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 the establishment of a safety zone for up to two months. Therefore, it is excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. A Record of Environmental Consideration for Categorically Excluded Actions is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and 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, 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(1)
(2)
(c)
(d)
(2) During periods of enforcement, no vessel shall enter the safety zone unless permitted by the COTP or a designated representative. Any person or vessel allowed to enter the safety zone must comply with all orders and directions from the COTP or a COTP's designated representative while said person or vessel is within the safety zone.
(3) During periods of enforcement, upon being hailed by a U.S. Coast Guard vessel by siren, radio, flashing light, or other means, the operator of the vessel must proceed as directed.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is extending an established safety zone for emergency purposes for all navigable waters of the Lower Mississippi River (LMR), extending the entire width from mile 311.0 to mile 317.0. This emergency safety zone is needed to protect persons, property, and flood control infrastructure from the potential safety hazards associated with vessels underway transiting this area with dangerously high water levels. Entry into the safety zone is prohibited unless specifically authorized by the Captain of the Port Lower Mississippi River or a designated representative.
This rule is effective from 5 p.m. on May 19, 2017 through 11:59 p.m. on June 2, 2017, or until the water levels have lowered to a less dangerous level, whichever occurs earlier. For the purposes of enforcement, actual notice will be used from May 19, 2017 through June 2, 2017.
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 LT Ryan C. Thomas, U.S. Coast Guard; telephone 901-521-4825, 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 for good cause finds that 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 water levels have risen rapidly to dangerous levels and immediate action is needed to protect persons, and property during response efforts. Completing the full NPRM process is impracticable because we must establish this safety zone by May 19, 2017 and lacks sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.
We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Coast Guard received notification from the US Army Corps of Engineers reporting high water levels are present in the vicinity of mile marker (MM) 315.0 on the Lower Mississippi River (LMR) near the Old River Control structures. As a result, danger of collision with the structures exists and is likely. The COTP Lower Mississippi River is establishing this safety zone effective from 5 p.m. May 19, 2017 to 11:59 p.m. June 2, 2017 or until the water levels have lowered to a less dangerous level, whichever occurs earlier. This rule is needed to protect personnel, vessels, flood infrastructure, and the marine environment in the navigable waters within the safety zone while the high water levels are present.
The Coast Guard is establishing a temporary safety zone on the LMR from mile 311.0 to mile 317.0, extending the entire width of the river, from 5 p.m. May 19, 2017 through 11:59 p.m. on June 2, 2017 or until the water levels have lowered to a less dangerous level, whichever occurs earlier. Any vessel desiring to enter this safety zone must first obtain permission from the Captain of the Port Lower Mississippi River (COTP). The U.S. Army Corps of Engineers assist vessels present in the vicinity of the Old River Control Structure (WUG-424) have been delegated the authority to permit entry into this safety zone.
Entry into this zone is prohibited unless permission has been granted by the COTP or a designated representative. Broadcast Notice to Mariners (BNM) will provide any changes in the schedule for this safety zone. Requests to enter the zone will be considered and reviewed on a case-by-case basis. The COTP may be contacted by telephone at 1-901-521-4804 or can be reached by VHF-FM channel 16.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses
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 regulatory action determination is based on the size, location, duration, and time-of-year of the safety zone. This emergency safety zone will restrict navigation on the Mississippi River from mile 311.0 to 317.0 near Vidalia, Louisiana for 14 days. Vessels will be allowed to transit the zone with direction from the COTP or its designated representative. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission to enter the zone.
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 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 an emergency safety zone that will prohibit entry into the zone unless permission has been granted by the COTP or a designated representative on the Mississippi River mile 311.0 to mile 317.0. It is categorically excluded from further review under paragraph L60 of Appendix A of the Commandant Instruction. A Record of Environmental Consideration (REC) supporting this determination is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
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) The U.S. Army Corps of Engineers assist vessels present in the vicinity of the Old River Control Structures are designated representatives and may permit entry into this safety zone. They may be contacted on VHF-FM Channel 16 or Channel 13.
(d)
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a special local regulation for certain waters of the Detroit River, Detroit, MI. This action is necessary and is intended to ensure safety of life on navigable waters to be used for a swimming event immediately prior to, during, and immediately after this event. This regulation requires vessels to maintain a minimum speed for safe navigation and maneuvering.
This temporary final rule is effective from 7 a.m. until 12 p.m. on July 6, 2017.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this temporary rule, call or email Tracy Girard, Prevention Department, Sector Detroit, Coast Guard; telephone 313-568-9564, or 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 for good cause finds that 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 doing so would be impracticable. The Coast Guard did not receive the final details of this swimming event until there was insufficient time remaining before the event to publish an NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be impracticable because it would inhibit the Coast Guard's ability to protect participants, mariners and vessels from the hazards associated with this event.
We are issuing this rule under 5 U.S.C. 553(d)(3), as the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 33 U.S.C. 1233. The COTP has determined that the likely combination of recreation vessels, commercial vessels, and an unknown number of spectators in close proximity to a youth swimming event along the water pose extra and unusual hazards to public safety and property. Therefore, the COTP is establishing a Special Local Regulation around the event location to help minimize risks to safety of life and property during this event.
This rule establishes a temporary special local regulation from 7 a.m. until 12 p.m. on July 6, 2017. In light of the aforementioned hazards, the COTP has determined that a special local regulation is necessary to protect spectators, vessels, and participants. The special local regulation will encompass the following waterway: All waters of the Detroit River, Belle Isle Beach between the following two lines: The first line is drawn directly across the channel from position 42°20.517′ N., 082°59.159′ W. to 42°20.705′ N., 082°59.233′ W. (NAD 83); the second line, to the north, is drawn directly across the channel from position 42°20.754′ N., 082°58.681′ W. to 42° 20.997′ N., 082°58.846″ W. (NAD 83).
An on-scene representative of the COTP or event sponsor representatives may permit vessels to transit the area when no race activity is occurring. The on-scene representative may be present on any Coast Guard, state, or local law enforcement vessel assigned to patrol the event. Vessel operators desiring to transit through the regulated area must contact the Coast Guard Patrol Commander to obtain permission to do so. The COTP or his designated on-scene representative may be contacted via VHF Channel 16 or at 313-568-9560.
The COTP or his designated on-scene representative will notify the public of the enforcement of this rule by all appropriate means, including a Broadcast Notice to Mariners and Local Notice to Mariners.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.
Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory
The Office of Management and Budget (OMB) has not designated this rule a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget (OMB) has not reviewed it. As this rule is not a significant regulatory action, this rule is exempt from the requirements of Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).
This regulatory action determination is based on the size, location, duration, and time-of-year of the special local regulation. Vessel traffic will be able to safely transit around this special local regulation zone which will impact a small designated area of 7 a.m. to 12 p.m. July 6, 2017. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about the special local regulation and the rule allows vessels to seek permission to enter the area.
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 special local regulation 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 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 special local regulation lasting nine hours that will limit entry to a designated area. It is categorically excluded under section 2.B.2, figure 2-1, and paragraph 34(h) of the Instruction. A Record of Environmental Consideration (REC) is available in the docket where indicated in the
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, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:
33 U.S.C. 1233.
(a)
(b)
(c)
(1) Vessels transiting through the regulated area are to maintain the minimum speeds for safe navigation.
(2) Vessel operators desiring to operate in the regulated area must contact the Coast Guard Patrol Commander to obtain permission to do so. The Captain of the Port Detroit (COTP) or his on-scene representative may be contacted via VHF Channel 16 or at 313-568-9560. Vessel operators given permission to operate within the regulated area must comply with all directions given to them by the COTP or his on-scene representative.
(3) The “on-scene representative” of the COTP Detroit is any Coast Guard commissioned, warrant or petty officer or a Federal, State, or local law enforcement officer designated by or assisting the Captain of the Port Detroit to act on his behalf.
(4) Vessel operators shall contact the COTP Detroit or his on-scene representative to obtain permission to enter or operate within the special local regulation. The COTP Detroit or his on-scene representative may be contacted via VHF Channel 16 or at 313-568-9464. Vessel operators given permission to enter or operate in the regulated area must comply with all directions given to them by the COTP Detroit or his on-scene representative.
Environmental Protection Agency.
Final rule.
On July 18, 2016, the State of Georgia, through the Georgia Environmental Protection Division (GA EPD) of the Department of Natural Resources, submitted a request for the Environmental Protection Agency (EPA) to redesignate the Atlanta, Georgia 2008 8-hour ozone nonattainment area (hereinafter referred to as the “Atlanta Area” or “Area”) to attainment for the 2008 8-hour ozone National Ambient Air Quality Standards (NAAQS) and to approve a State Implementation Plan (SIP) revision containing a maintenance plan for the Area. EPA is approving the State's maintenance plan, including the motor vehicle emission budgets (MVEBs) for nitrogen oxides (NO
This rule will be effective June 2, 2017.
EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2016-0583. All documents in the docket are listed on the
Jane Spann, Air Regulatory Management Section, Air Planning and Implementation Branch, Pesticides and Toxics Management Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Ms. Spann can be reached by phone at (404) 562-9029 or via electronic mail at
Effective July 20, 2012, EPA designated areas as unclassifiable/attainment or nonattainment for the 2008 8-hour ozone NAAQS that was promulgated on March 27, 2008.
EPA received one set of comments on its December 23, 2016, proposed rulemaking actions. Specifically, EPA received adverse comments from the Sierra Club (“Commenter”). These
As described in greater detail in the technical support document, in EPA's technical judgment, the Area has attained the 2008 8-hour ozone NAAQS. In making its determination, EPA evaluated all valid certified monitoring data collected during 2013-2015 by monitors in or near the nonattainment area.
Following publication of the proposed redesignation, Georgia certified its 2016 data for the Atlanta Area which shows that the Area continues to attain the NAAQS with a 2014-2016 design value of 75 ppb.
We note that EPA has acted consistently with this interpretation by issuing a number of actions outside the context of area redesignations to address CAA 110(a)(2)(D)(i)(I)'s transport provision. On October 26, 2016, EPA issued a final rulemaking (CSAPR Update) updating the regional NOx ozone season trading program established under the original 2011 Cross-State Air Pollution Rule.
Consistent with the Calcagni Memorandum, Georgia and EPA also took steps in the analysis, as outlined in the NPRM, to ensure that the improvement in air quality was not due to temporary weather conditions. Georgia provided and EPA evaluated ozone season temperature and precipitation data for the Area from 1930 through 2015.
Consistent with EPA's long-standing practice and policy, a comparison of nonattainment period emissions with attainment period emissions is relevant in demonstrating permanent and enforceable emissions reductions. EPA has evaluated the ozone precursor emissions data in the Area and found that there were significant reductions in these emissions in multiple source categories from 2011 (a nonattainment year) to 2014 (an attainment year). During this time period, the emissions data show that non-road NO
The State calculated the on-road and non-road mobile source emissions summarized in Tables 2 and 3 using EPA-approved models and procedures that account for fleet turnover
Regarding MATS, EPA acknowledges that it inadvertently included this rule as a permanent and enforceable measure. As the Commenter correctly notes, MATS did not result in permanent and enforceable emissions reductions in the Area during the relevant time period because the State extended the compliance date for the relevant sources in the Area to April 2016.
The SIP-approved state measures resulting in permanent and enforceable emission reductions include Georgia Rule 391-3-1-.02(2)(yy)—Emissions of Nitrogen Oxides, Georgia Rule 391-3-1-.02(2)(jjj)—NO
The inadvertent inclusion of the MATS Rule in the NPRM does not affect EPA's conclusion that the improvement in ozone air quality is reasonably attributable to the remaining measures identified in the NPRM. Although MATS did not result in permanent and enforceable reductions until April 2016, it is expected to result in further reductions in NOx emissions during the maintenance period.
Section 175A does not establish any deadlines for implementation of contingency measures after redesignation to attainment. It also provides far more latitude than does section 172(c)(9), which applies to a different set of contingency measures applicable to nonattainment areas. Section 172(c)(9) contingency measures must “take effect . . . without further action by the State or [EPA].” By contrast, section 175A(d) allows EPA to take into account the need of a state to assess, adopt, and implement contingency measures if and when a violation occurs after an area's redesignation to attainment. As noted by the U.S. Court of Appeals for the Sixth Circuit in
In the case of the Atlanta Area, EPA believes that the contingency measures set forth in the submittal, combined with the State's commitment to implement contingency measures as expeditiously as practicable but no later than 24 months of a trigger, provide assurance that the State will promptly correct a future violation. Given the uncertainty regarding the nature of the contingency measures required to address a violation, the State may need up to 24 months to enact new statutes; develop new or modified regulations and complete notice and comment rulemaking; or take actions authorized by current state law that require the purchase and installation of equipment (
The Commenter's statement that “this issue is compounded by” fourth-highest daily maximum 2016 ozone concentrations “above the NAAQS” is unclear. In accordance with 40 CFR part 50, appendix I, the determination as to whether the Area meets the NAAQS is based on the three-year average of the annual fourth-highest readings at a monitor, not on a monitor's fourth-highest ozone value in a single year. No monitored value in a single year can itself be a violation. The Area has attained the NAAQS, as discussed in the response to Comment 1, and met the other criteria necessary for redesignation. Once the redesignation is effective, the State will follow its maintenance plan and implement contingency measures pursuant to that plan. If Georgia observes a fourth highest value of 0.076 ppm or greater at a single monitor for which the previous ozone season had a fourth highest value of 0.076 ppm or greater, a Tier 1 trigger will be activated and the State will take action consistent with the Tier I procedure described in the maintenance plan.
EPA is taking two separate, but related, final actions. First, EPA is approving the maintenance plan for the Atlanta Area, including the NO
Second, EPA is approving Georgia's redesignation request for the 2008 8-hour ozone NAAQS for the Atlanta Area. Approval of the redesignation request changes the official designation of Bartow County, Cherokee County, Clayton County, Cobb County, Coweta County, DeKalb County, Douglas County, Fayette County, Forsyth
EPA is also notifying the public that EPA finds the newly-established NO
EPA has determined that these actions are effective immediately upon publication under the authority of 5 U.S.C. 553(d)(1) and (d)(3). The purpose of the 30-day waiting period prescribed in section 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. Section 553(d)(1) allows an effective date less than 30 days after publication if a substantive rule “relieves a restriction.” These actions qualify for the exception under section 553(d)(1) because they relieve the State of various requirements for the Area. Furthermore, section 553(d)(3) allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” EPA finds good cause to make these actions effective immediately pursuant to section 553(d)(3) because they do not create any new regulatory requirements such that affected parties would need time to prepare before the actions take effect.
Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations.
• Are not significant regulatory actions 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);
• Do not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Are 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
• Do 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);
• Do not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Are not economically significant regulatory actions based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Are not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Will not have disproportionate human health or environmental effects under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
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 August 1, 2017. 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.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Environmental protection, Air pollution control.
40 CFR parts 52 and 81 are amended as follows:
42 U.S.C. 7401
(e) * * *
42 U.S.C. 7401,
Environmental Protection Agency (EPA).
Final rule; delay of effective date.
With this action, EPA is delaying the effective date for the final rule issued in the
The effective date of the rule amending 40 CFR part 171 that published at 82 FR 952, January 4, 2017, delayed at 82 FR 8499, January 26, 2017, and 82 FR 14324, March 20, 2017, is further delayed until May 22, 2018.
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2011-0183, is available at
Kevin Keaney, Field and External Affairs Division (7506P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (703) 305-5557; email address:
On January 4, 2017, EPA published a final rule revising the regulation concerning the certification of applicators of restricted use pesticides (RUPs), promulgated in 40 CFR part 171 (82 FR 952; FRL-9956-70). The original effective date of March 6, 2017 was extended to March 21, 2017 by a final rule published in the
The January 20 Memorandum further directed that where appropriate and as permitted by applicable law, agencies should consider a rule to delay the effective date for regulations beyond that 60-day period. Accordingly, on March 20, 2017, EPA published the final rule “Further Delay of Effective Dates for Five Final Regulations Published by the Environmental Protection Agency Between December 12, 2016 and January 17, 2017” (82 FR 14324), to give recently arrived Agency officials the opportunity to conduct a substantive review of those five regulations, which included the revised Certification of Pesticide Applicators rule. Pursuant to that March 20, 2017 rule, the effective date of the revised Certification of Pesticide Applicators rule was extended to May 22, 2017.
On May 15, 2017, EPA solicited public comment on a proposed 12-month delay of the effective date until May 22, 2018 (82 FR 22294; FRL-9962-31). EPA received more than 130 comments in response to the May 15, 2017 request for comments on the proposal to further delay the effective date until May 22, 2018. On May 22, 2017, EPA published a rule that made an interim extension of the effective date of the revised Certification of Pesticide Applicators rule until June 5, 2017 in order to allow additional time for Agency officials to consider and respond to the public comments.
Section 553(d) of the Administrative Procedure Act, 5 U.S.C. 553(d), allows the effective date of an action to be less than 30 days from its publication date when a good cause finding is made. The primary reason for the 30-day waiting period between publication and effective date is to allow affected parties to adjust to new requirements. This rule does not impose any new requirements but rather postpones the effective date of requirements that are not yet in effect. As noted below, allowing the rule to go into effect could cause confusion and disruption for affected parties if the rule were subsequently substantially revised or repealed. Thus, EPA finds there is good cause to make this rule effective immediately upon publication.
In addition, EPA still has only one Senate-confirmed official, and the new Administration has not had the time to adequately review the January 4, 2017 certification rule. This extension to May 22, 2018, will prevent the confusion and disruption among regulatees and stakeholders that would result if the January 4, 2017 rule were to become effective (displace the existing regulation) and then substantially revised or repealed as a result of administrative review.
In this final rule, EPA is delaying the effective date of the January 4, 2017 revisions to the Certification of Pesticide Applicators rule until May 22, 2018. EPA is delaying the effective date of the January 4, 2017 revisions to the Certification of Pesticide Applicators rule until May 22, 2018 in accordance with the Presidential directives as expressed in the memorandum of January 20, 2017, from the Assistant to the President and Chief of Staff, entitled “Regulatory Freeze Pending Review,” and the principles identified in the April 25, 2017 Executive Order “Promoting Agriculture and Rural Prosperity in America.”
EPA received more than 130 comments relevant to the proposal to further delay the effective date of the January 4, 2017 Certification of Pesticide Applicators rule until May 22, 2018. Seventeen comments were not relevant to this action because they did not address the extension of the effective date and instead urged EPA to ban chlorpyrifos or only included specific comments about the January 4, 2017 rule. Out of the relevant comments, 18 commenters supported the proposed 12-month extension of the effective date and the rest opposed the proposed 12-month extension.
The commenters urged EPA to begin implementing the rule in May 2017 to allow the intended protections to apply sooner. A few commenters argued that the extension would increase the risk of serious adverse effects on human health and the environment and one commenter pointed out that EPA identified preventable restricted use pesticide exposures to humans and the environment in the January 4, 2017 rule. This commenter stated that delaying the rule by a year means these types of exposures will occur for an additional year.
The Agency's implementation of this action with an abbreviated opportunity for public comment is based on the good cause exception in 5 U.S.C. 553(b)(B), in that providing additional time for public comment is impracticable, unnecessary and contrary to the public interest. The delay of the effective date until May 22, 2018, is necessary to give Agency officials the opportunity for further review and consideration of the certification rule, consistent with the memorandum of the Assistant to the President and Chief of Staff, dated January 20, 2017, and the principles identified in the April 25, 2017 Executive Order “Promoting Agriculture and Rural Prosperity in America.” Given the imminence of the certification rule effective date, allowing a longer period for comment on this delay would have been impractical, as well as contrary to the public interest in the orderly promulgation and implementation of regulations.
The 90-day comment period for the 2015 proposed rule, combined with EPA's extensive stakeholder outreach, provided EPA with robust public comment regarding the risks and benefits associated with the January 4, 2017 certification rule. Inasmuch as there was already a robust public comment on the merits of the certification rule, the narrow issue of when the rule should become effective could reasonably be addressed in a short period of time. If EPA had not shortened the comment period to five days, the January 4, 2017 certification rule would have gone into effect. It would have caused unnecessary confusion and disruption to certifying authorities,
Additional information about these statutes and Executive Orders can be found at
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).
This action does not involve any information collection activities subject to the PRA, 44 U.S.C. 3501
I certify that this action will not have a significant economic impact on a substantial number of small entities under RFA, 5 U.S.C. 601
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 does not have federalism implications, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
This action does not have Tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000).
This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it is not an economically significant regulatory action as defined by Executive Order 12866.
This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution or use of energy.
This rulemaking does not involve technical standards that would require Agency consideration under NTTAA section 12(d), 15 U.S.C. 272 note.
EPA believes that this action would not have disproportionately high and adverse human health or environmental effects on minority, low-income, or indigenous populations, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994).
This action is subject to the CRA, 5 U.S.C. 801
Environmental protection, Applicator competency, Agricultural worker safety, Certified applicator, Pesticide safety training, Pesticide worker safety, Pesticides and pests, Restricted use pesticides.
In rule document 2016-29882, appearing on pages 93824-93831, in the Issue of Thursday, December 22, 2016, make the following correction:
On page on page 93827, in the second column, in the last line “(≤15% CT)” should be “(>15% CT)”.
Environmental Protection Agency (EPA).
Direct final rule.
The U.S. Environmental Protection Agency (EPA) is taking direct final action to approve an alternative final cover for Phase 2 of the City of Wolf Point landfill, a municipal solid waste landfill (MSWLF) owned and
This rule is effective on August 1, 2017 without further notice, unless the EPA receives relevant adverse comment by July 3, 2017. If the EPA receives relevant adverse comment, we will publish a timely withdrawal in the
Submit your comments, identified by Docket ID No. EPA-R08-RCRA-2016-0505, by one of the following methods:
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Michael Roach, Resource Conservation and Recovery Program, Environmental Protection Agency Region 8, Mail Code: 8P-R, 1595 Wynkoop Street, Denver, Colorado 80202; telephone number: (303) 312-6369; email address:
The EPA is publishing this rule without a prior proposal because we view this as a noncontroversial action and anticipate no relevant adverse comment. However, in the “Proposed Rules” section of the
If the EPA receives relevant adverse comments, we will publish a timely withdrawal in the
After completing a review of the City of Wolf Point's final site-specific flexibility request, dated May 1, 2011, and the amendments to that request, dated February 23, 2015, and February 9, 2016, the EPA approves Wolf Point's site-specific flexibility request to install an alternative final cover that varies from the final closure requirements of 40 Code of Federal Regulations (CFR) 258.60(a), but meets the criteria at 40 CFR 258.60(b). This approval applies to the 3.5 acres of the landfill that have not been previously closed.
Under Sections 1008, 2002, 4004, and 4010 of the Resource Conservation and Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA), the EPA established revised minimum federal criteria for MSWLFs, including landfill location restrictions, operating standards, design standards and requirements for ground water monitoring, corrective action, closure and post-closure care, and financial assurance. Under RCRA Section 4005(c), states are required to develop permit programs for facilities that may receive household hazardous waste or waste from conditionally exempt small quantity generators, and the EPA determines whether the program is adequate to ensure that facilities will comply with the revised criteria.
The MSWLF criteria are at 40 CFR part 258. These regulations are self-implementing and apply directly to owners and operators of MSWLFs. For many of these criteria, 40 CFR part 258 includes a flexible performance standard as an alternative to the self-implementing regulation. The flexible standard is not self-implementing, and use of the alternative standard requires approval by the Program Director of a state with an EPA-approved program.
Because the EPA's approval of a state program does not extend to Indian country, as that term is defined at 18 United States Code (U.S.C.) 1151, owners and operators of MSWLF units located in Indian country cannot take advantage of the flexibilities available to those facilities subject to an approved state program. However, the EPA has the authority under Sections 2002, 4004, and 4010 of RCRA to promulgate site-specific rules that may provide for use of alternative standards in Indian country. See
The regulation at 40 CFR 258.60(a) establishes closure criteria for MSWLF units that are designed to minimize infiltration and erosion. The regulation requires final cover systems to be designed and constructed to:
(1) Have a permeability of less than or equal to the permeability of any bottom
(2) Minimize infiltration through the closed MSWLF by the use of an infiltration layer that contains a minimum of 18 inches of earthen material, and
(3) Minimize erosion of the final cover by the use of an erosion layer that contains a minimum of 6 inches of earthen material that is capable of sustaining native plant growth.
The regulation at 40 CFR 258.60(b) allows for variances from these specified MSWLF closure criteria. Specifically, the rule allows for the Program Director of an approved state to approve an alternative final cover design that includes:
(1) An infiltration layer that achieves an equivalent reduction in infiltration as the infiltration layer specified in paragraphs (a)(1) and (a)(2) of 40 CFR 258.60, and
(2) An erosion layer that provides equivalent protection from wind and water erosion as the erosion layer specified in paragraph (a)(3) of 40 CFR 258.60.
The City of Wolf Point landfill is a MSWLF owned and operated by the City of Wolf Point on the Assiniboine and Sioux Tribes' Fort Peck Reservation in Montana. The landfill site is approximately 25 acres in size and served approximately 10,000 people in Roosevelt County, including the City of Wolf Point and the City of Poplar. The landfill lies within the boundaries of the Fort Peck Reservation. The landfill itself consists of two phases, or units, used as the area's municipal landfill. Phase 1, constructed in 1960, was closed and covered in 1999. Phase 2 was constructed in 2000 and stopped receiving waste in August 2008.
On May 1, 2011, the City of Wolf Point submitted a site-specific flexibility request to the EPA Region 8 and the Assiniboine and Sioux Tribes for Phase 2 of the Wolf Point landfill. The request sought EPA approval for the use of an alternative final cover that differs from the final closure requirements of 40 CFR 258.60. This request applies only to Phase 2, the 3.5 acres of the landfill not previously closed.
Between May 1, 2011, and February 9, 2016, the City of Wolf Point made revisions to its request in response to concerns raised by the EPA Region 8 and the Assiniboine and Sioux Tribes. Today, the EPA is approving Wolf Point's site-specific flexibility request to install an alternative final landfill cover that meets the requirements of 40 CFR 258.60(b).
The EPA is basing its approval on a number of factors, including final cover design, numerical soil modeling and site-specific climatic and soils data. The numerical soil modeling consisted of a sensitivity analysis of the proposed evapotranspiration alternative final cover system under a range of climate and vegetative growth conditions, compared to the performance of the standard final cover prescribed in 40 CFR 258.60. The EPA has determined that the evapotranspiration cover will perform equivalently to the standard prescriptive cover in 40 CFR 258.60(a) in preventing the movement of leachate through the system and erosion caused by wind and water.
As part of this approval, the EPA is requiring that upon finalization, the City of Wolf Point submit a complete set of final cover plans and specifications, including a construction quality assurance/quality control plan and closure/post-closure plan to the EPA. The EPA further requires the City of Wolf Point achieve revegetation rates of greater than 75 percent on Phase 2 of the closed landfill by the end of the third year after revegetation. Finally, the EPA requires that the City of Wolf Point maintain all documentation demonstrating compliance with plans and specifications, and 40 CFR 258.60(a)(1), (2), and (3) in the landfill operating record.
Under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), this rule is not a “significant regulatory action” and therefore is not a regulatory action subject to review by the Office of Management and Budget (OMB).
This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Because this rule is of particular applicability relating to a particular facility, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601
Because this rule will affect only a particular facility, this 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, as specified in Executive Order 13132, “Federalism,” (64 FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply to this rule.
This rule is also not subject to Executive Order 13045, “Protection of Children From Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant as defined in Executive Order 12866, and because the agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. The basis for this belief is the EPA's conservative analysis of the potential risks posed by the City of Wolf Point's proposal and the controls and standards set forth in the application.
This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.
As required by section 3 of Executive Order 12988, “Civil Justice Reform,” (61 FR 4729, February 7, 1996), in issuing this rule, the EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation and provide a clear legal standard for affected conduct.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), calls for the EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have Tribal implications.” The EPA has concluded that this action may have Tribal implications because it is directly applicable to a facility operating on the Assiniboine and Sioux Tribes' Fort Peck Reservation. However, this determination will neither impose substantial direct compliance costs on Tribal governments nor preempt Tribal law. This determination to approve the City of Wolf Point's application will affect only the operation of the Wolf Point landfill.
The EPA consulted with the Assiniboine and Sioux Tribes early in the process of making this determination to approve Wolf Point's alternative final cover request so that the Tribes had the opportunity to
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) directs the EPA to use voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards, (
The technical standards included in the application were proposed by the City of Wolf Point. Given the EPA's obligations under Executive Order 13175 (see above), the agency has, to the extent appropriate, applied the standards established by Wolf Point and accepted by the Tribes. In addition, the agency evaluated the proposal's design against the engineering design and construction criteria contained in the EPA draft guidance document, “Water Balance Covers for Waste Containment: Principles and Practice (2009).”
Sections 1008, 2002, 4004, and 4010 of the Solid Waste Disposal Act, as amended, 42 U.S.C. 6907, 6912, 6944, and 6949a.
Environmental protection, Incorporation by reference, Municipal landfills, Reporting and recordkeeping requirements, Waste treatment and disposal.
For the reasons stated in the preamble, 40 CFR part 258 is amended as follows:
33 U.S.C. 1345(d) and (e); 42 U.S.C. 6902(a), 6907, 6912(a), 6944, 6945(c), 6949a(c) and 6981(a).
(c) City of Wolf Point Municipal Landfill final cover requirements. Paragraph (c) of this section applies to the City of Wolf Point Landfill Phase 2, a municipal solid waste landfill owned and operated by the City of Wolf Point on the Assiniboine and Sioux Tribes' Fort Peck Reservation in Montana. The facility owner and/or operator may close the facility in accordance with this application, including the following activities more generally described as follows:
(1) The owner and operator may install an evapotranspiration system as an alternative final cover for the 3.5-acre Phase 2 area.
(2) The final cover system shall consist of a 4-foot-thick multi-layer cover system comprised of the following from bottom to top: A 12-inch intermediate layer, a 24-inch native silty-clay till layer, and a 12-inch native topsoil layer, as well as seeding and erosion control.
(3) The final cover system shall be constructed to achieve an equivalent reduction in infiltration as the infiltration layer specified in § 258.60(a)(1) and (a)(2), and provide an equivalent protection from wind and water erosion as the erosion layer specified in paragraph (a)(3) of this section.
(4) In addition to meeting the specifications of “The City of Wolf Point Landfill License #3—Phase 2 Alternative Final Cover Demonstration (Revised)” application of February 9, 2016, the owner and operator shall:
(i) At finalization, submit to the EPA for approval final cover plans and specifications, including the final Construction Quality Assurance/Quality Control Plan and final Closure/Post-Closure Plan; and
(ii) Achieve re-vegetation rates greater than 75% by the end of the third year after revegetation.
(5) The owner and operator shall place documentation demonstrating compliance with the provisions of this section in the operating record.
(6) All other applicable provisions of 40 CFR part 258 remain in effect.
Federal Communications Commission.
Final rule.
In this document, the Commission extends the existing freeze of jurisdictional separations rules. The current extension allows the Commission, in cooperation with the Federal-State Joint Board, to consider further changes to the separations process in light of changes taking place in the telecommunications market place. The freeze also serves to ease the burdens of regulatory compliance and uncertainty for Local Exchange Carriers.
Effective June 2, 2017.
Federal Communications Commission, 445 12th Street SW., Washington, DC 20554.
Rhonda Lien, Pricing Policy Division, Wireline Competition Bureau, at (202) 418-1540 or at
This is a summary of the Commission's Report and Order, FCC 17-55 released May 15, 2017. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 12th Street SW., Washington, DC 20554. The full-text copy of this document can also be found at the following internet address:
1. Historically, incumbent LECs (ILECs) were subject to rate-of-return rate regulation at both the federal and state levels. After the adoption of the 1996 Telecommunications Act (1996 Act), the Commission initiated a proceeding to comprehensively reform the part 36 separations procedures to ensure compliance with the objectives of the 1996 Act, and to address statutory, technological, and market changes in the telecommunications industry.
2. Jurisdictional separations is the third step in a four-step regulatory process that begins with a carrier's accounting system and ends with the establishment of tariffed rates for the ILEC's interstate and intrastate regulated services. First, carriers record their costs
3. In 1997, the Commission initiated a proceeding seeking comment on the extent to which legislative, technological, and market changes warranted comprehensive reform of the separations process. In the
4. Price cap carriers have since received conditional forbearance from the part 36 jurisdictional separations rules. As a result, the freeze primarily impacts rate-of-return carriers who were only required to freeze their allocation factors, but were given the option of also freezing their category relationships at the outset of the freeze. Those that have chosen to freeze relationships calculate: (1) The relationships between categories of investment and expenses within part 32 accounts; and (2) the jurisdictional allocation factors, as of a specific point in time, and then lock or “freeze” those category relationships and allocation factors in place for a set period of time. The carriers use the “frozen” category relationships and allocation factors for their calculations of separations results and therefore are not required to conduct separations studies for the duration of the freeze.
5. Over time, the Commission has repeatedly extended the freeze, which is currently set to expire on June 30, 2017. The Commission has consistently consulted with the Joint Board about separations reform, pursuant to the Act's requirement that the Commission refer to the Joint Board proceedings regarding “the jurisdictional separations of common carrier property and expenses between interstate and intrastate operations.” The Joint Board recommended the initial freeze and has made a number of recommendations to the Commission about how best to proceed with reform of the separations rules. The state members of the Joint Board made their most recent recommendations in 2011.
6. Since the Joint Board's recommendations, the Commission comprehensively reformed its universal service and intercarrier compensation systems and proposed additional reforms. On March 30, 2016, the Commission adopted the
7. On March 20, 2017, in a Further Notice of Proposed Rulemaking (
8. To allow us to move forward with orderly reform of the separations rules, based on the record before us, we extend through December 31, 2018, the freeze on part 36 category relationships and jurisdictional cost allocation factors that the Commission adopted in the
9. The issues involved with modernizing separations are broad and complex. As commenters point out, the policy changes the Commission has adopted in recent years, particularly those arising from the Commission's fundamental reform of the high cost universal service support program, the intercarrier compensation systems, and the part 32 accounting rules, will significantly affect our analysis of interim and comprehensive separations reform, as well as that of the Joint Board. Extending the freeze provides time for the Joint Board to consider the impact of our recent reforms on the separations rules and gives us the time necessary to tackle rule changes informed by the Joint Board's recommendations. We strongly urge interested parties to provide detailed and constructive feedback about how best to revise or eliminate the separations process as we work towards separations reform with the Joint Board.
10. We agree with those commenters that argue that allowing the existing freeze to lapse and frozen separations rules to be reinstated during the pendency of our work with the Joint Board would create undue instability and administrative burdens on affected carriers. As WTA has explained, reinstating these long-unused separations rules, many of which are
11. Two commenters, a group of concerned individuals called the Irregulators and Terral Telephone Company, Inc. (Terral), oppose the extension of the freeze. According to the Irregulators, the freeze is being used to deliberately hide “massive financial cross subsidies and data manipulation.” However, the evidence offered does not support this claim. We thus find the harm alleged by the Irregulators to be speculative and insufficient to outweigh the clear benefits that will result from granting a further extension. Terral opposes the extension as it applies to Terral and then uses its comments to ask the Commission to grant its pending petition for waiver of the categories of frozen separations. We decline, however, to substantively address individual requests for relief or a waiver of the separations rules in this Order as those requests are beyond the scope of this proceeding. We do welcome the input of these commenters as we move toward full consideration of how best to reform the separations rules and note that the decision to extend the freeze does not affect the Commission's ability to address pending or future waiver petitions.
12. Separately, we deny the request of USTelecom to modify frozen category relationships for carriers electing the Alternative Connect America Cost Model and to make other changes to the separations process. These issues fall within the pending referral to the Joint Board and may be addressed in the Joint Board's recommended decision. We will therefore not grant USTelecom's request here.
13. With regard to the length of the extension, the majority of commenters support extending the freeze for at least eighteen months. Some argue that the freeze should be longer, and should be tied to the completion of a comprehensive rulemaking. Some stakeholders have expressed concern about the amount of time needed to operationalize any changes we ultimately make to the separations rules. While those concerns are legitimate, they are premature at this point in the process, and would be more appropriately raised and addressed when considering the implementation of any reform measures as part of the on-going, comprehensive rulemaking proceeding.
14. We find that extending the freeze by eighteen months, the length of time proposed in the
15.
16. As discussed above, in 2001 the Commission adopted a Joint Board recommendation to impose an interim freeze of the part 36 category relationships and jurisdictional cost allocation factors, pending comprehensive reform of the part 36 separations rules. The Commission ordered that the freeze would be in effect for a five-year period beginning July 1, 2001, or until the Commission completed comprehensive separations reform, whichever came first. On May 16, 2006, concluding that more time was needed to implement comprehensive separations reform, the Commission extended the freeze for three years or until such comprehensive reform could be completed, whichever came first. On May 15, 2009, the Commission extended the freeze through June 30, 2010; on May 24, 2010, extended the freeze through June 30, 2011; on May 3, 2011, extended the freeze through June 30, 2012; on May 8, 2012, extended the freeze through June 30, 2104; and on June 12, 2014, extending the freeze through June 30, 2017.
17. The purpose of the current extension of the freeze is to allow the Commission and the Joint Board additional time to consider changes that may need to be made to the separations process in light of changes in the law, technology, and market structure of the telecommunications industry without creating the undue instability and administrative burdens that would occur were the Commission to eliminate the freeze.
18. Implementation of the freeze extension will ease the administrative burden of regulatory compliance for LECs, including small incumbent LECs. The freeze has eliminated the need for all incumbent LECs, including incumbent LECs with 1500 employees or fewer, to complete certain annual studies formerly required by the Commission's rules. The effect of the freeze extension is to reduce a regulatory compliance burden for small incumbent LECs, by abating the aforementioned separations studies and providing these carriers with greater regulatory certainty. Therefore, we certify that the requirement of the report and order will not have a significant economic impact on a substantial number of small entities.
19. The Commission will send a copy of the report and order, including a copy of this Final Regulatory Flexibility Certification, in a report to Congress pursuant to the Congressional Review Act. In addition, the report and order and this final certification will be sent to the Chief Counsel for Advocacy of the SBA, and will be published in the
20.
21.
22.
23. Accordingly,
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25.
Communications common carriers, Reporting and recordkeeping requirements, Telephone, Uniform System of Accounts.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 36 as follows:
47 U.S.C. 151, 154(i) and (j), 205, 221(c), 254, 303(r), 403, 410 and 1302 unless otherwise noted.
Board of Governors of the Federal Reserve System.
Proposed rule, request for comment.
The Board is proposing to amend Regulation CC to address situations where there is a dispute as to whether a check has been altered or is a forgery, and the original paper check is not available for inspection. The proposed rule would adopt a presumption of alteration for any dispute over whether the dollar amount or the payee on a substitute check or electronic check has been altered or whether the substitute check or electronic check is derived from an original check that is a forgery. This rule is intended to provide clarity as to the burden of proof in these situations.
Comments must be submitted by August 1, 2017.
You may submit comments, identified by Docket No. R-1564 by any of the following methods:
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All public comments are available on the Board's Web site at
Clinton N. Chen, Attorney (202/452-3952), Legal Division; or Ian C.B. Spear, Senior Financial Services Analyst (202/452-3959), Division of Reserve Bank Operations and Payment Systems; for users of Telecommunication Devices for the Deaf (TDD) only, contact 202/263-4869; Board of Governors of the Federal Reserve System, 20th and C Streets NW., Washington, DC 20551.
Congress enacted the Expedited Funds Availability Act of 1987 (EFA Act) to provide prompt funds availability for deposits in transaction accounts and to foster improvements in the check collection and return processes. Section 609(c) authorizes the Board to regulate any aspect of the payment system and any related function of the payment system with respect to checks in order to carry out the provisions of the EFA Act.
Regulation CC implements the EFA Act. Subpart C of Regulation CC implements the EFA Act's provisions regarding forward collection and return of checks.
Under the Uniform Commercial Code (UCC), an alteration is a change to the terms of a check that is made after the check is issued that modifies an obligation of a party by, for example, changing the payee's name or the amount of the check.
These provisions of the UCC reflect the long-standing rule set forth in
Regulation CC does not currently address whether a check should be presumed to be altered or forged in cases of doubt. For example, an unauthorized payee name could result from an alteration of the original check that the drawer issued, or from the creation of a forged check bearing the unauthorized payee name and an unauthorized/forged drawer's signature. Courts have reached opposite conclusions as to whether a paid, but fraudulent, check should be presumed to be altered or forged in the absence of evidence (such as the original check).
The Board received four comments concerning the adoption of an evidentiary presumption.
Based on these comments, the Board is proposing to adopt a presumption of alteration with respect to any dispute arising under federal or state law as to whether the dollar amount or the payee on a substitute check or electronic check has been altered or whether the substitute check or electronic check is derived from an original check that is a forgery. The Board requests comment on whether the presumption should also apply to a claim that the date was altered.
Under the proposed rule, the presumption of alteration may be overcome by a preponderance of evidence that the substitute check or electronic check accurately represents the dollar amount and payee as authorized by the drawer, or that the substitute check or electronic check is derived from an original check that is a forgery. The proposed rule would also state that the presumption of alteration shall cease to apply if the original check is made available for examination by all parties involved in the dispute. The Board requests comment on whether the presumption of alteration should apply if the bank claiming the presumption received and destroyed the original check.
The Board is also proposing accompanying commentary provisions to explain the operation of the rule, including clarification that the presumption does not alter the process by which a bank may seek to make a claim against another bank on a check that the bank alleges to be altered.
The Board conducts a competitive impact analysis when it considers an operational or legal change, if that change would have a direct and material adverse effect on the ability of other service providers to compete with the Federal Reserve in providing similar services due to legal differences or due to the Federal Reserve's dominant market position deriving from such legal differences. All operational or legal changes having a substantial effect on payments-system participants will be subject to a competitive-impact analysis, even if competitive effects are not apparent on the face of the proposal. If such legal differences exist, the Board will assess whether the same objectives could be achieved by a modified proposal with lesser competitive impact or, if not, whether the benefits of the proposal (such as contributing to payments-system efficiency or integrity or other Board objectives) outweigh the materially adverse effect on competition.
The Board does not believe that the proposed amendments to Regulation CC will have a direct and material adverse effect on the ability of other service providers to compete effectively with the Reserve Banks in providing similar services due to legal differences. The proposed amendments would apply to the Reserve Banks and private-sector service providers alike and would not affect the competitive position of private-sector presenting banks vis-à-vis the Reserve Banks.
In accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3506; 5 CFR part 1320 Appendix A.1), the Board may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a valid Office of Management and Budget (OMB) control number. The Board reviewed the proposed rule under the authority delegated to the Board by the OMB and determined that it contains no collections of information under the PRA.
The Regulatory Flexibility Act (the “RFA”) (5 U.S.C. 601
The Board is proposing the foregoing amendments to Regulation CC pursuant to its authority under the EFA Act. The proposal addresses situations where there is a dispute as to whether a check has been altered or is a forgery, and the original paper check is not available for inspection. The check collection system has become overwhelmingly electronic, and the number of instances in which the original paper check will be available for inspection in such cases will be quite low. Under the UCC, the depositary bank typically bears the loss related to an altered check, whereas the paying bank bears the loss related to a forged check. The proposed rule would adopt a presumption of alteration with respect to any dispute as to whether the dollar amount or the payee on a substitute check or electronic check has been altered or whether the substitute check or electronic check is derived from an original check that is a forgery.
The proposed rule would apply to all depository institutions regardless of their size.
A presumption of alteration shifts the burden to the bank that warrants that a check has not been altered, which could be a depositary bank or collecting bank. In order to overcome the proposed presumption of alteration, a depositary bank or collecting bank must prove by a preponderance of evidence that either the substitute check or electronic check accurately represents the dollar amount and payee as authorized by the drawer, or that the substitute check or electronic check is derived from an original check that is a forgery. Under the proposed rule, the presumption of alteration shall cease to apply if the original check is made available for examination by all parties involved in the dispute.
A depositary bank or collecting bank that destroys all original checks after truncation may incur additional risk, as it may not be able to overcome the presumption of alteration. The Board expects depositary banks and collecting banks to weigh the costs and benefits of destroying or retaining original checks, such as for large dollar amounts, so that the presumption of alteration will not apply.
As mentioned above, courts have reached opposite conclusions as to whether, under the Uniform Commercial Code, a paid, but fraudulent, check should be presumed to be altered or forged in the absence of evidence, such as the original check. The proposal would resolve that discrepancy under the conditions described above. The Board knows of no other duplicative, overlapping, to conflicting Federal rules related to this proposal.
As discussed above, the Board requested comment as part of its 2014 Regulation CC proposal on whether it should adopt an evidentiary presumption, and if so, whether the check should be presumed to be altered or forged in cases of doubt.
Banks, Banking, Federal Reserve System, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Board proposes to amend 12 CFR part 229 as follows:
12 U.S.C. 4001-4010, 12 U.S.C. 5001-5018.
(i)
(i) The dollar amount or the payee on a substitute check or electronic check has been altered or
(ii) The substitute check or electronic check is derived from an original check that is a forgery.
When such a dispute arises, there is a rebuttable presumption that the substitute check or electronic check contains an alteration of the dollar amount or the payee. The presumption of alteration may be overcome by proving by a preponderance of evidence that either the substitute check or electronic check accurately represents the dollar amount and payee as authorized by the drawer, or that the substitute check or electronic check is derived from an original check that is a forgery.
(2)
The addition reads as follows:
1. This paragraph establishes an evidentiary presumption of alteration of a check when the original check has been converted to an image and only an electronic check or a substitute check is available for inspection. This provision does not alter the transfer and presentment warranties under the UCC that allocate liability among the parties to a check transaction with respect to an altered or forged item. The UCC or other applicable check law continues to apply with respect to other rights, duties, and obligations related to altered or forged checks.
2. The presumption of alteration applies when the original check is unavailable for review by the banks in context of the dispute. If the original check is produced, through discovery or other means, and is made available for examination by all the parties, the presumption no longer applies. There is no presumption of alteration as between two banks that exchange an original check.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede Airworthiness Directive (AD) 2015-15-10, for all Airbus Model A318, A319, A320, and A321 series airplanes. AD 2015-15-10 currently requires repetitive inspections of the trimmable horizontal stabilizer actuator (THSA) for damage, and replacement if necessary; and replacement of the THSA after reaching a certain life limit. Since we issued AD 2015-15-10, an additional life limit for the THSA has been established, based on flight cycles. In addition, the THSA manufacturer has issued service information which, when accomplished, increases the life limit of the THSA. This proposed AD would require repetitive detailed inspections of certain THSAs, and related investigative and corrective actions if necessary. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by July 17, 2017.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For Airbus service information identified in this NPRM, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
For United Technologies Corporation Aerospace Systems (UTAS) service information identified in this NPRM, contact Goodrich Corporation, Actuation Systems, Stafford Road, Fordhouses, Wolverhampton WV10 7EH, England; phone: +44 (0) 1902 624938; fax: +44 (0) 1902 788100; email:
You may view this referenced 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.
You may examine the AD docket on the Internet at
Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1405; fax 425-227-1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On July 12, 2015, we issued AD 2015-15-10, Amendment 39-18219 (80 FR 43928, July 24, 2015) (“AD 2015-15-10”), for all Airbus Model A318, A319, A320, and A321 series airplanes. AD 2015-15-10 was prompted by reports of wear of the THSA. AD 2015-15-10 requires repetitive inspections of the THSA for damage, and replacement if necessary; and replacement of the THSA after reaching a certain life limit. We issued AD 2015-15-10 to detect and correct wear on the THSA, which would reduce the remaining life of the THSA, possibly resulting in premature failure and consequent reduced controllability of the airplane.
Since we issued AD 2015-15-10, an additional life limit for the THSA has been established, based on flight cycles. In addition, the THSA manufacturer has issued service information which, when accomplished, increases the life limit of the THSA.
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2016-0184, dated September 13, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A318 and A319 series airplanes; Model A320-211, -212, -214, -231, -232, and -233 airplanes; and Model
In the frame of the A320 Extended Service Goal (ESG) project and the study on the Trimmable Horizontal Stabilizer Actuator (THSA), a sampling programme of in-service units was performed and several cases of wear at different THSA levels were reported.
This condition, if not detected and corrected, would reduce the remaining life of the THSA, possibly resulting in premature failure and consequent reduced control of the aeroplane.
Prompted by these findings, Airbus issued Service Bulletin (SB) A320-27-1227 to provide THSA inspection instructions. Consequently, EASA issued AD 2014-0011 (later revised) [which corresponds to AD 2015-15-10] to require repetitive inspections of the THSA [and related investigative and corrective actions] and to introduce a life limit for the THSA, based on flight hours (FH).
Since EASA AD 2014-0011R1 was issued, an additional life limitation has been established, based on flight cycles (FC). Furthermore, United Technologies Corporation Aerospace Systems (UTAS), the THSA manufacturer, issued an SB which, after accomplishment on THSA, increases the life limit of the THSA.
For the reasons described above, this [EASA] AD retains the requirements of EASA AD 2014-0011R1, which is superseded, and introduces an additional FC life limit for the affected THSA. This [EASA] AD also provides a revised life limit for the THSA after UTAS SB accomplishment on that THSA.
The required action is repetitive special detailed inspections of the THSA. The optional terminating action is overhaul of the THSA. The related investigative action is a spectrometric analysis of the oil drained from the THSA gearbox. The corrective action is replacement of a THSA with a serviceable THSA.
The compliance time for the related investigative and corrective actions varies depending on the findings, and ranges from before further flight to 4 months or between 1,000 and 1,250 flight hours since the first THSA oil drain.
You may examine the MCAI in the AD docket on the Internet at
Airbus has issued Service Bulletin A320-27-1227, Revision 03, dated April 29, 2016. This service information describes procedures for repetitive special detailed inspections for wear of the THSA, and related investigative and corrective actions.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs.
We estimate that this proposed AD affects 1,182 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We have received no definitive data that would enable us to provide cost estimates for the spectrometric analysis of the oil drained from the THSA gearbox. We estimate the following costs to do any necessary replacements or overhauls that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need these replacements or overhauls:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by July 17, 2017.
This AD replaces AD 2015-15-10, Amendment 39-18219 (80 FR 43928, July 24, 2105) (“AD 2015-15-10”).
This AD applies to the airplanes identified in paragraphs (c)(1) through (c)(4) of this AD, certificated in any category, all manufacturer serial numbers.
(1) Airbus Model A318-111, -112, -121, and -122 airplanes.
(2) Airbus Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes.
(3) Airbus Model A320-211, -212, -214, -231, -232, and -233 airplanes.
(4) Airbus Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes.
Air Transport Association (ATA) of America Code 27, Flight controls.
This AD was prompted by reports of wear at different levels in the trimmable horizontal stabilizer actuator (THSA). We are issuing this AD to detect and correct wear of the THSA, which could reduce the remaining life of the THSA, possibly resulting in premature failure and consequent reduced controllability of the airplane.
Comply with this AD within the compliance times specified, unless already done.
For the purposes of this AD, a serviceable THSA is a THSA that does not exceed the life limits as identified in table 1 to paragraphs (g) and (j) of this AD.
For any airplane on which UTAS Service Bulletin 47145-27-19 has not been embodied: Before the THSA exceeds 48,000 flight hours or 30,000 flight cycles, whichever occurs first since first installation on an airplane, do a special detailed inspection of the THSA and do all applicable related investigative actions, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-27-1227, Revision 03, dated April 29, 2016. Do all applicable related investigative actions at the applicable times specified in paragraph 1.E., “Compliance” of Airbus Service Bulletin A320-27-1227, Revision 03, dated April 29, 2016. Repeat the inspections thereafter at intervals not to exceed 24 months.
If, during any inspection required by paragraph (h) of this AD, any finding as described in the Accomplishment Instructions of Airbus Service Bulletin A320-27-1227, Revision 03, dated April 29, 2016, is identified: At the applicable time (depending on the applicable finding) specified in paragraph 1.E., “Compliance,” of Airbus Service Bulletin A320-27-1227, Revision 03, dated April 29, 2016, replace the THSA with a serviceable THSA, as specified in paragraph (g) of this AD, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-27-1227, Revision 03, dated April 29, 2016.
Within the applicable compliance time specified in table 1 to paragraphs (g) and (j) of this AD, replace each THSA with a serviceable THSA, as specified in paragraph (g) of this AD, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-27-1227, Revision 03, dated April 29, 2016.
Replacement of a THSA on an airplane, as required by paragraph (i) or (j) of this AD, does not constitute terminating action for the repetitive inspections required by paragraph (h) of this AD for that airplane, unless the THSA is overhauled as specified in the Accomplishment Instructions of UTAS Service Bulletin 47145-27-19 (
Accomplishment of a modification of an airplane by installing a THSA that has been overhauled as specified in UTAS Service Bulletin 47145-27-19 constitutes terminating action for the repetitive inspections required by paragraph (h) of this AD, provided that, following modification, no THSA is reinstalled on the airplane unless it has been overhauled as specified in UTAS Service Bulletin 47145-27-19.
As of the effective date of this AD: A THSA that has been repaired in shop as specified in UTAS Component Maintenance Manual 27-44-51 is acceptable for compliance with the initial inspection required by paragraph (h) of this AD.
As of the effective date of this AD, do not install on any airplane a THSA unless it is a serviceable THSA as specified in paragraph (g) of this AD.
This paragraph provides credit for the actions required by paragraphs (h) and (i) of this AD, if those actions were performed before the effective date of this AD using any of the service information specified in paragraphs (o)(1), (o)(2), or (o)(3) of this AD.
(1) Airbus Service Bulletin A320-27-1227, dated July 1, 2013, which is not incorporated by reference in this AD.
(2) Airbus Service Bulletin A320-27-1227, Revision 01, dated October 7, 2013, which was incorporated by reference in AD 2015-15-10.
(3) Airbus Service Bulletin A320-27-1227, Revision 02, dated February 2, 2015, which is not incorporated by reference in this AD.
The following provisions also apply to this AD:
(1)
(2)
(3)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2016-0184, dated September 13, 2016, for related information. This MCAI may be found in the AD docket on the Internet at
(2) For more information about this AD, contact Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1405; fax 425-227-1149.
(3) For Airbus service information identified in this AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
(4) For UTAS service information in this AD, contact Goodrich Corporation, Actuation Systems, Stafford Road, Fordhouses, Wolverhampton WV10 7EH, England; phone: +44 (0) 1902 624938; fax: +44 (0) 1902 788100; email:
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Bombardier, Inc., Model CL-600-2E25 (Regional Jet Series 1000) airplanes. This proposed AD was prompted by reports of failures of the landing gear alternate-extension system. This proposed AD would require replacement of certain nose landing gear and main landing gear electro-mechanical actuators. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by July 17, 2017.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; Widebody Customer Response Center North America toll-free telephone 1-866-538-1247 or direct-dial telephone: 1-514-855-2999; fax: 514-855-7401; email:
You may examine the AD docket on the Internet at
Cesar Gomez, Aerospace Engineer, Airframe and Mechanical Systems Branch, ANE-171, FAA, New York Aircraft Certification Office (ACO), 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone: 516-228-7318; fax: 516-794-5531.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian AD CF-2017-08, dated March 8, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc., Model CL-600-2E25 (Regional Jet Series 1000) airplanes. The MCAI states:
Malfunctions of the landing gear Alternate-Extension System (AES) have been experienced. Failure of the landing gear AES could prevent the landing gear from extending in the case of a failure of the primary landing gear extension system.
This [Canadian] AD is issued to mandate the replacement of the [nose landing gear] NLG and [main landing gear] MLG [electro-mechanical actuators] EMA P/Ns BA698-85006-1 and BA698-85007-1.
You may examine the MCAI in the AD docket on the Internet at
We reviewed Bombardier Service Bulletin 670BA-32-047, Revision A, dated December 5, 2016. The service information describes procedures for replacing certain nose landing gear and main landing gear electro-mechanical actuators. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
We estimate that this proposed AD affects 39 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all available costs in our cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by July 17, 2017.
None.
This AD applies to Bombardier, Inc., Model CL-600-2E25 (Regional Jet Series 1000) airplanes, certificated in any category, serial numbers 19001 through 19039 inclusive.
Air Transport Association (ATA) of America Code 32, Landing gear.
This AD was prompted by failures of the landing gear alternate-extension system (AES). We are issuing this AD to prevent failure of the landing gear AES and consequent landing with some or all of the landing gear not extended.
Comply with this AD within the compliance times specified, unless already done.
Within 1,200 flight hours or 12 months after the effective date of this AD, whichever occurs first: Replace the nose landing gear (NLG) and main landing gear (MLG) electro-mechanical actuators (EMA) having part numbers (P/Ns) BA698-85006-1 and BA698-85007-1 with P/Ns BA698-85006-3 and BA698-85007-3, as applicable, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 670BA-32-047, Revision A, dated December 5, 2016 (“670BA-32-047, RA”). Where 670BA-32-047, RA, instructs operators to contact Bombardier if it is not possible to complete all the instructions in 670BA-32-047, RA, because of the configuration of the airplane, this AD requires that any deviation from the instructions provided in 670BA-32-047, RA, must be approved as an alternative method of compliance (AMOC) under the provisions of paragraph (j)(1) of this AD.
As of the effective date of this AD, no person may install an NLG or MLG EMA having P/N BA698-85006-1 or BA698-85007-1, on any airplane.
This paragraph provides credit for actions required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Bombardier Service Bulletin 670BA-32-047, dated February 28, 2014.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian AD CF-2017-08, dated March 8, 2017, for related information. This MCAI may be found in the AD docket on the Internet at
(2) For more information about this AD, contact Cesar Gomez, Aerospace Engineer, Airframe and Mechanical Systems Branch, ANE-171, FAA, New York ACO, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone: 516-228-7318; fax: 516-794-5531.
(3) For service information identified in this AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; Widebody Customer Response Center North America toll-free telephone 1-866-538-1247 or direct-dial telephone: 1-514-855-2999; fax: 514-855-7401; email:
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all The Boeing Company Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), and DC-9-87 (MD-87) airplanes, and Model MD-88 airplanes. This proposed AD was prompted by reports of cracking of various structures in the bulkhead. This proposed AD would require an inspection for cracking in these structures, and corrective actions if necessary. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by July 17, 2017.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; Internet
You may examine the AD docket on the Internet at
George Garrido, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification Office (ACO), 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5232; fax: 562-627-5210; email:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We have received reports of cracking of various structures in The Boeing Company Model DC-9-81 (MD-81), DC-9-82 (MD-82), and DC-9-83 (MD-83) airplanes at the cant station 1463 bulkhead, and the Model DC-9-87 (MD-87) airplanes at the cant station 1254 bulkhead. One incident of cracking was discovered during a heavy maintenance visit on an airplane with 63,480 total flight hours, and 45,809 total flight cycles. The cracks were in the upper left area of the bulkhead, between longerons L-2 and L-3, in the frame web, horizontal stiffeners, lower frame cap, rear spar cap, and spar cap web. An analysis has determined that the operational and limit loads cannot duplicate this condition and the root cause is suspected to be the result of a high load event(s). This condition, if not corrected, could result in reduced structural integrity of the airplane.
We reviewed Boeing Alert Service Bulletin MD80-53A316, dated December 15, 2016. The service information describes procedures for a detailed inspection on the left and right sides of the forward and aft surfaces of cant station 1463 bulkhead and cant station 1254 bulkhead for cracking in the upper caps, upper cap doublers, bulkhead webs and doublers, stiffeners, lower caps, and vertical stabilizer rear spar caps and webs, between longerons L-11L through L-11R, and corrective actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of these same type designs.
This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between this Proposed AD and the Service Information.” For information on the procedures and compliance times, see this service information at
The phrase “corrective actions” is used in this proposed AD. Corrective actions correct or address any condition found. Corrective actions in an AD could include, for example, repairs.
Boeing Alert Service Bulletin MD80-53A316, dated December 15, 2016, specifies to contact the manufacturer for certain instructions, but this proposed AD would require using repair methods, modification deviations, and alteration deviations in one of the following ways:
• In accordance with a method that we approve; or
• Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.
Boeing Alert Service Bulletin MD80-53A316, dated December 15, 2016, specifies doing the inspection at cant station 1463 bulkhead for Model MD-88 airplanes. However, Model MD-88 airplanes are similar in design to Model DC-9-87 (MD-87) airplanes, and should instead be inspected at cant station 1254 bulkhead. Therefore, this proposed AD specifies that the proposed actions for Model MD-88 airplanes be accomplished using the Accomplishment Instructions for Model DC-9-87 (MD-87) airplanes in Boeing Alert Service Bulletin MD80-53A316, dated December 15, 2016. This difference has been coordinated with Boeing.
We estimate that this proposed AD affects 361 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by July 17, 2017.
None.
This AD applies to all The Boeing Company Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), and DC-9-87 (MD-87) airplanes, and Model MD-88 airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 53; Fuselage.
This AD was prompted by reports of cracking of various structures at the cant station 1463 bulkhead and at the cant station 1254 bulkhead. We are issuing this AD to detect and correct cracking at the cant station 1463 bulkhead and cant station 1254 bulkhead, which could result in reduced structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 700 flight cycles or 6 months after the effective date of this AD, whichever occurs first, do a detailed inspection for cracking on the left and right sides of the forward and aft surfaces of the cant station 1463 bulkhead (for Model DC-9-81 (MD-81), DC-9-82 (MD-82), and DC-9-83 (MD-83) airplanes) and cant station 1254 bulkhead (for DC-9-87 (MD-87) airplanes and MD-88 airplanes); and do all applicable corrective actions; in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin MD80-53A316, dated December 15, 2016, except as required in paragraphs (h)(1) and (h)(2) of this AD. Do all applicable corrective actions before further flight.
(1) For Model MD-88 airplanes: This AD requires that instead of inspecting at cant station 1463 bulkhead, operators must inspect at cant station 1254 bulkhead, which is identified as “DC-9-87 (MD-87) CANT STA 1254 BULKHEAD” in the Accomplishment Instructions of Boeing Alert Service Bulletin MD80-53A316, dated December 15, 2016.
(2) Where Boeing Alert Service Bulletin MD80-53A316, dated December 15, 2016, 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 (k) of this AD.
This paragraph provides credit for the actions specified in paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Boeing Multi Operator Message MOM-MOM-16-0684-01B, dated October 7, 2016.
Special flight permits, as described in Section 21.197 and Section 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199), may be issued to operate the airplane to a location where the requirements of this AD can be accomplished, but concurrence by the Manager, Los Angeles Aircraft Certification Office (ACO), FAA, is required before issuance of the special flight permit.
(1) The Manager, Los Angeles 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 (l)(1) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, 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 (h) of this AD: For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (k)(4)(i) and (k)(4)(ii) of this AD apply.
(i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. If a step or substep is labeled “RC Exempt,” then the RC requirement is removed from that step or substep. An AMOC is required for any deviations to RC steps, including substeps and identified figures.
(ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.
(1) For more information about this AD, contact George Garrido, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification Office (ACO), 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5232; fax: 562-627-5210; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; Internet
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain The Boeing Company Model 757-200, -200CB, and -300 series airplanes. This proposed AD was prompted by a report of fatigue cracking found in a certain fuselage frame web. This proposed AD would require inspecting the fuselage frame for existing repairs, repetitive inspections of the frame, and applicable repairs. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by July 17, 2017.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740; telephone 562-797-1717; Internet
You may examine the AD docket on the Internet at
Muoi Vuong, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification Office (ACO), 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5205; fax: 562-627-5210; email:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We have received a report indicating a 6-inch-long crack in the fuselage frame web at station (STA) 1681, below the floor line at stringer S-17L, was found during a routine maintenance visit. The crack was not easily detected because it was hidden by adjacent structure. Analysis revealed that the crack was caused by fatigue. Cracking of the fuselage frame, if not detected and corrected, could result in reduced structural integrity of the airplane.
We reviewed Boeing Alert Service Bulletin 757-53A0100, dated November 14, 2016. The service information describes procedures for inspecting the fuselage frame for existing frame and floor beam repairs, and repetitive high frequency eddy current inspections for cracking in any area with no existing frame repair, repetitive high and low frequency eddy current inspections for cracking in any area with no existing frame or floor beam repair, and repair. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require accomplishment of the actions identified as “RC” (required for compliance) in the Accomplishment Instructions of Boeing Alert Service Bulletin 757-53A0100, dated November 14, 2016, described previously, except for differences between this proposed AD and the service information that are identified in the regulatory text of this proposed AD.
For information on the procedures and compliance times, see this service information at
We estimate that this proposed AD affects 606 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:
We have received no definitive data that would enable us to provide cost estimates for the on-condition repair specified in this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by July 17, 2017.
None.
This AD applies to The Boeing Company Model 757-200, -200CB, and -300 series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 757-53A0100, dated November 14, 2016.
Air Transport Association (ATA) of America Code 53; Fuselage.
This AD was prompted by a report of fatigue cracking found in the fuselage frame web at station (STA) 1681. We are issuing this AD to detect and correct cracking of the fuselage frame at STA 1681, which could result in reduced structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Except as required by paragraph (h) of this AD: Do all applicable actions identified as required for compliance (“RC”) in, and in accordance with, the Accomplishment Instructions of Boeing Alert Service Bulletin 757-53A0100, dated November 14, 2016. Do the actions at the applicable times specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 757-53A0100, dated November 14, 2016.
(1) Where Boeing Alert Service Bulletin 757-53A0100, dated November 14, 2016, uses the phrase “after the original issue of this service bulletin” for determining compliance, for purposes of this AD, compliance is based on the effective date of this AD.
(2) Where Boeing Alert Service Bulletin 757-53A0100, dated November 14, 2016, specifies contacting Boeing for instructions, and specifies that action as “RC” (Required for Compliance): This AD requires using a method approved in accordance with the procedures specified in paragraph (i) 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)(1) of this AD. Information may be emailed to
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, 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 (h)(2) 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) of this AD apply.
(i) The steps labeled as RC, including substeps under an RC step and any figures
(ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.
(1) For more information about this AD, contact Muoi Vuong, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles ACO, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5205; fax: 562-627-5210; email:
(2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740; telephone 562-797-1717; Internet
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all Airbus Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes). This proposed AD was prompted by a revision of certain airworthiness limitation item (ALI) documents, which require more restrictive maintenance requirements and airworthiness limitations. This proposed AD would require revising the maintenance or inspection program, as applicable, to incorporate new maintenance requirements and airworthiness limitations. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by July 17, 2017.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Airbus SAS, Airworthiness Office—EAW, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
You may examine the AD docket on the Internet at
Dan Rodina, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-2125; fax 425-227-1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2016-0218, dated November 2, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes). The MCAI states:
The airworthiness limitations for Airbus A300-600 aeroplanes, which are approved by EASA, are currently defined and published in the Airbus A300-600 Airworthiness Limitations Section (ALS) document(s). These instructions have been identified as mandatory actions for continued airworthiness.
Failure to accomplish these instructions could result in an unsafe condition.
EASA previously issued [EASA] AD 2014-0124 (later revised)[which includes actions for Airbus A300-600 airplanes; those actions are included in FAA AD 2013-13-13, Amendment 39-17501 (79 FR 48957, August 19, 2014) (“AD 2013-13-13”)], requiring the actions described in Airbus A300-600 Airworthiness Limitation Item (ALI) Document at issue 13 and Temporary Revision (TR) 13.1.
Since EASA AD 2014-0124R1 was issued, Airbus replaced A300-600 ALI Document issue 13, with A300-600 ALS Part 2 Revision 01 and then published the A300-600 ALS Part 2 Variation 1.1 and Variation 1.2, to introduce more restrictive maintenance requirements and/or airworthiness limitations.
A300-600 ALS Part 2 Variation 1.1 also includes ALI 571067 and ALI 571068, superseding Service Bulletin A300-53-6154, which is referenced in EASA AD 2006-0257
For the reasons described above, this [EASA] AD retains part of the requirements of EASA AD 2014-0124R1, which will be superseded, and requires accomplishment of the actions specified in Airbus A300-600 ALS Part 2 Revision 01, and ALS Part 2 Variation 1.1 and ALS Part 2 Variation 1.2 (hereafter collectively referred to as `the ALS' in this [EASA] AD), and supersedes EASA AD 2006-0257. The remaining requirements of EASA AD 2014-0124R1 are retained in AD 2016-0217, applicable to A310 aeroplanes, published at the same time as this [EASA] AD.
You may examine the MCAI in the AD docket on the Internet at
We reviewed the following service information:
• Airbus A300-600 Airworthiness Limitations Section (ALS), Part 2, “Damage Tolerant Airworthiness Limitation Items (DT-ALI),” Revision 01, dated August 7, 2015.
• Airbus A300-600 Airworthiness Limitations Section (ALS), Part 2, “Damage Tolerant Airworthiness Limitation Items (DT-ALI),” Variation 1.1, dated January 25, 2016.
• Airbus A300-600 Airworthiness Limitations Section (ALS), Part 2, “Damage Tolerant Airworthiness Limitation Items (DT-ALI),” Variation 1.2, dated July 22, 2016.
The service information describes airworthiness limitations applicable to the DT ALIs. These documents are distinct because they contain unique tasks. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
This NPRM would not supersede AD 2007-22-05 and AD 2013-13-13. Rather, we have determined that a stand-alone AD would be more appropriate to address the changes in the MCAI. This NPRM would require revising the maintenance or inspection program to incorporate the new maintenance requirements and airworthiness limitations. Accomplishment of the proposed actions would then terminate all the requirements of AD 2007-22-05 and AD 2013-13-13.
This AD requires revisions to certain operator maintenance documents to include new actions (
We estimate that this proposed AD affects 128 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by July 17, 2017.
This AD affects AD 2007-22-05, Amendment 39-15241 (72 FR 60236, October 24, 2007) (“AD 2007-22-05”) and AD 2013-13-13, Amendment 39-17501 (79 FR 48957, August 19, 2014) (“AD 2013-13-13”).
This AD applies to all Airbus Model A300 B4-601, B4-603, B4-620, B4-622, B4-605R, B4-622R, F4-605R, F4-622R, and C4-605R Variant F airplanes, certificated in any category, all manufacturer serial numbers.
Air Transport Association (ATA) of America Code 05, Time limits/maintenance checks.
This AD was prompted by a revision of certain airworthiness limitation item (ALI) documents, which require more restrictive maintenance requirements and airworthiness limitations. We are issuing this AD to prevent fatigue cracking, damage, or corrosion in principal structural elements, which could result in reduced structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 3 months after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate the information specified in paragraphs (g)(1), (g)(2), and (g)(3) of this AD. The initial compliance times for doing the tasks are at the time specified in the service information identified in paragraphs (g)(1), (g)(2), and (g)(3) of this AD, or within 3 months after the effective date of this AD, whichever occurs later.
(1) Airbus A300-600 Airworthiness Limitations Section (ALS), Part 2, “Damage Tolerant Airworthiness Limitation Items (DT-ALI),” Revision 01, dated August 7, 2015.
(2) Airbus A300-600 Airworthiness Limitations Section (ALS), Part 2, “Damage Tolerant Airworthiness Limitation Items (DT-ALI),” Variation 1.1, dated January 25, 2016.
(3) Airbus A300-600 Airworthiness Limitations Section (ALS), Part 2, “Damage Tolerant Airworthiness Limitation Items (DT-ALI),” Variation 1.2, dated July 22, 2016.
After the maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (
Accomplishing the actions required by this AD terminates all of the requirements of AD 2007-22-05 and AD 2013-13-13 for that airplane only.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2016-0218, dated November 2, 2016, for related information. This MCAI may be found in the AD docket on the Internet at
(2) For more information about this AD, contact Dan Rodina, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-2125; fax 425-227-1149. Information may be emailed to:
(3) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAW, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Bombardier, Inc., Model DHC-8-400 series airplanes. This AD was prompted by the failure of the fire control amplifier, which was likely caused by an electrical short in a discharged squib for a fire extinguishing bottle. This proposed AD would require replacing certain circuit breakers. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by July 17, 2017.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Bombardier, Inc., Q-Series Technical Help Desk, 123 Garratt Boulevard, Toronto, Ontario M3K 1Y5, Canada; telephone 416-375-4000; fax 416-375-4539; email
You may examine the AD docket on the Internet at
Assata Dessaline, Aerospace Engineer, Avionics and Services Branch, ANE-172, FAA, New York Aircraft Certification Office (ACO), 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7301; fax 516-794-5531.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2016-25, dated September 5, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc. Model DHC-8-400 series airplanes. The MCAI states:
An operator reported having a false SMOKE warning light for the Aft Baggage compartment, which caused the pilots to discharge the Aft Baggage compartment fire extinguishing bottles per Aircraft Flight Manual procedures. Subsequently, there were continuous engine and Auxiliary Power Unit (APU) fire warning lights, and the fire extinguishing bottles for both engines (forward and aft) and the APU were automatically discharged. Post event investigation of the Fire Control Amplifier (FCA) revealed a burnt 2600-P2 connector. The FCA was also found to have sustained significant thermal damage. In a separate event involving a different operator, several fire extinguishing bottles discharged after an electrical short was introduced into the FCA by a shorted squib tester (external ground support equipment) during maintenance.
The FCA manufacturer has identified the most likely failure condition to be an electrical short at the discharged squib. The squib's burst disk may have caused a short circuit of the bridgewires, which caused the FCA's internal power wires to experience thermal damage, consequently powering other squibs and fire alarm lines and resulting in the uncommanded discharge of the fire extinguishing bottles and false fire indications.
Bombardier (BA) has issued service bulletin (SB) 84-26-16 to change two 7.5 amp circuit breakers to lower current rating 1 amp circuit breakers to prevent damage to squib discharge circuits and the inadvertent discharge of fire extinguishing bottles.
This [Canadian] AD mandates the incorporation of [Bombardier Service Bulletin] SB 84-26-16 to prevent the inadvertent discharge of fire extinguishing bottles; [leaving the flight crew with less firefighting capability in the event of a real fire].
You may examine the MCAI in the AD docket on the Internet at
We reviewed Bombardier Service Bulletin 84-26-16, Revision A, dated February 12, 2016. This service information describes procedures for locating and replacing certain 7.5-amp circuit breakers with 1-amp circuit breakers. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
We estimate that this proposed AD affects 53 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by July 17, 2017.
None.
This AD applies to Bombardier, Inc., Model DHC-8-400, -401, and -402 airplanes, certificated in any category, serial numbers 4001, and 4003 through 4504 inclusive.
Air Transport Association (ATA) of America Code 26, Fire Protection.
This AD was prompted by the failure of the fire control amplifier (FCA), which was likely caused by an electrical short in a discharged squib for a fire extinguishing bottle. We are issuing this AD to prevent failure of the FCA and subsequent discharge of fire extinguishing bottles and false fire indications, leaving the flightcrew with less firefighting capability in the event of a real fire.
Comply with this AD within the compliance times specified, unless already done.
Within 6,000 flight hours or 3 years, whichever occurs first, after the effective date of this AD: Replace the 7.5-amp circuit breakers specified in Bombardier Service Bulletin 84-26-16, Revision A, dated February 12, 2016, with 1-amp circuit breakers, part number MS3320-1, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 84-26-16, Revision A, dated February 12, 2016.
This paragraph provides credit for actions required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Bombardier Service Bulletin 84-26-16, dated August 14, 2015.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian Airworthiness Directive CF-2016-25, dated September 5, 2016, for related information. This MCAI may be found in the AD docket on the Internet at
(2) For more information about this AD, contact Assata Dessaline, Aerospace Engineer, Avionics and Services Branch, ANE-172, FAA, New York ACO, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7301; fax 516-794-5531.
(3) For service information identified in this AD, contact Bombardier, Inc., Q-Series Technical Help Desk, 123 Garratt Boulevard, Toronto, Ontario M3K 1Y5, Canada; telephone 416-375-4000; fax 416-375-4539; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Bombardier, Inc., Model CL-600-2B16 (CL-601-3A, CL-601-3R, and CL-604 Variants) airplanes. This proposed AD was prompted by reports of fuel leaks in the engine and auxiliary power unit (APU) electrical fuel pump (EFP) cartridge/canister electrical connectors and conduits. This proposed AD would require repetitive inspections for fuel leakage at the engine and APU fuel pumps, and related investigative and corrective actions if necessary. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by July 17, 2017.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; Widebody Customer Response Center North America toll-free telephone 1-866-538-1247 or direct-dial telephone 1-514-855-2999; fax 514-855-7401; email
You may examine the AD docket on the Internet at
Steven Dzierzynski, Aerospace Engineer, Avionics and Services Branch, ANE-172, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7367; fax 516-794-5531.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2016-32R1, dated October 12, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc., Model CL-600-2B16 (CL-601-3A, CL-601-3R, and CL-604 variants) airplanes. The MCAI states:
Fuel leaks have been reported in the engine and auxiliary power unit (APU) electrical fuel pump (EFP) cartridge/canister electrical connectors and conduits on production aeroplanes. Initially, Bombardier had determined that the subject discrepancy was limited to the new pump canister installations on 24 production aeroplanes. Bombardier also reported the possibility of cut insulation on the electric harness wires of the newly installed canister housing assemblies.
Emergency [Canadian] AD CF-2014-17 [which corresponds to FAA AD 2014-15-17, Amendment 39-17919 (79 FR 44268, July 31, 2014)] was issued to limit landing light operation on-ground in order to address a potential fire hazard as result of possible fuel leak from APU, EFP electrical conduit in the landing light compartment. In addition, [Canadian] AD CF-2014-21 [which corresponds to FAA AD 2014-20-01, Amendment 39-17974 (79 FR 59640, October 3, 2014), superseded by FAA AD 2016-10-10, Amendment 39-18521 (81 FR 31497, May 19, 2016)(“AD 2016-10-10”)] was issued to mandate removal of then identified 24 discrepant EFP canister assemblies from service.
Bombardier has recently determined that the subject fuel leaks may not be limited to the 24 units affected by [Canadian] AD CF-2014-21 [(AD 2016-10-10)], but may potentially affect other in-service [Bombardier Model] CL-600-2B16 aeroplanes. Until such time that a final fix for the fuel leak problem is realized, Bombardier as an interim mitigating action, has issued [Service Bulletins] SB 604-28-022 and SB 605-28-010 that introduces [a] repeat [general visual] inspection and if required, rectification [related investigative and corrective actions] of subject fuel leaks on affected aeroplanes. [Canadian] AD CF-2016-32 was issued on 29 September 2016 to mandate compliance with applicable Bombardier SBs, to mitigate any potential safety hazard resulting from fuel leaks.
Revision 1 of this [Canadian] AD is being issued to correct a typographic error in paragraph B.1. of the [Canadian AD] Corrective Actions.
Related investigative actions involve, for certain airplanes, further inspections for fuel leakage. Corrective actions involve repair, and for certain other airplanes, those actions could include replacing O-rings, and replacing the fuel cartridge. You may examine the MCAI in the AD docket on the Internet at
Bombardier, Inc., has issued the following service bulletins:
• Bombardier Service Bulletin 604-28-022, dated October 19, 2015; and
• Bombardier Service Bulletin 605-28-010, dated October 19, 2015.
The service information describes procedures for repetitive general visual inspections, and related investigative and corrective actions if necessary. These documents are distinct since they apply to airplanes in different configurations. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
We estimate that this proposed AD affects 121 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
For Model CL-600-2B16 airplanes, having serial numbers 5701 through 5955 inclusive, 5957, 5960 through 5966 inclusive, 5968 through 5971 inclusive, and 5981, we estimate the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need these replacements:
For Model CL-600-2B16 airplanes having serial numbers 5301 through 5665 inclusive, we have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.
According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by July 17, 2017.
None.
This AD applies to Bombardier, Inc., Model CL-600-2B16 (CL-601-3A, CL-601-3R, and CL-604 variants) airplanes, certificated in any category, having serial numbers 5301 through 5665 inclusive, 5701 through 5955 inclusive, 5957, 5960 Through 5966 inclusive, 5968 through 5971 inclusive, and 5981.
Air Transport Association (ATA) of America Code 28, Fuel.
This proposed AD was prompted by reports of fuel leaks in the engine and auxiliary power unit (APU) electrical fuel pump (EFP) cartridge/canister electrical connectors and conduits. We are issuing this AD to detect and correct fuel leaks in certain fuel pumps to remove a potential fuel ignition hazard.
Comply with this AD within the compliance times specified, unless already done.
For Model CL-600-2B16 airplanes, having serial numbers 5301 through 5665 inclusive:
Within 600 flight hours or 12 months, whichever occurs first, after the effective date of this AD, do general visual inspections of the locations specified in paragraphs (g)(1), (g)(2), and (g)(3) of this AD, and do all applicable corrective actions, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 604-28-022, dated October 19, 2015; except where the Bombardier Service Bulletin 604-28-022, dated October 19, 2015 specifies to contact the manufacturer, before further flight accomplish corrective action in accordance with the procedures specified in paragraph (i)(2) of this AD. Do all applicable corrective
(1) Do a general visual inspection for traces of fuel coming from the right-hand side engine boost pump at the location of the belly fairing screw (FS412, BL 0.0).
(2) Do a general visual inspection for traces of fuel coming from the left-hand side engine boost pump at the location of the belly fairing screw (FS412, BL 0.0).
(3) Do a general visual inspection for traces of fuel coming from the EFP electrical wiring conduit outlet at the lower body fairing area for engine EFPs and at the right-hand landing light compartment for the APU EFP.
For Model CL-600-2B16 airplanes, having serial numbers 5701 through 5955 inclusive, 5957, 5960 through 5966 inclusive, 5968 through 5971 inclusive, and 5981: Within 600 flight hours or 12 months, whichever occurs first, after the effective date of this AD, do general visual inspections of the locations specified in paragraphs (h)(1), (h)(2), and (h)(3) of this AD, and do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions in Bombardier Service Bulletin 605-28-010, dated October 19, 2015; except where Bombardier Service Bulletin 605-28-010, dated October 19, 2015 specifies to contact the manufacturer, before further flight accomplish corrective actions in accordance with the procedures specified in paragraph (i)(2) of this AD. Do all applicable related investigative and corrective actions before further flight. Repeat the general visual inspections at intervals not exceeding 600 flight hours or 12 months, whichever occurs first.
(1) Do a general visual inspection for traces of fuel coming from the right-hand side engine boost pump at the location of the belly fairing screw (FS412, BL 0.0).
(2) Do a general visual inspection for traces of fuel coming from the left-hand side engine boost pump at the location of the belly fairing screw (FS412, BL 0.0).
(3) Do a general visual inspection of the right-hand side landing light compartment for traces of fuel coming from the APU EFP.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian Airworthiness Directive CF-2016-32R1, dated October 12, 2016, for related information. This MCAI may be found in the AD docket on the Internet at
(2) For more information about this AD, contact Steven Dzierzynski, Aerospace Engineer, Avionics and Services Branch, ANE-172, FAA, New York Aircraft Certification Office (ACO), 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7367; fax 516-794-5531; email:
(3) For service information identified in this AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; Widebody Customer Response Center North America toll-free telephone 1-866-538-1247 or direct-dial telephone 1-514-855-2999; fax 514-855-7401; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to modify VHF Omnidirectional Range (VOR) Federal airways V-66, V-189, V-260, and V-266 in the Vicinity of Franklin, VA. The modifications are required due to the planned decommissioning of the Franklin, VA, VORTAC navigation aid which provides navigation guidance for portions of the above routes.
Comments must be received on or before July 17, 2017.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590; telephone: 1 (800) 647-5527 or (202) 366-9826. You must identify FAA Docket No. FAA-2017-0438 and Airspace Docket No. 17-AEA-6 at the beginning of your comments. You may also submit comments through the Internet at
FAA Order 7400.11A, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Paul Gallant, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8783.
The FAA's authority to issue rules regarding aviation safety is found in
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA-2017-0438 and Airspace Docket No. 17-AEA-6) and be submitted in triplicate to the Docket Management Facility (see
Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2017-0438 and Airspace Docket No. 17-AEA-6.” The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see
This document proposes to amend FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016 and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the
The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to modify the descriptions of VOR Federal airways V-66, V-189, V-260, and V-266 due to the planned decommissioning of the Franklin, VA, VORTAC. The proposed route changes are described below.
Domestic VOR Federal airways are published in paragraph 6010(a) of FAA Order 7400.11A, dated August 3, 2016 and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The VOR Federal airways listed in this document would be subsequently published in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
From Mission Bay, CA; Imperial, CA; 13 miles, 24 miles, 25 MSL; Bard, AZ; 12 miles, 35 MSL; INT Bard 089° and Gila Bend, AZ, 261° radials; 46 miles, 35 MSL; Gila Bend; Tucson, AZ, 7 miles wide (3 miles south and 4 miles north of centerline); Douglas, AZ; INT Douglas 064° and Columbus, NM, 277° radials; Columbus; El Paso, TX; 6 miles wide; INT El Paso 109° and Hudspeth, TX, 287° radials; 6 miles wide; Hudspeth; Pecos, TX; Midland, TX; INT Midland 083° and Abilene, TX, 252° radials; Abilene; to Millsap, TX. From Crimson, AL, Brookwood, AL; LaGrange, GA; INT LaGrange 120° and Columbus, GA, 068° radials; INT Columbus 068° and Athens, GA, 195° radials; Athens; Greenwood, SC; Sandhills, NC; to Raleigh-Durham, NC.
From Wright Brothers, NC; to Tar River, NC. The airspace within R-5302 and R-5314 is excluded when activated.
From Charleston, WV, Rainelle, WV; Roanoke, VA, Lynchburg, VA; Flat Rock, VA; Richmond, VA; to Hopewell, VA.
From Electric City, SC, to Spartanburg, SC. From Greensboro, NC; to South Boston, VA. From Elizabeth City, NC; to Wright Brothers, NC.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to modify Class D airspace, Class E surface area airspace, Class E airspace extending upward from 700 feet above the surface, and Class E airspace extending upward from 1,200 feet above the surface at Cheyenne Regional/Jerry Olson Field Airport (formerly, Cheyenne Airport), Cheyenne, WY. Airspace redesign is necessary due to the decommissioning of the Cheyenne instrument landing system (ILS) locator outer marker and removal of the Cheyenne VHF Omnidirectional Range/Tactical Air Navigation (VORTAC) from the airspace description as the FAA transitions from ground-based navigation aids to satellite-based navigation. Also, this action would update the airport name and geographic coordinates for Class D and E airspace areas to reflect the FAA's current aeronautical database.
Comments must be received on or before July 17, 2017.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590; telephone: 1-800-647-5527, or (202) 366-9826. You must identify FAA Docket No. FAA-2016-9473; Airspace Docket No. 16-ANM-7, at the beginning of your comments. You may also submit comments through the Internet at
FAA Order 7400.11, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Tom Clark, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4511.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class D and Class E airspace at Cheyenne Regional/Jerry Olson Field Airport, Cheyenne, WY to support instrument flight rules operations at the airport.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Persons wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2016-9473/Airspace Docket No. 16-ANM-7.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
This document proposes to amend FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by modifying Class D airspace, Class E surface area airspace, Class E airspace extending upward from 700 feet above the surface, and Class E airspace extending upward from 1,200 feet above the surface at Cheyenne Regional/Jerry Olson Field Airport, Cheyenne, WY. This action would also update the airport name to Cheyenne Regional/Jerry Olson Field Airport (from Cheyenne Airport).
Class D airspace would be amended by removing the segment on each side of the Cheyenne ILS localizer east course extending from the 5.6-mile radius to the outer marker.
Class E surface area airspace would be modified coincident with the Class D airspace, and effective during the times the Class D is not in effect.
Class E airspace extending upward from 700 feet above the surface would be modified to within an 8.1-mile radius (from 12.2 miles) of Cheyenne Regional/Jerry Olson Field Airport, and within a 9.1-mile radius of the airport from a 240° bearing from the airport clockwise to the 300° bearing from the airport with a segment on each side of a 275° bearing from the airport extending from the airport 9.1-mile radius to 10.6 miles west of the airport, and with another segment on each side of a 028° bearing from the airport extending from the airport 8.1 mile radius to 10.8 miles northeast of the airport. The airspace extending upward from 1,200 feet above the surface would be modified to within a 43.6 mile radius of the airport (from a polygon of similar area) to provide controlled airspace for diverse departures until reaching the overlying Class E airspace.
This proposed airspace redesign is necessary due to the decommissioning of the Cheyenne ILS outer marker, removal of the Cheyenne VORTAC from the airspace description, and the availability of diverse departure headings as the FAA transitions from ground-based navigation aids to satellite-based navigation. Also, this action would update the airport's geographic coordinates for Class D and E airspace areas to reflect the FAA's current aeronautical database. Finally, this action would make an editorial change in the legal description by replacing Airport/Facility Directory with the term Chart Supplement.
Class D and Class E airspace designations are published in paragraph 5000, 6002, and 6005, respectively, of FAA Order 7400.11A, dated August 3, 2016 and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class D and Class E airspace designations listed in this document will be published subsequently in the Order.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from the surface to and including 8,700 feet MSL within a 5.6-mile radius of Cheyenne Regional/Jerry Olson Field Airport. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.
That airspace extending upward from the surface within a 5.6-mile radius of Cheyenne Regional/Jerry Olson Field Airport. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.
That airspace extending upward from 700 feet above the surface within an 8.1-mile radius of Cheyenne Regional/Jerry Olson Field Airport from the 300° bearing from the airport clockwise to the 240° bearing, and within a 9.1-mile radius of the airport from the 240° bearing from the airport clockwise to the 300° bearing from the airport, and within 2.2 miles each side of the 275° bearing from the airport extending from the airport 9.1-mile radius to 10.6 miles west of the airport, and within 2.4 miles each side of a 028° bearing from the airport extending from the airport 8.1 mile radius to 10.8 miles northeast of the airport; and that airspace extending upward from 1,200 feet above the surface within a 43.6-mile radius of the airport.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish Class E airspace extending upward from 700 feet above the surface at Dixon Airport, Dixon, WY, to support the development of instrument flight rules (IFR) operations under standard instrument approach and departure procedures at the airport, for the safety and management of aircraft within the National Airspace System.
Comments must be received on or before July 17, 2017.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590; telephone: 1-800-647-5527, or (202) 366-9826. You must identify FAA Docket No. FAA-2017-0315; Airspace Docket No. 17-ANM-5, at the beginning of your comments. You may also submit comments through the Internet at
FAA Order 7400.11A, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Tom Clark, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4511.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would establish Class E airspace extending upward from 700 feet above the surface at Dixon Airport, Dixon, WY to support IFR operations in standard instrument approach and departure procedures at the airport for the safety and management of aircraft within the National Airspace System.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA-2017-0315; Airspace Docket No. 17-ANM-5) and be submitted in triplicate to DOT Docket Operations (see
Persons wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2017-0315 and Airspace Docket No. 17-ANM-5”. The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified closing date will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
This document proposes to amend FAA Order 7400.11A, Airspace Designations and Reporting Points,
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by establishing Class E airspace extending upward from 700 feet above the surface at Dixon Airport, Dixon, WY. Class E airspace would be established within a 7-mile radius of Dixon Airport with a segment 8 miles wide (4 miles each side of a 045° bearing from the airport) extending to 15.5 miles northeast of the airport. This airspace is necessary to support IFR operations in standard instrument approach and departure procedures at the airport.
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, and is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal would be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 7-miles radius of the Dixon Airport, and within 4 miles each side of a 045° bearing from the airport extending from the 7-mile radius to 15.5 miles northeast of the airport.
Drug Enforcement Administration, Department of Justice.
Notice of intent.
The Administrator of the Drug Enforcement Administration is issuing this notice of intent to issue a temporary order to schedule the synthetic opioid,
The date of this notice of intent is June 2, 2017.
Michael J. Lewis, Diversion Control Division, Drug Enforcement Administration; Mailing Address: 8701 Morrissette Drive, Springfield, Virginia 22152; Telephone: (202) 598-6812.
This notice of intent is issued pursuant to the temporary scheduling provisions of 21 U.S.C. 811(h). The Drug Enforcement Administration (DEA) intends to issue a temporary order to add acryl fentanyl to Schedule I under the Controlled Substances Act.
Section 201 of the Controlled Substances Act (CSA), 21 U.S.C. 811, provides the Attorney General with the authority to temporarily place a substance into Schedule I of the CSA for two years without regard to the requirements of 21 U.S.C. 811(b) if he finds that such action is necessary to avoid imminent hazard to the public safety. 21 U.S.C. 811(h)(1). In addition, if proceedings to control a substance are initiated under 21 U.S.C. 811(a)(1), the Attorney General may extend the temporary scheduling for up to one year. 21 U.S.C. 811(h)(2).
Where the necessary findings are made, a substance may be temporarily scheduled if it is not listed in any other
Section 201(h)(4) of the CSA, 21 U.S.C. 811(h)(4), requires the Administrator to notify the Secretary of the Department of Health and Human Services (HHS) of his intention to temporarily place a substance into Schedule I of the CSA.
To find that placing a substance temporarily into Schedule I of the CSA is necessary to avoid an imminent hazard to the public safety, the Administrator is required to consider three of the eight factors set forth in 21 U.S.C. 811(c): The substance's history and current pattern of abuse; the scope, duration and significance of abuse; and what, if any, risk there is to the public health. 21 U.S.C. 811(h)(3). Consideration of these factors includes actual abuse, diversion from legitimate channels, and clandestine importation, manufacture, or distribution. 21 U.S.C. 811(h)(3).
A substance meeting the statutory requirements for temporary scheduling may only be placed in Schedule I. 21 U.S.C. 811(h)(1). Substances in Schedule I are those that have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. 21 U.S.C. 812(b)(1).
Acryl fentanyl was first described in 1981 in the scientific literature where its chemical structure and its
Available data and information for acryl fentanyl, summarized below, indicate that this synthetic opioid has a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. The DEA's three-factor analysis is available in its entirety under “Supporting and Related Material” of the public docket for this action at
The recreational abuse of fentanyl-like substances continues to be a significant concern. These substances are distributed to users, often with unpredictable outcomes. Acryl fentanyl has recently been encountered by law enforcement and public health officials and the adverse health effects and outcomes are demonstrated by fatal overdose cases. The documented negative effects of acryl fentanyl are consistent with those of other opioids.
On October 1, 2014, the DEA implemented STARLiMS (a web-based, commercial laboratory information management system) to replace the System to Retrieve Information from Drug Evidence (STRIDE) as its laboratory drug evidence data system of record. DEA laboratory data submitted after September 30, 2014, are reposited in STARLiMS. Data from STRIDE and STARLiMS were queried on May 5, 2017. STARLiMS registered 36 reports containing acryl fentanyl, from Alabama, Connecticut, Illinois, Indiana, Kentucky, Louisiana, Minnesota, Missouri, North Carolina, South Carolina, Tennessee, Texas, and West Virginia. According to STARLiMS, the first laboratory submission of acryl fentanyl occurred in July 2016 in Texas.
The National Forensic Laboratory Information System (NFLIS) is a national drug forensic laboratory reporting system that systematically collects results from drug chemistry analyses conducted by other federal, state and local forensic laboratories across the country. NFLIS registered 74 reports containing acryl fentanyl from state or local forensic laboratories in Arkansas, California, Connecticut, Iowa, Kentucky, Ohio, Pennsylvania, South Carolina, Texas, and Wisconsin (query date: May 5, 2017).
Evidence suggests that the pattern of abuse of fentanyl analogues, including acryl fentanyl, parallels that of heroin and prescription opioid analgesics. Seizures of acryl fentanyl have been encountered in powder form, in solution, and packaged similar to that of heroin. Acryl fentanyl has been encountered as a single substance as well as in combination with other substances of abuse, including heroin, fentanyl, 4-fluoroisobutyryl fentanyl, and furanyl fentanyl. Acryl fentanyl has been connected to fatal overdoses, in which insufflation and intravenous routes of administration are documented.
Reports collected by the DEA demonstrate acryl fentanyl is being abused for its opioid properties. This abuse of acryl fentanyl has resulted in morbidity and mortality (
The population likely to abuse acryl fentanyl overlaps with the population abusing prescription opioid analgesics, heroin, fentanyl, and other fentanyl-related substances. This is evidenced by the routes of drug administration and drug use history documented in acryl fentanyl fatal overdose cases and encounters of the substance by law enforcement officials. Because abusers of acryl fentanyl are likely to obtain this substance through unregulated sources, the identity, purity, and quantity are uncertain and inconsistent, thus posing significant adverse health risks to the end user. Individuals who initiate (
Acryl fentanyl exhibits pharmacological profiles similar to that of fentanyl and other µ-opioid receptor agonists. The toxic effects of acryl fentanyl in humans are demonstrated by overdose fatalities involving this substance. Abusers of acryl fentanyl may not know the origin, identity, or purity of this substance, thus posing significant adverse health risks when compared to abuse of pharmaceutical preparations of opioid analgesics, such as morphine and oxycodone.
Based on information reviewed by the DEA, the misuse and abuse of acryl fentanyl leads to the same qualitative public health risks as heroin, fentanyl, and other opioid analgesic substances. As with any non-medically approved opioid, the health and safety risks for users are high. The public health risks attendant to the abuse of heroin and opioid analgesics are well established and have resulted in large numbers of drug treatment admissions, emergency department visits, and fatal overdoses.
Acryl fentanyl has been associated with numerous fatalities. At least 83 confirmed overdose deaths involving acryl fentanyl abuse have been reported from Illinois, Maryland, New Jersey, Ohio, and Pennsylvania in 2016 and 2017. As the data demonstrates, the potential for fatal and non-fatal overdoses exists for acryl fentanyl and acryl fentanyl poses an imminent hazard to the public safety.
In accordance with 21 U.S.C. 811(h)(3), based on the available data and information, summarized above, the continued uncontrolled manufacture, distribution, reverse distribution, importation, exportation, conduct of research and chemical analysis, possession, and abuse of acryl fentanyl poses an imminent hazard to the public safety. The DEA is not aware of any currently accepted medical uses for acryl fentanyl in the United States. A substance meeting the statutory requirements for temporary scheduling, 21 U.S.C. 811(h)(1), may only be placed in Schedule I. Substances in Schedule I are those that have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. Available data and information for acryl fentanyl indicate that this substance has a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. As required by section 201(h)(4) of the CSA, 21 U.S.C. 811(h)(4), the Administrator, through a letter dated April 17, 2017, notified the Assistant Secretary of the DEA's intention to temporarily place this substance in Schedule I.
This notice of intent initiates a temporary scheduling process and provides the 30-day notice pursuant to section 201(h) of the CSA, 21 U.S.C. 811(h), of DEA's intent to issue a temporary scheduling order. In accordance with the provisions of section 201(h) of the CSA, 21 U.S.C. 811(h), the Administrator considered available data and information, herein set forth the grounds for his determination that it is necessary to temporarily schedule acryl fentanyl in Schedule I of the CSA, and finds that placement of this synthetic opioid substance into Schedule I of the CSA is necessary in order to avoid an imminent hazard to the public safety.
The temporary placement of acryl fentanyl into Schedule I of the CSA will take effect pursuant to a temporary scheduling order, which will not be issued before July 3, 2017. Because the Administrator hereby finds that it is necessary to temporarily place acryl fentanyl into Schedule I to avoid an imminent hazard to the public safety, the temporary order scheduling this substance will be effective on the date that order is published in the
The CSA sets forth specific criteria for scheduling a drug or other substance. Regular scheduling actions in accordance with 21 U.S.C. 811(a) are subject to formal rulemaking procedures done “on the record after opportunity for a hearing” conducted pursuant to the provisions of 5 U.S.C. 556 and 557. 21 U.S.C. 811. The regular scheduling process of formal rulemaking affords interested parties with appropriate process and the government with any additional relevant information needed to make a determination. Final decisions that conclude the regular scheduling process of formal rulemaking are subject to judicial review. 21 U.S.C. 877. Temporary scheduling orders are not subject to judicial review. 21 U.S.C. 811(h)(6).
Section 201(h) of the CSA, 21 U.S.C. 811(h), provides for a temporary scheduling action where such action is necessary to avoid an imminent hazard to the public safety. As provided in this subsection, the Attorney General may, by order, schedule a substance in Schedule I on a temporary basis. Such an order may not be issued before the expiration of 30 days from (1) the publication of a notice in the
Inasmuch as section 201(h) of the CSA directs that temporary scheduling actions be issued by order and sets forth the procedures by which such orders are to be issued, the DEA believes that the notice and comment requirements of section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553, do not apply to this notice of intent. In the alternative, even assuming that this notice of intent might be subject to section 553 of the APA, the Administrator finds that there is good cause to forgo the notice and comment requirements of section 553, as any further delays in the process for issuance of temporary scheduling orders would be impracticable and contrary to the public interest in view of the manifest urgency to avoid an imminent hazard to the public safety.
Although the DEA believes this notice of intent to issue a temporary scheduling order is not subject to the notice and comment requirements of section 553 of the APA, the DEA notes that in accordance with 21 U.S.C. 811(h)(4), the Administrator will take into consideration any comments submitted by the Assistant Secretary with regard to the proposed temporary scheduling order.
Further, the DEA believes that this temporary scheduling action is not a “rule” as defined by 5 U.S.C. 601(2), and, accordingly, is not subject to the requirements of the Regulatory Flexibility Act (RFA). The requirements for the preparation of an initial regulatory flexibility analysis in 5 U.S.C. 603(a) are not applicable where, as here, the DEA is not required by section 553 of the APA or any other law to publish a general notice of proposed rulemaking.
Additionally, this action is not a significant regulatory action as defined by Executive Order 12866 (Regulatory Planning and Review), section 3(f), and, accordingly, this action has not been reviewed by the Office of Management and Budget.
This action 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. Therefore, in accordance with Executive Order 13132 (Federalism) it is determined that this action does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
Administrative practice and procedure, Drug traffic control, Reporting and recordkeeping requirements.
For the reasons set out above, the DEA proposes to amend 21 CFR part 1308 as follows:
21 U.S.C. 811, 812, 871(b), unless otherwise noted.
(h) * * *
Environmental Protection Agency (EPA).
Notification of submission to the Secretaries of Agriculture and Health and Human Services.
This document notifies the public as required by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) that the EPA Administrator has forwarded to the Secretary of the United States Department of Agriculture (USDA) and the Secretary of the United States Department of Health and Human Services (HHS) a draft regulatory document concerning Pesticides; Technical Amendment to Data Requirements for Antimicrobial Pesticides. The draft regulatory document is not available to the public until after it has been signed and made available by EPA.
See Unit I. under
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2015-0683, is available at
Cameo Smoot, Field and External Affairs Division (7506P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington DC 20460-0001; telephone number: (703) 305-5454; email address:
Section 25(a)(2)(A) of FIFRA requires the EPA Administrator to provide the Secretary of USDA with a copy of any draft proposed rule at least 60 days before signing it in proposed form for publication in the
No. This document is merely a notification of submission to the Secretaries of USDA and HHS. As such, none of the regulatory assessment requirements apply to this document.
Environmental Protection Agency (EPA).
Proposed rulemaking.
The Environmental Protection Agency (EPA) is proposing to approve an alternative final cover for Phase 2 of the City of Wolf Point landfill, a municipal solid waste landfill (MSWLF) owned and operated by the City of Wolf Point, Montana, on the Assiniboine and Sioux Tribes' Fort Peck Reservation in Montana. The EPA is seeking public comment on EPA's determination to approve the City of Wolf Point's alternative final cover proposal.
In the “Rules and Regulations” section of this
Written comments must be received on or before July 3, 2017.
Submit your comments, identified by Docket ID No. EPA-R08-RCRA-2016-0505, by one of the following methods:
• Online:
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Michael Roach, Resource Conservation and Recovery Program, Mail Code: 8P-R, Environmental Protection Agency, Region 8, 1595 Wynkoop Street, Denver, Colorado, 80202; telephone number: (303) 312-6369; email address:
In the “Rules and Regulations” section of this
Unless the EPA receives relevant adverse comments that oppose the site-specific rule during the comment period, the direct final rule will become effective on the date it establishes, and we will not take further action on this proposal. If we get relevant adverse comments that oppose the site-specific rule, we will withdraw the direct final rule and it will not take immediate effect. We will then respond to public comments in a later final rule based on this proposal. You may not have another opportunity for comment. If you want to comment on this action, you must do so at this time
Federal Communications Commission.
Proposed rule.
In this document, a
Comments are due on or before July 17, 2017, and reply comments are due on or before August 16, 2017. Written comments on the Paperwork Reduction Act proposed information collection requirements must be submitted by the public, Office of Management and Budget (OMB), and other interested parties on or before August 1, 2017.
You may submit comments, identified by WC Docket No. 17-108, by any of the following methods:
For detailed instructions for submitting comments and additional information on the rulemaking process, see the
Wireline Competition Bureau, Competition Policy Division, at (202) 418-1580. For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, send an email to
This is a summary of the Commission's Notice of Proposed Rulemaking (
This document contains proposed information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due August 1, 2017. Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and (e) way to further reduce the information collection burden on small business concerns with fewer than 25 employees. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.
Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS).
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1. Americans cherish a free and open Internet. And for almost twenty years, the Internet flourished under a light-touch regulatory approach. It was a framework that our nation's elected leaders put in place on a bipartisan basis. President Clinton and a Republican Congress passed the Telecommunications Act of 1996, which established the policy of the United States “to preserve the vibrant and competitive free market that presently exists for the Internet . . . unfettered by Federal or State regulation.”
2. During this time, the Internet underwent rapid, and unprecedented, growth. Internet service providers (ISPs) invested over $1.5 trillion in the Internet ecosystem and American consumers enthusiastically responded. Businesses developed in ways that the policy makers could not have fathomed even a decade ago. Google, Facebook, Netflix, and countless other online businesses launched in this country and became worldwide success stories. The Internet became an ever-increasing part of the American economy, offering new and innovative changes in how we work, learn, receive medical care, and entertain ourselves.
3. But two years ago, the FCC changed course. It decided to apply utility-style regulation to the Internet. This decision represented a massive and unprecedented shift in favor of government control of the Internet.
4. The Commission's
5. Today, we take a much-needed first step toward returning to the successful bipartisan framework that created the free and open Internet and, for almost twenty years, saw it flourish. By proposing to end the utility-style regulatory approach that gives government control of the Internet, we aim to restore the market-based policies necessary to preserve the future of Internet Freedom, and to reverse the decline in infrastructure investment, innovation, and options for consumers put into motion by the FCC in 2015. Our actions today continue our critical work to promote broadband deployment to rural consumers and infrastructure investment throughout our nation, to brighten the future of innovation both within networks and at their edge, and to close the digital divide.
6. Between enactment of the Telecommunications Act and the 2015 adoption of the
7. Today, we propose to reinstate the information service classification of broadband Internet access service and return to the light-touch regulatory framework first established on a bipartisan basis during the Clinton Administration. We also propose to reinstate the determination that mobile broadband Internet access service is not a commercial mobile service.
8. Our proposal to classify broadband Internet access service as an information service is based on a number of factors. First, we examine the text, structure, and history of the Communications Act and the Telecommunications Act, combined with the technical details of how the Internet works. Second, we examine Commission precedent. Third, we examine public policy and our goal of benefiting consumers through greater innovation, investment, and competition. We seek comment on our proposals and these analyses.
9. We start with the text of the Act itself. Section 3 of the Act defines an “information service” as “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.” Section 3 defines a “telecommunications service” as “the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.” Section 3 also defines “telecommunications,” used in each of the prior two definitions, as “the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.”
10. We believe that Internet service providers offer the “capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.” Whether posting on social media or drafting a blog, a broadband Internet user is able to generate and make available information online. Whether reading a newspaper's Web site or browsing the results from a search engine, a broadband Internet user is able to acquire and retrieve information online. Whether it's an address book or a grocery list, a broadband Internet user is able to store and utilize information online. Whether uploading filtered photographs or translating text into a foreign language, a broadband Internet user is able to transform and process information online. In short, broadband Internet access service appears to offer its users the “capability” to perform each and every one of the functions listed in the definition—and accordingly appears to be an information service by definition. We seek comment on this analysis. Can broadband Internet users indeed access these capabilities? Are there other capabilities that a broadband Internet user may receive with service? If broadband Internet access service does not afford one of the listed capabilities to users, what effect would that have on our statutory analysis? More fundamentally, we seek comment on
11. In the
12. In contrast, Internet service providers do not appear to offer “telecommunications,”
13.
14. Other provisions of the Act appear to confirm our analysis that broadband Internet access services should be classified as information services. For instance, section 230 defines an interactive computer service to mean “
15. Section 231 is even more direct. It expressly states that “Internet access service” “does not include telecommunications services.” And it defines Internet access service as one offering many capabilities (like an information service): “a service that enables users to access content, information, electronic mail, or other services offered over the Internet, and may also include access to proprietary content, information, and other services as part of a package of services offered to consumers.” Although inserted into the Communications Act one year after the Telecommunications Act's passage and previously interpreted to “clarify that section 231 was not intended to impair our or a state commission's ability to regulate basic telecommunications services,” this language on its face makes clear that Internet access service is not a telecommunications service. We seek comment on this analysis, on the language of section 231, and on how it should impact our classification of broadband Internet access service.
16. The structure of Title II appears to be a poor fit for broadband Internet access service. In the
17. The purposes of the Telecommunications Act appear to be better served by classifying broadband Internet access service as an information service. Congress passed the Telecommunications Act to “promote competition and reduce regulation” and “[n]othing in the 1996 Act or its legislative history suggests that Congress intended to alter the current classification of Internet and other information services or to expand traditional telephone regulation to new and advanced services.” Or as Senator John McCain put it, “[i]t certainly was not Congress's intent in enacting the supposedly pro-competitive, deregulatory 1996 Act to extend the burdens of current Title II regulation to Internet services, which historically have been excluded from regulation.” Or as Congress codified its intent in section 230: It is the policy of the United States “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.” An information service classification would “reduce regulation” and preserve a free market “unfettered by Federal or State regulation”—but a telecommunications service classification would not. Indeed, as Judge Brown of the D.C. Circuit recently noted, “[b]y incorporating [the] FCC's distinction between `enhanced service' and `basic service' into the statutory scheme, and by placing Internet access on the `enhanced service' side, Congress prohibited the FCC from construing the `offering' of `telecommunications service' to be the `information service' of Internet access.” We seek comment on this analysis, as well as whether there are any other provisions of the Communications Act or Telecommunications Act that establish congressional intent with respect to the appropriate regulatory framework for broadband Internet access services.
18. More broadly, we seek comment on the text, structure, and purposes of the Communications Act and the Telecommunications Act, as well as any additional facts about what Internet service providers offer, how broadband Internet access service works, and what broadband Internet users expect that might inform our analysis.
19. We seek special comment on two aspects of the
20. Second, the
21. Our proposed classification of broadband Internet access service as an information service is firmly rooted in Commission precedent. For two decades, a consistent bipartisan framework supported a free and open Internet. That same consensus led to six separate Commission decisions confirming that Internet access service is an information service, subject to Title I. Chairman Kennard first led the
22. We believe the Commission under Democratic and Republican leadership alike was correct in these decisions to classify broadband Internet access service as an information service and that, 20 years after the passage of the Telecommunications Act, we should be reluctant to second-guess the interpretations of those more likely to understand the contemporary meaning of the terms of the Telecommunications Act. We seek comment on our assessment. Did the Commission's historical information service classification better enable flexibility in marketplace offerings? Did the regulatory certainty of maintaining the same regulatory environment for approximately three decades (since the
23. The Commission has previously concluded that Congress formally codified information services and telecommunications services as two, mutually exclusive types of service in the Telecommunications Act. The
24. The Commission has previously found that Congress intended the definitions of information service and telecommunications service in the Act to parallel those definitions in the MFJ and in the
25. Finally, the
26. We note that the Commission's
27. The Commission's decision to reclassify broadband Internet access service as a telecommunications service subject to Title II regulation has resulted in negative consequences for American consumers—including depressed broadband investment and reduced innovation because of increased regulatory burdens and regulatory uncertainty stemming from the rules adopted under Title II. As providers have devoted more resources to complying with new regulations, the threat of regulatory enforcement of vague rules and standards has dampened providers' incentive to invest and innovate. Additionally, although reclassifying broadband Internet access service as a telecommunications service has led to significant regulatory burdens, it has not solved any discrete, identifiable problems. Restoring broadband Internet access service to its previous status as an information service subject to Title I is in the public interest because it will alleviate the harms caused by Title II reclassification. We seek detailed comment on this analysis below.
28. Following the
29. We believe that these reduced expenditures are a direct and unavoidable result of Title II reclassification, and exercise our predictive judgment that reversing the Title II classification and restoring broadband Internet access service to a Title I service will increase investment. Among other things, Internet service providers have finite resources, and requiring providers to divert some of those resources to newly imposed regulatory requirements adopted under Title II will, unsurprisingly, reduce expenditures that benefit consumers. We seek comment on how the burdens associated with Title II regulation have impacted broadband investment and, as a result, consumers. Has the Commission's increased regulation of broadband adversely impacted broadband investment and innovation? What impact has Title II reclassification had on providers' business models, including any lost opportunity costs, and how has this impact been passed on to consumers? Is there any evidence that increased regulation has promoted broadband investment, as some claim? What are the long-term implications of utility-style regulation with respect to capital expenditures on high-speed networks?
30. We also seek specific comment on how the classification of broadband Internet access service as a telecommunications service has impacted smaller broadband Internet access service providers, many of whom lack the dedicated compliance staffs and financial resources of the nation's largest providers. Before the Commission adopted the
31. In addition to imposing significant regulatory costs on Internet service providers, Title II reclassification created significant regulatory uncertainty. USTelecom specifically identified “regulatory uncertainty” as one of the causes of reduced investment. Regulatory uncertainty may have particularly significant effects on small Internet service providers, which may be poorly equipped to address the legal, technical, and financial burdens associated with an uncertain regulatory environment. That uncertainty has directly led to reduced investment, which has harmed consumers. We seek comment on what other effects regulatory uncertainty has had on broadband Internet access service providers' investment decisions.
32. We also seek comment on other consumer benefits that would result from restoring broadband Internet access service classification to an information service, rather than subjecting these services to utility-style regulation. We note that increased investment is likely to lead to a faster closing of the digital divide for rural and low-income consumers, higher speeds and more competition for all consumers, as well as more affordable prices. We seek comment on the magnitude of these effects, and what further steps the Commission should take to maximize facilities-based investment and competition. Specifically, we seek comment on the trade-offs from changing the classification status. We also seek comment more broadly on the effects on innovation of regulatory uncertainty, and other examples of reduced innovation from Internet service providers as a result of the Title II classification.
33. We also seek comment on specific ways in which consumers were harmed under the light-touch regulatory framework that existed before the Commission's
34. Conversely, what, if any, changes have been made as a result of Title II reclassification that have had a positive impact on consumers? Was Title II reclassification necessary for any of those changes to occur? Is there any evidence, for example, that consumers' online experiences and Internet access have improved due to policies adopted in the
35. As the D.C. Circuit has held, “[i]t is axiomatic that administrative agencies may issue regulations only pursuant to authority delegated to them by Congress.” And that authority is not unbounded. The Commission has authority, as the Supreme Court recognized in
36. An agency also is free to change its approach to interpreting and implementing a statute so long as it acknowledges that it is doing so and justifies the new approach. Evaluating the change in regulatory approach in the
37. Even more fundamentally, we believe that the Commission's statutory interpretation in the
38. We propose to classify all broadband Internet access services—both fixed and mobile—as information services. With respect to mobile broadband Internet access service, we further propose to return it to its original classification as a private mobile service, and in conjunction to revisit the elements of the
39. We propose to restore the meaning of “public switched network” under section 332(d)(2) to its pre-
40. We also propose to return to our prior definition of “interconnected service” by restoring the word “all” in the codified definition. Although the court in
41. We also seek comment on whether any other interpretations of section 332 or our implementing rules from the
42. In applying the definitions and interpretations of key terms in section 332 and our implementing rules under the proposals above, we also propose to reach the same conclusions regarding the application of those terms to mobile broadband Internet access service as we did in the
43. Furthermore, insofar as mobile broadband Internet access service is best interpreted to be an information service, we believe that likely also would counsel in favor of classifying it as a private mobile service to avoid the inconsistency of the service being both an information service and a common carrier service. The Commission explained this reasoning when originally classifying mobile broadband Internet access service as both an information service and a private mobile service, and we propose to apply that same reasoning again here. We seek comment on this proposal.
44. We also believe that mobile broadband Internet access service is not the “functional equivalent” of commercial mobile service, and seek comment on that view. The Commission previously has observed, in light of Congress's determinations in section 332, that “very few mobile services that do not meet the definition of CMRS will be a close substitute for a commercial mobile radio service.” By contrast, we are concerned that the
45. Given the apparent historical success of the wireless marketplace prior to the
46. The
47.
48. We also seek comment on the effect of reinstating an information service classification on providers that voluntarily offered broadband transmission on a common carrier basis under the
49.
50. We propose to respect the jurisdictional lines drawn by Congress whereby the FTC oversees Internet service providers' privacy practices, given its decades of experience and expertise in this area. We seek comment on this proposal.
51.
52.
53. Proposing to restore broadband Internet access service to its long-established classification as an information service reflects our commitment to a free and open Internet. Indeed, our lead proposal reaffirms the long-standing, bipartisan consensus begun in the Clinton Administration by restoring the Internet to the dynamic state that allowed it to flourish prior to the
54. Below, we explore the best method to restore the long-standing consensus under both Democratic and Republican-led Commissions, represented by the four Internet Freedoms, that consumers should have access to the content, applications, and devices of their choosing as well as meaningful information about their service, all without deterring the investment and innovation that has allowed the Internet to flourish. We examine these freedoms and the Commission's current rules related to them, and for each, ask whether we should keep, modify, or eliminate them.
55. In the
56. We propose eliminating this Internet conduct standard and the non-exhaustive list of factors intended to guide application of the rule, and we seek comment on this proposal. What are the costs of the present Internet conduct standard and implementing factors? Do the standard and its implementing factors provide carriers with adequate notice of what they are and are not allowed to do? Does the standard benefit consumers in any way and, if so, how? We believe that eliminating the Internet conduct standard will promote network investment and service-related innovation by eliminating the uncertainty caused by vague and undefined regulation. Do commenters agree?
57. Because the Internet conduct standard is premised on theoretical problems that will be adjudicated on an individual, case-by-case basis, Internet service providers must guess at what they are permitted and not permitted to do. The now-retracted so-called Zero Rating Report issued by the Wireless Telecommunications Bureau illustrates the dilemma providers experience under a Title II regulatory regime. After a thirteen-month investigation, the Report did not specifically call for an end to any provider's practices or identify any particular harm from offering consumers free data. Instead, it stated that the free-data plans “may raise” economic and public policy issues that “may harm consumers and competition.” It then reiterated that any determination about the harm from free data offerings would be made by the Commission on a “case-by-case” basis, using a “non-exhaustive list of factors.” Instead of giving providers clear rules of the road to govern future conduct, this report put a provider on notice that an enforcement action could be just around the corner. The Report, and the investigation that preceded it, left Internet service providers with two options: Either wait for a regulatory enforcement action that could arrive at some unspecified future point or stop providing consumers with innovative offerings. We seek comment on whether this roving mandate has impacted innovation, and what impact that has had on consumers. We seek comment on whether eliminating this vague standard will spur innovation and benefit consumers.
58. We propose not to adopt any alternatives to the Internet conduct rule, and we seek comment on this proposal. Is there a need for any general non-
59. In the
60. At the outset of our review of the Commission's existing rules, we seek comment on whether
61. The Commission partially justified the 2015 rules on the theory that the rules would prevent anti-competitive behavior by ISPs seeking to advantage affiliated content. With the existence of antitrust regulations aimed at curbing various forms of anticompetitive conduct, such as collusion and vertical restraints under certain circumstances, we seek comment on whether these rules are necessary in light of these other regulatory regimes. Could the continued existence of these rules negatively impact future innovative, pro-competitive business deals that would not by themselves run afoul of merger conditions or established antitrust law?
62. In addition, the D.C. Circuit majority that reviewed the
63.
64. We seek comment on the continuing need for a no-blocking rule. The no-blocking rule, originally adopted in 2010, invalidated by the
65. If we determine that a no-blocking rule is indeed necessary to ensure a free, open, and dynamic Internet, what are the best means to achieve this outcome consistent with the goals of maintaining Internet freedom and maximizing investment? Should we consider modifying the existing no-blocking rule to better align with our proposed legal classification of broadband Internet access service as an information service? The
66.
67. The Commission justified the separate, codified no-throttling rule on
68.
69. What are the trade-offs in banning business models dependent on paid prioritization versus allowing them to occur when overseen by a regulator or industry actors? Is there a risk that banning paid prioritization suppresses pro-competitive activity? For example, could allowing paid prioritization give Internet service providers a supplemental revenue stream that would enable them to offer lower-priced broadband Internet access service to end-users? What would be the impacts on new startups and innovation? Does a no-paid-prioritization rule harm the development of real-time or interactive services? Could allowing paid prioritization enable certain critical information, such as consumers' health care vital signs that are being monitored remotely, to be transmitted more efficiently or reliably? What other considerations mitigate any potential negative impacts from business models like paid prioritization? Should the Commission impose restrictions on these business models at all?
70. We seek comment on current traffic delivery arrangements online. How do content, application, and service providers host their data online? Do they rely on installing their own servers in data centers, content delivery networks, or cloud-based hosting? What are the varying service characteristics of these options and their varying costs? It appears that some larger online content providers like Netflix host their own data centers and interconnect directly with Internet service providers. Is that still true? What are the service characteristics and costs of this option? How should the existence of these arrangement impact our evaluation of whether Internet service providers should be able to offer an alternative delivery option such paid prioritization?
71. For those parties that believe an
72.
73. Although we agree that the disclosure requirements were among some of the least intrusive regulatory measures imposed by the
74. Assuming we find a transparency rule necessary, how should we treat the additional guidance related to the transparency rule? For example, should we continue to enforce guidance from the Commission's Chief Technology Officer regarding acceptable methodologies for disclosure of network performance to satisfy the enhanced transparency rule? Is there merit in continuing to promote the broadband consumer labels that provided ISPs with a safe harbor—or do those standardized notices harm consumers by preventing them from obtaining additional information? Does the repeated need for advisory guidance following the original 2010 transparency rule indicate that the rule itself is too open-ended?
75. Should we decide to keep or modify any of our existing open Internet rules, we propose and seek comment on several issues related to their continued operation.
76.
77. For the reasonable network management exception and definition of non-broadband Internet access service data services that fall outside the scope of the rules, we seek comment on how we should view any additional guidance explaining those terms as set forth in the
78.
79. Should we keep or modify any of the Commission's existing rules discussed above, we seek comment on how we should enforce them. In the
80. Additionally, we seek comment on streamlining future enforcement processes. For instance, we propose eliminating the ombudsperson role. Is the role of an ombudsperson necessary to protect consumer, business, and other organizations' interests when the Commission has a Bureau—the Consumer and Governmental Affairs Bureau (CGB)—dedicated to protecting consumer interests? Our experience suggests that consumers are comfortable working with CGB, and typically did not call on the ombudsperson specifically. Has the ombudsperson been called to action to assist in circumstances that otherwise could not have been handled by CGB?
81. What have been the benefits and drawbacks of the complaint procedures instituted in 2010 and 2015? Since these rules were formally codified in 2010, only one formal complaint has been filed under them to date. Can we infer that parties heeded the Commission's encouragement to “resolve disputes through informal discussions and private negotiations” without Commission involvement, except through the informal complaint process? Does the lack of formal complaints indicate that dedicated, formal enforcement procedures are unwarranted? If we restore broadband Internet access service's classification as an information service, should that alter our complaint and enforcement process in this context? If so, in what way should the processes be altered? Are there methods other than formal complaints we can employ to ensure a free and open Internet?
82. In addition to the enforcement regime, the
83. We seek comment on the legal authority that the Commission would have in this area if we adopted our lead proposal to classify broadband Internet access service as an information service.
84.
85.
86.
87.
88. We propose as part of this proceeding to conduct a cost-benefit analysis (CBA). We propose to compare the costs and the benefits of maintaining the classification of broadband Internet access service as a telecommunications service (
89. Given the size of the economic impacts due to our decisions in this proceeding, it is especially important to evaluate whether the decision will have net positive benefits. Our presumption is that the effects of the decision would have an annual effect on the economy of
90. In conducting the CBA, we propose to follow standard practices employed by the federal government. Specifically we propose to follow the guidelines in section E (“Identifying and Measuring Benefits and Costs”) of the Office of Management and Budget's Circular A-4. This publication provides guidelines that an agency can follow for identifying and quantifying costs and benefits associated with regulatory decisions while allowing for appropriate latitude in how the analysis is conducted for a particular regulatory situation. We seek comment on following Circular A-4 generally. We also seek comment on any specific portions of Circular A-4 where the Commission should diverge from the guidance provided. Commenters should explain why particular guidance in Circular A-4 should not be followed in this circumstance and should propose alternatives.
91. Any CBA should be conducted by comparing the costs and benefits relative to the “baseline” scenario. As OMB Circular A-4 explains, “[t]his baseline should be the best assessment
92. In weighing the costs and benefits of any policy, there always exists an element of uncertainty. As commenters suggest costs and benefits the Commission should consider, we ask that to the extent possible information could also be provided about the level of certainty surrounding a scenario or particular value. Also, various costs and benefits are likely to occur at different points in time. When suggesting costs and benefits, we seek comment on the timing of those costs and benefits. (As explained in OMB Circular A-4, section E, the timing of costs and benefits is important because ultimately the CBA will need to discount future costs and benefits for the purpose of calculating net present benefits.) We also seek comment on how uncertainty around and timing of costs and benefits should interact in the analysis.
93.
94. In addition to the private costs discussed above, foregone networks may also impose additional societal costs. In particular, fewer network effects created by increased connectivity will occur. As another example, society will not realize some efficiencies and savings from governments delivering services over the networks. Additionally, there are likely long run costs due to forgoing better connectivity that would allow new products and services to be created. We seek comment on this analysis. How should our CBA incorporate these types of cost into the analysis? What other ancillary costs might exist? What data is appropriate to use?
95. It is also likely that the foregone investment
96. Lastly, there may be other costs that are not directly the result of decreased investment in networks. Maintaining current policies may prevent new business models or new products and services from being viable and ultimately delivering value to society. We seek comment on such costs and how we may incorporate them into our analysis.
97.
98. We particularly seek comments that attempt to quantify the benefits rather than merely suggest the existence of benefits without any indication of their magnitude. We also ask commenters to particularly highlight benefits where
99. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities from the policies and rules proposed in this Notice of Proposed Rulemaking (NPRM). The Commission requests written public comment on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the NPRM provided on the first page of the NPRM. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the NPRM and IRFA (or summaries thereof) will be published in the
100. With this NPRM, the Commission initiates a new rulemaking that proposes to restore the market-based policies necessary to preserve the future of Internet Freedom, and to reverse the decline in infrastructure investment, innovation, and options for American consumers put into motion by the Commission in 2015. The Commission's
101. The NPRM sets forth the following three main proposals: Returning broadband Internet access service to its previously-settled classification as an information service, restoring the definition of “public switched telephone network” to its original meaning, and eliminating the Internet conduct standard. The NPRM also seeks comment on a variety of issues relating to the effects of the Commission's
102. The legal basis for any action that may be taken pursuant to the NPRM is contained in sections 3, 10, 201(b), 230, 254(e), 303(r), 332, of the Communications Act of 1934, as amended, and section 706 of the Telecommunications Act of 1996, as amended, 47 U.S.C. 153, 160, 201(b), 254(e), 303(r), 332, 1302.
103. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. 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. 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 SBA.
104.
105. The proposed rules would apply to broadband Internet access service providers. The Economic Census places these firms, whose services might include Voice over Internet Protocol (VoIP), in either of two categories, depending on whether the service is provided over the provider's own telecommunications facilities (
106. The broadband Internet access service provider industry has changed since this definition was introduced in 2007. The data cited above may therefore include entities that no longer provide broadband Internet access service, and may exclude entities that now provide such service. To ensure that this IRFA describes the universe of small entities that our action might affect, we discuss in turn several different types of entities that might be providing broadband Internet access service. We note that, although we have no specific information on the number of small entities that provide broadband Internet access service over unlicensed spectrum, we include these entities in our Initial Regulatory Flexibility Analysis.
107.
108.
109.
110.
111. We have included small incumbent LECs in this present RFA analysis. As noted above, a “small business” under the RFA is one that,
112.
113.
114.
115. The broadband Internet access service provider category covered by these proposed rules may cover multiple wireless firms and categories of regulated wireless services. Thus, to the extent the wireless services listed below are used by wireless firms for broadband Internet access service, the proposed actions may have an impact on those small businesses as set forth above and further below. In addition, for those services subject to auctions, we note that, as a general matter, the number of winning bidders that claim to qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Also, the Commission does not generally track subsequent business size unless, in the context of assignments and transfers or
116.
117. The Commission's own data—available in its Universal Licensing System—indicate that, as of October 25, 2016, there are 280 Cellular licensees that will be affected by our actions today. The Commission does not know how many of these licensees are small, as the Commission does not collect that information for these types of entities. Similarly, according to internally developed Commission data, 413 carriers reported that they were engaged in the provision of wireless telephony, including cellular service, Personal Communications Service, and Specialized Mobile Radio Telephony services. Of this total, an estimated 261 have 1,500 or fewer employees, and 152 have more than 1,500 employees. Thus, using available data, we estimate that the majority of wireless firms can be considered small.
118.
119.
120.
121.
122. On January 26, 2001, the Commission completed the auction of 422 C and F Block Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders in that auction, 29 claimed small business status. Subsequent events concerning Auction 35, including judicial and agency determinations, resulted in a total of 163 C and F Block licenses being available for grant. On February 15, 2005, the Commission completed an auction of 242 C-, D-, E-, and F-Block licenses in Auction No. 58. Of the 24 winning bidders in that auction, 16 claimed small business status and won 156 licenses. On May 21, 2007, the Commission completed an auction of 33 licenses in the A, C, and F Blocks in Auction No. 71. Of the 12 winning bidders in that auction, five claimed small business status and won 18 licenses. On August 20, 2008, the Commission completed the auction of 20 C-, D-, E-, and F-Block Broadband PCS licenses in Auction No. 78. Of the eight winning bidders for Broadband PCS licenses in that auction, six claimed small business status and won 14 licenses.
123.
124. The auction of the 1,053 800 MHz SMR geographic area licenses for the General Category channels began on August 16, 2000, and was completed on September 1, 2000. Eleven bidders won 108 geographic area licenses for the General Category channels in the 800 MHz SMR band and qualified as small businesses under the $15 million size standard. In an auction completed on December 5, 2000, a total of 2,800 Economic Area licenses in the lower 80
125. In addition, there are numerous incumbent site-by-site SMR licenses and licensees with extended implementation authorizations in the 800 and 900 MHz bands. We do not know how many firms provide 800 MHz or 900 MHz geographic area SMR service pursuant to extended implementation authorizations, nor how many of these providers have annual revenues of no more than $15 million. One firm has over $15 million in revenues. In addition, we do not know how many of these firms have 1,500 or fewer employees, which is the SBA-determined size standard. We assume, for purposes of this analysis, that all of the remaining extended implementation authorizations are held by small entities, as defined by the SBA.
126.
127. In 2007, the Commission reexamined its rules governing the 700 MHz band in the
128.
129.
130.
131.
132.
133.
134.
135. In 2009, the Commission conducted Auction 86, the sale of 78 licenses in the BRS areas. The Commission offered three levels of bidding credits: (i) A bidder with attributed average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years (small business) received a 15 percent discount on its winning bid; (ii) a bidder with attributed average annual gross revenues that exceed $3 million and do not exceed $15 million for the preceding three years (very small business) received a 25 percent discount on its winning bid; and (iii) a bidder with attributed average annual gross revenues that do not exceed $3 million for the preceding three years (entrepreneur) received a 35 percent discount on its winning bid. Auction 86 concluded in 2009 with the sale of 61 licenses. Of the ten winning bidders, two bidders that claimed small business status won 4 licenses; one bidder that claimed very small business status won three licenses; and two bidders that claimed entrepreneur status won six licenses.
136. In addition, the SBA's Cable Television Distribution Services small business size standard is applicable to EBS. There are presently 2,436 EBS licensees. All but 100 of these licenses are held by educational institutions. Educational institutions are included in this analysis as small entities. Thus, we estimate that at least 2,336 licensees are small businesses. Since 2007, Cable Television Distribution Services have been defined within the broad economic census category of Wired Telecommunications Carriers; that category is defined as follows: “This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies.” The SBA has developed a small business size standard for this category, which is: All such firms having 1,500 or fewer employees. To gauge small business prevalence for these cable services we must, however, use the most current census data that are based on the previous category of Cable and Other Program Distribution and its associated size standard; that size standard was: All such firms having $13.5 million or less in annual receipts. According to Census Bureau data for 2007, there were a total of 996 firms in this category that operated for the entire year. Of this total, 948 firms had annual receipts of under $10 million, and 48 firms had receipts of $10 million or more but less than $25 million. Thus, the majority of these firms can be considered small.
137.
138.
139.
140. Because section 706 requires us to monitor the deployment of broadband using any technology, we anticipate that some broadband service providers may not provide telephone service. Accordingly, we describe below other types of firms that may provide broadband services, including cable companies, MDS providers, and utilities, among others.
141.
142.
143.
144.
145. As indicated above, the NPRM seeks comment on modifications to the Commission's existing no-blocking rule, no-throttling rule, no paid prioritization rule, and transparency rule, and it proposes eliminating the Internet conduct standard. While we anticipate that the removal or modification of burdensome regulations will lead to a
146. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include (among others) the following four alternatives: (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 or reporting requirements under the rule for 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 small entities.
147. The
148. The Commission also expects to consider the economic impact on small entities, as identified in comments filed in response to the NPRM and this IRFA, in reaching its final conclusions and taking action in this proceeding. We note that numerous small providers have already filed comments with the Commission expressing their support for the Commission's proposed changes.
149. We seek comment here on the effect the various proposals described in the NPRM, and summarized above, will have on small entities, and on what effect alternative rules would have on those entities. How can the Commission achieve its goal of protecting and promoting an open Internet while also imposing minimal burdens on small entities? We specifically note that within this
150. Since this
151. None.
152. As required by the Regulatory Flexibility Act of 1980 (RFA), the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) for this
153. This document contains proposed modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (“OMB”) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.
154. The proceeding this NPRM initiates shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's
155. Accordingly,
156.
157.
Protecting and promoting the open internet.
Commercial mobile services.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR parts 8 and 20 as follows:
(b) The functional equivalent of such a mobile service described in paragraph (a) of this section.
(a) That is interconnected with the public switched network, or interconnected with the public switched network through an interconnected service provider, that gives subscribers the capability to communicate to or receive communication from all other users on the public switched network; or
Federal Communications Commission.
Proposed rule.
In this document, the Commission proposes to eliminate its rule that requires each AM, FM, and television broadcast station to maintain a main studio located in or near its community of license. The Commission tentatively finds that the main studio rule is now outdated and unnecessarily burdensome for broadcast stations. The Commission also proposes to eliminate existing requirements associated with the main studio rule, including the requirement that the main studio must have full-time management and staff present during normal business hours, and that it must have program origination capability.
Comments are due on or before July 3, 2017; reply comments are due on or before July 17, 2017.
You may submit comments, identified by MB Docket No. 17-106, by any of the following methods:
• Federal eRulemaking Portal:
• Federal Communications Commission's Web site:
• Mail: Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by email:
For additional information on this proceeding, contact Diana Sokolow,
This is a summary of the Commission's Notice of Proposed Rulemaking, FCC 17-59, adopted and released on May 18, 2017. The full text is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW., Room CY-A257, Washington, DC 20554. This document will also be available via ECFS at
1. In this Notice of Proposed Rulemaking (NPRM), we propose to eliminate the Federal Communications Commission (Commission) rule that requires each AM, FM, and television broadcast station to maintain a main studio located in or near its community of license.
2. We propose to eliminate our rule requiring each AM, FM,
3. We also seek comment on the costs that AM, FM, and television broadcast stations face in complying with the current main studio rule and associated requirements. How significant are these costs, particularly for small stations? Would eliminating the main studio rule, as well as the associated staffing and program origination capability requirements, enable broadcasters to allocate greater resources to programming and other matters? Would eliminating the rule make it more efficient for co-owned or jointly operated broadcast stations to co-locate their offices, rather than operating a main studio in or near each station's community of license? We invite comment on these and other efficiencies that could be achieved by eliminating the main studio rule. Are there any particular issues we should be aware of with regard to eliminating the main studio rule for non-commercial broadcast stations?
4. How frequently do stations receive in-person visits from members of the community, and are those visits to request access to hard copy public inspection files or for other purposes? To what extent do people contact stations by telephone, by mail, or online, rather than through in-person visits? Have technological advances, including widespread access to the Internet, mobile telephones, email, and social media, obviated the need to accommodate in-person visits from community members? If we eliminate the main studio rule, would competitive market conditions ensure that stations will continue to keep apprised of significant local needs and issues? Would eliminating the main studio rule impact a station's ability to communicate time-sensitive or emergency information to the public? If the existence of a local main studio no longer plays a significant role in ensuring that broadcast stations serve their local communities, then eliminating the main studio requirement likely will not significantly impact the requirement that the Commission “make such distribution of licenses, frequencies, hours of operation, and of power among the several States and communities as to provide for a fair, efficient, and equitable distribution of radio service to each of the same.”
5. Although the Commission eliminated its program origination requirement in 1987, it subsequently clarified that stations must nonetheless “equip the main studio with production and transmission facilities that meet applicable standards [and] maintain continuous program transmission capability . . . [to] allow broadcasters to continue, at their option, and as the marketplace demands, to produce local programs at the studio.” We invite comment on the continued relevance of the program origination capability requirement that currently applies to main studios. What function does it serve today? To what extent do stations produce local programming at their main studios? If we eliminate the main studio rule, should we maintain the program origination capability requirement, and, if so, how? Would program origination, to the extent it happens today, occur anyway absent any capability requirement as stations seek to continue to meet viewers' and listeners' interests?
6. We propose to retain section 73.1125(e) of our rules, which requires “[e]ach AM, FM, TV and Class A TV broadcast station [to] maintain a local telephone number in its community of license or a toll-free number.” We invite comment on this proposal. Would retention of this requirement help ensure that members of the community continue to have access to their local broadcast stations, for example, to share concerns or seek information, if the current main studio requirements are eliminated? Stations currently are required to post their telephone numbers in their online public files. If we eliminate the main studio rule, should we encourage stations to also publicize their phone numbers in additional ways, such as on their Web sites? Should we require the telephone number to be staffed during normal business hours so that community members may seek assistance during that time? Or, should we require the telephone number to be staffed at all times in which the AM, FM, or Class A
7. To the extent that stations are no longer required to have a local main studio, we seek comment on how we should ensure that community members have access to a station's public file. In this regard, we note that television stations already have fully transitioned their public file materials to the online public file as have some radio stations. We recognize that under current rules, some stations may continue maintaining public inspection files locally, and not online, even after the applicable compliance deadline. In addition, certain existing political materials that are part of the public inspection file may remain in the local public inspection file, rather than the online public inspection file, until the station is no longer required to retain the materials in question. If all or a portion of a station's public inspection file is not available via the online public file, we invite comment on how best to ensure that community members have access to the relevant materials in the absence of a local main studio. For example, should we require the station to provide community members with access to its local public inspection file at another location in the community of license, such as a local library or another station's main studio?
8. In addition to the proposed revisions to section 73.1125 of the Commission's rules, we propose to eliminate other Commission rules that currently reference section 73.1125. Specifically, if we eliminate the main studio rule, we also will need to delete sections 73.3538(b)(2) (informal application to relocate main studio), 73.1690(c)(8)(ii) (location of FM studio within station principal community contour), and 73.1690(d)(1) (permissive change in studio location) of the Commission's rules, all of which are premised on the existing main studio rule.
9. We also invite comment on any other issues related to our proposals in this proceeding. What impact would elimination of the main studio rule and the associated staffing and program origination requirements have on other Commission proceedings?
10. Finally, we invite comment on any alternate proposals we should consider, rather than completely eliminating the main studio rule and associated requirements. For example, should we only eliminate the rule for a certain subset of stations, such as those that are located in small and mid-sized markets or those that have fewer than a certain number of employees? Commenters advocating this approach should explain with specificity how we should define those stations that will be permitted to eliminate their main studio. We have proposed to eliminate the main studio rule and the associated requirements for all AM, FM, and television broadcast stations. Is there any reason to distinguish between our treatment of AM, FM, and television broadcast stations in this context? We also invite comment on alternative ways we can reduce main studio-related burdens on broadcast stations.
11. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) concerning the possible significant economic impact on small entities by the policies and rules proposed in the NPRM. Written public comments are requested on the IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments provided on the first page of the NPRM. The Commission will send a copy of the NPRM, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In
12. This document does not contain any proposed new information collection requirements. It does, however, contain proposals to delete rules that contain information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements that would be impacted by the proposals contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3501 through 3520). In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
13.
14. The proposed action is authorized pursuant to sections 4(i), 4(j), 303, 307(b), and 336(f) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 303, 307(b), 336(f).
Radio, Television.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:
47 U.S.C. 154, 303, 309, 310, 334, 336, and 339.
Each AM, FM, TV and Class A TV broadcast station shall maintain a local telephone number in its community of license or a toll-free number.
(c) * * *
(8) FM commercial stations and FM noncommercial educational stations may decrease ERP on a modification of license application provided that exhibits are included to demonstrate that all five of the following requirements are met:
(i) Commercial FM stations must continue to provide a 70 dBu principal community contour over the community of license, as required by § 73.315(a). Noncommercial educational FM stations must continue to provide a 60 dBu contour over at least a portion of the community of license. The 60 and 70 dBu contours must be predicted by use of the standard contour prediction method in § 73.313(b), (c), and (d).
(ii) For commercial FM stations only, there is no change in the authorized station class as defined in § 73.211.
(iii) For commercial FM stations only, the power decrease is not necessary to achieve compliance with the multiple ownership rule, § 73.3555.
(iv) Commercial FM stations, noncommercial educational FM stations
(v) Noncommercial educational FM stations on Channels 201 through 220 which are within the Table A distance separations of § 73.525, or Class D stations on Channel 200, may not use the license modification process to eliminate an authorized horizontally polarized component in favor of vertically polarized-only operation. In addition, noncommercial educational stations operating on Channels 201 through 220, or Class D stations on Channel 200, which employ separate horizontally and vertically polarized antennas mounted at different heights, may not use the license modification process to increase or decrease either the horizontal ERP or vertical ERP without a construction permit.
(d) The following changes may be made without authorization from the FCC, however informal notification of the changes must be made according to the rule sections specified:
(1) Commencement of remote control operation pursuant to § 73.1400.
(2) Modification of an AM directional antenna sampling system. See § 73.68.
(b) An informal application filed in accordance with § 73.3511 is to be used to obtain authority to modify or discontinue the obstruction marking or lighting of the antenna supporting structure where that specified on the station authorization either differs from that specified in 47 CFR part 17, or is not appropriate for other reasons.
Office of Advocacy and Outreach, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Office of Advocacy and Outreach's (OAO) intent to request approval from the Office of Management and Budget (OMB) to conduct data collection for the U.S. Department of Agriculture (USDA) Hispanic-Serving Institutions (HSI) Scholars Program.
Comments on this notice must be received by August 1, 2017 to be assured of consideration.
The Office of Advocacy and Outreach invites interested persons to submit comments on this notice. Comments may be submitted by one of the following methods:
Jacqueline Padron, Program Director, Hispanic-Serving Institutions National Program (HSINP), USDA OAO, 1400 Independence Avenue SW., Room 520-A, Mailstop 0601, Washington, DC 20250, email:
The USDA/HSI Scholars Program is a joint human capital initiative between USDA and Hispanic-Serving Institutions. Through the program, the USDA offers scholarships to high school and college students who are seeking a bachelor's degree in the fields of agriculture, food, or natural resource sciences, and related disciplines at Hispanic-Serving Institutions. In order for graduating high school students and current freshmen and sophomores to be considered for the scholarship, a completed application is required. The first section of the high school application requests the applicant to include biographical information (
Comments may be sent to Jacqueline Padron, Program Director, Hispanic-Serving Institutions National Program, USDA Office of Advocacy and Outreach, 1400 Independence Avenue SW., Room 520-A, Mail Stop 0601, Washington, DC 20250, or via email at:
All responses to this notice will be summarized and included in the request for OMB's approval.
All comments will become a matter of public record.
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act (FACA) that a meeting of the Texas Advisory Committee (Committee) to the Commission will be held at 2:00 p.m. (Central Time) Wednesday, June 28, 2017. The purpose of the meeting is for the Committee to receive orientation from Commission staff and share project process.
The meeting will be held on Wednesday, June 28, 2017, at 2:00 p.m. CDT.
Ana Victoria Fortes (DFO) at
This meeting is available to the public through the following toll-free call-in number: 800-310-7032, conference ID number: 6093907. Any interested member of the public may call this number and listen to the meeting. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-977-8339 and providing the Service with the conference call number and conference ID number.
Members of the public are entitled to make comments during the open period at the end of the meeting. Members of the public may also submit written comments; the comments must be received in the Regional Programs Unit within 30 days following the meeting. Written comments may be mailed to the Western Regional Office, U.S. Commission on Civil Rights, 300 North Los Angeles Street, Suite 2010, Los Angeles, CA 90012. They may be faxed to the Commission at (213) 894-0508, or emailed Ana Victoria Fortes at
Records and documents discussed during the meeting will be available for public viewing prior to and after the meeting at
Hans-Mill Corporation (Hans-Mill), operator of Subzone 64D, submitted a notification of proposed production activity to the FTZ Board for its facility within Subzone 64D, in Jacksonville, Florida. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on May 10, 2017.
The facility is used for the production of household trash cans and plastic storage totes. Pursuant to 15 CFR 400.14(b), FTZ activity would be limited to the specific foreign-status materials/components and specific finished products described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.
Production under FTZ procedures could exempt Hans-Mill from customs duty payments on the foreign-status materials/components used in export production (an estimated five percent of shipments). On its domestic sales, Hans-Mill would be able to choose the duty rates during customs entry procedures that apply to stainless steel/plastic trash cans and plastic storage totes, trash cans and liners (duty rates—2 or 3%) for the foreign-status materials/components noted below. Customs duties also could possibly be deferred or reduced on foreign-status production equipment.
The materials/components sourced from abroad include pre-cut/pre-treated stainless steel sheets, plastic lids, plastic bases, pulp packaging material and polypropylene resin material (duty rates range from free to 6.5%). The request indicates that stainless steel sheets are subject to an antidumping/countervailing duty (AD/CVD) order. The FTZ Board's regulations (15 CFR 400.14(e)) require that merchandise subject to AD/CVD orders be admitted to the zone in privileged foreign status (19 CFR 146.41).
Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary at the address below. The closing period for their receipt is July 12, 2017.
A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the FTZ Board's Web site, which is accessible via
For further information, contact Diane Finver at
Bell Sports, Inc. (Bell Sports) submitted a notification of proposed production activity to the FTZ Board for its facility in Rantoul, Illinois, within Subzone 114F. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on May 15, 2017.
Bell Sports already has authority to produce certain sports equipment within Subzone 114F. The current request would add foreign status materials/components to the scope of authority. Pursuant to 15 CFR 400.14(b), additional FTZ authority would be limited to the specific foreign-status materials/components described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.
Production under FTZ procedures could exempt Bell Sports from customs duty payments on the foreign-status materials/components used in export production. On its domestic sales, Bell Sports would be able to choose the duty rates during customs entry procedures that apply to bicycle, motorcycle, football and baseball helmets; bicycle baby seats; bicycle car carrier racks; and, collectible football helmets (duty rates range from free to 10%) for the foreign-status materials/components noted below. Customs duties also could possibly be deferred or reduced on foreign-status production equipment.
The materials/components sourced from abroad include polypropylene webbing for bike helmets, stainless steel pins, aluminum screws, LED lights for bike helmets, and knee and elbow pad sets (duty rates range from 2.5% to 6.2%). The request indicates that the polypropylene webbing for bike helmets (classified under HTSUS 5806.32) will be admitted to the subzone in privileged foreign status (19 CFR 146.41), thereby precluding inverted tariff savings on this item.
Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary at the address below. The closing period for their receipt is July 12, 2017.
A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the FTZ Board's Web site, which is accessible via
For further information, contact Diane Finver at
Bureau of Industry and Security, Office of Technology Evaluation, U.S. Department of Commerce.
Notice on change in comment period for previously published notice of request for public comments and public hearing.
On May 9, 2017, the Bureau of Industry and Security (BIS), published the Notice of Request for Public Comments and Public Hearing on Section 232 National Security Investigation of Imports of Aluminum. The May 9 notice specified that the Secretary of Commerce initiated an investigation to determine the effects on the national security of imports of aluminum. This investigation has been initiated under section 232 of the Trade Expansion Act of 1962, as amended. (
Comments are encouraged to be submitted by June 20, but comments must be received no later than June 23, 2017.
Send written comments to Brad Botwin, Director, Industrial Studies, Office of Technology Evaluation, Bureau of Industry and Security, U.S. Department of Commerce, 1401 Constitution Avenue NW., Room 1093, Washington, DC 20230 or by email to
Brad Botwin, Director, Industrial Studies, Office of Technology Evaluation, Bureau of Industry and Security, U.S. Department of Commerce (202) 482-4060,
Submit public comments to
On May 9, 2017 (82 FR 21509), the Bureau of Industry and Security (BIS) published the
The May 9 notice also announced that the Department of Commerce will hold a public hearing on the investigation on June 22, 2017 in Washington, DC. (
The May 9 notice included a comment period deadline of June 29, 2017 and required that written statements related to the public hearing also be submitted by June 29, 2017. The Department of Commerce has determined at this time that it is warranted to shorten the written submission period by six calendar days. Today's notice specifies that commenters are encouraged to submit their comments by June 20, 2017, but all written submissions must now be received by no later than June 23, 2017 to be considered in the drafting of the final report. Submit public comments to
Receiving comments by June 20, 2017 will assist the Commerce Department in
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Lilit Astvatsatrian or Trisha Tran, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-6412 or (202) 482-4852, respectively.
On March 6, 2017, the Department of Commerce (Department) published the
Because the Department calculated a weighted-average antidumping duty margin of zero percent for BKT in the
In accordance with sections 735(b)(1)(A)(i) and 735(d) of the Tariff Act of 1930, as amended (the Act), the International Trade Commission (ITC) notified the Department of its final determination that the industry in the United States producing off road tires is materially injured by reason of the less-than-fair value imports of off road tires from India.
As a result of the ITC's final determination, in accordance with section 736(a)(1) of the Act, the Department will direct U.S. Customs and Border Protection (CBP) to assess, upon further instruction by the Department, antidumping duties equal to the amount by which the normal value of the merchandise exceeds the export price (or constructed export price) of the merchandise, for all relevant entries of off-road tires from India, which specifically excludes merchandise exported and produced by BKT. Antidumping duties will be assessed on unliquidated entries of off road tires from India entered, or withdrawn from warehouse, for consumption on or after February 2, 2017, the date of publication of the
In accordance with section 735(c)(1)(B) of the Act, the Department will instruct CBP to continue to suspend liquidation on all relevant entries of off road tires from India. These instructions suspending liquidation will remain in effect until further notice.
We will also instruct CBP to require cash deposits equal to the estimated weighted-average dumping margins indicated below. Accordingly, effective on the date of publication of the ITC's final affirmative injury determinations, CBP will require, at the same time as importers would normally deposit estimated duties on this subject merchandise, a cash deposit equal to the estimated weighted-average antidumping duty margins listed below.
Because the estimated weighted-average dumping margin for BKT's producer and exporter combination is zero, the Department is directing U.S. Customs and Border Protection not to suspend liquidation of entries of subject merchandise where BKT acted as both the producer and exporter. Entries of subject merchandise exported to the United States by any other producer and exporter combination are not entitled to this exclusion from suspension of liquidation and are subject to the cash deposit rate for the all-others entity.
The estimated weighted-average antidumping duty margin percentages are as follows:
This correction to the
Enforcement and Compliance, International Trade Administration, Department of Commerce.
In accordance with section 751(c) of the Tariff Act of 1930, as amended (the Act), the Department of Commerce (the Department) is automatically initiating the five-year reviews (Sunset Reviews) of the antidumping and countervailing duty (AD/CVD) order(s) listed below. The International Trade Commission (the Commission) is publishing concurrently with this notice its notice of
Effective June 2, 2017.
The Department official identified in the
The Department's procedures for the conduct of Sunset Reviews are set forth in its
In accordance with 19 CFR 351.218(c), we are initiating Sunset Reviews of the following antidumping and countervailing duty order(s):
As a courtesy, we are making information related to sunset proceedings, including copies of the pertinent statute and Department's regulations, the Department's schedule for Sunset Reviews, a listing of past revocations and continuations, and current service lists, available to the public on the Department's Web site at the following address:
This notice serves as a reminder that any party submitting factual information in an AD/CVD proceeding must certify to the accuracy and completeness of that information.
On April 10, 2013, the Department modified two regulations related to AD/CVD proceedings: The definition of factual information (19 CFR 351.102(b)(21)), and the time limits for the submission of factual information (19 CFR 351.301).
Pursuant to 19 CFR 351.103(d), the Department will maintain and make available a public service list for these proceedings. Parties wishing to participate in any of these five-year reviews must file letters of appearance as discussed at 19 CFR 351.103(d)). To facilitate the timely preparation of the public service list, it is requested that those seeking recognition as interested parties to a proceeding submit an entry of appearance within 10 days of the publication of the Notice of Initiation.
Because deadlines in Sunset Reviews can be very short, we urge interested parties who want access to proprietary information under administrative protective order (“APO”) to file an APO application immediately following publication in the
Domestic interested parties, as defined in section 771(9)(C), (D), (E), (F), and (G) of the Act and 19 CFR 351.102(b), wishing to participate in a Sunset Review must respond not later than 15 days after the date of publication in the
If we receive an order-specific notice of intent to participate from a domestic interested party, the Department's regulations provide that
This notice of initiation is being published in accordance with section 751(c) of the Act and 19 CFR 351.218(c).
National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce.
Notice of SEDAR 50 Assessment Webinars 3 and 4.
The SEDAR 50 assessment of the Atlantic stock of
The SEDAR 50 Assessment Webinars 3 and 4 will be held on Monday, June 19, 2017 and Monday, July 10, 2017, from 9 a.m. to 1 p.m. The Review Workshop dates and times will publish in a subsequent issue in the
Julia Byrd, SEDAR Coordinator, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405; phone: (843) 571-4366; email:
The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions, have implemented the Southeast Data, Assessment and Review (SEDAR)
The items of discussion at the Assessment webinars are as follows:
Participants will discuss any remaining modeling issues from the Assessment Workshop.
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 identified in this notice 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 intent to take final action to address the emergency.
These meetings are accessible to people with disabilities. Requests for auxiliary aids should be directed to the SAFMC office (see
The times and sequence specified in this agenda are subject to change.
16 U.S.C. 1801
National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce.
Notice; public meeting.
The Pacific Fishery Management Council's Ad Hoc Ecosystem Workgroup will hold a webinar, which is open to the public.
The webinar will be held on Monday, June 19, 2017, from 2 p.m. to 4:30 p.m., or when business for the day is completed.
To join the webinar visit this link:
Dr. Kit Dahl, Pacific Council Staff Officer; phone: (503) 820-2422; email:
In March 2017, the Pacific Council requested the EWG to discuss the two ecosystem initiatives identified in Appendix A to the Council's Fishery Ecosystem Plan: A combined initiative on the socio-economic effects of fisheries management practices on fishing communities (A.2.7) and on human recruitment to the fisheries (A.2.6), and an initiative on the effects of near-term climate shift and long-term climate change on our fish, fisheries, and fishing communities (A.2.8). The EWG intends to discuss the specific objectives of the initiatives, inventory available information, and propose a timeline for completing either or both initiatives. The Council directed the EWG to report back at the September 2017 Pacific Council meeting. The purpose of this webinar is for the EWG to discuss the tasks outlined above and begin planning their report for the September 2017 Pacific Council meeting.
Although nonemergency issues not contained in the meeting agenda may be discussed, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this document and any issues arising after publication of this document 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 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 Mr. Kris Kleinschmidt at (503) 820-2411 at least 10 business days prior to the meeting date.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed additions to and deletions from the Procurement List.
The Committee is proposing to add a product and services to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes products and services previously furnished by such agencies.
Committee for Purchase from People Who are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia 22202-4149.
Amy B. Jensen, Telephone: (703) 603-7740, Fax: (703) 603-0655, or email
This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to procure the product and services listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
The following product and services are proposed for addition to the Procurement List for production by the nonprofit agencies listed:
The following products and services are proposed for deletion from the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Deletions from the Procurement List.
This action deletes products from the Procurement List previously furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia 22202-4149.
Amy B. Jensen, Telephone: (703) 603-7740, Fax: (703) 603-0655, or email
On April 28, 2017 (82 FR 19662-19663), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed deletions from the Procurement List.
After consideration of the relevant matter presented, the Committee has determined that the products listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to furnish the products to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in
Accordingly, the following products are deleted from the Procurement List:
Office of the Secretary (OS), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing an extension of an existing information collection.
Interested persons are invited to submit comments on or before August 1, 2017.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Alfreida Pettiford, 202-245-6110.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
There were several data elements/questions on the ED 424 that were required for ED applicants that were not included on the SF-424. Therefore, ED put these questions that were already cleared as part of the 1890-0017
The questions on this form deal with the following areas: Project Director identifying and contact information; Novice Applicants; and Human Subjects Research. The ED supplemental information form could be used with any of the SF-424 forms in the SF-424 forms family, as applicable.
Environmental Protection Agency (EPA).
Notice.
EPA is announcing its receipt of information submitted pursuant to a rule, order, or consent agreement issued under the Toxic Substances Control Act (TSCA). As required by TSCA, this document identifies each chemical substance and/or mixture for which information has been received; the uses or intended uses of such chemical substance and/or mixture; and describes the nature of the information received. Each chemical substance and/or mixture related to this announcement is identified in Unit I. under
Information received about the following chemical substance and/or mixture is provided in Unit IV.: Octamethylcyclotetrasiloxane (D4) (CASRN 556-67-2).
Section 4(d) of TSCA (15 U.S.C. 2603(d)) requires EPA to publish a notice in the
A docket, identified by the docket identification (ID) number EPA-HQ-OPPT-2013-0677, has been established for this
EPA's dockets are available electronically at
As specified by TSCA section 4(d), this unit identifies the information received by EPA.
1.
2.
3.
15 U.S.C. 2601
Responsible Agency: Office of Federal Activities, General Information (202) 564-7146 or
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
The U.S. Department of the Interior's Fish and Wildlife Service and U.S.
Revision to FR Notice Published 03/17/2017; Reopening the Comment Period to End 07/03/2017.
Farm Credit System Insurance Corporation Board.
Notice of regular meeting.
Notice is hereby given of the regular meeting of the Farm Credit System Insurance Corporation Board (Board).
The meeting of the Board will be held at the offices of the Farm Credit Administration in McLean, Virginia, on June 8, 2017, from 2:00 p.m. until such time as the Board concludes its business.
Farm Credit System Insurance Corporation, 1501 Farm Credit Drive, McLean, Virginia 22102. Submit attendance requests via email to
Dale L. Aultman, Secretary to the Farm Credit System Insurance Corporation Board, (703) 883-4009, TTY (703) 883-4056.
Parts of this meeting of the Board will be open to the public (limited space available), and parts will be closed to the public. Please send an email to
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act of 1995 (PRA), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written comments should be submitted on or before August 1, 2017. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email:
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
As part of its continuing effort to reduce paperwork burdens, and as required by the PRA, 44 U.S.C. 3501-3520, the FCC invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The Commission is seeking from the Office of Management and Budget (OMB) approval for FCC Form 2100, Schedule 387 (Transition Progress Report).
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 30, 2017.
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 26, 2017.
A.
1.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than June 12, 2017.
A.
1.
Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
Comments must be received by August 1, 2017.
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.
William Parham at (410) 786-4669.
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
1.
CMS has released Premium Review Grants in four funding opportunity cycles. Grant recipients must states submit the following to the Secretary for each grant cycle, as applicable: Quarterly reports—30 days after the quarter has ended for the entire duration of the grant; Annual report—This report does not contain data, but instead
The final rule “Patient Protection and Affordable Care Act; Health Insurance Market Rules; Rate Review” (78 FR 13406, February 27, 2013) modified criteria and factors for states to have an Effective Rate Review Program. These changes were necessary to reflect market reform provisions and to fulfill the statutory requirement that the Secretary, in conjunction with the states, monitor premium increases of health insurance coverage offered through an Exchange and outside of an Exchange.
CMS is authorized under 45 CFR 154.301(d) to evaluate whether, and to what extent, a state's circumstances have changed such that it has begun to or has ceased to satisfy the Effective Rate Review Program criteria. States respond to a questionnaire annually via the Health Insurance Oversight System (HIOS), a web-based data collection system commonly used on a regular basis. All submissions are made electronically and no paper submissions are required. CMS is not requesting any changes to the questionnaire at this time.
Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by July 3, 2017.
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 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.
William Parham at (410) 786-4669.
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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National Institutes of Health, HHS.
Notice.
In compliance with the requirement of the Paperwork Reduction Act of 1995 to provide opportunity for public comment on proposed data collection projects, the Division of Program Coordination, Planning, and Strategic Initiatives (DPCPSI), Office of the Director (OD), National Institutes of Health (NIH), will publish periodic summaries of proposed projects to be submitted to the Office of Management and Budget (OMB) for review and approval.
Comments regarding this information collection are best assured of having their full effect if received within 60 days of the date of this publication.
To obtain a copy of the data collection plans and instruments, submit comments in writing, or request more information on the proposed project, contact: The Division of Program Coordination, Planning, and Strategic Initiatives, OD, NIH, Building 1, Room 260, 1 Center Drive, Bethesda, MD 20892; or call non-toll-free number 301-402-9852; or email your request, including your address, to
Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 requires: Written comments and/or suggestions from the public and affected agencies are invited to address one or more of the following points: (1) Whether the proposed collection of information is necessary for the proper performance of the function 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, 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 minimizes the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
OMB approval is requested for three years. There are no costs to respondents other than their time. The total estimated annualized burden hours is 10.
Periodically, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish a summary of information collection requests under OMB review, in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these documents, call the SAMHSA Reports Clearance Officer on (240) 276-1243.
The Protection and Advocacy for Individuals with Mental Illness (PAIMI) Act at 42 U.S.C. 10801
In 2000, the PAIMI Act amendments created a 57th P&A system—the American Indian Consortium (the Navajo and Hopi Tribes in the Four Corners region of the Southwest). The Act, at 42 U.S.C. 10804(d), states that a P&A system may use its allotment to provide representation to individuals with mental illness, as defined by section 42 U.S.C. 10802 (4)(B)(iii) residing in the community, including their own home,
The Children's Health Act of 2000 (CHA) also referenced the state P&A system authority to obtain information on incidents of seclusion, restraint and related deaths [see, CHA, Part H at 42 U.S.C. 290ii-1]. PAIMI Program formula grants awarded by SAMHSA go directly to each of the 57 governor-designated P&A systems. These systems are located in each of the 50 states, the District of Columbia, the American Indian Consortium, American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, the Commonwealth of Puerto Rico, and the U.S. Virgin Islands.
The PAIMI Act at 42 U.S.C. 10805(7) requires that each P&A system prepare and transmit to the Secretary HHS and to the head of its State mental health agency a report on January 1. This report describes the activities, accomplishments, and expenditures of the system during the most recently completed fiscal year, including a section prepared by the advisory council (the PAIMI Advisory Council or PAC) that describes the activities of the council and its independent assessment of the operations of the system.
The Substance Abuse Mental Health Services Administration (SAMHSA) proposes no revisions to its annual PAIMI Program Performance Report (PPR), including the advisory council section, at this time for the following reasons: (1) The revisions revise the SAMHSA PPR, as appropriate, for consistency with the annual reporting requirements under the PAIMI Act and Rules [42 CFR part 51]; (2) The revisions simplify the electronic data entry by state PAIMI programs; (3) GPRA requirements for the PAIMI Program will be revised as appropriate to ensure that SAMHSA obtains information that closely measures actual outcomes of programs that it funds and (4) SAMHSA will reduce wherever feasible the current reporting burden by removing any information that does not facilitate evaluation of the programmatic and fiscal effectiveness of a state P&A system (5) The new electronic version will expedite SAMHSA's ability to prepare the biennial report; (6) The new electronic version will improve SAMHSA's ability to generate reports, analyze trends and more expeditiously provide feedback to PAIMI programs. The current report formats will be effective for the FY 2017 PPR reports due on January 1, 2018
The annual burden estimate is as follows:
Written comments and recommendations concerning the proposed information collection should be sent by July 3, 2017 to the SAMHSA Desk Officer at the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB). To ensure timely receipt of comments, and to avoid potential delays in OMB's receipt and processing of mail sent through the U.S. Postal Service, commenters are encouraged to submit their comments to OMB via email to:
Office of the Chief Information Officer, HUD.
Notice.
HUD submitted the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, in accordance with the Paperwork Reduction Act. The purpose of this notice is to allow for an additional 30 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: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-5806. Email:
Anna P. Guido, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email Anna P. Guido at
Copies of available documents submitted to OMB may be obtained from Ms. Guido.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The
HUD is evaluating the SAFMR demonstration and an important consideration in this evaluation is how voucher holders and landlords perceive the shift from traditional area-wide FMRs to SAFMRs. HUD will look into whether both existing and new voucher holders understood how the change to using SAFMRs affected their housing options and whether it led movers to search in new neighborhoods or affected the rate of moving of existing voucher holders. Similarly, HUD wants to know whether landlords were aware of the change in the HCV program and whether this affected their willingness to rent to voucher holders and the level at which they set rents. In order to address these perceptions, 70 tenants and 35 landlords will be interviewed in the areas served by the five PHAs that are in the SAFMR demonstration: Housing Authority of Cook County (IL); Housing Authority of the City of Long Beach (CA); Chattanooga (TN) Housing Authority; Town of Mamaroneck (NY) Housing Authority; Housing Authority of the City of Laredo (TX); and two PHAs from the Dallas metropolitan area—Dallas Housing Authority (TX), and the Plano Housing Authority (TX). To build rapport during recruitment, by acknowledging the value of their time, an incentive payment of $20 for tenants and $40 for landlords will be made.
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 using 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.
Fish and Wildlife Service, Interior.
Notice of availability; receipt of permit application; request for public comment.
We, the U.S. Fish and Wildlife Service, announce the availability of a draft environmental impact statement and draft environmental impact report (EIS/EIR),
You may obtain documents by one of the following methods:
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○ Sacramento Fish and Wildlife Office, 2800 Cottage Way, Room W-2605, Sacramento CA 95825.
○ County of Sacramento, 827 7th Street, Room 225, Sacramento, CA 95814.
○ Sacramento Public Library, Central Library, 828 I Street, Sacramento, CA 95814.
You may submit written comments by one of the following methods:
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(1) Contact Nina Bicknese, Endangered Species Division, or Jan C. Knight, Deputy Field Supervisor, at the Sacramento Fish and Wildlife Office address shown above, or at (916) 414-6700 (telephone) for information on the SSHCP EIS/EIR. If you use a telecommunications device for the deaf, please call the Federal Relay Service at (800) 877-8339, or (2) County Environmental Coordinator, or Marianne Biner, Senior Planner, at the County of Sacramento address shown above, or at (916) 874-6141 for information on the draft SSHCP EIS/EIR; or (3) Richard Radmacher, Senior Planner, at the County of Sacramento address shown above, or at (916) 874-5369 for information on the draft SSHCP and associated documents.
We, the U.S. Fish and Wildlife Service (Service), announce the availability of the draft SSHCP in compliance with section 10(c) of the Endangered Species Act of 1973 (16 U.S.C. 1531-1544; ESA), and we announce the availability of the draft environmental impact statement and environmental impact report (SSHCP EIS/EIR), prepared pursuant to the National Environmental Policy Act of 1970 as amended (42 U.S.C. 4321
Section 9 of the ESA prohibits the “take” of fish and wildlife species that are federally listed as endangered under section 4 of the ESA (16 U.S.C. 1533, 1538). The ESA implementing regulations extend, under certain circumstances, the prohibition of take to threatened species (50 CFR 17.31). Regulations governing permits for endangered and threatened species are at 50 CFR 17.22 and 17.32. For more about the Federal HCP program, go to
The purpose of issuing an ITP to the five permit applicants would be to permit incidental take of 28 covered species resulting from planned urban development and associated transportation and infrastructure projects that would be permitted or authorized by the County of Sacramento, City of Galt, City of Rancho Cordova, the Sacramento County Water Agency, and the Capital SouthEast Connector Joint Powers Authority (together, the permit applicants). The approval of the draft SSHCP and issuance of the ITP is conditioned on the draft SSHCP meeting the criteria in section 10(a)(2)(B) of the ESA. The draft SSHCP is a regional, multi-agency strategy to assure permanent conservation of the 28 covered species and their habitats within the planning area, while providing future urban development and infrastructure covered activities with a more streamlined and more predictable Federal and State authorization and permitting process. The draft SSHCP covered activities incorporate measures that are intended to minimize and mitigate the impacts of the taking to the maximum extent practicable. The covered species include the federally endangered vernal pool tadpole shrimp (
The EIR/EIS studies three alternatives in detail. Other reasonable alternatives were considered during the process of developing the HCP and the EIS/EIR, but others were not evaluated in detail because they did not meet the underlying needs or the purposes and objectives of the lead-agencies, as discussed in the EIS/EIR. The three alternatives are:
The meeting addresses are:
Consistent with section 10(c) of the ESA, we invite the submission of written comments, data, views, or arguments with respect to the proposed incidental take permit application, the draft SSHCP, and the permitting decision. We particularly seek comments on the efficacy and effectiveness of the proposals contained in the draft SSHCP in producing the desired results for the covered species in this Planning Area, the sufficiency of the EIS/EIR in discussing possible impacts upon the environment, the ways in which adverse effects would be minimized, and alternatives to the proposed action.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that the entire comment—including your personal identifying information—might 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.
The lead agencies will accept public comments on the draft SSHCP and the draft SSHCP EIS/EIR during a public review and comment period, which ends 90 days after publication of this notice in the
We provide this notice under section 10(c) of the ESA (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit.
We, the U.S. Fish and Wildlife Service, invite the public to comment on applications to conduct certain activities with endangered species. With some exceptions, the Endangered Species Act (ESA) prohibits activities with listed species unless Federal authorization is acquired that allows such activities.
We must receive comments or requests for documents on or before July 3, 2017.
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When submitting comments, please indicate the name of the applicant and the PRT# you are commenting on. We will post all comments on
If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service at 800-877-8339.
Send your request for copies of applications or comments and materials concerning any of the applications to the contact listed under
Please make your requests or comments as specific as possible. Please confine your comments to issues for which we seek comments in this notice, and explain the basis for your comments. Include sufficient information with your comments to allow us to authenticate any scientific or commercial data you include.
The comments and recommendations that will be most useful and likely to influence agency decisions are: (1) Those supported by quantitative information or studies; and (2) Those that include citations to, and analyses of, the applicable laws and regulations. We will not consider or include in our administrative record comments we receive after the close of the comment period (see
Comments, including names and street addresses of respondents, will be available for public review at the street address listed under
To help us carry out our conservation responsibilities for affected species, and in consideration of section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
We invite the public to comment on applications to conduct certain activities with endangered species. With some exceptions, the Endangered Species Act (16 U.S.C. 531
The applicant requests a permit to import blood, saliva, and hair samples from 48 Wild born chimpanzees (
The applicant requests a permit to import biological samples, common chimpanzee (
The applicant requests a permit to import biological samples from the
The applicant requests a permit to import biological samples from green sea turtle, (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the following species to enhance species propagation or survival: Galapagos tortoise
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the following species to enhance species propagation or survival: Galapagos tortoise (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the following species to enhance species propagation or survival: Military macaw (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the following species to enhance species propagation or survival: Galapagos tortoise (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the following species to enhance species propagation or survival: Galapagos tortoise (
If the Service decides to issue permits to any of the applicants listed in this notice, we will publish a notice in the
You may submit your comments and materials concerning this notice by one of the methods listed in
If you submit a comment via
We will post all hardcopy comments on
Endangered Species Act of 1973 (16 U.S.C. 1531).
In notice document 2017-11186, beginning on page 24990 in the issue of Wednesday, May 31, 2017, make the following corrections:
1. On page 24990, lines three and four in the
2. On page 24990, line six in the
3. On page 24990, line seven in column two: “Ph.D.” should read “PHD”.
4. On page 24990, line three in the
5. On page 24991, lines two and three in the first column, “email—[email protected]” should read “email—[email protected]”.
6. On page 24991, line fifty-seven in the first column, “Ph.D.” should read “PHD”.
7. On page 24991, line nineteen in the second column, “Ph.D.” should read “PHD”.
Office of Natural Resources Revenue, Interior.
Notice.
On April 3, 2017, the U.S. Department of the Interior (DOI)
The deadline for nominations published in the notice of April 3, 2017 (82 FR 16222) is extended. Nominations for the Committee must be submitted by July 3, 2017.
You may submit nominations by any of the following methods:
Ms. Judy Wilson, Office of Natural Resources Revenue; telephone (202) 208-4410; email:
The Committee is established under the authority of the Secretary of the Interior (Secretary) and regulated by the Federal Advisory Committee Act. The purpose of the Committee is to ensure that the public receives the full value of the natural resources produced from Federal lands. The duties of the Committee are solely advisory in nature.
The Committee will not exceed 28 members and will be composed of Federal and non-Federal members in order to ensure fair and balanced representation.
The Secretary will appoint non-Federal members in the following categories:
5 U.S.C. Appendix 2.
National Indian Gaming Commission.
Notice.
Notice is hereby given, pursuant to 25 CFR 514.2, that the National Indian Gaming Commission has adopted its 2017 final annual fee rates of 0.00% for tier 1 and 0.062% (.00062) for tier 2, which remain the same as the 2017 preliminary fee rates. The tier 2 annual fee rate maintains the lowest fee rate adopted by the Commission since 2010. These rates shall apply to all assessable gross revenues from each gaming operation under the jurisdiction of the Commission. If a tribe has a certificate of self-regulation under 25 CFR part 518, the 2017 final fee rate on Class II revenues shall be 0.031% (.00031) which is one-half of the annual fee rate. The final fee rates being adopted here are effective June 1, 2017, and will remain in effect until new rates are adopted.
Pursuant to 25 CFR 514.16, the National Indian Gaming Commission has also adopted its 2017 final fingerprint processing fees of $18 per card effective June 1, 2017. These fees remain the same as the 2017 preliminary fingerprint processing fees.
Yvonne Lee, National Indian Gaming Commission, 1849 C Street NW., Mail Stop #1621, Washington, DC 20240; telephone (202) 632-7003; fax (202) 632-7066.
The Indian Gaming Regulatory Act (IGRA) established the National Indian Gaming Commission, which is charged with regulating gaming on Indian lands.
Commission regulations (25 CFR part 514) provide for a system of fee assessment and payment that is self-administered by gaming operations. Pursuant to those regulations, the Commission is required to adopt and communicate assessment rates and the gaming operations are required to apply those rates to their revenues, compute the fees to be paid, report the revenues, and remit the fees to the Commission. All gaming operations within the jurisdiction of the Commission are required to self-administer the provisions of these regulations, and report and pay any fees that are due to the Commission.
Pursuant to 25 CFR part 514, the Commission must also review regularly the costs involved in processing fingerprint cards and set a fee based on fees charged by the Federal Bureau of Investigation and costs incurred by the Commission. Commission costs include Commission personnel, supplies, equipment costs, and postage to submit the results to the requesting tribe.
National Park Service, Interior.
Notice.
The U.S. Department of the Interior, National Park Service, Lava Beds National Monument has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to Lava Beds National Monument. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Lava Beds National Monument at the address in this notice by July 3, 2017.
Lawrence J. Whalon Jr., Superintendent, Lava Beds National Monument, P.O. Box 1240, Tulelake, CA 96134, telephone (530) 677-8101, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the U.S. Department of the Interior, National Park Service, Lava Beds National Monument, Tulelake, CA, and in the physical custody of the Phoebe A. Hearst Museum of Anthropology, University of California, Berkeley, CA. The human remains and associated funerary objects were removed from within the boundaries of Lava Beds National Monument, Modoc and Siskiyou Counties, CA.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the Superintendent, Lava Beds National Monument.
A detailed assessment of the human remains was made by Lava Beds National Monument professional staff in consultation with representatives of the Klamath Tribes and The Modoc Tribe of Oklahoma.
In 1952, human remains representing, at minimum, two individuals were removed from site CA-SIS-0142 in Siskiyou County, CA, during legally authorized excavations by Robert J. Squier and Gordon L. Grosscup under the auspices of the Department of Anthropology, University of California, Berkeley, CA. No known individuals were identified. No associated funerary objects are present.
In 1952, human remains representing, at minimum, two individuals were removed from site CA-MOD-0048 in Modoc County, CA, during legally authorized excavations by Robert J. Squier and Gordon L. Grosscup under the auspices of the Department of Anthropology, University of California, Berkeley, CA. No known individuals were identified. No associated funerary objects are present.
In 1952, human remains representing, at minimum, 14 individuals were removed from site CA-MOD-0049 in Modoc County, CA, during legally authorized excavations by Robert J. Squier and Gordon L. Grosscup under the auspices of the Department of Anthropology, University of California, Berkeley, CA. No known individuals were identified. The 15 associated funerary objects are 3 cordage fragments, 1 projectile point fragment, 2 scrapers, 3 basketry fragments, 1 charcoal fragment, and 5 matting fragments.
Based on burial type and location, as well as available archeological and historical information, it is likely that the remains are Native American. Artifacts found near the burial locations suggest a late prehistoric age and are characteristic of prehistoric Modoc funerary practices in this region. In addition, ethnographic and archeological evidence, including archeological site context and types of funerary objects, indicates that all three sites were occupied by ancestral Modoc peoples.
During consultation, representatives from associated tribes stated that their oral traditions indicate affiliation with the Modoc. The Modoc have been identified as aboriginal to the area where the three sites are located by the U.S. Indian Claims Commission. Geographical, archeological, linguistic, folklore, oral tradition, and historical evidence support that association. Today, contemporary descendants of the Modoc are members of both the Klamath Tribes and The Modoc Tribe of Oklahoma.
Officials of Lava Beds National Monument have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of 18 individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 15 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Klamath Tribes and The Modoc Tribe of Oklahoma.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Lawrence J. Whalon Jr., Superintendent, Lava Beds National Monument, P.O. Box 1240, Tulelake, CA 96134, telephone (530) 677-8101, email
Lava Beds National Monument is responsible for notifying the Klamath Tribes and The Modoc Tribe of Oklahoma that this notice has been published.
National Park Service, Interior.
Notice.
The U.S. Department of the Interior, National Park Service, Ocmulgee National Monument has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to Ocmulgee National Monument. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Ocmulgee National Monument at the address in this notice by July 3, 2017.
Jim David, Superintendent, Ocmulgee National Monument, 1207 Emery Highway, Macon, GA 31217, telephone (478) 752-8257, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the U.S. Department of the Interior, National Park Service, Ocmulgee National Monument, Macon, GA. The human remains and associated funerary objects were removed from Funeral Mound, Bibb County, GA.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the Superintendent, Ocmulgee National Monument.
A detailed assessment of the human remains was made by Ocmulgee National Monument professional staff in consultation with representatives of the Absentee-Shawnee Tribe of Indians of Oklahoma, Alabama-Coushatta Tribe of Texas (previously listed as the Alabama-Coushatta Tribes of Texas), Alabama-Quassarte Tribal Town, Catawba Indian Nation (aka Catawba Tribe of South Carolina), Cherokee Nation, Coushatta Tribe of Louisiana, Eastern Band of Cherokee Indians, Eastern Shawnee Tribe of Oklahoma, Jena Band of Choctaw Indians, Kialegee Tribal Town, Miccosukee Tribe of Indians, Mississippi Band of Choctaw Indians, Poarch Band of Creeks (previously listed as the Poarch Band of Creek Indians of Alabama), Seminole Tribe of Florida (previously listed as the Seminole Tribe of Florida (Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations)), Shawnee Tribe, The Chickasaw Nation, The Choctaw Nation of Oklahoma, The Muscogee (Creek) Nation, The Seminole Nation of Oklahoma, Thlopthlocco Tribal Town, and United Keetowah Band of Cherokee Indians in Oklahoma.
Between 1933 and 1934, human remains representing, at minimum, four individuals were removed from Funeral Mound C in Bibb County, GA, during legally authorized projects sponsored by the Works Progress Administration. No known individuals were identified. The 42 associated funerary objects are 1 adz, 1 biface, 1 bowl, 1 animal bone, 2 gorgets, 1 jar, 1 elbow pipe, 2 projectile points, 4 scrapers, 1 piece of shatter, 2 worked shells, 5 spoons, and 20 vessel fragments.
While Mound C is a burial mound dating to the Macon Plateau phase of the Early Mississippian period (A.D. 900 to A.D. 1100), several historic burials were placed in the upper levels of the mound and in the adjacent village area. Burials excavated at this site were identified as historic Creek on the basis of European trade goods found in association with the remains. The historic Creek town associated with the trading post near Mound C has long been thought to be Ocmulgee. Residents of Ocmulgee moved to the Chattahoochee River after 1717.
Historical documentation reflects a great deal of movement and reorganization among the Creeks and the Creek Confederacy during the 18th and 19th centuries. Ten present-day Indian tribes include Creek descendants—the Alabama-Coushatta Tribe of Texas (previously listed as the Alabama-Coushatta Tribes of Texas), Alabama-Quassarte Tribal Town, Coushatta Tribe of Louisiana, Kialegee Tribal Town, Miccosukee Tribe of Indians, Poarch Band of Creeks (previously listed as the Poarch Band of Creek Indians of Alabama), Seminole Tribe of Florida (previously listed as the Seminole Tribe of Florida (Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations)), The Muscogee (Creek) Nation, The Seminole Nation of Oklahoma, and Thlopthlocco Tribal Town.
Officials of Ocmulgee National Monument have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of four individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 42 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Alabama-Coushatta Tribe of Texas (previously listed as the Alabama-Coushatta Tribes of Texas), Alabama-Quassarte Tribal Town, Coushatta Tribe of Louisiana, Kialegee Tribal Town, Miccosukee Tribe of Indians, Poarch Band of Creeks (previously listed as the Poarch Band of Creek Indians of Alabama), Seminole Tribe of Florida (previously listed as the Seminole Tribe of Florida (Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations)), The Muscogee (Creek) Nation, The Seminole Nation of Oklahoma, and Thlopthlocco Tribal Town.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice
Ocmulgee National Monument is responsible for notifying the Absentee-Shawnee Tribe of Indians of Oklahoma, Alabama-Coushatta Tribe of Texas (previously listed as the Alabama-Coushatta Tribes of Texas), Alabama-Quassarte Tribal Town, Catawba Indian Nation (aka Catawba Tribe of South Carolina), Cherokee Nation, Coushatta Tribe of Louisiana, Eastern Band of Cherokee Indians, Eastern Shawnee Tribe of Oklahoma, Jena Band of Choctaw Indians, Kialegee Tribal Town, Miccosukee Tribe of Indians, Mississippi Band of Choctaw Indians, Poarch Band of Creeks (previously listed as the Poarch Band of Creek Indians of Alabama), Seminole Tribe of Florida (previously listed as the Seminole Tribe of Florida (Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations)), Shawnee Tribe, The Chickasaw Nation, The Choctaw Nation of Oklahoma, The Muscogee (Creek) Nation, The Seminole Nation of Oklahoma, Thlopthlocco Tribal Town, and United Keetowah Band of Cherokee Indians in Oklahoma that this notice has been published.
National Park Service, Interior.
Notice.
The Kansas State Historical Society has completed an inventory of human remains, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and present-day Indian tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to the Kansas State Historical Society. If no additional requestors come forward, transfer of control of the human remains to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to the Kansas State Historical Society at the address in this notice by July 3, 2017.
Dr. Robert J. Hoard, Kansas State Historical Society, 6425 SW. 6th Avenue, Topeka, KS 66615-1099, telephone (785) 272-8681, extension 269,
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of the Kansas State Historical Society, Topeka, KS. The human remains were removed from site 14SH305 in Shawnee County, KS.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Kansas State Historical Society professional staff in consultation with representatives of the Kaw Nation, Oklahoma.
On June 12, 2012, human remains representing, at minimum, one individual were removed from midden area 230 of site 14SH305 in Shawnee County, KS, during excavation of the site. Excavation in the immediate area ceased and the Shawnee County Sheriff was contacted (case no. 12-03361). Further excavation in site 14SH305 found no other human remains. No other provenience information is available. The human remains consist of one molar tooth. No known individual was identified. No associated funerary objects are present.
In or about 2013, human remains representing, at minimum, one individual were removed from feature 303 of site 14SH305 by an analyst while sorting very small skeletal remains. No other provenience information is available. The human remains consist of two human phalanges. No known individual was identified. No associated funerary objects are present.
Site 14SH305 is a known historic Kansa village, specifically Fool Chief's Village. Based on historical sources, it was originally recorded as an archeological site by Kansas State Archeologist Roscoe Wilmeth in 1957. The village was part of the Kansa Reservation, and was occupied from 1828 to 1844 by approximately 700-800 members of the Kansa tribe. In 2012 and 2013, the Kansas Historical Society conducted archeological excavations of the site in order to mitigate the effects of Kansas Department of Transportation Project Number 24-89 K-7431-01. The present-day descendants of the Kansa are the Kaw Nation, Oklahoma.
Officials of the Kansas State Historical Society have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of two individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Kaw Nation, Oklahoma.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian
The Kansas State Historical Society is responsible for notifying the Kaw Nation, Oklahoma that this notice has been published.
National Park Service, Interior.
Notice.
The U.S. Department of the Interior, National Park Service, Ocmulgee National Monument, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, has determined that the cultural items listed in this notice meet the definition of unassociated funerary objects. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request to Ocmulgee National Monument. If no additional claimants come forward, transfer of control of the cultural items to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Ocmulgee National Monument at the address in this notice by July 3, 2017.
Jim David, Superintendent, Ocmulgee National Monument, 1207 Emery Highway, Macon, GA 31217, telephone (478) 752-8257, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items under the control of the U.S. Department of the Interior, National Park Service, Ocmulgee National Monument, Macon, GA, that meet the definition of unassociated funerary objects under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the Superintendent, Ocmulgee National Monument.
Between 1933 and 1958, 25,127 cultural items were removed from the Trading Post area of the Macon Plateau in Bibb County, GA, during multiple legally authorized excavations. The human remains were repatriated to culturally affiliated tribes in 2015 by the Smithsonian Institution, National Museum of Natural History. The 25,127 unassociated funerary objects are 2 abraders, 2 armbands, 41 balls, 22,045 beads, 16 bells, 10 bifaces, 499 animal remains, 3 bags of animal bone, 1 liquor bottle, 2 bowls, 1 bullet, 33 buttons, 5 charcoal fragments, 1 chopper, 29 pieces of fired clay, 2 pieces of unfired clay, 10 concretions, 3 cores, 2 cuff links, 11 pieces of daub, 101 pieces of debitage, 303 flakes, 28 flake tools, 2 flat rectangular copper fragments, 98 shells, 1 glass fragment, 1 gorget, 1 graver, 6 gun flints, 1 knife, 2 metal fragments, 1 metal pendant, 1 mug, 4 musket balls, 3 nails, 2 plant fragments, 1 nutting stone, 1 pipe, 15 projectile points, 7 preforms, 1 rivet, 5 scrapers, 1 seed, 33 pieces of shatter, 2 bags of shell, 2 worked shells, 4 pieces of slag, 1 spiral spring, 53 unmodified stones, 2 sword fragments, 3 tobacco pipes, 1 tack, 1 bag of unmodified stone, 1,705 vessel fragments, 5 windowpane fragments, 6 wires, 1 worked stone, and 4 flintlock muskets.
The trading post at Macon was operated by the British from 1685-1717. The historic Creek town associated with the trading post has long been thought to have been Ocmulgee. Burials excavated at this site were identified as historic Creek on the basis of European trade goods found in association with the remains. Residents of the Creek town of Ocmulgee moved to the Chattahoochee River after 1717. Historical documentation reflects a great deal of movement and reorganization among the Creeks and the Creek Confederacy during the 18th and 19th centuries. Ten present-day Indian tribes are thought to include Creek descendants including the Alabama-Coushatta Tribe of Texas, Alabama-Quassarte Tribal Town, Coushatta Tribe of Louisiana, Kialegee Tribal Town, Miccosukee Tribe of Indians, Poarch Band of Creeks, Seminole Tribe of Florida, The Muscogee (Creek) Nation, The Seminole Nation of Oklahoma, and Thlopthlocco Tribal Town.
Officials of Ocmulgee National Monument have determined that:
• Pursuant to 25 U.S.C. 3001(3)(B), the 25,127 cultural items described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and are believed, by a preponderance of the evidence, to have been removed from a specific burial site of a Native American individual.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the unassociated funerary objects and the Alabama-Coushatta Tribe of Texas (previously listed as the Alabama-Coushatta Tribes of Texas), Alabama-Quassarte Tribal Town, Coushatta Tribe of Louisiana, Kialegee Tribal Town, Miccosukee Tribe of Indians, Poarch Band of Creeks (previously listed as the Poarch Band of Creek Indians of Alabama), Seminole Tribe of Florida (previously listed as the Seminole Tribe of Florida (Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations)), The Muscogee (Creek) Nation, The Seminole Nation of Oklahoma, and Thlopthlocco Tribal Town.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Jim David, Superintendent, Ocmulgee National Monument, 1207 Emery Highway, Macon, GA 31217, telephone (478) 752-8257, email
Ocmulgee National Monument is responsible for notifying the Absentee-Shawnee Tribe of Indians of Oklahoma, Alabama-Coushatta Tribe of Texas (previously listed as the Alabama-Coushatta Tribes of Texas), Alabama-Quassarte Tribal Town, Catawba Indian Nation (aka Catawba Tribe of South Carolina), Cherokee Nation, Coushatta Tribe of Louisiana, Eastern Band of Cherokee Indians, Eastern Shawnee Tribe of Oklahoma, Jena Band of Choctaw Indians, Kialegee Tribal Town, Miccosukee Tribe of Indians, Mississippi Band of Choctaw Indians, Poarch Band of Creeks (previously listed as the Poarch Band of Creek Indians of Alabama), Seminole Tribe of Florida (previously listed as the Seminole Tribe of Florida (Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations)), Shawnee Tribe, The Chickasaw Nation, The Choctaw Nation of Oklahoma, The Muscogee (Creek) Nation, The Seminole Nation of Oklahoma, Thlopthlocco Tribal Town, and United Keetowah Band of Cherokee Indians in Oklahoma that this notice has been published.
National Park Service, Interior.
Notice; correction.
The U.S. Department of the Interior, National Park Service, Ocmulgee National Monument has corrected an inventory of human remains and associated funerary objects, published in a Notice of Inventory Completion in the
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Ocmulgee National Monument at the address in this notice by July 3, 2017.
Jim David, Superintendent, Ocmulgee National Monument, 1207 Emery Highway, Macon, GA 31217, telephone (478) 752-8257, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the correction of an inventory of human remains and associated funerary objects under the control of the U.S. Department of the Interior, National Park Service, Ocmulgee National Monument, Macon, GA. The human remains and associated funerary objects were removed from Lamar Mounds and Village, Bibb County, GA.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the Superintendent, Ocmulgee National Monument.
This notice corrects the number of associated funerary objects published in a Notice of Inventory Completion in the
In the
The 65 associated funerary objects are 1 bead, 1 biface, 21 animal bones, 1 celt, 1 core, 1 ear plug, 1 shell, 12 pins, 1 tobacco pipe, 1 projectile point, 1 paint pot, 8 unmodified stones, 1 flake tool, and 14 vessel fragments.
In the
The superintendent of Ocmulgee National Monument also has determined that, pursuant to 43 CFR 10.2(d)(2), the 121 objects listed above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Jim David, Superintendent, Ocmulgee National Monument, 1207 Emery Highway, Macon, GA 31217, telephone (478) 752-8257, email
Ocmulgee National Monument is responsible for notifying the Absentee-Shawnee Tribe of Indians of Oklahoma, Alabama-Coushatta Tribe of Texas (previously listed as the Alabama-Coushatta Tribes of Texas), Alabama-Quassarte Tribal Town, Catawba Indian Nation (aka Catawba Tribe of South Carolina), Cherokee Nation, Coushatta Tribe of Louisiana, Eastern Band of Cherokee Indians, Eastern Shawnee
National Park Service, Interior.
Notice.
The U.S. Department of the Interior, National Park Service, Ocmulgee National Monument, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, has determined that the cultural items listed in this notice meet the definition of unassociated funerary objects. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request to Ocmulgee National Monument. If no additional claimants come forward, transfer of control of the cultural items to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Ocmulgee National Monument at the address in this notice by July 3, 2017.
Jim David, Superintendent, Ocmulgee National Monument, 1207 Emery Highway, Macon, GA 31217, telephone (478) 752-8257, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items under the control of the U.S. Department of the Interior, National Park Service, Ocmulgee National Monument, Macon, GA, that meet the definition of unassociated funerary objects under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the Superintendent, Ocmulgee National Monument.
Between 1933 and 1938, 436 cultural items were removed from Lamar Mounds and Village in Bibb County, GA, during legally authorized projects sponsored by the Works Progress Administration. The human remains were repatriated to culturally affiliated tribes in 2015 by the Smithsonian Institution, National Museum of Natural History. The 436 unassociated funerary objects are 3 awls, 25 beads, 1 bag of beads, 1 blade, 1 burin, 3 celts, 1 piece of fired clay, 1 piece of daub, 4 discoidals, 2 earplugs, 24 flakes, 2 animal bones, 5 shells, 1 gorget, 1 jar, 1 projectile point, 3 scrapers, 1 worked shell, 7 soil samples, 1 flake tool, and 348 vessel fragments.
The Lamar Mounds and Village site consists of two mounds, A and B, and a palisaded village area. Archeological evidence indicates that the Lamar Mounds and Village site was occupied during the entire Middle and Late Mississippian periods (A.D. 1200-1650). The regional manifestation of archeological resources from the Mississippian period has been identified as the Lamar Culture. Archeological evidence indicates that the Lamar Culture ceramic types found at Lamar Mounds and Village are closely related to historic Creek and Cherokee ceramic traditions.
The Lamar site is also believed to be the town of Ichisi (Spanish) or Ochisi (Portuguese) encountered by the Hernando de Soto expedition in 1540. Occupation of the site may have continued into the early 18th century. Between A.D. 1685 and 1717, the English used variations of the name Ochesehatchee or Ochese Creek to refer to the river later called the Ocmulgee River. The towns and people living along Ochese Creek during that period were referred to as the Ochese (various spellings) Creek Nation, the Ochese Creek people, and, finally, simply the Creeks. The word Ochese and its variations has been traced from middle Georgia to the Chattahoochee River, then to Florida, and finally to Oklahoma. A squareground of this name existed in Oklahoma until the 1950s. There is an Ochese Street in Okmulgee, Oklahoma. Ethnohistorical information indicates that the Ichisi-Ochese were probably Hitchiti speakers, which would link them directly to Hitchiti speakers among the later Seminole and Miccosukee tribes. The Ichisi-Ochese may also be linked less directly to speakers of closely related Alabama and Koasati languages among the latter-day Alabama and Coushatta tribes.
Officials of Ocmulgee National Monument have determined that:
• Pursuant to 25 U.S.C. 3001(3)(B), the 436 cultural items described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and are believed, by a preponderance of the evidence, to have been removed from a specific burial site of a Native American individual.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the unassociated funerary objects and Alabama-Coushatta Tribe of Texas (previously listed as the Alabama-Coushatta Tribes of Texas), Alabama-Quassarte Tribal Town, Cherokee Nation, Coushatta Tribe of Louisiana, Eastern Band of Cherokee Indians, Kialegee Tribal Town, Miccosukee Tribe of Indians, Poarch Band of Creeks (previously listed as the Poarch Band of Creek Indians of Alabama), Seminole Tribe of Florida (previously listed as the Seminole Tribe of Florida (Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations)), The Muscogee (Creek) Nation, The Seminole Nation of Oklahoma, Thlopthlocco Tribal Town, and United Keetowah Band of Cherokee Indians in Oklahoma.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Jim David, Superintendent, Ocmulgee
Ocmulgee National Monument is responsible for notifying the Absentee-Shawnee Tribe of Indians of Oklahoma, Alabama-Coushatta Tribe of Texas (previously listed as the Alabama-Coushatta Tribes of Texas), Alabama-Quassarte Tribal Town, Catawba Indian Nation (aka Catawba Tribe of South Carolina), Cherokee Nation, Coushatta Tribe of Louisiana, Eastern Band of Cherokee Indians, Jena Band of Choctaw Indians, Kialegee Tribal Town, Miccosukee Tribe of Indians, Mississippi Band of Choctaw Indians, Poarch Band of Creeks (previously listed as the Poarch Band of Creek Indians of Alabama), Seminole Tribe of Florida (previously listed as the Seminole Tribe of Florida (Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations)), Shawnee Tribe, The Chickasaw Nation, The Choctaw Nation of Oklahoma, The Muscogee (Creek) Nation, The Seminole Nation of Oklahoma, Thlopthlocco Tribal Town, and United Keetowah Band of Cherokee Indians in Oklahoma that this notice has been published.
National Park Service, Interior.
Notice.
The Allen County-Fort Wayne Historical Society, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, has determined that the cultural items listed in this notice meet the definition of unassociated funerary objects. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request to the Allen County-Fort Wayne Historical Society. If no additional claimants come forward, transfer of control of the cultural items to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to the Allen County-Fort Wayne Historical Society at the address in this notice by July 3, 2017.
Walter Font, Curator, Allen County-Fort Wayne Historical Society, 302 East Berry Street, Fort Wayne, IN 46802, telephone (260) 426-2882, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items under the control of the Allen County-Fort Wayne Historical Society, Fort Wayne, IN, that meet the definition of unassociated funerary objects under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American cultural items. The National Park Service is not responsible for the determinations in this notice.
On an unknown date, two cultural items were removed from a grave in the Lakeside District of Fort Wayne, Allen County, IN. At some time prior to 1947, the funerary objects were acquired from Mr. W.T. Angel by the Allen County-Fort Wayne Historical Society. No other provenience information is available. The 2 unassociated funerary objects are 1 animal tusk and 1 hatchet head.
In 1928, one cultural item was removed from a grave on Prospect Avenue in Fort Wayne, Allen County, IN. In 1933, the funerary object was acquired from Mr. Theodore Waldo by the Allen County-Fort Wayne Historical Society. No other provenience information is available. The 1 unassociated funerary object is a stone pipe bowl.
On an unknown date, five cultural items were removed from a grave in the Spy Run District of Fort Wayne, Allen County, IN. At some time prior to 1947, the funerary objects were acquired from an unknown source by the Allen County-Fort Wayne Historical Society. Catalog records state that the funerary objects were found in an “Indian grave in the Spy Run District, Fort Wayne.” The 5 unassociated funerary objects are 4 silver brooches and 1 brass button.
On an unknown date, two cultural items were removed from a grave on West Washington Street in Fort Wayne, Allen County, IN. In 1934, the objects were acquired from an unknown source by the Allen County-Fort Wayne Historical Society. Catalog records state that the funerary objects were found in a grave at “1415 W. Washington Street.” The 2 unassociated funerary objects are 2 steel strikers.
On unknown dates, seven cultural items were removed from graves in “the Miami burial ground” in the Spy Run District of Fort Wayne, Allen County, IN. In about 1928, the funerary objects were acquired from Mr. Jacob M. Stouder, a local collector, by the Allen County-Fort Wayne Historical Society. The 7 unassociated funerary objects are 1 set of pistol fragments, 1 tomahawk, 1 stone pipe, 2 clay pipes, and 2 stone tools.
On an unknown date, one cultural item was removed from a grave at Lawton Place in Fort Wayne, Allen County, IN. In 1932, the funerary object was acquired from Mrs. George Gillie by the Allen County-Fort Wayne Historical Society. No other provenience information is available. The 1 unassociated funerary object is an iron hoe blade.
In May of 1933, 10 cultural items were removed from a grave on Prospect Avenue in Fort Wayne, Allen County, IN. In 1935, the funerary objects were purchased from Mr. Orville Smith by the Allen County Fort Wayne-Historical Society. No other provenience information is available. The 10 unassociated funerary objects are 1 set of musket fragments, 1 clay pipe, 1 metal tack hammer, 2 metal files, 2 metal harpoon tips, 1 copper tube bead, 1 pair of scissors fragments, and 1 whetstone.
In about 1910, one cultural item was removed from Lawton Place in Fort Wayne, Allen County, IN, by Vernon Ferguson. Mr. Ferguson removed the funerary object from a grave exposed during excavation for a house basement. In 1984, the funerary object was acquired from Mr. Ferguson by the Allen County-Fort Wayne Historical Society. The 1 unassociated funerary object is a copper pot with iron bail.
In 1907, one cultural item was removed from the grave of Miami Indian Chief Coesse in Huntington County, IN. At some time prior to 1947, the funerary object was acquired from Mr. Charles More by the Allen County Fort Wayne-Historical Society. No other provenience information is known. Chief Coesse was a Miami Indian who resided in northeast Indiana. He died in about 1853, and was buried near Roanoke, IN, and has no known descendants. Evidence from Society records and secondary sources indicate that the unassociated funerary object is affiliated with a Miami Tribal chief. The 1 unassociated funerary object is a small glass vial containing beads.
The above listed sites are estimated to date from the late 1700s to the early 1800s. The evidence available indicates that the sites are related to the Miami Tribe of Oklahoma, whose tribal lands were located in northeast Indiana from about 1710 to the early 1800s. Their villages were at or near the present location of Fort Wayne, IN, primarily north of the confluence of the St. Joseph and St. Mary's Rivers which, together, form the Maumee River. These areas include the Spy Run District, including Prospect Avenue and Lawton Place, and the Lakeside area of Fort Wayne. The assessment that these unassociated funerary objects should be attributed to the Miami Tribe of Oklahoma was confirmed by the Miami Tribe of Oklahoma and Pokagon Band of Potawatomi Indians, Michigan and Indiana, during consultation.
Officials of the Allen County-Fort Wayne Historical Society have determined that:
• Pursuant to 25 U.S.C. 3001(3)(B), the 30 cultural items described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and are believed, by a preponderance of the evidence, to have been removed from specific burial sites of Native American individuals.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the unassociated funerary objects and the Miami Tribe of Oklahoma.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Walter Font, Curator, Allen County-Fort Wayne Historical Society, 302 East Berry Street, Fort Wayne, IN 46802, telephone (260) 426-2882, email
The Allen County-Fort Wayne Historical Society is responsible for notifying the Miami Tribe of Oklahoma and Pokagon Band of Potawatomi Indians, Michigan and Indiana, that this notice has been published.
National Park Service, Interior.
Notice; correction.
The U.S. Department of the Interior, National Park Service, Ocmulgee National Monument has corrected an inventory of human remains and associated funerary objects, published in a Notice of Inventory Completion in the
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Ocmulgee National Monument at the address in this notice by July 3, 2017.
Jim David, Superintendent, Ocmulgee National Monument, 1207 Emery Highway, Macon, GA 31217, telephone (478) 752-8257, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the correction of an inventory of human remains and associated funerary objects under the control of the U.S. Department of the Interior, National Park Service, Ocmulgee National Monument, Macon, GA. The human remains and associated funerary objects were removed from Trading Post, Bibb County, GA.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the Superintendent, Ocmulgee National Monument.
This notice corrects the minimum number of individuals and number of associated funerary objects published in a Notice of Inventory Completion in the
In the
Between 1957 and 1958, human remains representing 17 individuals were recovered from the Trading Post area of the Macon Plateau unit of Ocmulgee National Monument. No known individuals were identified. The 17,037 associated funerary objects are 2 axes, 4 balls, 1 musket ball, 16,147 beads, 1 biface, 2 blades, 217 animal remains, 1 piece of charcoal, 6 pieces of fired clay, 1 concretion, 2 cores, 3 pieces of daub, 46 flakes, 7 flake tools, 2 glass fragments, 1 gorget, 5 gunflints, 1 stone knife, 38 jars, 2 iron knives, 4 metal fragments, 2 shells, 1 ornament, 4 tobacco pipes, 2 flintlock pistols, 2 plant fragments, 1 projectile point, 3 preforms, 1 rifle, 3 scrapers, 4 seeds, 3 pieces of shatter, 13 gun shots, 1 shotgun shell, 2 spiral springs, 6 unmodified stones, 1 uniface, 1 bag of unmodified stone, and 494 vessel fragments.
In the
Based on the above-mentioned information, the superintendent of Ocmulgee National Monument has determined that, pursuant to 43 CFR 10.2(d)(1), the human remains listed above represent the physical remains of 21 individuals of Native American ancestry. The superintendent of Ocmulgee National Monument also has determined that, pursuant to 43 CFR 10.2(d)(2), the 32,022 objects listed above are reasonably believed to have been placed with or near individual human remains at the time of death or late as part of the death rite or ceremony.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Jim David, Superintendent, Ocmulgee National Monument, 1207 Emery Highway, Macon, GA 31217, telephone (478) 752-8257, email
Ocmulgee National Monument is responsible for notifying the Absentee-Shawnee Tribe of Indians of Oklahoma, Alabama-Coushatta Tribe of Texas (previously listed as the Alabama-Coushatta Tribes of Texas), Alabama-Quassarte Tribal Town, Catawba Indian Nation (aka Catawba Tribe of South Carolina), Cherokee Nation, Coushatta Tribe of Louisiana, Eastern Band of Cherokee Indians, Eastern Shawnee Tribe of Oklahoma, Jena Band of Choctaw Indians, Kialegee Tribal Town, Miccosukee Tribe of Indians, Mississippi Band of Choctaw Indians, Poarch Band of Creeks (previously listed as the Poarch Band of Creek Indians of Alabama), Seminole Tribe of Florida (previously listed as the Seminole Tribe of Florida (Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations)), The Chickasaw Nation, The Choctaw Nation of Oklahoma, The Muscogee (Creek) Nation, The Seminole Nation of Oklahoma, Shawnee Tribe, Thlopthlocco Tribal Town, and United Keetowah Band of Cherokee Indians in Oklahoma that this notice has been published.
National Park Service, Interior.
Notice.
The U.S. Department of the Interior, National Park Service, Ocmulgee National Monument, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, has determined that the cultural items listed in this notice meet the definition of unassociated funerary objects. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request to Ocmulgee National Monument. If no additional claimants come forward, transfer of control of the cultural items to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Ocmulgee National Monument at the address in this notice by July 3, 2017.
Jim David, Superintendent, Ocmulgee National Monument, 1207 Emery Highway, Macon, GA 31217, telephone (478) 752-8257, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate cultural items under the control of the U.S. Department of the Interior, National Park Service, Ocmulgee National Monument, Macon, GA, that meet the definition of unassociated funerary objects under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the Superintendent, Ocmulgee National Monument.
Between 1933 and 1934, 99 cultural items were removed from Funeral Mound C in Bibb County, GA, during legally authorized projects sponsored by the Works Progress Administration. The human remains were repatriated to culturally affiliated tribes in 2015 by the Smithsonian Institution, National Museum of Natural History. The 99 unassociated funerary objects are 3 spoons, 61 beads, 1 bottle, 1 bowl, 4 vessel fragments, 1 metal fragment, 1 animal bone, 1 nail, 4 pendants, 2 projectile points, 1 scraper, 17 worked shells, 1 folding knife, and 1unmodified basalt stone.
While Mound C is a burial mound dating to the Macon Plateau phase of the Early Mississippian period (A.D. 900 to A.D. 1100), several historic burials were placed in the upper levels of the mound and in the adjacent village area. Burials excavated at this site were identified as historic Creek on the basis of European
Historical documentation reflects a great deal of movement and reorganization among the Creeks and the Creek Confederacy during the 18th and 19th centuries. Ten present-day Indian tribes include Creek descendants—the Alabama-Coushatta Tribe of Texas (previously listed as the Alabama-Coushatta Tribes of Texas), Alabama-Quassarte Tribal Town, Coushatta Tribe of Louisiana, Kialegee Tribal Town, Miccosukee Tribe of Indians, Poarch Band of Creeks (previously listed as the Poarch Band of Creek Indians of Alabama), Seminole Tribe of Florida (previously listed as the Seminole Tribe of Florida (Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations)), The Muscogee (Creek) Nation, The Seminole Nation of Oklahoma, and Thlopthlocco Tribal Town.
Officials of Ocmulgee National Monument have determined that
• Pursuant to 25 U.S.C. 3001(3)(B), the 99 cultural items described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and are believed, by a preponderance of the evidence, to have been removed from a specific burial site of a Native American individual.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the unassociated funerary objects and the Alabama-Coushatta Tribe of Texas (previously listed as the Alabama-Coushatta Tribes of Texas), Alabama-Quassarte Tribal Town, Coushatta Tribe of Louisiana, Kialegee Tribal Town, Miccosukee Tribe of Indians, Poarch Band of Creeks (previously listed as the Poarch Band of Creek Indians of Alabama), Seminole Tribe of Florida (previously listed as the Seminole Tribe of Florida (Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations)), The Muscogee (Creek) Nation, The Seminole Nation of Oklahoma, and Thlopthlocco Tribal Town.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to claim these cultural items should submit a written request with information in support of the claim to Jim David, Superintendent, Ocmulgee National Monument, 1207 Emery Highway, Macon, GA 31217, telephone (478) 752-8257, email
Ocmulgee National Monument is responsible for notifying the Absentee-Shawnee Tribe of Indians of Oklahoma, Alabama-Coushatta Tribe of Texas (previously listed as the Alabama-Coushatta Tribes of Texas), Alabama-Quassarte Tribal Town, Catawba Indian Nation (aka Catawba Tribe of South Carolina), Cherokee Nation, Coushatta Tribe of Louisiana, Eastern Band of Cherokee Indians, Eastern Shawnee Tribe of Oklahoma, Jena Band of Choctaw Indians, Kialegee Tribal Town, Miccosukee Tribe of Indians, Mississippi Band of Choctaw Indians, Poarch Band of Creeks (previously listed as the Poarch Band of Creek Indians of Alabama), Seminole Tribe of Florida (previously listed as the Seminole Tribe of Florida (Dania, Big Cypress, Brighton, Hollywood & Tampa Reservations)), Shawnee Tribe, The Chickasaw Nation, The Choctaw Nation of Oklahoma, The Muscogee (Creek) Nation, The Seminole Nation of Oklahoma, Thlopthlocco Tribal Town, and United Keetowah Band of Cherokee Indians in Oklahoma that this notice has been published.
United States International Trade Commission.
June 9, 2017 at 11:00 a.m.
Room 101, 500 E Street SW., Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
1. Agendas for future meetings: none.
2. Minutes.
3. Ratification List.
4. Vote in Inv. Nos. 701-TA-578 and 731-TA-1368 (Preliminary)(100- to 150-Seat Large Civil Aircraft from Canada). The Commission is currently scheduled to complete and file its determinations on June 12, 2017; views of the Commission are currently scheduled to be complete and filed on June 19, 2017.
5. Outstanding action jackets: none.
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on April 28, 2017, under section 337 of the Tariff Act of 1930, as amended, on behalf of Carl Zeiss AG of Germany and ASML Netherlands B.V. of the Netherlands. A supplement to the complaint was filed on May 17, 2017. The complaint alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the
The complainants request that the Commission institute an investigation and, after the investigation, issue 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
Katherine Hiner, Office of the Secretary, Docket Services, U.S. International Trade Commission, telephone (202) 205-1802.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2017).
(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 digital cameras, software, and components thereof by reason of infringement of one or more of claims 1-4, 6-10, 12-14, 16-19, 21-28, 30-35, 37-44, 46-50, and 52-56 of the '440 patent; claims 1-4, 6, 7, 9-11, 14-16, and 19 of the '163 patent; claims 1-3, 5-12, and 14-18 of the '241 patent; claims 1-12 of the '335 patent; claims 1, 2, 4, 5, 12, 13, 16, 17, and 19 of the '128 patent; claims 1-9 of the '916 patent; and claims 1, 2, 4-12, and 16-28 of the '454 patent, and whether an industry in the United States is in the process of being established 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 complainants are:
(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:
(3) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
The Office of Unfair Import Investigations will not participate as a party in this investigation.
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.
On the basis of the record
Pursuant to section 207.18 of the Commission's rules, the Commission also gives notice of the commencement of the final phase of its investigations.
On April 11, 2017, Waterloo Industries, Inc., Sedalia, Missouri filed a petition with the Commission and Commerce, alleging that an industry in the United States is materially injured or threatened with material injury by reason of LTFV and subsidized imports of tool chests and cabinets from China and LTFV imports of tool chests and cabinets from Vietnam. Accordingly, effective April 11, 2017, the Commission, pursuant to sections 703(a) and 733(a) of the Act (19 U.S.C. 1671b(a) and 1673b(a)), instituted countervailing duty investigation No. 701-TA-575 and antidumping duty investigations Nos. 731-TA-1360-1361 (Preliminary).
Notice of the institution of the Commission's investigations and of a public conference to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission made these determinations pursuant to sections 703(a) and 733(a) of the Act (19 U.S.C. 1671b(a) and 1673b(a)). It completed and filed its determinations in these investigations on May 26, 2017. The views of the Commission are contained in USITC Publication 4697 (June 2017), entitled
By order of the Commission.
Drug Enforcement Administration, Department of Justice.
30-day notice.
Department of Justice (DOJ), Drug Enforcement Administration will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. This proposed information collection was previously published in the
Comments are encouraged and will be accepted for an additional 30 day until July 3, 2017.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to Diane E. Filler, Assistant Administrator, Drug Enforcement Administration, Human Resources Division, 8701 Morrissette Drive, Springfield, VA 22152. Written comments and/or suggestions can also be sent to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503 or sent to
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
DEA is requesting an extension of a currently approved collection. This collection requires the drug history of any individual seeking employment with DEA. DEA policy states that a past history of illegal drug use may result in ineligibility for employment. The form asks job applicants specific questions about their personal history, if any, of illegal drug use.
(5)
(6)
If additional information is required contact: Melody Braswell, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution
Office for Juvenile Justice and Delinquency Prevention, Department of Justice.
30-day notice.
The Department of Justice, Office of Justice Programs 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 proposed information collection was previously published in the
Comments are encouraged and will be accepted for an additional days until July 3, 2017.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to Linda Rosen, Training and Technical Assistance Specialist at 1-202-353-9222, Office of Juvenile Justice and Delinquency Prevention, Office of Justice Programs, Department of Justice, 810 7th Street NW., Washington, DC 20530 or by email at
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Melody Braswell, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., 3E.405A, Washington, DC 20530.
Office of the Secretary, Department of Labor.
Notice.
The Department of Labor (DOL) is submitting the Bureau of Labor Statistics (BLS) sponsored information collection request (ICR) revision titled, “Consumer Price Index Commodities and Services Survey,” to the Office of Management and Budget (OMB) for review and approval for use in accordance with the Paperwork Reduction Act (PRA) of 1995. Public comments on the ICR are invited.
The OMB will consider all written comments that agency receives on or before July 3, 2017.
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
Submit comments about this request by mail to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-BLS, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or sending an email to
44 U.S.C. 3507(a)(1)(D).
This ICR seeks approval under the PRA for revisions to the Consumer Price Index Commodities and Services Survey. The Consumer Price Index (CPI) is a measure of the average change over time in the prices paid by consumers for a market basket of consumer goods and services. Each month, BLS data collectors (economic assistants) visit or call thousands of retail stores, service establishments, rental units, and doctors' offices, all over the United States to obtain information on the prices of the thousands of items used to track and measure price changes in the CPI. The collection of price data from retail establishments is essential for the timely and accurate calculation of the commodities and services component of the CPI. The CPI is then widely used as a measure of inflation, indicator of the effectiveness of government economic policy, deflator for other economic series, and as a means of adjusting dollar values. This information collection has been classified as a revision, because the BLS will introduce a new geographic area sample for the CPI in January 2018. The new sample consists of 75 urban areas, while the current sample consists of 87 urban areas. The BLS Authorizing Statute 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.
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,
Occupational Safety and Health Administration, Department of Labor.
Notice.
This document announces a new Operational Status Agreement between the Occupational Safety and Health Administration (OSHA) and the California State Plan, which specifies the respective areas of federal and state authority, and which clarifies California's coverage over maritime employment and OSHA's coverage over private employers on military installations and federal parks, and under which OSHA gains coverage over private and tribal employers on U.S. Government-recognized Native American reservations and trust lands.
Effective June 2, 2017.
The California State Plan (Cal/OSHA) administers an OSHA-approved State Plan to develop and enforce occupational safety and health standards for private-sector and state and local government employers pursuant to the provisions of section 18 of the Occupational Safety and Health
OSHA and Cal/OSHA signed a new OSA on April 30, 2014, which replaced the prior 1989 OSA. This new OSA clarified that concurrent federal enforcement authority would not be initiated with regard to any federal occupational safety and health standards in issues covered by the State Plan. Under the 2014 OSA, Federal OSHA retained coverage over all Federal employees and sites (including the United States Postal Service (USPS), USPS contract employees, and contractor-operated facilities engaged in USPS mail operations). The OSA also clarified that federal OSHA has enforcement authority over private-sector employers within the borders of all military installations and within U.S. National Parks, National Monuments, National Memorials, and National Recreational Areas in California. Further, OSHA gained enforcement authority over private-sector and tribal employers within U.S. Government-recognized Native American reservations and trust lands. Under the 2014 OSA, Federal OSHA retained authority over maritime employment (except marine construction on bridges and on shore) on the navigable waters of the United States and over whistleblower complaints under Section 11(c) of the Act. The 2014 OSA also did not contain the language from the 1989 OSA about specific elements of the Cal/OSHA program that had achieved operational status.
Federal OSHA and Cal/OSHA will exercise their respective enforcement authority according to the terms of the 2014 OSA between OSHA and Cal/OSHA. All terms of the 2014 OSA remain in effect. Additional information about this OSA is available at
Dorothy Dougherty, Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, authorized the preparation of this notice. OSHA is issuing this notice under the authority specified by section 18 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 667), Secretary of Labor's Order No. 1-2012 (76 FR 3912), and 29 CFR part 1902 and 1953
National Aeronautics and Space Administration (NASA).
Notice of information collection.
The National Aeronautics and Space Administration, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
All comments should be submitted within 60 calendar days from the date of this publication.
Interested persons are invited to submit written comments on the proposed information collection to NASA Paperwork Reduction Act Clearance Officer, Code JF000, National Aeronautics and Space Administration, Washington, DC 20546-0001 or
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Ms. Frances Teel, NASA Clearance Officer, NASA Headquarters, 300 E Street SW., JF000, Washington, DC 20546, or
NASA's Ames Research Center, Human Systems Integration Division manages the NASA Aviation Safety Reporting System (ASRS) under an Interagency Agreement with the Federal Aviation Administration (FAA).
The Aviation Safety Reporting System (ASRS) is an open, voluntary reporting system for any person in National Airspace System to report safety incidents, events, or situations. Respondents include but are not limited to commercial and general aviation pilots, air traffic controllers, flight attendants, maintenance technicians, dispatchers, and other members of the public. The ASRS database is a public repository which serves the FAA, NASA, and other organizations world-wide which are engaged in research and the promotion of safe flight. ASRS data are used to (1) Identify deficiencies and discrepancies in the National Aviation System (NAS) so that these can be remedied by appropriate authorities, (2) Support policy formulation and planning for, and improvements to, the NAS, and, (3) Strengthen the foundation of aviation human factors safety research. Respondents are not reimbursed for associated cost to provide the information. Comments submitted in response to this notice will be summarized and included in the request for OMB approval of this information collection. They will also become a matter of public record.
NASA collects this information electronically and that is the preferred manner, however information may also be collected via mail or fax.
National Endowment for the Arts.
Notice.
The National Endowment for the Arts (NEA), as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95). This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the NEA is soliciting comments concerning the proposed information collection on arts participation in the U.S.:
Comments should be sent by July 3, 2017.
You may send comments concerning this Notice to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the National Endowment for the Arts, Office of Management and Budget, Room 10235, Washington, DC 20503, 202/395-7316.
The Office of Management and Budget (OMB) is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Office of Personnel Management.
Notice.
The Office of Personnel Management (OPM) has submitted to the Office of Management and Budget (OMB) a request for review of a revision of a currently approved collection, the Multi-State Plan Program External Review Intake Form, OPM Form 1840. This approval is necessary to improve the collection of information from members of the Multi-State Plan Program who need to request the external review of a disputed adverse benefit decision.
Comments will be accepted until July 3, 2017.
Send or deliver comments to:
For copies of this proposal, contact C.C. “Corky” Conyers, Ph.D.,
As required by the Paperwork Reduction Act of 1995 (Pub. L. 104-13, May 22, 1995), as amended by the Clinger-Cohen Act (Pub. L. 104-106), OPM is soliciting comments for this collection. The previous collection (OMB No. 3206-0263) was published in the
Comments are particularly invited on:
1. Whether this collection of information is necessary for the proper performance of functions of the Office of Personnel Management, and whether it will have practical utility;
2. Whether our estimate of the public burden of this collection is accurate, and based on valid assumptions and methodology; and
3. Ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of the appropriate technological collection techniques or other forms of information technology.
U.S. Railroad Retirement Board (RRB).
Notice of a renewal of an existing computer matching program that expired on January 1, 2016.
As required by the
The purpose of this notice is to advise individuals receiving benefits under the Railroad Retirement Act that the RRB plans to share this computer matching data with state agencies.
Submit comments on or before July 12, 2017, at which time matching activities may continue. Agreements with the individual states will run for a maximum length of 18 months with a provision for an automatic, one-time 12 month renewal, for a maximum length of 30 months (5 U.S.C. 552a(o)(2)(D). In order to qualify for the renewal, both parties must certify to the RRB Data Integrity Board, three months prior to the expiration of the agreement that:
(1) The program will continue to be conducted without change, and
(2) Each party certifies to the board in writing that the program has been conducted in compliance with the agreement.
The number of matches conducted with each state during the period of the match will vary from state to state, but typically are 2 to 4 matches per calendar year.
Address any comments concerning this notice to Ms. Martha P. Rico, Secretary to the Board, Railroad Retirement Board, 844 North Rush Street Chicago, Illinois 60611-2092.
Mr. Timothy S. Grant, Chief Privacy Officer, Railroad Retirement Board, 844 North Rush Street Chicago, Illinois 60611-2092,
The
(1) Negotiate written agreements with the other agency or agencies participating in the matching programs;
(2) Obtain approval of the matching agreement by the Data Integrity Boards of the participating Federal agencies;
(3) Publish notice of the computer matching program in the
(4) Furnish reports about matching programs to Congress and Office of Management and Budget;
(5) Notify beneficiaries and applicants that their records are subject to matching; and
(6) Verify match findings before reducing, suspending, terminating, or denying a person's benefits or payments.
We have taken action to ensure that our computer matching programs comply with the requirements of the
(1) Accurately identify qualified Railroad Retirement Beneficiaries;
(2) Make necessary adjustments required under state law in public aid payments due to cost of living or other adjustments in RRB annuities;
(3) Coordinate benefits of dually eligible Medicare and Medicaid beneficiaries; and
(4) To identify individuals who are eligible for Part B Medicare and not enrolled in order to enroll such individuals in the State Buy-In program.
If the matching operation reveals that an individual who received benefits under the Railroad Retirement Act also received benefits from the state for any days in the period, the RRB will notify the state agency and provide benefit payment and Medicare Entitlement data for those matched individuals. The state agency will then make adjustments, as necessary by law or regulation for those matched records.
We will furnish a copy of this notice to both Houses of Congress and the Office of Management and Budget.
By Authority of the Board.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to delete the Order Audit Trail System (“OATS”) rules in the Rule 7400 Series and amend Rule 8211 governing submission of Electronic Blue Sheet trading data (“EBS”) as these Rules provide for the collection of information that is duplicative of the data collection requirements of the CAT once the Financial Industry Regulatory Authority (“FINRA”) publishes a notice announcing the date that it will retire its OATS and EBS rules. The proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
Bats BYX Exchange, Inc., Bats BZX Exchange, Inc., Bats EDGA Exchange, Inc., Bats EDGX Exchange, Inc., BOX Options Exchange LLC, C2 Options Exchange, Incorporated, Chicago Board Options Exchange, Incorporated, Chicago Stock Exchange, Inc., FINRA, Investors' Exchange LLC, Miami International Securities Exchange, LLC, MIAX PEARL, LLC, NASDAQ BX, Inc., Nasdaq GEMX, LLC, Nasdaq ISE, LLC, Nasdaq MRX, LLC,
The Plan is designed to create, implement and maintain a CAT that would capture customer and order event information for orders in NMS Securities and OTC Equity Securities, across all markets, from the time of order inception through routing, cancellation, modification, or execution in a single consolidated data source. Pursuant to Appendix C of the CAT NMS Plan, each Participant is required to conduct analyses of which of its existing trade and order data rules and systems require the collection of information that is duplicative of information collected for the CAT.
After conducting its analysis of its rules in accordance with the CAT NMS Plan, the Exchange has determined that the information collected pursuant to the OATS and EBS rules is intended to be collected by CAT. Therefore, the Exchange believes that the Rule 7400 Series will no longer be necessary once FINRA publishes notice announcing the date it will retire its OATS rules. Similarly, the Exchange believes that it will be necessary to clarify how the Exchange will request EBS data under Rule 8211 after members are reporting to the CAT. Accordingly, the Exchange proposes to amend Rule 8211 to add new Supplementary Material clarifying how the Exchange will request data under these rules after member organizations are reporting to the CAT once FINRA publishes notice announcing the date it will retire its OATS rules. Discussed below is a description of the duplicative rule requirements as well as the timeline for eliminating the duplicative rules.
If the Commission approves the proposed rule change, the rule text will be effective; however, the amendments will not be implemented until FINRA publishes a notice announcing the date that it will retire its OATS rules, at which time the Exchange will publish a regulatory notice announcing implementation date of the proposed rule change. As discussed below, FINRA will publish its notice once the CAT achieves certain specific accuracy and reliability standards and FINRA has determined that its usage of the CAT Data has not revealed material issues that have not been corrected, confirmed that the CAT includes all data necessary to allow FINRA to continue to meet its surveillance obligations,
The Rule 7400 Series consists of Rules 7410 through 7470 and sets forth the recording and reporting requirements of the OATS Rules. The OATS Rules require all Exchange member organizations and associated persons to record in electronic form and report to FINRA, on a daily basis, certain information with respect to orders originated, received, transmitted, modified, canceled, or executed by members in all NMS stocks, as that term is defined in Rule 600(b)(47) of Regulation NMS,
The Participants have provided OATS technical specifications to the Plan Processor for the CAT for use in developing the Technical Specifications for the CAT, and the Participants are working with the Plan Processor to include the necessary OATS data elements in the CAT Technical Specifications. Accordingly, the Exchange proposes to eliminate its OATS Rules in accordance with the proposed timeline discussed below.
The CAT NMS Plan states that the elimination of rules that are duplicative of the requirements of the CAT and the retirement of the related systems should be effective at such time as CAT Data meets minimum standards of accuracy and reliability.
The CAT NMS Plan requires that a rule filing to eliminate a duplicative rule address whether “the availability of certain data from Small Industry Members two years after the Effective Date would facilitate a more expeditious retirement of duplicative systems.”
The CAT NMS Plan also requires that this rule filing address “whether individual Industry Members can be exempted from reporting to duplicative systems once their CAT reporting meets specified accuracy and reliability standards, including, but not limited to, ways in which establishing cross-system regulatory functionality or integrating data from existing systems and the CAT
FINRA believes that a single cut-over from OATS to CAT is highly preferable to a firm-by-firm approach and is not proposing to exempt members from the OATS requirements on a firm-by-firm basis. FINRA believes that that the overall accuracy and reliability thresholds for the CAT described above [sic] would need to be met under any conditions before firms could stop reporting to OATS. Moreover, as discussed above [sic], FINRA supports amending the Plan to accelerate the reporting requirements for Small Industry Members that are OATS Reporters to report on the same timeframe as all other OATS Reporters. If such an amendment were approved by the Commission, there would be no need to exempt members from OATS requirements on a firm-by-firm basis.
The CAT NMS Plan also requires that a rule filing to eliminate a duplicative rule to provide “specific accuracy and reliability standards that will determine when duplicative systems will be retired, including, but not limited to, whether the attainment of a certain Error Rate should determine when a system duplicative of the CAT can be retired.”
As set forth in its filing, FINRA believes that, when assessing the accuracy and reliability of the data for the purposes of retiring OATS, the error thresholds should be measured in more granular ways and should also include minimum error rates of post-correction data, which represents the data most likely to be used by FINRA to conduct surveillance. To ensure the CAT's accuracy and reliability, FINRA is thus proposing that, before OATS could be retired, the CAT would generally need to achieve a sustained error rate for Industry Member reporting in each of the categories below for a period of at least 180 days of 5% or lower, measured on a pre-correction or as-submitted basis and 2% or lower on a post-correction basis (measured at T+5).
In addition to these minimum error rates before OATS can be retired FINRA believes that during the minimum 180-day period during which the thresholds are calculated, FINRA's use of the data in the CAT must confirm that (i) usage over that time period has not revealed material issues that have not been corrected, (ii) the CAT includes all data necessary to allow the Exchange to continue to meet its surveillance obligations, and (iii) the Plan Processor is sufficiently meeting all of its obligations under the CAT NMS Plan. The Exchange believes this time period to use the CAT Data is necessary to reveal any errors that may manifest themselves only after surveillance patterns and other queries have been run and to confirm that the Plan Processor is meeting its obligations and performing its functions adequately.
In addition to the OATS rules, Rule 8211 will also be affected by the implementation of the CAT. Rule 8211 is the Exchange's rule regarding the automated submission of specific trading data to the Exchange upon request (commonly referred to as “blue sheet” data) using the EBS system.
Once broker-dealer reporting to the CAT has begun, the CAT will contain much of the data the Participants would otherwise have requested via the EBS system for purposes of NMS Securities and OTC Equity Securities. Consequently, the Exchange will not need to use the EBS system or request information pursuant to Rule 8211 for NMS Securities or OTC Equity Securities for time periods after CAT reporting has begun if the appropriate accuracy and reliability thresholds are achieved, including an acceptable accuracy rate for customer and account information. However, Rule 8211 cannot be completely eliminated upon the CAT achieving the appropriate thresholds because Exchange staff may still need to request information pursuant to Rule 8211 for trading activity occurring before a member organization
The proposed rule change proposes to add new Supplementary Material to the Rule 8211 to clarify how the Exchange will request data under these rules after member organizations are reporting to the CAT. Specifically, the proposed Supplementary Material to the Rule 8211 will note that the Exchange will
However, as noted above, FINRA believes that the CAT must meet certain minimum accuracy and reliability standards before FINRA could rely on the CAT Data to replace existing regulatory tools, including EBS. Consequently, the proposed Supplementary Material will be implemented only after FINRA publishes its notice after the CAT achieves the thresholds set forth above with respect to OATS and an accuracy rate for customer and account information of 95% for pre-corrected data and 98% for post-correction data. In addition, as discussed above, FINRA can rely on CAT Data to replace EBS requests only after FINRA has determined that its usage of the CAT Data over a 180-day period has not revealed material issues that have not been corrected, confirmed that the CAT includes all data necessary to allow FINRA to continue to meet its surveillance obligations, and confirmed that the CAT Plan Processor is fulfilling its obligations under the CAT NMS Plan.
As noted, if the Commission approves the proposed rule change, the Exchange will announce the implementation date of the proposed rule change in a regulatory notice that will be published once FINRA publishes a notice announcing the date that it will retire its EBS rules, which FINRA will do once it concludes the thresholds for accuracy and reliability described above have been met and that the Plan Processor is sufficiently meeting all of its obligations under the CAT NMS Plan.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
In particular, the Exchange believes that the proposed rule change implements, supports, interprets or clarifies the provisions of the Plan, and is designed to assist the Exchange and its Members in meeting regulatory obligations pursuant to, and milestones established by, the Plan. In approving the Plan, the SEC noted that it “is necessary and appropriate in the public interest, for the protection of investors and the maintenance of fair and orderly markets, to remove impediments to, and perfect the mechanism of a national market system, or is otherwise in furtherance of the purposes of the Act.”
The Exchange also believes that adding a preamble to each current Rule impacted by the Plan would remove impediments to and perfect the mechanism of a free and open market and a national market system by adding clarity and transparency to the Exchange's rules, reducing potential confusion, and making the Exchange's rules easier to navigate and understand.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed change is not designed to address any competitive issue but rather implement provisions of the CAT NMS Plan, and is designed to assist the Exchange in meeting its regulatory obligations pursuant to the Plan.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to delete NYSE Arca Rule 6.20 (Time Synchronization) and subsections (a)(1)-(13) of NYSE Arca Rule 6.68 (Record of Orders) as these Rules collect information for the consolidated options audit trail system (“COATS”) that are duplicative of the data collection requirements of the CAT NMS Plan. The Exchange will announce the date for the retirement of COATS in a regulatory notice that will be published once the options exchanges determine that the thresholds for accuracy and reliability described below have been met and that the Plan Processor is sufficiently meeting all of its obligations under the CAT NMS Plan. The proposed change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
Bats BYX Exchange, Inc., Bats BZX Exchange, Inc., Bats EDGA Exchange, Inc., Bats EDGX Exchange, Inc., BOX Options Exchange LLC, C2 Options Exchange, Incorporated, CBOE, Chicago Stock Exchange, Inc., Financial Industry Regulatory Authority, Inc. (“FINRA”), Investors' Exchange LLC, Miami International Securities Exchange, LLC, MIAX PEARL, LLC, NASDAQ BX, Inc., Nasdaq GEMX, LLC, Nasdaq ISE, LLC, Nasdaq MRX, LLC,
The Plan is designed to create, implement and maintain a CAT that would capture customer and order event information for orders in NMS Securities and OTC Equity Securities, across all markets, from the time of order inception through routing, cancellation, modification, or execution in a single consolidated data source. Pursuant to Appendix C of the CAT NMS Plan, each Participant is required to conduct analyses of which of its existing trade and order data rules and systems require the collection of information that is duplicative of information collected for the CAT.
After conducting its analysis of its rules in accordance with the CAT NMS Plan, the Exchange determined that the information collected for COATS is intended to be collected by the CAT. Therefore, the Exchange believes that COATS will no longer be necessary once the CAT is operational and certain accuracy and reliability standards are met. Accordingly, the Exchange submits this proposed rule change to delete NYSE Arca Rule 6.20 and subsections (a)(1)-(13) of NYSE Arca Rule 6.68, which set forth certain requirements related to COATS. Discussed below is a description of the duplicative rule requirements as well as the timeline for eliminating the duplicative rule.
If the Commission approves the proposed rule change, the rule text will be effective; however, the amendments will not be implemented until the
COATS was developed to comply with an order of the Commission requiring the Exchange, in coordination with other exchanges, to “design and implement” COATS to “enable the options exchanges to reconstruct markets promptly, effectively surveil them and enforce order handling, firm quote, trade reporting and other rules.”
The Exchange has determined that the requirements of NYSE Arca Rule 6.20 and subsections (a)(1)-(13) of NYSE Arca Rule 6.68, which implement certain requirements related to COATS, are duplicative of information available in the CAT and thus will no longer be necessary once the CAT is operational.
NYSE Arca Rule 6.68 requires OTP Holders and OTP Firms to maintain and preserve a record of every order and of any other instructions given or received for the purchase or sale of options contracts, including the terms and conditions of the orders (such as whether the order is a market or limit order), the order entry date and time, and the date and time of any modification of the terms of the order or cancellation of the order, or other specific data elements.
The Participants have provided COATS technical specifications to the Plan Processor for the CAT for use in developing the Technical Specifications for the CAT, and the Participants are working with the Plan Processor to include the necessary COATS data elements in the CAT Technical Specifications. Accordingly, although the Technical Specifications for the CAT have not yet been finalized, the Exchange and the other options exchanges propose to eliminate COATS in accordance with the proposed timeline discussed below.
The CAT NMS Plan states that the elimination of rules that are duplicative of the requirements of the CAT and the retirement of the related systems should be effective at such time as CAT Data meets minimum standards of accuracy and reliability.
The Exchange believes COATS should not be retired until all Participants and Industry Members that report data to COATS are reporting comparable data to the CAT. In this way, the Exchange will continue to have access to the necessary data to perform its regulatory duties.
The CAT NMS Plan requires that a rule filing to eliminate a duplicative rule address whether “the availability of certain data from Small Industry Members two years after the Effective Date would facilitate a more expeditious retirement of duplicative systems.”
The CAT NMS Plan requires that this rule filing address “whether individual Industry Members can be exempted from reporting to duplicative systems once their CAT reporting meets specified accuracy and reliability standards, including, but not limited to, ways in which establishing cross-system regulatory functionality or integrating data from existing systems and the CAT would facilitate such Individual Industry Member exemptions.”
The Exchange believes that a single cut-over from COATS to CAT is highly preferable to a firm-by-firm approach and is not proposing to exempt members from the COATS requirements on a firm-by-firm basis. The Exchange and the other options exchanges believe that providing such individual exemptions to Industry Members would be inefficient, more costly, and less reliable than the single cut-over. Providing individual exemptions would require the options exchanges to create, for a brief temporary period, a cross-system regulatory function and to integrate data from COATS and the CAT to avoid creating any regulatory gaps as a result of such exemptions. Such a function would be costly to create and would give rise to a greater likelihood of data errors or other issues. Given the limited time in which such exemptions would be necessary, the Exchange and the other options exchanges do not believe that such exemptions would be an appropriate use of limited resources. The CAT NMS Plan also requires that a rule filing to eliminate a duplicative rule to provide “specific accuracy and reliability standards that will determine when duplicative systems will be retired, including, but not limited to, whether the attainment of a certain Error Rate should determine when a system duplicative of the CAT can be retired.”
The Exchange and the other options exchanges believe that, before COATS may be retired, the CAT would need to achieve a sustained error rate for a period of at least 180 days of 5% or lower measured on a pre-correction or as-submitted basis, and 2% or lower on a post-correction basis (measured at T+5).
In addition to these minimum error rates before COATS can be retired, the Exchange believes that during the minimum 180-day period during which the thresholds are calculated, the Exchange's use of the data in the CAT must confirm that (i) usage over that time period has not revealed material issues that have not been corrected, (ii) the CAT includes all data necessary to allow the Exchange to continue to meet its surveillance obligations, and (iii) the Plan Processor is sufficiently meeting all of its obligations under the CAT NMS Plan. The Exchange believes this time period to use the CAT Data is necessary to reveal any errors that may manifest themselves only after surveillance patterns and other queries have been run and to confirm that the Plan Processor is meeting its obligations and performing its functions adequately.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
In particular, the Exchange believes that the proposed rule change is consistent with the Exchange Act because it fulfills the obligation in the CAT NMS Plan for the Exchange to submit a proposed rule change to eliminate or modify duplicative rules. In approving the Plan, the SEC noted that the Plan “is necessary and appropriate in the public interest, for the protection of investors and the maintenance of fair and orderly markets, to remove impediments to, and perfect the mechanism of a national market system, or is otherwise in furtherance of the purposes of the Act.”
Moreover, the purpose of the proposed rule change is to eliminate rules that require the submission of duplicative data to the Exchange. The elimination of such duplicative requirements will reduce unnecessary costs and other compliance burdens for the Exchange and its members, and therefore, will enhance the efficiency of the securities markets. Furthermore, the Exchange believes that the approach set forth in the proposed rule change strikes the appropriate balance between ensuring that the Exchange is able to continue to fulfill its statutory obligation to protect investors and the public interest by ensuring its surveillance of market activity remains accurate and effective while also establishing a reasonable timeframe for elimination or modification of its rules that will be rendered duplicative after implementation of the CAT.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed change is not designed to address any competitive issue but rather implement provisions of the CAT NMS Plan approved by the Commission regarding the elimination of rules and systems that are duplicative the CAT, and is designed to assist the Exchange in meeting its regulatory obligations pursuant to the Plan. Similarly, all options exchanges are proposing the elimination of COATS and their rules related to COATS to implement the requirements of the CAT NMS Plan. Therefore, this is not a competitive rule filing and, therefore, it does not raise competition issues between and among the options exchanges and/or their members.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On March 1, 2017, Fixed Income Clearing Corporation (“FICC”) filed with the Securities and Exchange Commission (“Commission”) proposed rule change SR-FICC-2017-002 (“Proposed Rule Change”) pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
FICC's current liquidity resources for its Government Securities Division (“GSD”)
With this Proposed Rule Change, FICC proposes to amend its GSD Rulebook (“GSD Rules”)
CCLF would be invoked only if FICC declared a “CCLF Event,” which would occur only if FICC ceased to act for a Netting Member in accordance to GSD Rule 22A (referred to as a “default”) and, subsequent to such default, FICC determined that its other, above-described liquidity resources could not generate sufficient cash to statisfy FICC's payment obligations to the non-defaulting Netting Members. Once FICC declares a CCLF Event, each Netting Member could be called upon to enter into repurchase transactions with FICC (“CCLF Transactions”) up to a pre-determined capped dollar amount, as described below.
Following a default, FICC would first obtain liquidity through its other available non-CCLF liquidity resources.
Upon declaring a CCLF Event, FICC would meet its liquidity need by initiating CCLF Transactions with non-defaulting Netting Members. The Proposed Rule Change would clarify that the original transaction that created FICC's initial obligation to pay cash to the now Direct Affected Member, and the Direct Affected Member's initial obligation to deliver securities to FICC, would be deemed satisfied by entry into the CCLF Transaction, and that such settlement would be final.
Each CCLF Transaction would be governed by the terms of the September 1996 Securities Industry and Financial Markets Association Master Repurchase Agreement,
To initiate CCLF Transactions with non-defaulting Netting Members, FICC would identify the non-defaulting Netting Members that are obligated to deliver securities destined for the defaulting Netting Member (“Direct Affected Members”) and, in return, would be obligated to receive a cash payment. FICC would need to finance those transactions through CCLF, in order to cover the defaulting Netting Member's failure to deliver the cash payment (“Financing Amount”). FICC would notify each Direct Affected Member of the Direct Affected Member's Financing Amount and whether such Direct Affected Member should deliver to FICC or suppress any securities that were destined for the defaulting Netting Member. FICC would then initiate CCLF Transactions with each Direct Affected Member for the Direct Affected Member's purchase of the securities (“Financed Securities”) that were destined for the defaulting Netting Member.
If any Direct Affected Member's Financing Amount exceeds its Individual Total Amount (“Remaining Financing Amount”), FICC would advise the following categories of Netting Members (collectively, “Affected members”) that FICC intends to initiate CCLF Transactions with them for the Remaining Financing Amount: (i) All other Direct Affected Members with a Financing Amount less than its Individual Total Amount; and (ii) each Netting Member that has not otherwise entered into CCLF Transactions with FICC (“Indirect Affected Members”).
FICC states that the order in which FICC would enter into CCLF Transactions for the Remaining Financing Amount would be based upon the Affected Members that have the most funding available within their Individual Total Amounts.
After receiving approval from FICC's Board of Directors to do so, FICC would engage its investment advisor during a CCLF Event to minimize liquidation losses on the Financed Securities through hedging, strategic dispositions, or other investment transactions as determined by FICC under relevant market conditions. Once FICC liquidates the underlying securities by selling them to a new buyer (“Liquidating Trade”), FICC would instruct the Affected Member to close the CCLF Transaction by delivering the Financed Securities to FICC in order to complete settlement of the Liquidating Trade. FICC would attempt to unwind the CCLF Transactions in the order it entered into the Liquidating Trades. Each CCLF Transaction would remain open until the earlier of (i) such time that FICC liquidates the Affected Member's Financed Securities; (ii) such time that FICC obtains liquidity through its available liquid resources; or (iii) 30 or 60 calendar days after entry into the CCLF Transaction for U.S. government bonds and mortgage-backed securities, respectively.
According to FICC, its overall liquidity need during a CCLF Event would be determined by the cash settlement obligations presented by the default of a Netting Member and its Affiliated Family, as described below. An additional amount (“Liquidity Buffer”) would be added to account for both changes in Netting Members' cash settlement obligations that may not be observed during the six-month look-back period during which CCLF would be sized, and the possibility that the defaulting Netting Member is the largest CCLF contributor.
FICC believes that its proposal would allocate FICC's observed liquidity need during a CCLF Event among all Netting Members based on their historical settlement activity, but states that Netting Members that present the highest cash settlement obligations would be required to maintain higher CCLF funding obligations.
The steps that FICC would take to size its overall liquidity need during a CCLF event and then size and allocate each Netting Member's CCLF contribution requirement are described below.
FICC's historical liquidity need for the six-month look-back period would be equal to the largest liquidity need generated by an Affiliated Family during the preceding six-month period. The amount which would be determined by calculating the largest sum of an Affiliated Family's obligation to receive GSD eligible securities, plus the net dollar amount of its Funds-Only Settlement Amount
According to FICC, it is cognizant that the Historical Cover 1 Liquidity Requirement would not account for changes in a Netting Member's current trading behavior, which could result in a liquidity need greater than the Historical Cover 1 Liquidity Requirement. To account for this potential shortfall, FICC proposes to add a Liquidity Buffer as an additional amount to the Historical Cover 1 Liquidity Requirement, which would help to better anticipate GSD's total liquidity need during a CCLF Event.
FICC states that the Liquidity Buffer would initially be 20 percent of the Historical Cover 1 Liquidity Requirement (and between 20 to 30 percent thereafter), subject to a minimum amount of $15 billion.
FICC would have the discretion to adjust the Liquidity Buffer, within the range of 20 to 30 percent of the Historical Cover 1 Liquidity Requirement, based on its analysis of the stability of the Historical Cover 1 Liquidity Requirement over various time horizons. According to FICC, this would help ensure that its liquidity resources are sufficient under a wide range of potential market scenarios that may lead to a change in a Netting Member's trading behavior. FICC also states that it would analyze the trading behavior of Netting Members that present larger liquidity needs than the majority of the Netting Members, as described below.
FICC's anticipated total liquidity need during a CCLF Event (
The Aggregate Total Amount would be allocated among Netting Members in order to arrive at each Netting Member's Individual Total Amount. FICC would take a tiered approach in its allocation of the Aggregate Total Amount. First, FICC would determine the portion of the Aggregate Total Amount that should be allocated among all Netting Members (“Aggregate Regular Amount”), which FICC states initially would be set at $15 billion.
Second, as discussed in more detail below, after allocating the $15 billion Aggregate Regular Amount, FICC would allocate the remainder of the Aggregate Total Amount (“Aggregate Supplemental Amount”) among Netting Members that incurred liquidity needs above the Aggregate Regular Amount within the six-month look-back period. For example, a Netting Member with a $7 billion peak daily liquidity need would only contribute to the $15 billion Aggregate Regular Amount, based on the calculation described below. Meanwhile a Netting Member with a $45 billion Aggregate Regular Amount would contribute towards the $15 billion Aggregate Regular Amount and the Aggregate Supplemental Amount, as described below.
FICC believes that this tiered approach reflects a reasonable, fair, and transparent balance between FICC's need for sufficient liquidity resources and the burdens of the funding obligations on each Netting Member's management of its own liquidity.
Under the proposal, the Aggregate Regular Amount would be allocated among all Netting Members, but Netting Members with larger Receive Obligations
FICC states that it would initially assign a 20 percent weighting
The remainder of the Aggregate Total Amount (
The sum of a Netting Member's allocation across all Liquidity Tiers would be such Netting Member's Individual Supplemental Amount. FICC would add each Netting Member's Individual Supplemental Amount (if any) to its Individual Regular Amount to arrive at such Netting Member's Individual Total Amount.
As described above, the Aggregate Total Amount and each Netting Member's Individual Total Amount (
• The largest peak daily liquidity need of an Affiliated Family;
• the Liquidity Buffer;
• the Aggregate Regular Amount;
• the Aggregate Supplemental Amount;
• the Deliver Scaling Factor and the Receive Scaling Factor used to allocate the Aggregate Regular Amount;
• the increments for the Liquidity Tiers; and
• the length of the look-back period and the reset period for the Aggregate Total Amount.
FICC represents that, in the event that any changes to the above-referenced parameters result in an increase in a Netting Member's Individual Total Amount, such increase would be effective as of the next bi-annual reset.
Additionally, on a daily basis, FICC would examine the Aggregate Total Amount to ensure that it is sufficient to satisfy FICC's liquidity needs. If FICC determines that the Aggregate Total Amount is insufficient to satisfy its liquidity needs, FICC would have the discretion to change the length of the six-month look-back period, the reset period, or otherwise increase the Aggregate Total Amount.
Any increase in the Aggregate Total Amount resulting from FICC's quarterly assessments or FICC's daily monitoring would be subject to approval from FICC management, as described in the Notice.
The CCLF proposal would become operative 12 months after the later date of the Commission's approval of the Proposed Rule Change and the Commission's no objection to the related Advance Notice. FICC represents that, during this 12-month period, it would periodically provide each Netting Member with estimated Individual Total Amounts. FICC states that the delayed implementation and the estimated Individual Total Amounts are designed to give Netting Members the opportunity to assess the impact that the CCLF proposal would have on their business profile.
FICC states that, as of the implementation date and annually thereafter, FICC would require that each Netting Member attest that it incorporated its Individual Total Amount into its liquidity plans.
On a quarterly basis, FICC would conduct due diligence to assess each Netting Member's ability to meet its Individual Total Amount. This due diligence would include a review of all information that the Netting Member has provided FICC in connection with its ongoing reporting obligations pursuant to the GSD Rules and a review of other publicly available information. FICC also would test its operational procedures for invoking a CCLF Event, and Netting Members would be required to participate in such tests. If a Netting Member failed to participate in such testing when required by FICC, FICC would be permitted to take disciplinary measures as set forth in GSD Rule 3, Section 7.
On each business day, FICC would make a liquidity funding report available to each Netting Member that would include (i) the Netting Member's Individual Total Amount, Individual Regular Amount and, if applicable, its Individual Supplemental Amount; (ii) FICC's Aggregate Total Amount, Aggregate Regular Amount, and Aggregate Supplemental Amount; and (iii) FICC's regulatory liquidity requirements as of the prior business day. The liquidity funding report would be provided for informational purposes only.
The Commission received three comment letters in response to the Proposed Rule Change.
Ronin argues that the Proposed Rule Change would (1) place an unfair and anticompetitive burden on smaller Netting Members because such members do not present any settlement risk to FICC; (2) cause concentration and systemic risk by potentially forcing smaller Netting Members to leave GSD (as well as creating a barrier to entry for prospective new Netting Members) or clear their trades through larger Netting Members; and (3) cause FICC's liquidity needs to grow by potentially increasing the size of FICC's largest Netting Members.
Similarly, ICBC argues that the Proposed Rule Change would result in harmful consequences to smaller Netting Members and other industry participants.
Although ICBC acknowledges that FICC, as a registered clearing agency, is required to maintain sufficient financial resources to withstand a default by the largest participant family to which FICC has exposure in “extreme but plausible conditions,”
ICBC also argues that CCLF could (i) result in FICC's refusal to clear certain trades, thereby increasing the burden on the Bank of New York, the only private bank that clears a large portion of U.S. government securities;
The FICC Letter written in support of the proposal primarily responds to Ronin's assertions. In response to Ronin's concerns regarding the potential economic impacts on smaller non-bank Netting Members, FICC states that CCLF was designed to minimize the burden on smaller Netting Members and achieve a fair and appropriate allocation of liquidity burdens.
In response to Ronin's assertion that CCLF could promote concentration and systemic risk, FICC argues that the proposal would actually reduce systemic risk. Specifically, FICC asserts that, by providing FICC with committed liquidity to meet its cash settlement obligations to non-defaulting members during extreme market stress, CCLF would promote settlement finality and the safety and soundness of the securities settlement system, thereby reducing systemic risk, as discussed further below.
Finally, in response to Ronin's concern that CCLF could cause FICC's liquidity needs to grow, FICC notes that
The Commission is instituting proceedings pursuant to Section 19(b)(2)(B) of the Act
Pursuant to Section 19(b)(2)(B) of the Act,
Specifically, Rule 17Ad-22(e)(7) requires policies and procedures for (i) maintaining sufficient liquid resources to effect same-day settlement of payment obligations in the event of a default of the participant family that would generate the largest aggregate payment obligation for the covered clearing agency in extreme but plausible market conditions;
The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to issues raised by the Proposed Rule Change. In particular, the Commission invites the written views of interested persons concerning whether the Proposed Rule Change is consistent with Sections 17A(b)(3)(F) and 17A(b)(3)(I) of the Act, Rule 17Ad-22(e)(7) under the Act, cited above, or any other provision of the Act, or the rules and regulations thereunder. Interested persons are invited to submit written data, views, and arguments on or before June 19, 2017. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal on or before June 23, 2017. 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.
All submissions should refer to File Number SR-FICC-2017-002 and should be submitted on or before June 19, 2017. If comments are received, any rebuttal comments should be submitted on or before June 23, 2017.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 17g-1, Form NRSRO and the Instructions to Form NRSRO contain certain recordkeeping and disclosure requirements for nationally recognized statistical rating organizations (“NRSROs”). Currently, there are 10 credit rating agencies registered as NRSROs with the Commission. Based on staff experience, NRSROs are estimated to spend annually a total industry-wide burden of 2,527 hours and external cost of $4,000 to comply with the requirements.
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's estimates of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information on respondents; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
The Commission may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Please direct your written comments to: Pamela Dyson, Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 100 F St. NE., Washington, DC 20549 or send an email to:
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Exchange's proposed rule change relating to the First Trust Municipal High Income ETF (the “Fund”) of First Trust Exchange-Traded Fund III (the “Trust”), the shares of which have been approved by the Commission for listing and trading under Nasdaq Rule 5735 (“Managed Fund Shares”). The shares of the Fund are collectively referred to herein as the “Shares.”
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 Commission has approved the listing and trading of Shares under Nasdaq Rule 5735, which governs the listing and trading of Managed Fund Shares on the Exchange.
The Fund is an actively-managed exchange-traded fund (“ETF”). The Shares will be offered by the Trust, which was established as a Massachusetts business trust on January 9, 2008. The Trust, which is registered with the Commission as an investment company under the Investment Company Act of 1940 (the “1940 Act”), has filed a registration statement on Form N-1A (“Registration Statement”) relating to the Fund with the Commission.
The primary purpose of this proposed rule change is to modify certain representations set forth in the Prior Release. Since the Prior Release, in evaluating its ability to construct a portfolio that would both enable the Fund to pursue its investment objectives effectively and satisfy the representations set forth in the Prior Release, the Adviser determined that, based on certain factors, including regulatory and market developments with portfolio management implications, additional flexibility would be needed to launch and operate the Fund. In particular, in October 2016, the Commission adopted a new rule (
As a related matter, the Exchange notes that although the Prior Release included certain representations that were based on the generic listing standards for index-based ETFs, the Exchange's “generic listing standards” for actively-managed ETFs (the “Active ETF Generic Listing Standards”)
The Prior Release noted that the Fund would be actively managed and not tied to an index, but that under normal market conditions, on a continuous basis determined at the time of purchase, its portfolio of Municipal Securities (as defined in the Prior Release) would generally meet, as applicable, all except for two of the criteria for non-actively managed, index-based, fixed income ETFs contained in Nasdaq Rule 5705(b)(4)(A), as described therein. More specifically, the Prior Release stated that, under normal market conditions, the Fund's portfolio of Municipal Securities would meet the requirements of: (i) Nasdaq Rule 5705(b)(4)(A)(i) (requiring that the index or portfolio consist of “Fixed Income Securities”); (ii) Nasdaq Rule 5705(b)(4)(A)(iv) (requiring that no component fixed income security (excluding Treasury securities) represent more than 30% of the weight of the index or portfolio, and that the five highest weighted component fixed income securities do not, in the aggregate, account for more than 65% of the weight of the index or portfolio); and (iii) Nasdaq Rule 5705(b)(4)(A)(v) (requiring that an underlying index or portfolio (excluding one consisting entirely of exempted securities) include securities from a minimum of 13 non-affiliated issuers) (collectively, the “Rule 5705-Related Representations”).
Additionally, the Prior Release noted that Nasdaq Rule 5705(b)(4)(A)(iii) (relating to convertible securities) was inapplicable to the Fund's portfolio of Municipal Securities. Further, the Prior Release provided that the Fund's portfolio of Municipal Securities may not satisfy 5705(b)(4)(A)(vi) (requiring that component securities that in the aggregate account for at least 90% of the weight of the index or portfolio be either exempted securities or from a specified type of issuer) and that it would not generally satisfy Rule 5705(b)(4)(A)(ii) (requiring that components that in the aggregate account for at least 75% of the weight of the index or portfolio have a minimum original principal amount outstanding of $100 million or more). However, the Prior Release stated that under normal market conditions, at least 40% (based on dollar amount invested)
In addition to the Rule 5705-Related Representations and the 40/75 Representation, the Prior Release provided that under normal market conditions, except for the initial invest-up period and periods of high cash inflows or outflows,
The Prior Release also provided that under normal market conditions, except for the initial invest-up period and periods of high cash inflows or outflows, (a) with respect to the Municipal Securities in which the Fund invested that were rated investment grade by each nationally recognized statistical rating organization (“NRSRO”) rating such securities, at the time of purchase, the applicable borrower would be obligated to pay debt service on issues of municipal obligations that have an aggregate principal amount outstanding of $100 million or more and (b) with respect to all other Municipal Securities in which the Fund invested (referred to as “Clause B Munis”), at the time of purchase of a Clause B Muni, the borrowers of all Clause B Munis held by the Fund, in the aggregate, would have a weighted average of principal municipal debt outstanding of $50 million or more (collectively, the “Borrower Debt Representations” and, together with the Borrower Exposure Representations, the Industry/State Representations, the 40/75 Representation and the Rule 5705-Related Representations, the “Prior Representations”).
As indicated above, the Adviser has reconsidered the Prior Representations and concluded that additional flexibility will be needed to launch and operate the Fund. As a result, in this proposed rule change, the Exchange is proposing that, going forward: (a) The Prior Representations, except for the Industry/State Representations, would be deleted and (b) the representations included in the next two paragraphs (referred to as the “New Representations”) would be added. Further, the Exchange notes that the New Representations have been designed to correspond to the requirements of Rule 5735(b)(1)(B), as these are more readily adapted to the Fund (as an actively-managed ETF) than the generic listing standards for index-based ETFs upon which the Rule 5705-Related Representations were based.
Although as described below, certain of the New Representations would meet or exceed similar requirements set forth in Rule 5735(b)(1)(B), it is not anticipated that the Fund would meet the requirement that components that in the aggregate account for at least 75% of the fixed income weight of the portfolio each have a minimum original principal amount outstanding of $100 million or more (the “Generic 100 Requirement”).
Under normal market conditions, except for the initial invest-up period and periods of high cash inflows or outflows,
The New Representations differ from the Prior Representations and do not, in certain respects, comply with Rule 5735(b)(1)(B) (particularly with respect to the Generic 100 Requirement). However, taking into account the nature of the municipal securities market and the manner in which municipal securities generally trade, in light of the requirements that the New Representations and the Industry/State Representations would impose (
The Prior Release stated that under normal market conditions, the Fund would seek to achieve its investment objectives by investing at least 80% of its net assets (including investment borrowings) in municipal debt securities
Additionally, the Prior Release stated that under normal market conditions, the Fund would invest at least 65% of its net assets in Municipal Securities that are, at the time of investment, rated below investment grade (
As described in the Prior Release, the Fund may (i) invest in exchange-listed options on U.S. Treasury securities, exchange-listed options on U.S. Treasury futures contracts, and exchange-listed U.S. Treasury futures contracts (collectively, the “Listed Derivatives”) and (ii) acquire short positions in the Listed Derivatives. No changes are being proposed with respect to the Fund's investments in the Listed Derivatives. Going forward, however, the Exchange proposes that the Fund's ability to invest in derivatives would be expanded to permit it to also invest in OTC forward contracts and OTC swaps (collectively, the “OTC Derivatives”) to hedge interest rate risks associated with the Fund's portfolio investments.
On both an initial and continuing basis, no more than 20% of the assets in the Fund's portfolio would be invested in the OTC Derivatives and, for purposes of calculating this limitation, the Fund's investment in the OTC Derivatives would be calculated as the aggregate gross notional value of the OTC Derivatives.
The OTC Derivatives would typically be valued using information provided by a Pricing Service (as defined in the Prior Release). Pricing information for the OTC Derivatives would be available from major broker-dealer firms and/or major market data vendors and/or Pricing Services (as defined in the Prior Release).
The Adviser represents that there would be no change to the Fund's investment objectives. Except as provided herein, all other facts presented and representations made in the Prior Release would remain unchanged. The Fund and the Shares would comply with all initial and continued listing requirements under Nasdaq Rule 5735.
Nasdaq believes that the proposal is consistent with Section 6(b) of the Act in general and Section 6(b)(5) of the Act, in particular, in that it is designed 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 facilitating transactions in securities, and to remove impediments to and perfect the mechanism of a free and open market and, in general, to protect investors and the public interest. Except as provided herein, all other facts presented and representations made in the Prior Release would remain unchanged. The Fund would comply with all the initial and continued listing requirements under Nasdaq Rule 5735.
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares would be listed and traded on the Exchange pursuant to the initial and continued listing criteria in Nasdaq Rule 5735 and, except as provided herein, all other facts presented and representations made in the Prior Release would remain unchanged. The Exchange notes that Shares have not yet been listed on the Exchange. Consistent with the Prior Release, the Exchange represents that trading in the Shares would be subject to the existing trading surveillances, administered by both Nasdaq and also the Financial Industry Regulatory Authority (“FINRA”), on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws.
The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that the Adviser represents that taking into account the nature of the municipal securities market and the manner in which municipal securities generally trade, in light of the requirements that the New Representations and the Industry/State Representations would impose (
With one exception, the New Representations would meet or exceed similar requirements for portfolios of fixed income securities set forth in Rule 5735(b)(1)(B). In this regard, it is not anticipated that the Fund would meet the Generic 100 Requirement. Based on its expertise and understanding of the municipal securities market and the manner in which municipal securities generally trade, the Adviser believes that, notwithstanding both the previous more stringent 40/75 Representation and the Generic 100 Requirement, the 40/50 Representation is appropriate in light of the Fund's investment objectives and the manner in which the Fund intends to pursue them. Further, given the nature of the municipal securities market and the manner in which municipal securities generally trade, the expected availability of Municipal Securities that would satisfy the Fund's investment parameters, and the debt issuance profiles of the corresponding issuers and borrowers, the 40/50 Representation should both provide the Fund with flexibility to construct its portfolio and, when combined with the Industry/State Representations and the other New Representations, should support the potential for diversity and liquidity, thereby mitigating the Commission's concerns about manipulation.
Further, in connection with the proposal to permit the Fund to invest in the OTC Derivatives, the Exchange notes that the ability to invest in the OTC Derivatives would provide the Adviser with additional flexibility in hedging interest rate risks associated with the Fund's portfolio investments and would be subject to a limitation that is consistent with the limitation set forth in Rule 5735(b)(1)(E). Additionally, the Fund would only enter into transactions in the OTC Derivatives with counterparties that the Adviser reasonably believes are capable of performing under the applicable contract or agreement.
In addition, a large amount of information would be publicly available regarding the Fund and the Shares, thereby promoting market transparency. Moreover, the Intraday Indicative Value (as described in the Prior Release), available on the NASDAQ OMX Information LLC proprietary index data service, would be widely disseminated by one or more major market data vendors and broadly displayed at least every 15 seconds during the Regular Market Session. On each business day, before commencement of trading in Shares in the Regular Market Session on the Exchange, the Fund would disclose on its Web site the Disclosed Portfolio that will form the basis for the Fund's calculation of NAV at the end of the business day.
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest. The Exchange notes that the Fund does not yet have publicly offered Shares and does not yet have Shares listed and traded on the Exchange. Before Shares are publicly offered, the Trust will file a post-effective amendment to its Registration Statement. The Shares will not be publicly offered until the post-effective amendment to the Registration Statement becomes effective.
For the above reasons, Nasdaq believes the proposed rule change is consistent with the requirements of Section 6(b)(5) of the Act.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes that the proposed rule change would provide the Adviser with the flexibility needed to proceed with launching the Fund, accommodating the listing and trading of Managed Fund Shares for an additional actively-managed exchange-traded product, thereby enhancing competition among market participants, to the benefit of investors and the marketplace.
No written comments were either solicited or received.
Within 45 days of the date of publication of this notice in the
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to 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.
In accordance with section 1(b) of Executive Order 13224 of September 23, 2001, as amended (“the Order”), I hereby determine that the organization known the Abu Nidal Organization no longer meets the criteria for designation under the Order, and therefore I hereby revoke the designation of the aforementioned organization as a Specially Designated Global Terrorist pursuant to section 1(b) of the Order.
This determination shall be published in the
Based upon a review of the Administrative Record assembled in this matter, and in consultation with the Attorney General and the Secretary of the Treasury, I conclude that the circumstances that were the basis for the designation of the Abu Nidal Organization as foreign terrorist organization have changed in such a manner as to warrant revocation of the designation.
Therefore, I hereby determine that the designation of the Abu Nidal Organization as a foreign terrorist organization, pursuant to section 219 of the Immigration and Nationality Act, as amended (8 U.S.C. 1189), shall be revoked.
This determination shall be published in the
Surface Transportation Board (Board).
Notice of vacancy on the Railroad-Shipper Transportation Advisory Council (RSTAC) and solicitation of nominations.
The Board hereby gives notice of a vacancy on RSTAC for an at-large (public interest) representative. The Board is soliciting suggestions for candidates to fill this vacancy.
Nominations are due on June 29, 2017.
Suggestions 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
Katherine Bourdon at 202-245-0285. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.
The Board, created in 1996 to take over many of the functions previously performed by the Interstate Commerce Commission, exercises broad authority over transportation by rail carriers, including regulation of railroad rates and service (49 U.S.C. 10701-47, 11101-24), as well as the construction, acquisition, operation, and abandonment of rail lines (49 U.S.C. 10901-07) and railroad line sales, consolidations, mergers, and common control arrangements (49 U.S.C. 10902, 11323-27).
RSTAC was established upon the enactment of the ICC Termination Act of 1995 (ICCTA), on December 29, 1995, to advise the Board's Chairman; the Secretary of Transportation; the Committee on Commerce, Science, and Transportation of the Senate; and the Committee on Transportation and Infrastructure of the House of Representatives with respect to rail transportation policy issues RSTAC considers significant. RSTAC focuses on issues of importance to small shippers and small railroads, including car supply, rates, competition, and procedures for addressing claims. ICCTA directs RSTAC to develop private-sector mechanisms to prevent, or identify and address, obstacles to the most effective and efficient transportation system practicable. The Secretary of Transportation and the members of the Board cooperate with RSTAC in providing research, technical, and other reasonable support. RSTAC also prepares an annual report concerning its activities and recommendations on whatever regulatory or legislative relief it considers appropriate. RSTAC is not
RSTAC currently consists of 19 members. Of this number, 15 members are appointed by the Chairman of the Board, and the remaining four members are comprised of the Secretary of Transportation and the Members of the Board, who serve as
RSTAC is required by statute to meet at least semi-annually. In recent years, RSTAC has met four times a year. Meetings are generally held at the Board's headquarters in Washington, DC, although some are held in other locations.
RSTAC members receive no compensation for their services and are required to provide for the expenses incidental to their service, including travel expenses, as the Board cannot provide for these expenses. RSTAC may solicit and use private funding for its activities, again subject to certain restrictions in ICCTA. RSTAC members currently have elected to submit annual dues to pay for RSTAC expenses.
RSTAC members must be citizens of the United States and represent as broadly as practicable the various segments of the railroad and rail shipper industries. They may not be full-time employees of the United States. According to revised guidance issued by the Office of Management and Budget, it is permissible for federally registered lobbyists to serve on advisory committees, such as RSTAC, as long as they do so in a representative capacity, rather than an individual capacity.
RSTAC members are appointed for three-year terms. A member may serve after the expiration of his or her term until a successor has been appointed. No member will be eligible to serve in excess of two consecutive terms.
Due to the expiration of an RSTAC member's term, a vacancy exists for an at-large (public interest) representative. Upon appointment by the Chairman, the new representative will serve for three years and may be eligible to serve a second three-year term following the end of his or her first term.
Suggestions for candidates to fill this vacancy should be submitted in letter form, identify the name of the candidate, provide a summary of why the candidate is qualified to serve on RSTAC, and contain a representation that the candidate is willing to serve as a member of RSTAC effective immediately upon appointment. RSTAC candidate suggestions should be filed with the Board by June 29, 2017. Members selected to serve on RSTAC are chosen at the discretion of the Board's Chairman. Please note that submissions will be available to the public at the Board's offices and posted on the Board's Web site under Docket No. EP 526 (Sub-No. 9).
49 U.S.C. 1325.
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Office of the Comptroller of the Currency (OCC), Treasury; Board of Governors of the Federal Reserve System (Board); and Federal Deposit Insurance Corporation (FDIC).
Joint notice and request for comment.
In accordance with the requirements of the Paperwork Reduction Act (PRA) of 1995, the OCC, the Board, and the FDIC (the agencies) may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number.
On March 1, 2017, the agencies, under the auspices of the Federal Financial Institutions Examination Council (FFIEC), requested public comment on a proposal to extend, with revision, the Regulatory Capital Reporting for Institutions Subject to the Advanced Capital Adequacy Framework (FFIEC 101). The FFIEC 101 is completed only by banking organizations subject to the advanced approaches risk-based capital rule. Generally, this rule applies to banking organizations with $250 billion or more in total consolidated assets or $10 billion or more in on-balance sheet foreign exposures (advanced approaches banking organizations).
The agencies proposed to remove two credit valuation adjustment (CVA) items from the exposure at default (EAD) column on FFIEC 101 Schedule B, Summary Risk-Weighted Asset Information for Banks Approved to Use Advanced Internal Ratings-Based and Advanced Measurement Approaches for Regulatory Capital Purposes (items 31.a and 31.b, column D).
The comment period for this proposal expired on May 1, 2017. The agencies did not receive any comments addressing the proposed changes and are now submitting requests to OMB for review and approval of the extension, with revision, of the FFIEC 101. These reporting changes would take effect as of the September 30, 2017, report date.
Comments must be submitted on or before July 3, 2017.
Interested parties are invited to submit written comments to any or all of the agencies. All comments, which should refer to the OMB control number(s), will be shared among the agencies.
All comments received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not enclose any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure.
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All public comments are available from the Board's Web site at
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Additionally, commenters may send a copy of their comments to the OMB desk officer for the agencies by mail to the Office of Information and Regulatory Affairs, U.S. Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW., Washington, DC 20503; by fax to (202) 395-6974; or by email to
For further information about the proposed revisions to regulatory reporting requirements discussed in this notice, please contact any of the agency clearance officers whose names appear below. In addition, copies of the proposed revised FFIEC 101 form and instructions can be obtained at the FFIEC's Web site (
The agencies are proposing to extend for three years, with revision, the FFIEC 101, which is currently an approved collection of information for each agency.
Each advanced approaches banking organization is required to file quarterly regulatory capital data on the FFIEC 101. The FFIEC 101 information collection is mandatory for advanced approaches banking organizations: 12 U.S.C. 161 (national banks), 12 U.S.C. 324 (state member banks), 12 U.S.C. 1844(c) (bank holding companies), 12 U.S.C. 1467a(b) (savings and loan holding companies), 12 U.S.C. 1817 (insured state nonmember commercial and savings banks), 12 U.S.C. 1464 (savings associations), and 12 U.S.C. 1844(c), 3106, and 3108 (intermediate holding companies).
The agencies use these data to assess and monitor the levels and components of each reporting entity's capital requirements and the adequacy of the
On March 1, 2017, the agencies requested comment on proposed revisions to the FFIEC 101 reporting requirements.
The agencies subsequently determined that the EAD information reported in column D of items 31.a and 31.b on FFIEC 101 Schedule B is already captured in column D of item 10 (OTC derivatives—no cross-product netting—EAD adjustment method) on FFIEC 101 Schedule B. Continuing to collect the same EAD information in both places is not only redundant, but also may be misinterpreted by the users of FFIEC 101 data as additional default risk held by the reporting entity. For these reasons, the agencies proposed removing column D for items 31.a and 31.b on FFIEC 101 Schedule B. The agencies would continue to collect the amount of risk-weighted assets for CVAs in column G of items 31.a and 31.b on FFIEC 101 Schedule B.
The comment period for this proposal expired on May 1, 2017. The agencies did not receive any comments on the proposal and are now submitting requests to OMB for review and approval of the extension, with revision, of the FFIEC 101. While the agencies originally proposed making the changes effective as of the June 30, 2017, report date, due to the time required for the PRA revision process, the agencies have revised the proposal. As revised, the reporting changes would instead take effect as of the September 30, 2017, report date. However, as the two items being removed are not made public or otherwise shared outside the agencies, reporting entities may elect to adopt the changes immediately by ceasing to report column D of items 31.a and 31.b on FFIEC 101 Schedule B.
Public comment is requested on all aspects of this joint notice. Comments are invited on:
(a) Whether the collections of information that are the subject of this notice are necessary for the proper performance of the agencies' functions, including whether the information has practical utility;
(b) The accuracy of the agencies' estimates of the burden of the information collections as they are proposed to be revised, including the validity of the methodology and assumptions used;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of information collections on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Comments submitted in response to this joint notice will be shared among the agencies. All comments will become a matter of public record.
Department of the Treasury.
Notice of availability; extension of comment period.
On April 19, 2017, the Department of the Treasury published a notice of availability and request for comments regarding an application to reduce benefits under the United Furniture Workers Pension Fund A (UFW Pension Fund) in accordance with the Multiemployer Pension Reform Act of 2014. The purpose of this notice is to extend the comment period and provide more time for interested parties to provide comments.
The comment period for the notice published April 19, 2017 (82 FR 18536), is extended. Comments must be received on or before June 20, 2017.
You may submit comments electronically through the Federal eRulemaking Portal at
Comments may also be mailed to the Department of the Treasury, MPRA Office, 1500 Pennsylvania Avenue NW., Room 1224, Washington, DC 20220. Attn: Eric Berger. Comments sent via facsimile and email will not be accepted.
For information regarding the application from the UFW Pension Fund, please contact Treasury at (202) 622-1534 (not a toll free number).
The Multiemployer Pension Reform Act of 2014 (MPRA) amended the Internal Revenue Code to permit a multiemployer plan that is projected to have insufficient funds to reduce pension benefits payable to participants
On April 19, 2017, Treasury published a notice in the
Notice of renewal.
In accordance with the Federal Advisory Committee Act, as amended, with the concurrence of the General Services Administration, the Secretary of the Treasury is renewing the Treasury Borrowing Advisory Committee of the Securities Industry and Financial Markets Association (the “Committee”).
Fred Pietrangeli, Director, Office of Debt Management (202) 622-1876.
The purpose of the Committee is to provide informed advice as representatives of the financial community to the Secretary of the Treasury and Treasury staff, upon the Secretary of the Treasury's request, in carrying out Treasury responsibilities for Federal financing and public debt management. The Committee meets to consider and provide advice on special items pertaining to immediate Treasury funding requirements and longer term approaches to manage the national debt in a cost-effective manner. The Committee usually meets immediately before Treasury announces each quarter funding operation, although special meetings also may be held. Membership consists of up to 20 representative or special government employee members who are appointed by Treasury. The members are senior-level officials who are employed by primary dealers, institutional investors, and other major participants in the government securities and financial markets as well as recognized experts in the fields of economics and finance, financial market analysis, or financial institutions and markets.
The Treasury Department transmitted copies of the Committee's renewal charter to the Senate Committee on Finance, the House Committee on Ways and Means, the Senate Committee on Banking, Housing and Urban Affairs, and the House Committee on Financial Services in Congress on or about April 26, 2017.
The Department of Veterans Affairs gives notice under the Federal Advisory Committee Act, 5 U.S.C. App. 2, that the meeting of the Advisory Committee on Disability Compensation, previously scheduled to be held at the Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, on May 24-25, 2017,
For more information, please contact Judy Schafer, Ph.D., Designated Federal Officer at (202) 461-7315 or via email at
Federal Communications Commission.
Final rule.
In this document, a Report and Order provides a new framework for deregulating Business Data Services in areas where competitive forces are able to ensure just and reasonable rates. Acknowledging the presence of increased competition evidenced by the record in this proceeding, the Federal Communications Commission amends its rules to reflect changes in the business data services marketplace. By adopting this framework the Commission acts to further bolster competition and investment in business data services, and takes further steps to decrease the cost of broadband infrastructure deployment.
Effective August 1, 2017, except for the amendments to §§ 1.776, 61.45, 61.201, 61.203, and 69.701, which shall become effective after OMB approval of those amendments. The Federal Communications Commission will publish documents in the
Joseph Price, Wireline Competition Bureau, Pricing Policy Division at (202) 418-1423 or
This is a summary of the Commission's Report and Order, FCC 17-43, adopted April 20, 2017, and released April 28, 2017. The summary is based on the public redacted version of the document, the full text of which can be found at the following internet address:
1. After more than ten years of studying the business data services (also referred to as BDS) market, numerous requests for comment, and a massive data collection, we at long last recognize the intense competition present in this market and adjust our regulatory structure accordingly. The record in this proceeding demonstrates substantial and growing competition in the provision of business data services in areas served by incumbent local exchange carriers (LECs) subject to price cap regulation. By adopting a framework which accounts for these dynamic competitive realities, we will create a regulatory environment that promotes long-term innovation and investment by incumbent and competitive providers alike which well-serves business data services customers.
2. The record indicates the market for business data services is dynamic with a large number of firms building fiber and competing for this business. The
3. Although incumbent LECs once dominated the business data services market selling circuit-based DS1s and DS3s, such technology is becoming obsolete. Significant increases in bandwidth demand are being driven by bandwidth-hungry applications, mainly video services (teleconferencing, training, etc.) as well as by web and cloud-based services. These rapidly increasing bandwidth demands will place an ever increasing demand for services such as Ethernet, especially over fiber, which can scale bandwidth to meet these requirements more effectively than can the old legacy services. Packet-based services, which include Ethernet, already make up a large part of the business data services marketplace. In 2013, more than 40 percent of the approximately $45 billion in dedicated service revenues were for packet-based services. Based on provider and analyst forecasts, we expect this shift from circuit-based to packet-based services to continue at a rapid pace.
4. Against this competitive backdrop, we now move away from the traditional model of intrusive pricing regulation for incumbent LECs, recognizing that ex ante pricing regulation is of limited use—and often harmful—in a dynamic and increasingly competitive marketplace. Indeed, there is a significant likelihood ex ante pricing regulation will inhibit growth and investment in many cases. In such circumstances, we should not continue unnecessary regulations, much less extend them to new services or providers. Instead, we adopt a framework based on our market analysis and a careful balancing of the costs and benefits of ex ante pricing regulation that deregulates counties where the provision of price cap incumbent LECs' business data services is deemed sufficiently competitive.
5. This Report and Order (Order), therefore, provides a new framework for business data services that minimizes unnecessary government intervention and allows market forces to continue working to spur entry, innovation, and competition. Our decisions stem from careful consideration of the data submitted in the proceeding and the thoughtful comments and ex parte communications submitted into the record. Our thinking on how to evaluate competition and design pricing regulation evolved as we engaged with economists, advocates, and others to develop an administrable approach to deregulate in areas where competitive forces are able to ensure just and reasonable rates. To a large extent in the business data services market, the competition envisioned in the Telecommunications Act of 1996 (1996 Act) has been realized, and this Order is an important step in updating our rules to adequately reflect such market developments. We reach these conclusions aware of the increased investment in facilities and service deployment that has occurred in response to similar deregulatory action by the Commission. In tandem with adoption of this new, more appropriate framework designed to maximize competition and investment in business data services, we are also taking further steps to decrease the costs of deploying our nation's broadband infrastructure.
6. Business data services refers to the dedicated point-to-point transmission of
7. The Commission has historically subjected the provision of business data services by incumbent LECs to dominant carrier safeguards. The focus of this proceeding is on areas where incumbent LECs are subject to price cap regulation in setting their business data services rates. Beginning in 1999, through a series of Commission actions, the Commission: (1) Began granting price cap incumbent LECs pricing flexibility by establishing both Phase I relief (which permitted the provision of volume and term agreements and contract tariffs) and Phase II relief (which relieved the carrier of price cap regulation) through “triggers” using collocation as a proxy for competition; (2) adopted the “CALLS plan,” which separated business data services into its own basket and applied separate “X-factors;” (3) initiated a rulemaking to examine a number of aspects of the business data services market, including whether to apply and how to calculate a productivity-based X-factor and whether to maintain or modify the pricing flexibility rules; and (4) granted a number of price cap incumbent LECs forbearance from dominant carrier regulation, including tariffing and price cap regulation for their newer packet-based and higher bandwidth optical transmission broadband services, including a “deemed grant” for Verizon from application of Title II to these services.
8. In August 2012, the Commission suspended its pricing flexibility rules because they were “not working as predicted, and . . . fail[ed] to accurately reflect competition in today's special access markets.” In December 2012, the Commission released the
9. Most recently, the Commission released the
10. In this section we consider competition among traditional and non-traditional providers of end-to-end business data services and the circumstances under which market conditions warrant a deregulatory approach for certain business data services consistent with our obligation to ensure that the rates for services offered by common carriers are just and reasonable. In the present rulemaking, the Commission has already determined that significant aspects of the pricing flexibility regulatory regime have failed. Thus, we must now decide whether to allow that failure to continue or to implement changes. As is often the case with complex problems, there is no ideal dataset available or which we could collect in a reasonable timeframe or expense, which would answer all doubts. Although the
11. The Commission is charged with ensuring that the rates, terms, and conditions for services offered by common carriers are just and reasonable and that services are not offered on an unreasonably discriminatory basis pursuant to sections 201(b) and 202(a) of the Communications Act. We “may prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of this Act.” In addition, section 706(a) of the 1996 Act states that the Commission:
12. Our public interest evaluation “necessarily encompasses . . . among other things, a deeply rooted preference for preserving and enhancing competition in relevant markets [and] accelerat[ing] private sector deployment of advanced services.” A competition analysis is critical to our public interest evaluation and is informed by, but not
13. For business data services provided over DS1s and DS3s supplied by the incumbent LEC we find that a nearby potential business data services supplier, in the form of a wired communication network provider, generally tempers prices in the short term and results in reasonably competitive outcomes over three to five years (the medium term). For example, a cable company that has fiber nodes nearby, and hence the ability to provide both Ethernet-over-fiber and, even more readily Ethernet-over-Hybrid Fiber Coax (EoHFC), if a profitable opportunity arises, is particularly relevant to pricing decisions of a business data services provider wishing to retain a customer.
14. Our conclusion is based in part on record evidence indicating a cost structure for business data services that incentivizes suppliers with existing networks to compete vigorously for customers. We also base our conclusion on findings that the impact of the first entrant on price will be substantially higher than the impact of subsequent entrants and business data services pricing is often determined by a customer bidding or request for proposal (RFP) process in which even an uncommitted, though usually nearby, entrant can compete for the customer's business, and then build out to the customer. Consequently, the presence of nearby competitive facilities tempers pricing as competitors are generally aware of competitive facilities that can be expanded to reach an additional customer with reasonable costs should the incumbent's pricing exceed competitive levels (supracompetitive prices). Furthermore, where an incumbent sets supracompetitive prices it is vulnerable to competitors vying for customers.
15. Together the evidence demonstrates how even a single competitor exerts competitive pressure which results in just and reasonable rates. This evidence demonstrates that the significant network investment required to provide business data services to end users is increasingly being leveraged in ways that prevent substantial abuses of market power. Given such incentives, the presence of two current competitors or providers with their own fiber nodes within a half mile, hereafter referred to as medium-term entrants, or that will serve over the medium term, are sufficient to provide competitive pressure to adequately discipline prices. Our finding is also based on evidence of competition that is currently in place or likely to arise over the medium term.
16. In addition, we find that business data services with bandwidths in excess of the level of a DS3 generally experience reasonably competitive outcomes, and to the extent they do not today, will do so over the medium term even where a facility-based competitor has no nearby facilities. We come to this conclusion based on a record that shows almost no evidence of competitive problems in the supply of these higher bandwidth services, and which shows higher bandwidth opportunities are particularly attractive to competitive LECs. We make a similar finding for transport services, where the record presents little evidence of competitive problems, and where low bandwidth demand is quickly turning into high bandwidth demand. We make a similar finding for lower bandwidth packet-based services. We reach these conclusions because, compared with time division multiplex (TDM) services, competitive LECs are considerably more active in the supply of packet-based services, are on a considerably more level playing field in supplying these new services against incumbent LECs, and have better incentives to supply such future-proof services where demand is growing rapidly.
17. We analyze the
18. In this section, we review the competitiveness of business data services, in general, as well as issues raised by commenters. We reach findings as to the degree of competitiveness in the business data services industry and consider industry trends on competitive entry. We look to see if services are reasonably substitutable to determine an appropriate product market, and, in the case of geographic markets, we look to areas “in which the seller operates and to which the purchaser can practicably turn for supplies.” As part of that analysis we observe high barriers to entry, but also observe a significant penetration of competitive business data services facilities being deployed and upgraded with a number of technologies throughout the country, particularly in areas with significant customer demand. Moreover, we observe a strong willingness on the part of providers to extend their networks half a mile to meet demand, especially over the medium term.
19. Consistent with antitrust principles, we distinguish product markets by generally looking at whether various services are reasonably interchangeable, with differences in price, quality, and service capability being relevant. In the case of geographic markets, we look at both supply and demand substitution. For both product and geographic markets, it is conventional to undertake a hypothetical monopolist test to determine market definitions. That approach begins with the smallest plausible market definition and considers likely consumer substitution if a hypothetical monopolist in that market imposed a small but significant and non-transitory increase in price (SSNIP). We do not have data that would enable a more formal application of such a test, but our market analysis considers purchasers' willingness and ability to substitute services, suppliers, and geographies. The extent to which supply is broadly competitive wherever the incumbent LEC also faces a facility-based rival is strengthened by our findings as to specific product markets, and refined by our analysis of geographic markets.
20. When defining a product market, to ensure our action affects an appropriate group of services, we look to which services are sufficiently similar to reasonably be considered substitutes. We consider a number of factors, including the “practical indicia” identified by the Supreme Court, such as “industry or public recognition of the submarket as a separate economic entity, the product's peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors.” Not all of these factors must be present to define the relevant product market. Perfect substitutability is not required as part of our broad review of business
21. A product that substitutes for another demonstrates a possibility that consumers will purchase the competing service of a competitor, including a potential entrant. Consequently, we consider providers with facilities used to supply one service that could be used to provide another. For example, we see not only substitution between circuit- and packet-based business data services, but the capacity to supply both services over the same underlying facilities, indicating the two services are likely in the same market, and more importantly, that suppliers of either service are in the same market, as they could readily provide the other service over their facilities. Similarly, while best-efforts services do not generally appear to be a good substitute for business data services (and
22. The legacy technology for providing business data services is circuit-based using TDM. Incumbent LECs are the primary facilities-based suppliers of TDM-based services, including DS1s and DS3s with symmetrical capacities of 1.5 Mbps and 45 Mbps, respectively. For decades, these workhorses were the only options available to meet the high-capacity needs of users. TDM circuits provide dedicated, secure, reliable and low-delay transmission service for moving voice, data, and video traffic, but do not effectively scale for data intensive applications. To increase bandwidth for DS1s/DS3s, providers must bond multiple circuits together. For example, providers can bond up to eight DS1s to achieve a maximum bandwidth of 12 Mbps. DS3s are rarely bonded, however, because with the increased cost, the more logical option is to use a newer technology, such as a packet-based service. In contrast, packet-based services have bandwidth options ranging from 2 Mbps up to 100 Gbps, depending on the connection medium, and are easily scaled over fiber to meet increasing data demands.
23. Because packet-based networks move packets over a shared transport channel, they are more efficient than a circuit-based network where transmission capacity is reserved even when not used. The routing and reassembling of data packets, however, can lead to packet loss, jitter, and latency, affecting the quality of service needed to support certain applications desired by users,
24. Functionally, TDM and packet-based services are broadly interchangeable in the business data services realm as both are used to provide connectivity for data network and point-to-point transmissions and both services can be delivered over the same network infrastructure. Incumbent and competitive LEC providers offer both types of services to similar types of customers and their marketing materials juxtapose these two technologies against each other. Customers of TDM-based services are also switching to packet-based services. And commenters representing suppliers agree, with limited exception, the services, whether circuit-based or packet-based, are substitutes and in the same product market.
25. Substitution between these two services, however, is generally one directional. New customers, more likely than not, are choosing to purchase Ethernet services, subject to their availability and pricing, and existing customers of TDM-based service are switching to Ethernet. There is no evidence suggesting Ethernet customers are switching to DS1s and DS3s. Nor as a policy matter would we want that to occur as the technology transition is moving towards the eventual termination of TDM service offerings altogether. We want to encourage that migration, while mitigating disruptions to existing customers, to help unleash the benefits of network innovation for American businesses and consumers. We note, however, that adopting a framework that promotes deployment of competitive services, as we do here, benefits even those customers who maintain TDM services due to static needs—or for whatever reason—because increased competition for these services is likely to place downward pressure on prices.
26. We find circuit- and packet-switched business data services that offer similar speed, functionality, and quality of service characteristics fall within the same product markets for the purposes of action taken here, even though there is evidence suggesting the two technologies have important distinctions. Indeed, the Commission has long considered TDM and packet-based business data services as functionally interchangeable at comparable capacities and has consistently included both types of business data services in its orders and forbearance decisions. Courts, in turn, have upheld the Commission's view. Although commenters have pointed out some differences between these technologies, there is considerable evidence in the record indicating that the Commission's view on sufficient substitutability of circuit and packet business data services still holds. We believe that legacy TDM business data services suppliers would be constrained by the threat of potential customer loss to packet-based business data services suppliers.
27. Packet-based business data services over fiber are the gold standard for the industry because they provide the greatest flexibility to efficiently scale bandwidth to the highest speeds at the highest performance levels. There is debate in the record, however, on whether we should include the packet-based Ethernet services provided by cable companies using their HFC networks in the product market for business data services. Our review of the record now confirms that competitive pressure on low bandwidth packet-based services carried on fiber and legacy TDM services is significant, and should be taken into account as part of any competitive market test.
28. In many ways, EoHFC is much like other modes of business data services. Ethernet-over-HFC technology provides point-to-point wireline connection at symmetrical speeds, albeit limited to 10 Mbps. Although EoHFC is not as reliable as circuit-switched or fiber connections, some cable companies are able to guarantee 99.9 percent availability (as compared to fiber's 99.99 percent). In addition to
29. Cable network architecture is constantly evolving to meet bandwidth needs. Yet, some cable providers contend that their EoHFC business data services are not substitutable with fiber business data services because they do not offer SLAs, or where they do so, they are limited, for example, guaranteeing only repair intervals and availability for their Ethernet over DOCSIS service. Some wholesalers echo this view, reporting that they do not consider EoHFC (DOCSIS 3.0) as competitive with their services mainly because of limited availability, performance issues, and inadequate SLA guarantees. However, the record shows that while these performance levels may be undesirable for some customers, many others readily accept lower performance guarantees in exchange for lower prices. We believe that a significant tipping point has been reached in the evolution of these services when even incumbent LECs such as Verizon and AT&T are using these services for their own business customers out-of-region.
30. Best-efforts Internet access services describe basic Internet access as generally marketed to residential and small business subscribers. At the most-basic level, best-efforts and dedicated business data services appear to be interchangeable: End users can use both services to access the Internet or create virtual private networks. However, best-efforts Internet access is provided with asymmetrical speeds and without service performance guarantees. Whereas dedicated packet-based business data services allow for packet prioritization and quality of service priority tiers, best-efforts services do not. Also, while dedicated business data services commonly provide at least 99.9 percent network reliability, with higher guarantees being available for fiber services, and guarantees for latency and jitter, best-efforts services generally do not offer any reliability guarantees, although some cable providers offer some non-binding performance “assurances.”
31. In the
32. We find that the use of UNEs, where available, allow competitive providers to effectively compete in lower bandwidth services, and are particularly close substitutes for DS1s and DS3s. However, use and availability of UNEs is diminishing.
33. Incumbent LECs are required by section 251(c)(3) of the Act and section 51.319 of the Commission's rules to provide requesting common carriers with DS1s, DS3s, and bare copper loops as UNEs. UNE rates, as determined by the state public utility commissions, are based on forward-looking costs not on the incumbent LECs' historical costs, and are thus typically lower than the incumbent LEC rates for regulated DS1 and DS3 services. UNEs are intended to facilitate competition by lowering barriers to stimulate facilities-based entry into local markets, and the Commission has imposed unbundling obligations “in those situations where [it] find[s] that carriers genuinely are impaired without access to particular network elements and where unbundling does not frustrate sustainable, facilities-based competition.”
34. The availability of UNEs from incumbent LECs is limited based on the “impair” standard. DS1 and DS3 UNE loops are allowed only in those buildings located within the service area of an incumbent LEC wire center that falls below a certain business density line and fiber collocation threshold. As a practical matter, competitive LECs cannot rely on UNEs at a wire center in which the competitive LEC is not collocated. Moreover, with incumbent LECs increasingly retiring their copper-based infrastructure, the question also arises as to the extent to which UNEs will remain available in the future.
35. Dark fiber is a physical connection with no transmission functionality. As the Commission explained in the
36. Satellite providers also offer business data services that are currently relied upon by many end users as acceptable substitutes for all or part of their broadband demand requirements, particularly for those that find best efforts provisioning from competitors acceptable. General Communications (GCI), for example, reports that its “satellite network provides communications services to small towns and communities throughout rural Alaska.” Hughes Network Systems, LLC “provides advanced broadband satellite service throughout the United States, including high-speed internet and voice over internet protocol (`VoIP').” The record indicates that “Globalstar, a low Earth orbit satellite constellation for satellite phone and low-speed data communications, has proposed a service that could help to relieve some Wi-Fi congestion in anchor institutions.” And there is evidence that satellite service providers are increasingly competing for lower bandwidth business data service customers, which is a trend we anticipate will continue in the future. We do not find BDS provided by satellite currently to be in the relevant product market but note that its presence underscores the conservative nature of our approach. In that manner, we believe satellite broadband offerings have the potential to add competitive pressure to the BDS market, especially for customers that do not require high bandwidth or symmetrical service with significant service level or uptime guarantees.
37. We find fixed wireless services are a substitute for cell site backhaul but are, at most, a gap filler for special access services providing last-mile access to buildings. While mobile wireless carriers have relied substantially on fixed wireless,
38. We continue to find fixed microwave is a competitive backhaul alternative for wireless providers. The record, however, on using fixed wireless to provide reliable last-mile access to end users is mixed, especially in urban areas where line-of-sight can be more of a concern than in rural areas. We do note the promise of 5G technology to provide quality high-bandwidth fixed wireless services to businesses in urban areas. AT&T and Verizon are currently engaged in 5G trials, but commercial service is not expected to launch until 2020. That said, given the very high capacity of 5G networks, they have the potential to represent a significant additional source of competition for the provision of business data services. We will continue to monitor these developments. For now, at a minimum, we consider fixed wireless an option for last-mile building access when wireline facilities are unavailable. Fixed wireless can also serve as a viable backup transmission option for business data services purchasers to increase network diversity. As such, for purposes of the relevant business data services product market, we find that fixed wireless services should be included in the product market discussion because they may have a competitive effect on the market.
39. To determine an appropriate geographic market for competitive analysis purposes, we consider the area to which consumers can “practically turn for alternative sources,” and within which providers can reasonably compete. The geographic market “must . . . both correspond to the commercial realities of the industry and be economically significant.” Yet, as with product market delineation, a geographic market “cannot . . . be defined with scientific precision.” In this section we conclude that a half mile is the relevant geographic market for the analysis of competition in the business data services market.
40. In the
41. While buildouts are common within a half mile from a competitor's facilities, the subsequent record shows buildouts of half mile and farther often occur. However, such buildouts become much less likely as the distance from a cost-effective and viable fiber junction point increases as well as due to variation in entry barriers. Some providers may be more risk tolerant and will build out farther than others, as they weigh location-specific factors, including the identities of the nearby competitors, the specifics of competing local networks, local geographic features (such as traversing rivers or highways), local building codes, the density of local demand, and bandwidth demanded. However, we find risk tolerant businesses and buildouts farther than a half mile to be the exception.
42. The nature of the customer's demand is particularly relevant to competitors' build decisions. As the Commission recognized recently when considering the likelihood of a competitor entering a building to provide business data services, “[t]he lower the demand in the building, the closer another competitive fiber provider must be to that building for entry to be profitable and thus likely.” Nevertheless, even when demand is too low to justify the buildout, competitive providers often consider whether there are any potential customers nearby and may even take a more circuitous route in anticipation of additional demand from businesses along the route. The
43. We tested the sensitivity of our finding that a location currently faces or likely will face competitive choices over the medium term if it is within a half mile of a location served over the facilities of at least one competitive provider. For example, based on the
44. As we detail more fully below, there is strong evidence of rapid growth in competitive investment. Because of this ongoing investment, the average building with business data services demand over time will find itself closer and closer to a competing facilities-based competitor's network. The declining distances between buildings with business data services demand and the fiber networks of competitive providers in general, and those of cable providers with extensive fiber networks in particular, create a cycle of investment and benefits within an area outside of any particular building. Because even small businesses' bandwidth needs are constantly growing, the demand for additional investment is likely to be amplified. Greater fiber investment leads to lower costs of deploying facilities to neighboring buildings, which in turn leads to greater investment. As costs continue to drop through further fiber deployments, and potential revenues for each building served increase with growing demand for high bandwidth services, these competitive providers with significant legacy (in the case of cable) and newer networks have powerful economic incentives to enter and price their services aggressively. This effect will provide a strong disciplining force to the incumbent service providers of surrounding locations, and will grow over time. Importantly, all else equal, we expect competitors will be particularly likely to build out to locations where incumbents have priced supracompetitively, to the extent these are the most profitable locations. In this manner, over time, abuses of market power can be addressed through localized competitive pressures.
45. The record demonstrates that most business data services providers are willing and able to profitably invest and deploy facilities within a half mile of existing competitive facilities, and often have the ability to build out after winning a customer's bid for business, depending upon the scale of investment required to reach the customer. Accordingly, we conclude that the relevant geographic market for purposes of this market analysis is the region within a half mile of a location with business data services demand. We make this determination by focusing on the factors that influence suppliers of business data services, as opposed to customers, because in most instances a customer is unlikely to impact service pricing by moving its physical location in response to a material increase in price. This point is true for both single- and multi-location customers that seek dedicated connections to each location.
46. We also find that business data services providers commonly sell their service in bidding markets, and this is especially so for multi-site contracts. Winning bidders then build out to the customer within an agreed-upon provisioning timeframe. Consequently, competitors outside of the customer's location can affect pricing because the winning bid represents the competitive offer that others must beat, even if that competitor does not already have facilities in the customer's building. That competitor is increasingly relevant the closer the competitor's network facilities, actual or potential fiber splice points, are to the customer (because its costs likely fall with proximity, making its bid more likely to constrain the winning bid). Thus, the geographic range of the competition posed by a business data services provider is not limited to the specific locations of active circuits sold at a particular point in time.
47. Sprint and Windstream challenge our assertion that business data services markets are affected by bidding market dynamics. However, business data services contracts, being large-scale, winner-take-all awards, closely approximate the conditions laid out by Klemperer of an ideal bidding market environment. Moreover, nearby competition has similar cost to competition in the location itself (
48. As part of our analysis, we consider how varying market characteristics impact entry by competing providers in business data services markets, along with evidence of entry barriers being overcome by traditional and non-traditional competing providers. We then conclude that, while there can be high barriers to business data services entry, evidence shows that firms frequently choose to enter this market with significant investments, particularly in areas of significant demand, indicating sufficient competitive conditions that do not warrant direct regulatory intervention.
49. Market analysis is incomplete without an evaluation of entry barriers. As antitrust principles explain, “[t]he prospect of entry into the relevant market will alleviate concerns about adverse competitive effects only if such entry will deter or counteract any competitive effects of concern . . . .” In evaluating the prospect of entry, agencies “examine the timeliness, likelihood, and sufficiency of the entry efforts an entrant might practically employ.”
50.
51.
52. Competitive LECs rarely build on speculation and instead prefer to have a customer in place before undertaking the costs associated with buildouts. However, providers are also willing to consider potential customers nearby or along the route (and may even build a more circuitous route to pass by more potential customers). Providers generally look to recover construction costs within a certain period of time, [REDACTED] while taking into account potential customers. When the cost of construction is high, providers may lengthen the recoupment period.
53.
54. This evidence demonstrates that providers find ways to enter nearby geographic markets and win customers. They consider nearby demand and build circuitous routes, they lengthen the terms of their contracts to recover the cost of buildout, and they place spare splice points along their network routes to accommodate future demand. These facts show that once providers have sunk substantial costs into a network, it is in their interest to build laterals to as many customers as possible because the relative cost of a lateral is much lower than the cost of other network facilities. And this conclusion is corroborated by evidence of extensive competitive entry into the business data services marketplace.
55.
56. The growth in consumer broadband demand has also lowered the costs to cable companies of deploying fiber to business locations. As consumer bandwidth demand grew exponentially over the past decade, cable providers were required to invest billions of dollars pushing fiber deeper into their networks as they needed to continually split nodes to keep pace with the demand. Sprint and Windstream challenge the reasonableness of relying on past cable deployment in response to growth in consumer broadband demand to project future cable build out to meet business data services demand. However, it is not unreasonable to acknowledge the fact that every increment of additional investment in cable networks brings fiber facilities closer to nearby business data services demand and lowers the cost of building to meet that demand. Compared to just ten years ago, fiber within the franchise areas of cable providers that offer high-speed DOCSIS services has dramatically lowered the cost of building out fiber to the surrounding business locations due to the shorter distances required to reach any location. For example, as a result of network expansion, in March of 2015, “approximately [REDACTED] percent of business locations [were] within 500 feet of Comcast's EoHFC facilities, an increase from [REDACTED] percent in 2013.”
57. Like other competing providers, cable companies have focused investment on building fiber networks for higher-bandwidth Ethernet services, which is enabling them to overcome limitations of traditional coaxial-based cable systems that cannot meet higher bandwidth demands. For example, after first entering the marketplace in 2009, Comcast “rolled out Metro Ethernet services to 20 of the top 25 metropolitan areas entirely over fiber, with plans ranging from 1 Mbps to 10 Gbps” in 2011. Comcast has invested “more than $5 billion since 2010” on network infrastructure to provide business data services. Comcast had connections, largely using fiber, to approximately [REDACTED] business locations in 2016, an increase of [REDACTED] since 2013. Comcast has also “added [REDACTED] over the 2012-2015 period.”
58. Charter, the second largest cable company and the [REDACTED] largest provider of fiber connections to buildings, has invested more than [REDACTED] annually, starting in 2013, towards the provision of business data services. In 2016, Charter acquired fellow cable companies, Legacy Time Warner Cable (TWC) and Bright House Networks, LLC, for $90 billion. A stated benefit of the merger was the increased ability of the combined entities to compete for “large enterprise and other multi-location customers.” Post-merger Charter plans to invest $2.5 billion into serving commercial areas within its footprint. Charter has “expanded its provision of BDS to approximately [REDACTED] new locations” since the beginning of 2013. As of the second quarter of 2016, Charter's commercial revenues driven by enterprise, small and medium business growth rose to over $2 billion, an increase of 12.6 percent over the prior-year period.
59. Cox, the third largest cable company, was one of the first cable companies entering the business data services market and by June 2016 served “more than [REDACTED] locations with dedicated point-to-point services,” primarily over its fiber facilities. Cox has invested more than [REDACTED] in fiber and equipment over the past 10 years, with [REDACTED] invested since 2013. In 2015, “Cox earned approximately [REDACTED] in annual revenue from its [business data services] . . . and projects earnings of [REDACTED] for 2016, up from [REDACTED] in 2013.”
60. In 2016, Altice, a European company, completed its roughly $10 billion acquisition of Cablevision Systems Corp. (Cablevision), which includes Cablevision's business service unit, Cablevision Lightpath Inc., making Altice the fourth largest cable provider. As of the end of 2015, Cablevision's
61. Even smaller cable operators are entering the business data services marketplace. ACA, representing a substantial number of small cable operators, estimates its members are “making at least tens of millions and upwards of $300 million of investments annually to deploy facilities to support the provision of BDS.” ACA's members primarily offer Ethernet business data services over fiber.
62. Cable business services are reported to have grown at approximately 20 percent annually for the past several years, and increasingly, they have emphasized Internet access and managed services (
63.
64. We reject Sprint/Windstream's argument that the Commission has not properly accounted for recent consolidation, including the CenturyLink/Level 3 and Verizon/XO mergers. The CenturyLink/Level 3 proposed merger is still pending regulatory approvals, and in approving transfer of control applications related to the Verizon/XO transaction, the Commission found that “Verizon's acquisition of XO within Verizon's incumbent LEC territory will have a
65. Lightower has an all-fiber network with service to over 22,000 locations and more than 7,000 wireless towers and small cells in 17 states in the Northeast, Mid-Atlantic, and Midwest, serving “enterprise, government, carrier, and data center customers.” Lightower acquired regional fiber provider, Fibertech Networks, in 2015 for $1.9 billion, doubling its network reach, and acquired Sidera Networks in 2013 for$2 billion. The company spends about [REDACTED] percent of its revenues on capital investment. Lightower recently added over 350 route miles of fiber in North Carolina.
66.
67. Traditional and non-traditional providers of business data services constrain an incumbent's pricing outside of immediate geographies used to describe market concentration in the
68.
69. Some of the growth in cable's competitive position has come at the expense of incumbent and competitive LECs. AT&T, for example, calculates it “lost
70.
71. Charter's monthly price for a 1 Gbps service as of the first quarter of 2016 [REDACTED]. Zayo reports price per unit decreases for GigE full rate (>1000 Mbps) from $3,300 to $2,800 from December 2013 to December 2015, about a 15 percent change. Per unit prices for fractional GigE (101-1000 Mbps) services decreased from $2,300 to $1,700 over the same period, a 26 percent drop.
72. Comcast once expected a price of between [REDACTED] per month in 2013 for its wholesale 100 Mbps fiber service but now charges less than [REDACTED] a month for the same service. Charter reports its “average regional price of a 100 Mbps dedicated service” was [REDACTED] per month in 2013 but by the first quarter of 2016, that per month price dropped to [REDACTED]. ACS has similarly experienced per month price declines for its [REDACTED]. Zayo's pricing trends show the monthly price per unit for Fast E Ethernet (10-100 Mbps) service decreasing from $1,300 to $1,200 (7.6 percent) from December 2013 to December 2015. CenturyLink reports prices for a 100 Mbps Ethernet backhaul circuit to a wireless tower have fallen [REDACTED] percent on average over the past five years.
73. There is also evidence that lower bandwidth packet-based services are experiencing price declines. For example, Legacy TWC's 10 Mbps service fell from [REDACTED] per month on average in 2013 to [REDACTED] per month by the first quarter of 2016, a 23 percent decrease. The company's 5 Mbps service decreased from a [REDACTED] monthly average to a [REDACTED] monthly average over the same period, a 28 percent change.
74. We consider a large quantity of evidence in the record. A body of evidence particularly relevant to the foregoing discussion considered the benefits of current incumbent LEC price regulations. The evidence is mixed and we find does not in most locations support continued, much less additional, price regulation. Econometric studies performed by Dr. Marc Rysman, Commission staff, and commenters examined the relationship between incumbent LEC prices and the number of business data services competitors they face near a customer location. Based on the Commission's
75. Furthermore, as recognized by Dr. Rysman, and noted by peer reviewers and other commenters in the record, data and modeling limitations did not allow for a definitive conclusion that incumbent LECs were not pricing competitively. Despite Dr. Rysman's detailed analysis, a causal relationship could not be ascribed to his estimates due to the possibility that some factor not observed in the data (
76.
77. Transport services are typically higher volume services between points of traffic aggregation which can more easily justify competitive investment and deployment. The Commission has traditionally regulated TDM-based special access services in two distinct segments: End user channel terminations and dedicated transport; and other special access services. The provision and sale of TDM-based special access services has reflected, and continues to reflect, the different competitive dynamics that characterize the two sets of services. When the Commission adopted the
78. Commenters, including competitive providers, support maintaining this distinction. Dr. Rysman also acknowledged the relevance of this distinction in his paper. This distinction is rooted both in the different functionalities these sets of services deliver and in the different rate elements price cap carriers use to price these services. We find that this distinction remains valid in the current special access marketplace and employ it in our approach to reforming our regulation of TDM transport services.
79. In analyzing the competitiveness of TDM transport services, based upon the
80. Competitive providers are split on the question of whether the transport market is competitive. XO, before becoming part of Verizon, found “considerable competition for transport” and that “numerous CLECs frequently are collocated in the offices where XO is located.” Other competitive providers dispute the competitive nature of transport services and assert that incumbent LECs are able to charge supracompetitive rates for TDM transport services and should therefore be price regulated. For example, Sprint alleges that “along many routes, competitive providers are simply unavailable” and asserts that competition for transport service is the exception rather than the rule. However, Sprint provides no data or anecdotal evidence to support its assertion and to rebut the evidence from the
81. Evidence of competitive providers investing in transport services, rather than purchasing from incumbent carriers, reinforces our observations. While business data services providers may choose to purchase transport—either as a long-term solution to reach a customer or a temporary cost while implementing self-provisioning plans—many have deployed transport instead of buying the service.
82. More broadly, we understand that transport service represents the “low-hanging fruit” of the business data services circuit, which makes it particularly attractive to new entrants. In the
83.
84.
85.
86. We intend to apply ex ante rate regulation only where competition is expected to materially fail to ensure just and reasonable rates. As a matter of policy we prefer reliance on competition rather than regulation, wherever purchasers can realistically turn to a supplier beyond the incumbent LEC. Based on these principles and our market analysis, we find regulation is unnecessary for packet-based services, TDM transport services, and higher bandwidth (
87. After reviewing the record and considering the Commission's goals to ensure that rates for business data services are just and reasonable, while also encouraging facilities-based competition and facilitating technology transitions, we decline to re-impose any form of price cap or benchmark regulation on packet-based business data services or on TDM-based services providing bandwidths in excess of the level of a DS3, and we eliminate that regulation to the extent it exists today. In so doing, we impose no new regulation on the packet-based and higher capacity TDM-based business data services marketplace, which will be free from ex ante pricing regulation, regardless of the type of entity providing the service. Our market analysis does not show compelling evidence of market power in incumbent LEC provision of these services, particularly for higher bandwidth services. Moreover, even if the record demonstrated insufficiently robust competition, proposals to apply price cap regulation to packet-based services were complex and not easily administrable and did not reflect the fact that costs to serve individual customers vary. Likewise, we decline to impose benchmark pricing regulation on incumbent LEC packet-based business data services or on TDM-based services of bandwidths in excess of the level of a DS3. Because our market analysis shows that such services are subject to competition, anchor or benchmark pricing is unnecessary and could in fact inhibit investment in this dynamic market by preventing providers from being able to obtain adequate returns on capital. Additionally, the benchmark pricing proposals in the record were administratively complex and unlikely to reliably result in just and reasonable rates.
88. We further find that packet-based services are best not subjected to tariffing and price cap regulation, even in the absence of a nearby competitor. Packet-based services represent the future of business data services and are readily scalable, so competitive LECs are generally very willing to deploy such services beyond their footprints because they can expect to earn increasing revenues from their initial investment with few additional costs. In contrast, the record shows that competitive LECs are generally unwilling to extend their legacy TDM networks, especially beyond a half mile to provide DSn services. Consequently, entrants are better placed to win customers in packet-based markets than in those for TDM services. Packet-based services are new services, experiencing both rapid growth, and rapid change in standards, throughput and usage, and so regulation is more likely to impose long-term costs by dissuading providers of packet-based services from entering.
89. We do, however, remind stakeholders that packet-based telecommunications services remain subject to the Commission's regulatory authority under sections 201, 202, and 208 of the Act. These statutory provisions allow the Commission to determine whether rates, terms, and conditions are just, reasonable, and not unreasonably discriminatory in the context of a section 208 complaint proceeding.
90. We eliminate all ex ante pricing regulation of price cap incumbent LEC provision of TDM transport and other transport (
91. We conclude that competition for TDM transport services is sufficiently pervasive at the local level to justify relief from pricing regulation nationwide. Commission staff analysis of competitive provider responses to question II.A.5. of the
92. We recognize that our decision in all likelihood will leave a relatively small percentage of census blocks (with an even smaller percentage of overall demand) price deregulated and without the immediate prospect of competitive transport options. However, greater harm—primarily manifested in the discouragement of competitive entry over time—would result if we were to attempt to regulate these cases than is expected under our deregulatory approach. In contrast, lower entry barriers for deploying transport services than for end user channel termination services and increasing demand for transport means that regulatory relief will provide incentives for competitive providers to deploy additional transport facilities to compete for this demand. While competition may not be universal, it is sufficiently widespread for us to have confidence that a combination of these factors will broadly protect against the risk of supracompetitive rates being charged by price cap LECs over the short- to medium-term. To the extent there are points of aggregation that are not served by competitors, the relatively high demand at these points makes it likely that a competitor could justify investing in competitive transport facilities to serve that demand.
93. Moreover, our goal is not absolute mathematical precision but an administratively feasible approach that avoids imposing undue regulatory burdens on this highly competitive segment of the market. Refraining from pricing regulation for transport services nationally achieves the proper balance between precision and administrability. It also avoids unnecessary disruption of existing special access transport sales arrangements. The alternative would be to impose significant regulatory burdens on all participants in the market with an additional layer of regulatory complexity that would undermine predictability and ultimately hinder investment, including in entry, and growth. Instead, we believe that providing regulatory relief in this market segment will foster conditions that will continue to encourage competitive entry and provide incentive for further investment in fiber transport facilities. Finally, our section 208 complaint process represents a continuing safeguard against unjust and unreasonable rates.
94. As noted above, we decline to impose ex ante pricing regulation for packet-based business data services and eliminate entirely ex ante regulation for TDM-based services providing bandwidths in excess of a DS3 and for TDM-based transport services. Based on the record, we have determined that such forms of regulation are not necessary because we expect that competition will ensure just and reasonable rates for those services.
95. At the same time, many commenters have urged us to take a different approach with respect to ex ante regulation of DS1 and DS3 end user channel terminations that use legacy, circuit-based technology. They raise various arguments about why they believe this portion of the business data services market requires that we not eliminate ex ante price regulation altogether. To the extent commenters suggest that there are no circumstances in which we should eliminate ex ante pricing regulation, we disagree with those contentions. Our decision in this
96. We determine it is appropriate to take a different approach with respect to the elimination of ex ante pricing regulation of legacy, circuit-based DS1 and DS3 end user channel terminations. The market for these services is declining as customers opt for more flexible packet-based business data service offerings. Moreover, the economics of deploying facilities to end user locations makes competitive entry in response to demand less likely than with the TDM transport market segment, which is typically at higher-bandwidths and requires less investment per unit of traffic than required for channel terminations. In light of these considerations, we are providing additional protections for this portion of the business data services market as the market transitions to new technologies by not eliminating ex ante pricing regulation in every area. Instead, we adopt a competitive market test that will preserve ex ante price regulation in those limited number of areas where we predict there is a substantial likelihood that competition will fail to ensure just and reasonable rates. In addition, even in those areas where we eliminate ex ante pricing regulation, the protections of section 208 will continue to apply.
97. Specifically, the competitive market test we adopt today assesses the availability of actual and likely competitive options in the provision of last-mile services and subjects to ex ante pricing regulation only circuit-based DS1 and DS3 end user channel terminations and certain other business data services provided by price cap incumbent LECs in areas the test finds lack a competitive presence. We base the competitive market test on the geographic unit of a county or county-equivalent (hereinafter, county) which significantly reduces the over- and under-inclusivity issue posed by MSAs which the Commission highlighted in the
98. While there is no clear consensus in the record on the right approach to the competitive market test, we do see a few points of general agreement. The various proposals use bandwidth demarcation points and competition test criteria based on counting providers in or near a geographic area using the
99. The test we adopt utilizes certain core attributes of a test on which there was consensus in the record, including establishing a threshold number of providers to find competition, employing a defined geographic area of measurement, and basing the test on data from the
100. We take a pragmatic approach to formulating a competitive market test by considering what data are available to us to evaluate competitive conditions both at present and in the future. We then determine what geographic unit is sufficiently granular and at the same time administrable for the Commission as well as the industry. Finally, we consider which criteria best reflect competitive conditions in the market while still furthering the Commission's policy objectives. The ultimate goal of the test, however, is not to definitively determine competitive market conditions but rather to determine on balance which areas are best positioned to benefit from price deregulation and which areas will benefit more from continued price cap regulation.
101. In determining where we can appropriately avoid applying ex ante price regulations for certain special access services, we balance the benefits and costs of such regulation. We recognize that in counties where there currently appears to be few competitive alternatives for consumers of DS1 and DS3 end user channel terminations that the benefits of ex ante price regulation likely outweigh the costs since this likely indicates broad entry in such regions may not occur. However, in counties where the competitive pressures are able to discipline prices for a large fraction of customers, as discussed in our market analysis, we see the opposite to likely be the case. Ex ante pricing regulation can have negative features. For example, in a county where entry is relatively widespread, the absence of entry in specific areas may be due to regulated prices inadvertently being set below competitive levels. Such prices make entry unprofitable, are harmful to long run incentives to invest, can lead to inefficient short run levels of production and consumption, and can prevent entry indefinitely. This counsels toward being especially wary of imposing price caps except where competitive service seems most unlikely to be available within a reasonable time horizon. This perspective of balancing the benefits and costs of regulating prices, as well as the importance of having an administrable system, leads us to adopt the framework discussed below. In our judgment, we expect this framework to appropriately balance our desire for fostering a dynamic and competitive marketplace with the need to ensure rates that are just and reasonable.
102. Some parties have expressed concern about a potential spike in prices in areas deregulated as a result of the competitive market test. We believe, however, the test adopted today strikes the appropriate balance to apply ex ante regulation where warranted and to allow competitive forces to thrive absent ex ante regulation where there is adequate competition. If prices were to rise following deregulation, then we anticipate that competition will work to drive these prices to competitive levels. Moreover, customers are protected in the near term from harm that would result from any rates, terms, or conditions that are unjust and unreasonable or unjust and unreasonably discriminatory because the Commission's section 208 complaint process continues to be available for common carriage services.
103.
104. Although some commenters propose refreshing the data with periodic data collections, most commenters strongly oppose the idea as being too burdensome and even “an obstacle to competition.” To comply with the
105.
106. We find the Form 477 data well suited for supplementing the
107. In fact, some commenters used Form 477 data to supplement the data from the
108. In terms of granularity, our goal through the years of regulating the business data services market has been “to define . . . geographic areas narrowly enough so that the competitive conditions within each area are reasonably similar, yet broadly enough to be administratively workable.” After considering various possible geographic areas to use for the competitive market test, we conclude that basing the competitive market test at the county level strikes the best balance between being sufficiently granular and administratively feasible. We reject other proposals raised in the record, including use of MSAs, census blocks, census tracts, and ZIP codes.
109.
110. The Commission's
111. Counties are also significantly less granular than smaller geographic units such as buildings, census blocks, census tracks, and ZIP codes, and, thus, significantly more feasible for the Commission and industry to administer. Use of counties has another advantage as well: Counties do not cross MSAs. Consequently, there is a ready translation of the FCC's pricing flexibility regime to counties, which will minimize disruption where a county's regulatory status is not changed by this Order.
112. Counties provide a convenient, natural administrative unit for capturing competitive effects, and competitive effects from cable operators in particular. The competitive presence of cable operators will generally conform to county boundaries since cable franchises have historically been awarded, with some exceptions, on a county-by-county basis. Cable operators may not provide cable service without a franchise from a franchising authority. A franchise authorizes the construction of a cable system over public rights-of-way, and through easements, within the area to be served by the cable system. Thus, a franchise license allows a cable operator to overcome many entry barriers associated with buildouts and creates more certainty in anticipated buildout revenues. With those hurdles
113.
114. In addition, MSAs are too large to reflect the scope of competition. Competitive LECs have consistently argued throughout this proceeding that the Commission's previous MSA analysis “ignored the wide variability of competitive conditions across a large geographic area.” The Commission agreed in the
115.
116.
117. Upon examining the structure of the business data services industry and the record before us, we find that a combination of either one competitive provider with a network within a half mile from a location served by an incumbent LEC or a cable operator's facilities in the same census block as a location with demand will provide competitive restraint on the incumbent LEC that will be more effective than our legacy regulatory regime in ensuring rates, terms, and conditions are just and reasonable. Our conclusion that a “nearby BDS competitor” provides sufficient competition to forgo regulation of an incumbent LEC's provision of BDS is based on three findings: (1) A determination of the geographic scope within which a likely BDS provider can realistically compete with an incumbent LEC; (2) a finding that one such competitor in addition to the incumbent LEC provides a reasonable degree of competition in BDS supply; and (3) a finding that the benefits of such competition outweigh the potential unintended costs of regulation.
118. The record in this proceeding indicates that providers actively compete for customers located within about a half mile from their networks by bidding on requests for proposals and sending their sales personnel to offer their services. When bidding on a contract, providers often “have no way of knowing with any reasonable degree of certainty which other providers are capable of serving that customer over their own facilities” and, therefore, when bidding on an RFP they “make much rougher assessments of the possibility of facing competitive bids”—a dynamic that “ensure[s] that the benefits of competition redound to all customers in an area where competitive facilities have been deployed, not just those who are located within a certain distance of a network, or that offer a certain level of revenues.” Accordingly, we determine nearby competitive network facilities exert competitive pressure on incumbent LECs whether or not their network is within a half mile of a customer's location.
119. We further find that wireline providers of BDS are commonly willing to extend their existing network out approximately a half mile, and in some instances further, to meet demand. That is, the cost of meeting demand within
120. We find that, in the market for business data services, there is a substantial competitive effect when a wireline competitor is present to discipline rates, terms, and conditions to just and reasonable levels. We arrive at this conclusion because there is a general expectation that the largest benefits from competition come from the presence of a second provider, with added benefits of additional providers falling thereafter, in part because, consistent with other industries with large sunk costs, the impact of a second provider is likely to be particularly profound in the case of wireline network providers. A wireline provider is willing to cut prices to as low as the incremental cost of supplying a new customer, requiring minimal contribution to its sunk costs. In addition, we find that the presence of a nearby competitor is likely to prevent substantial abuse of market power, whether through high prices or lack of innovation, and equally that a lack of actual supply by a nearby competitor likely arises when existing suppliers' offerings are reasonable in both price service characteristics. That is, active supply occurs most rapidly in locations where the most profits are likely to be obtained, including where, for example, the transition to packet-based services is most valued. In other words, active supply is most likely to occur where the costs of missing competition are greatest. Equally, active supply is most likely to be postponed where the benefits of additional competition are small, because the potential profit gained from extending supply is small.
121. We reject some commenters' characterization of the
122. We also distinguish our analysis here from that which the Commission employed in the
123. Some competitive LECs urge us to deregulate only locations with four providers (one incumbent LEC and three competitors) with last-mile connections in the building or in the census block. We find that such an approach would result in substantial overregulation of the business data services market and therefore we decline to adopt it. The primary driver of the number of connections at any location is the nature of demand in the location. We fully expect locations with a single customer to typically have only one provider. Even those locations with multiple customers may only have a single provider—the provider that won the bidding process to supply the location. However, as we explain above, the high sunk network cost nature of this industry indicates that even as few as two nearby providers have the incentive to undercut each other's price to win customers so long as they at least recover the incremental cost of extending supply to any customer. Accordingly, requiring even two, let alone three or four providers to be already supplying a given location as the rule for deregulation would result in overregulation in numerous locations that have competitive choice. This issue would become even more pronounced as wireline network providers compete for more locations. On the basis of the
124. Though we believe the record is convincing on the impact of one nearby competitor ensuring reasonably competitive outcomes in the medium term (
125. Finally, we find that there are substantial costs of regulating the supply of BDS and these likely outweigh any costs due to the residual exercise of market power that may occur in the absence of regulation. As a baseline, the presumption that “[c]ompetition is best . . . because competition is the single best way of ensuring that customers benefit” and the promotion of the same guides us. The question is not whether today nearby competition is everywhere fully effective, or even whether it will become so over the next few years. The question is whether the costs of the lack of fully effective competition, even as these decline over time, are likely smaller than the net costs of regulation.
126. Here we explain why we find that the net costs of regulation in the business data services industry are likely to be large, most especially because regulation is likely to undermine entry, potentially postponing the gains from competition for many years. Even well-crafted regulations have unintended consequences, inhibiting competition, reducing investment, and end user benefits. This is especially true in markets as highly dynamic and complex as those for BDS. In general, regulation discourages entry wherever it enforces prices that do not allow firms full cost recovery or raises the costs of entry. As the record before us indicates, both of these side effects are likely in BDS supply. Moreover, regulation in rapidly growing markets is riskier than in otherwise similar stable or stagnating markets.
127. First, it is very difficult for firms to set efficient prices when they must tariff and for a regulator to estimate the efficient price level in a business with the following characteristics: High uncertainty due to frequent and often large unforeseen changes in both customer demand for services and network technologies that are hard to anticipate and hedge against in contracts with customers; a complex set of products and services, which are tailored to individual buyers; costs of provision that vary substantially across different customer-provider combinations; and large irreversible sunk-cost investments that a provider is required to make before offering service. In these circumstances, efficient prices are often tailored to individual purchasers, and are often subject to renegotiations that account for changing circumstances. Moreover, in these circumstances, the efficient price level, which must be reflected in the price cap, is extremely difficult to determine, not least because it must reflect the option value of sinking network investments in a rapidly-changing environment. Both of these sources of regulatory error, especially failure in setting a price cap, can lead to prices that are too low which prevent entry (or alternatively prices that are too high which encourage excessive entry). For example, an inability to quickly adjust a tariff, means prices can be too low where they otherwise would be changed, while the restraints of tariffing can force a provider to set prices that are too low for some customers and too high for others, simply because of barriers to filing separate tariffs that allow such different customers to self-select into the option that suits them best. Similarly, price caps can force, through required averaging (such as the geographic average required in our price caps), prices that are too low in some locations and too high in others. The effect is to rule out entry in the former case, and to sometimes encourage inefficient entry in the latter. Moreover, price caps that are overall too low discourage entry (as well as long-run network reinvestment), which can have substantive knock-on effects on entry decisions given that supply in BDS is about recovering more than the incremental cost of each customer to pay for total network costs. Such negative effects accumulate over the life of the cap.
128. Second, given that most wireline network costs must be sunk for periods of between 20 years and sometimes two or more times that length of time, entrants and incumbents looking to reinvest are extremely sensitive to any increases in costs that might reduce their capacity to recover these costs. In particular, a small rise in costs that remains in place over a long time period can have a substantial impact on whether a particular investment opportunity is viewed positively. That is exactly what regulation does. It directly raises incumbent's costs, making them unwilling to invest and hence making them less effective competitors, and it creates an additional source of uncertainty that entrants must contend with when evaluating entry. If there is a small probability that future regulation will harm the entrant's projected income streams, then this can materially discourage entry (because over the course of the decades the expected present value of the accumulated harm can be large).
129. Lastly, we reiterate that “the Commission should construct regulation to meet not only today's marketplace, but tomorrow's as well.” Available metrics show the BDS market as dynamic, evolving rapidly, and becoming increasingly competitive across all service offerings. When a market is changing and growing, it offers tremendous opportunities to new entrants and therefore creates fewer regulatory concerns. Rather than only having the option of taking customers from existing suppliers by offering them very similar services, new entrants can seek unaffiliated customers, or tempt incumbents' customers away by offering new services that incumbents either do not offer, or if they do, are no more experts in it than the entrant (in fact, incumbents may be hampered by fears of cannibalizing their legacy services or by their cultures and other factors that suited the legacy world). In short, competition is likely to be more effective in dynamic growing markets than regulation. In addition, a high degree of flux greatly increases the chances that regulatory error will stifle competition and reduce welfare because it is applied to a circumstance that, without the regulation, may have quickly been overtaken by innovation and/or competition. Thus, regulation of such markets is generally considered to be counterproductive.
130. In this section, we adopt the competitive market test methodology that we will use to determine which local markets are sufficiently competitive to warrant deregulation of price cap incumbent LEC provision of DS1 and DS3 end user channel terminations and certain other business data services. As we note above, we take a pragmatic approach to structuring the competitive market test, with the goal of promoting innovation and investment and recognizing recent trends and developments in the BDS marketplace. Furthermore, as also discussed above, we take a network-centric approach which takes into account the high sunk cost nature of BDS networks that gives nearby competitors a significant incentive to compete for potential clients within an economically buildable distance from their networks. This is the case for traditional competitive LECs and for newer entrants such as cable providers with extensive networks.
131. For the competitive market test to most closely approximate the realities of competition in the business data services market, it ideally should deregulate where there is competition and regulate where there is not. Accordingly, we can use the
132.
133. We supplement the
134. We conclude that it is necessary to base the competitive market test on data from both the
135.
136. We set percentage thresholds that result in a test that more accurately approximates competitive conditions in the county broadly. We set a separate threshold for each of the two datasets we use and note that, given the differences in the two datasets, the percentage thresholds will not be identical. Given the interdependency of the datasets, we analyze combinations of thresholds to assess their impact on the accuracy of our test and to determine which combination yields results with the lowest weighted error rates.
137. Utilizing the data from the
138. Following our competitive analysis that revealed the high costs of regulating this industry, we could, for example, assign twice as much weight to the first type of error of regulating where we should deregulate (
139. We next reverse these weights and instead assign twice as much weight to wrongly deregulated non-competitive buildings as to wrongly regulated competitive buildings. As the dark blue area of the contour map indicates, the appropriate thresholds for deregulating a county would be 48 percent for buildings with BDS demand within a half mile of a location supplied over competitive facilities and 23 percent for census blocks with cable presence. [“Figure 3. Threshold percentage combinations (wrongly deregulated locations given twice as much weight): Sum of Number of Buildings Deregulated without Competition and Sum of Number of Buildings Regulated with Competition” omitted].
140. Alternatively, we can assign equal weight to both errors—that is, give both types of errors equal importance—then we would choose thresholds that minimize the simple sum of the number of buildings inappropriately regulated or deregulated. Figure 4 demonstrates that under this scenario the resulting thresholds would deregulate a county where about 47 percent of buildings with BDS demand are within a half mile from competitors' facilities as competitive or where about 11 percent of census blocks have cable facilities. [“Figure 4. Threshold percentage combinations (wrongly regulated and wrongly deregulated locations equally weighted): Sum of Number of Buildings Deregulated without Competition and Number of Buildings Regulated with Competition” omitted].
141. This analysis suggests that setting a threshold of 32 to 48 percent for the
142. Our analysis suggests that setting a threshold of 3 to 23 percent would be one reasonable means of setting the trigger threshold for the Form 477 data. Nonetheless, we believe a more cautious approach is warranted for three reasons. First, we recognize that all but 8.9 percent of locations with special access demand are already deregulated by the half mile test—and
143. We acknowledge that this competitive market test does not as perfectly delineate areas as we would like; yet we believe it strikes the right balance. It balances the need for precision against the need for a test that is feasible to administer, and also balances the benefits of appropriate regulation of competitive and non-competitive areas while seeking to avoid the costs of inappropriate regulation. It does not require additional data collections and yet closely approximates the results such data collections are likely to yield. It ensures that we adopt competitive thresholds that most closely approximate actual competitive market conditions and minimize regulatory error. It deregulates areas with sufficient potential for competitive entry in response to significant profit opportunities and retains ex ante pricing regulation in areas where competitors are less likely to be able to enter and therefore creates appropriate incentives for just and reasonable rates and continued growth, innovation, investment, and deployment in the dynamic business data services market. Lastly, it is conservative in deregulating, reflecting a desire to not move too quickly and recognizing the nascent nature of cable competition not captured in the
144. We find that it is not necessary to create a special process or mechanism for challenging the results of the competitive market test. For administrability purposes, any such process would need to be limited to a single criterion, for example, the accuracy of the Form 477 data. The Commission has designed the competitive market test in a manner that reduces the need for, and the significance of, any post-decision challenge process because it has established very clear standards based on data that is readily accessible. In addition, we believe that parties can rely on the accuracy of the Form 477 data because it is certified to by company officials, compliance is subject to enforcement actions, and filers are required to submit revised data upon discovery of a significant error. Furthermore, commenters generally agree that the Commission should avoid establishing a separate process that is burdensome on the parties and the Commission. For example, NCTA urges the Commission to forego any extensive and involved challenge process such as in the Connect American Phase II universal service program that included more than 140 parties challenging the classification of nearly 180,000 census blocks and that took the Commission nine months to resolve. Accordingly, consistent with our goal of eliminating unnecessary administrative burdens, we conclude, based on the substantial administrative costs and apparently minor benefit, there is no reason to implement a challenge process here.
145. To ensure the results of the competitive market test continue to reflect competitive conditions in the business data services marketplace, we adopt a process for updating those results every three years using Form 477 data across all areas served by price cap carriers.
146. The results of the competitive market test offer a static snapshot of a dynamic and constantly changing business data services market. Most commenters that support the use of a competitive market test also support updating the test periodically. We therefore adopt an administratively efficient process that will periodically update the results of the test to govern the transition of a county from non-competitive to competitive status.
147. We base our initial application of the competitive market test on the two principle data sources we currently have at our disposal, the
148. Moreover, we agree with commenters that the Commission “does not need to issue a request for a broad, large-scale data collection as it did in 2012” in order to obtain updated market data. We can instead use the existing Form 477 data collection, which would provide continuity with the initial test that also relies on these data. The Form 477 data on broadband availability are well suited to identify increases in competitive broadband deployment, particularly by cable providers which are the most likely sources of competitive growth. We conclude it is not necessary, as some commenters suggest, to modify Form 477 to request additional information. The current Form 477 data are sufficiently precise to capture the changes in competitive deployment that are likely to occur in a three-year timeframe. Thus we are able to achieve our goals of updating the competitive market test results using accurate data and at the same time avoid imposing any additional burdens on providers or the Commission.
149. We agree with commenters that support the suggestion in the
150. As Sprint explains, “[three years] permits the Commission to evaluate whether markets are changing to become more competitive and will ensure that the regulatory framework reflects accurate information about the BDS marketplace.” We disagree with commenters arguing for more or less frequent updates. More frequent updates are likely to be unnecessarily disruptive of longer-term business data services sales arrangements, while less frequent updates will be insufficient for the Commission to properly assess changes in the marketplace and to ensure the test remains current.
151. We direct the Wireline Competition Bureau to review Form 477 data on a regular three-year basis and determine whether any additional regulated counties meet the 75 percent threshold. The Bureau shall release a Public Notice that lists newly competitive counties and shall also provide this information on the Commission Web site. Parties desiring to challenge these results may file petitions for reconsideration or seek full Commission review through an application for review.
152. While commenters may disagree with how to update the initial competitive market test results, commenters widely note that the Commission should select administrative processes that are efficient. We note there are more than 3,100 counties in the U.S. that are included in our initial competitive market test computations. About 40 percent of these are treated as non-competitive and about 60 percent as competitive. We have previously noted
153. Prior forbearance actions and deemed grants have created a situation in which the statutory provisions and rules that apply to a price cap incumbent LEC or a competitive LEC in its provision of business data services vary depending on the provider's identity and the specific services being provided. We expand upon and adjust these prior actions and deemed grants to the extent necessary to level the regulatory playing field for all of these business data services providers. We also amend our rules as appropriate to implement our light-touch regulatory framework for business data services. These actions flow from—and are consistent with—our findings above on the intense and growing competition in business data services.
154. Our actions expanding forbearance are taken pursuant to section 10 of the Communications Act. That provision, enacted as an integral part of the “pro-competitive, de-regulatory national policy framework” established in the 1996 Act, requires that the Commission forbear from applying any provision of the Act, or any of the Commission's regulations, if the Commission makes certain findings with respect to such provisions or regulations. Under section 10(a), the Commission is required to forbear from any such provision or regulation if it determines that: (1) Enforcement of the provision or regulation is not necessary to ensure the telecommunications carrier's “charges, practices, classifications, or regulations” are “just and reasonable and are not unjustly or unreasonably discriminatory;” (2) enforcement of the provision or regulation is “not necessary for the protection of consumers;” and (3) forbearance is “consistent with the public interest.” In making this public interest determination, the Commission must also consider, pursuant to section 10(b), “whether forbearance from enforcing the provision or regulation will promote competitive market conditions.”
155. We forbear from the application of section 203 of the Communications Act to each price cap LEC in its provision of any packet-based business data services or circuit-based business data services above the DS3 bandwidth level. This action expands upon prior forbearance grants and deemed grants applicable only to certain carriers and certain packet-based and circuit-based business data services.
156. In 2006, Verizon's Broadband Forbearance Petition was deemed granted by operation of law after the Commission did not act on it within the statutory time limit. That petition had sought forbearance from the application of Title II common carrier and
157. Currently the vast majority of business data services providers are not subject to section 203 in their provision of business data services—non-incumbent LECs are not required to comply with tariffing requirements, nor are the price cap incumbent LECs that have received forbearance to the extent they provide services within the scope of the forbearance grants and deemed grants. We find that the lack of regulatory parity that stems from the prior applications of forbearance is preventing competition and holding back our efforts to “encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans.” Thus, our determination is based on “what the agency permissibly sought to achieve with the disputed regulation,” that is, to ensure that rates, terms, and conditions for the provision of these business data services are just, reasonable, and not unreasonably discriminatory. We find that “in light of an overwhelming record of declining prices, it is simply not credible to argue that rate regulation is necessary to simulate competitive pricing” for these services. Additionally, the lack of regulatory parity among broadband data services providers created by the imbalanced forbearance grants and deemed grants over the years has created barriers to entry and impeded competition. Extending forbearance from tariffing will lead to regulatory parity, and a more level playing field among packet-based and optical transmission business data services providers.
158. We further conclude that disparate forbearance treatment of carriers providing the same or similar services is not in the public interest as it creates distortions in the marketplace that may harm consumers. Allowing such disparate application of our tariffing requirements undermines, rather than promotes, competition among telecommunications services providers within the meaning of section 10(b).
159. We predict that competition in the business data services market, along with the statutory and regulatory requirements that remain, is sufficient to ensure just, reasonable, and not unjustly or unreasonably discriminatory rates, terms, and conditions by business data services providers and to protect business data services consumers. We therefore find that application of section
160. We also forbear from the application of section 203 to each price cap incumbent LEC in its provision of business data services elements that comprise transport pursuant to section 69.709(a)(4) of the Commission's rules, and to DS1 and DS3 end user channel terminations services and any other special access services currently tariffed in competitive counties or in non-competitive counties previously subject to Phase II pricing flexibility.
161. The Commission has previously recognized that “tariffs originally were required to protect consumers from unjust, unreasonable, and discriminatory rates in a virtually monopolistic market, and that they become unnecessary in a marketplace where the provider faces significant competitive pressures.” We find above that business data services transport is competitive throughout the nation and that DS1 and DS3 end user channel terminations services and other tariffed special access services are competitive in certain counties. Where a price cap LEC provides these services in competitive markets, application of section 203, including its tariffing requirement, is not necessary to ensure that the LEC's charges, practices, classifications, or regulations are just, reasonable, and not unjustly or unreasonably discriminatory. Nor is application of section 203 necessary to protect consumers.
162. We recognize that in some discrete geographic areas, including portions of non-competitive counties previously subject to Phase II pricing flexibility, some customers may not have access to competitive transport services during the near-term. Similarly, in some portions of the counties that we classify as competitive, some end users may not have viable alternatives to the incumbent LEC's DS1 and DS3 end user channel terminations services and other special access services within that time frame. But even in these areas, we believe tariffing may reduce incentives for competitive entry and ultimately inhibit growth in the market and competition over the longer term. Additionally, price cap LECs will remain subject to sections 201 and 202, and to our enforcement of those provisions through the section 208 complaint process. In these circumstances, we find that the additional contribution that tariffing—and other ex ante regulation—of price cap LECs' special access services provides to protection against unjust, unreasonable, and unreasonably discriminatory rates, terms, and conditions is not necessary within the meaning of sections 10(a)(1) and 10(a)(2).
163. Those same considerations, plus our desire to promote competition and business data services deployment, likewise persuade us that forbearance is in the public interest. In competitive markets, tariffing has several adverse consequences, including reducing a carrier's incentives to offer price discounts and ability to respond quickly to changes in demand or costs, delaying and increasing the costs of innovation, and preventing a carrier from tailoring service arrangements to meet its customers' specific needs. Tariffing also imposes significant administrative costs on carriers and the Commission, and ultimately inhibits competitive entry in discrete areas where a price cap LEC currently may be the only provider. Given these costs, we find that forbearance from the application of section 203 to price cap LECs' business data services elements that comprise transport pursuant to section 69.709(4), and to DS1 and DS3 end user channel termination and any other tariffed special access services in competitive counties, is consistent with the public interest within the meaning of section 10(a)(3). We note that the record was supportive of detariffing services in competitive markets.
164. A small number of counties that had been regulated under Phase II pricing are now deemed non-competitive pursuant to our competitive market test. Incumbent LECs in these counties have been providing DS1 and DS3 end user channel termination and other special access services free of price cap, but not tariffing, regulation. Like we do for other services, we conclude that for these incumbent LECs tariffing's costs generally outweigh its benefits to consumers, and that forbearance from the application of section 203 to DS1 and DS3 end user channel termination and other tariffed special access services by these incumbent LECs in these counties is consistent with the public interest.
165. In contrast, we conclude it is not practical to detariff carriers that are now subject to—and will remain subject to—price cap regulation, where the tariff is the tool the Commission has used—and will continue to use—to enforce that regulation. This is not a concern with the counties now subject to Phase II pricing to the extent an incumbent LEC has not been subject to price cap regulation and, as we decide below, will not be subject to such regulation going-forward.
166. Our detariffing actions in this Order will be mandatory after a transition that will provide price cap incumbent LECs sufficient time to adapt their business data services operations to a detariffing regime. We also require that competitive LECs, which are currently subject to a permissive detariffing regime, detariff their business data services by the end of this transition.
167. The transition will begin on the effective date of this Order (sixty (60) days after
168. During this transition, tariffing for these services will be permissive—the Commission will accept new tariffs and revisions to existing tariffs for the affected services. Apart from the rate freeze noted above, carriers will no longer be required to comply with price cap regulation for these services, and once the rules adopted in this Order are effective, carriers that wish to continue filing tariffs under the permissive detariffing regime are free to modify such tariffs to reflect the new regulatory structure outlined in this Order for the affected services. This will allow carriers to respond to competitive pressures and introduce new business data services as they adapt to detariffing.
169. Carriers, including non-incumbent LECs, may remove the relevant portions of their tariffs for the affected services at any time during the transition, and the rate freeze does not apply to services that are no longer tariffed. Once the transition ends, no price cap incumbent LEC or competitive
170. We recognize that our detariffing actions will change the legal framework for existing service arrangements for business data services, many of which assume a tariffing environment and may not expire until after the end of the transition to mandatory detariffing. We do not intend our actions to disturb existing contractual or other long-term arrangements—a contract tariff remains a contract even if it is no longer tariffed. In that vein, contract tariffs, term and volume discount plans, and individual circuit plans do not become void upon detariffing. Instead, we expect all carriers to act in good faith to develop solutions to ensure rates are just and reasonable.
171. In this section of the Order, we conform the forbearance provided to Verizon and its successors in interest, Hawaiian Telcom, and the legacy Verizon portions of FairPoint and Frontier (together the Verizon Legacy Companies), to the forbearance provided other price cap carriers. This action, when coupled with our other forbearance actions in the Order, levels the playing field among price cap carriers providing packet-based and optical transmission business data services as telecommunications services.
172. In 2006, Verizon's 2004 petition seeking forbearance from the application of Title II and
173. We reject certain commenters' argument that statutory silence means that we lack authority to modify or withdraw forbearance once it is deemed granted, or that only Congress can modify or reverse forbearance received through a deemed grant. That argument largely rests on the D.C. Circuit's holding in
174. We recognize that modifying or reversing forbearance once granted by the Commission or by operation of law is a step that should be taken with great care. We find this narrowly tailored action is appropriate in this case because such reversal is consistent with the substance of the statutory forbearance requirements. Verizon's forbearance from core Title II obligations came from the highly unusual circumstance of a deemed grant. Our partial reversal is consistent with the Commission's unanimous commitment, in the
175. Notably, in its own comments in this proceeding, Verizon has recognized the importance of a level playing field in the business data services arena. The forbearance relief “deemed granted” to Verizon encompasses economic regulation that applies to all other common carriers, economic regulation that applies to all other incumbent LECs or Bell Operating Companies (BOCs), and public policy regulation that applies to all other common carriers. Continued forbearance from this regulation would be inconsistent with the statutory forbearance criteria. For example, as we find above, the protections provided by sections 201 and 202(a), coupled with our ability to enforce those provisions in a complaint proceeding pursuant to section 208, are necessary to protect against unjust, unreasonable, and unjustly or unreasonably discriminatory rates, terms, and conditions for those business data services. Similarly, section 251(b) imposes a number of duties on LECs, including the duty to implement number portability and the duty to provide competing telecommunications service providers with access to the LECs' poles, ducts, and conduits under just and reasonable rates, terms, and conditions. Acting to bring the Verizon Legacy Companies' forbearance into line with the forbearance granted to other carriers is necessary to ensure just, reasonable, and not unreasonably discriminatory rates, terms, and conditions for business data services provided on a common carrier basis, and is consistent with the Commission's decisions granting more tailored forbearance to other carriers.
176. Other provisions and requirements forborne from by the deemed grant promote access to telecommunications services by individuals with disabilities, protect customer privacy, and increase the effectiveness of emergency services, among other objectives. As the Commission previously found, these and other public policy requirements under Title II “advance critically important national objectives” and thus are necessary to protect consumers. Indeed, continued forbearance from these requirements would be inconsistent with the critical consumer-protection goals that led to their adoption.
177. We further conclude that disparate treatment of carriers providing the same or similar services is not in the public interest as it creates distortions in the marketplace that may harm consumers. Allowing Verizon and its successors in interest, but not its business data services competitors, to continue to avoid compliance with obligations applicable to other business data services providers would
178. We now turn to the question of what ex ante regulation, if any, we should apply to special access services in counties that are classified as non-competitive pursuant to our competitive market test. To ensure affordability of DS1 and DS3 services without unnecessarily constraining incumbent LECs' incentives to invest and innovate, we will apply price cap regulation in the form of Phase I pricing flexibility (Phase I pricing) to DS1 and DS3 end user channel terminations and certain other business data services provided by incumbent LECs in counties that we determine are non-competitive. Allowing Phase I pricing will enable incumbent LECs to timely and effectively respond to any competition that develops in these markets through contract tariffs and volume and term discounts. We also prohibit the use of overly restrictive non-disclosure agreements in contract tariffs for business data services sold in non-competitive areas.
179. We conclude that, subject to the exception discussed below, we should continue to apply price cap regulation, as modified in this Order, to price cap LECs' DS1 and DS3 end user-channel terminations and certain other non-competitive business data services in non-competitive counties to ensure the rates, terms and conditions for such services are just and reasonable. We agree with the commenters—including Verizon, INCOMPAS, Sprint, Windstream, Ad Hoc, Birch et al., NASUCA et al., and Public Knowledge—that argue that price cap regulation is the most effective regime for ensuring that rates for non-competitive services are just and reasonable. The price cap system, as modified by the measures we adopt in this proceeding, will limit the extent to which price cap LECs can exercise their market power over the rates for TDM-based end user channel terminations in non-competitive counties.
180. When properly applied, price cap regulation replicates some of the beneficial incentives of competition in the provision of business data services while balancing ratepayer and stockholder interests. Price caps encourage LECs to become more productive and innovative by permitting them to retain reasonably higher earnings while discouraging wasteful investment. At the same time, price cap regulation offers regulated firms flexibility in setting relative prices, instead of relying on uniformed regulatory direction. In sum, price cap regulation helps ensure just and reasonable prices for customers in non-competitive markets while affording providers good incentives to reduce costs and an opportunity to earn a reasonable return on their investments.
181. We do not, however, require incumbent LECs that were previously granted Phase II pricing flexibility to reinstitute price caps in non-competitive counties that are within former Phase II pricing areas because we find that the costs of doing so exceed the benefits as described above. Incumbent LECs that have previously been granted Phase II pricing flexibility in these counties have been providing DS1 and DS3 end user channel terminations and other business data services free of price cap regulation for a number of years and have adapted their internal systems accordingly. Bringing these services back into price caps would require that incumbent LECs revamp their billing, information technology, and third-party management systems, at significant cost. Additionally, reinstituting price cap regulation would require the carrier to recreate what the price cap would be had it never received pricing flexibility, which would involve burdensome and complicated calculations. According to the
182. To encourage competitive entry into the counties we have identified as non-competitive, we will not apply price cap regulation to DS1 and DS3 end user channel terminations provided by non-incumbent LECs. When a non-incumbent LEC provides DS1 or DS3 services in a non-competitive market, it typically does so in competition with an incumbent LEC that enjoys marketplace advantages, including a ubiquitous network and significant economies of scale. Extending price cap regulation to non-incumbent LECs would impose significant costs while generating few, if any, benefits. These costs would include administrative compliance costs that, by their very nature, would reduce the amount of capital available for the non-incumbent to upgrade its network and expand its business data services footprint to additional locations within the non-competitive county. Of greater concern, such regulation would reduce the non-incumbent's capacity to efficiently set prices and increase its exposure to regulatory risk, further leading to less competitive entry and investment. And, any benefits would be minimal since the incumbent LEC's price cap rates typically will set a ceiling on the rates the non-incumbent can charge for its DS1 and DS3 end user channel terminations.
183. In 1999, the Commission established a process for granting price cap LECs pricing flexibility for special access services when specified regulatory triggers were satisfied. The pricing flexibility framework separates special access services into two segments, end user channel terminations and dedicated transport and special access services other than end user channel terminations, and provides two levels of pricing flexibility relief for each segment. Phase I relief gives price cap LECs the ability to lower their rates through contract tariffs and volume and term discounts, but requires that price cap LECs maintain their generally available price cap-constrained tariff rates to “protect[ ] those customers that lack competitive alternatives.” Phase II relief permits a price cap LEC to raise or lower its rates throughout an area, unconstrained by price cap regulations.
184. Business data services remaining within price caps after this Order will consist largely of incumbent LECs' DS1 and DS3 end user channel terminations in non-competitive counties, but will also include various other price cap
185. The record is clear that contract tariffs benefit both customers and price cap LECs. As Ad Hoc observes, Phase I pricing flexibility allows price cap LECs to respond to competition by negotiating lower contract rates. This flexibility, when coupled with our requirement that price cap LECs choosing to exercise Phase I pricing flexibility remove contract revenues from the relevant price caps basket for purposes of determining their price cap indices and actual price indices, will protect customers that do not negotiate contract tariffs from cross-subsidizing those that do. And the requirement that carriers maintain generally available price cap-constrained tariff rates will “protect those customers that lack competitive alternatives” against unreasonably high rates. We therefore amend our price cap rules to allow all price cap LECs in non-competitive counties to lower their rates through contract tariffs and volume and term discounts in a manner consistent with the Commission's current Phase I pricing flexibility rules. Accordingly, these incumbent LECs will be required to maintain generally available tariffs offering price cap regulated rates available to all subscribers.
186. These requirements will not apply to carriers within former Phase II pricing areas that are deemed non-competitive pursuant to our competitive market test that were previously granted Phase II pricing flexibility. Instead, current Phase II price cap LECs in these non-competitive counties will be required to continue offering its current generally available rates for end user DS1 and DS3 channel terminations and for the other special access services as long as those services remain under tariff. This requirement will cease once the services are detariffed.
187. In order to ensure that purchasers of business data services can fully participate in Commission proceedings and that the Commission can conduct appropriate oversight of business data services, we adopt a rule prohibiting the use of non-disclosure agreements in tariffs, contract tariffs, and commercial agreements for business data services provided in non-competitive areas that forbid or restrict disclosure of information to the Commission. In the interest of protecting sensitive information, a provider may require that information related to its business data services be submitted to the Commission subject to a Commission protective order or, if there is none, with a request for confidential treatment pursuant to the Commission's rules.
188. We agree with commenters that argue that non-disclosure agreements affecting the provision of business data services in non-competitive areas that restrict parties from disclosing commercially sensitive information to the Commission deter parties from sharing information with the Commission. The use of such non-disclosure agreements has been described as “ubiquitous” and their impact significant. Such non-disclosure agreements hinder the Commission's access to data important to its oversight of the business data services market and its ability to effectively discharge its core statutory responsibilities under sections 201 and 202. The Commission previously observed in another proceeding that “overly broad, restrictive, or coercive nondisclosure requirements may well have anticompetitive effects” and explained that “demands by incumbents [for such non-disclosure agreements] . . . are of concern and any complaint alleging such tactics should be evaluated carefully.”
189. We find misplaced AT&T's assertion that the
190. AT&T also expresses concern that public release of information subject to a non-disclosure agreement will result in “significant competitive harm.” Disclosure to the Commission, however, is clearly distinguishable from disclosure to the public generally. We routinely adopt protective orders to protect parties' interests in maintaining the confidential nature of information submitted. As Level 3 explains, “AT&T's claim that such a rule would undermine parties' confidentiality [interests] is without merit because the Commission's rules and procedures prohibit disclosure of information that has been made subject to confidentiality requirements.” In this proceeding, the Commission has sought confidential data and information on multiple occasions and has consistently adopted protective orders limiting access to the information to certain individuals in order to ensure the confidentiality of these data and information.
191. We agree with commenters that recognize that the solution for concerns about inappropriate disclosure of sensitive information submitted to the Commission is to ensure such information is submitted subject to a protective order or to a request for confidential treatment pursuant to the Commission's rules. We conclude that because the information in question will not be made generally available to the public, our action here does not undermine parties' interest in insulating confidential or commercially sensitive information from the public. We therefore require that parties submitting to the Commission confidential information that is subject to a non-disclosure agreement seek confidential treatment of that information under the relevant protective orders, or otherwise pursuant to the Commission's rules.
192. We address two types of restrictions non-disclosure agreements impose and determine that both are precluded by the action we take here. First, we find that there is no justification for non-disclosure agreements that contain provisions that
193. We also find that non-disclosure agreements that require a direct request or legal compulsion prior to allowing disclosure also inhibit the Commission's conduct of its core regulatory and oversight functions and are therefore contrary to the public interest. By precluding the voluntary disclosure of information, such agreements render it impossible for the Commission to be aware of information in business data services sales agreements or even the existence of such sales agreements, and effectively preclude the Commission's ability to seek that information or those sales agreements.
194. Allowing voluntary disclosure to the Commission, subject to the Commission's protections for confidential information where necessary, will allow parties to disclose relevant information in a more timely fashion, which will in turn make the Commission's oversight and regulatory work more timely and efficient. The Commission's protective orders and confidentiality regulations will effectively insulate against the risk of inappropriate disclosure by ensuring confidential treatment of such information.
195. We agree with commenters that argue that restrictions on non-disclosure agreements for business data services are unnecessary in markets treated as competitive under the competitive market test. In these areas, market forces should be sufficient to protect purchasers of business data services from unreasonable practices. NASUCA et al. asserts, however, that prohibiting overly restrictive non-disclosure agreements is necessary to facilitate competitive conditions in the BDS marketplace generally. We agree that imposing a prohibition on such non-disclosure agreements will foster competitive conditions in areas that our data show are not yet competitive. We do not, however, see a need to impose this prohibition in competitive areas. In those areas, the Commission will still have access to relevant industry data through mandatory requests or data collections if needed. We therefore limit our restrictions on business data services-related non-disclosure agreements to those that apply to non-competitive areas as we define them in this Order. This reasoning applies to all non-disclosure agreements that govern business data services sales—whether they are contained in tariffs, contract tariffs, or commercial agreements. The presumption should be that competitive market dynamics would characterize the majority of sales in any arrangements that governed sales in both types of areas. Additionally, the bulk of sales of TDM based business data services in non-competitive areas would presumably be effected through TDM-only tariffs and contract tariffs. Parties are of course free to structure their sales arrangements in such a manner as to avoid including sales of services for both types of areas in a single agreement.
196. Accordingly, we adopt a general rule prohibiting the use of non-disclosure agreements in or related to tariffs or contract tariffs for the sale of business data services in areas treated as non-competitive by our competitive market test to the extent they forbid or impose any restriction on a party's ability to voluntarily disclose information to the Commission pursuant to appropriate safeguards for confidential information. No provider of business data services in areas treated as non-competitive may enter into or enforce a non-disclosure agreement that in any way forbids or prevents any party to that agreement from disclosing any information relevant to the Commission's business data services proceedings to the Commission. The rule we adopt today applies to all forms of agreements for the sale of TDM-based business data services, including price cap tariffs and contract tariffs in non-competitive areas. Parties submitting confidential information to the Commission that is subject to a non-disclosure agreement must either submit such information subject to the relevant protective orders governing this proceeding or, in the absence of a relevant protective order, seek confidential treatment for such information pursuant to sections 0.457 and 0.459 of the Commission's rules.
197. Pursuant to the framework adopted in this Order, the primary services that will remain under price cap regulation will be the DS1 and DS3 end user channel terminations that incumbent LECs provide in non-competitive counties. To help ensure just and reasonable rates for these services, we adopt an X-factor of 2.0 percent that reflects our best estimate of the productivity growth that incumbent LECs will experience in the provision of these services relative to productivity growth in the overall economy. We retain Gross Domestic Product-Price Index (GDP-PI) as the measure of inflation that incumbent LECs will use in their price cap index calculations, continue to make a low-end adjustment available to price cap LECs in certain circumstances, and decline to adopt other changes that would affect price cap rates. In particular, we find that that no catch-up adjustment to the price cap indices is warranted.
198. The core component of the Commission's price cap system is the price cap index, which is designed to limit the prices that a price cap LEC may charge for services. Each price cap LEC's price cap index historically has been adjusted annually based primarily on a productivity factor or “X-factor” and a measure of inflation (GDP-PI). The X-factor initially represented the amount by which LECs could be expected to outperform economy-wide productivity gains. The X-factor serves as an adjustment to the price cap indices to account for these productivity gains, and is subtracted from GDP-PI in the Commission's price cap formula.
199. The Commission last set X-factors for special access services in the 2000
200. The Commission's price cap system has been running on autopilot since June 30, 2005, with no analysis as to why rate levels from 2003 might have remained reasonable despite widespread changes in the business data services marketplace. We end this freeze by replacing the CALLS era frozen X-
201. Our analysis includes several steps. We begin by deciding to use a total factor productivity (TFP) methodology in calculating business data services productivity gains or losses relative to growth in the general economy. We then decide to use the U.S. Bureau of Labor Statistics' Capital, Labor, Energy, Materials, and Services data for the broadcasting and telecommunications industries (KLEMS (Broadcasting and Telecommunications)) in applying our methodology. We use KLEMS (Broadcasting and Telecommunications) data to establish a zone of reasonable X-factor estimates. From that zone, we select an X-factor of 2.0 percent. Price cap LECs will apply this X-factor annually to help ensure that their price cap indices incorporate future productivity growth.
202. A price cap is intended to mimic competitive-market outcomes. One aspect of a competitive market is that output price growth over time matches the difference between industry input price growth and industry productivity growth. Another aspect of a competitive market is strong cost-reduction and investment incentives. A price cap that grows at a rate equal to the difference between the growth rate of input prices and industry productivity growth might, at least initially, hold prices to competitive levels, but if it were frequently updated on the basis of the regulated firms' behavior, quickly taking away any additional profits obtained either by implementing productivity increases or by negotiating lower input prices, the regulated firms would have little incentive to invest in cost and input price reduction. Consequently, in the
203. Under the approach outlined above, steps that a firm takes to lower its costs will not immediately affect the price cap. To see why, note that the price cap is adjusted based on two quantities: the national rate of inflation (GDP-PI) and the X-factor. The firm's cost-lowering actions will have, at most, a negligible effect on the national inflation rate. As for the X-factor, while the regulator periodically will assess the extent to which the regulated firms have lowered their costs (and thus might adjust the X-factor and price cap accordingly), this process typically occurs with substantial delays. Between X-factor adjustments, firms can keep any additional profits that they achieve through cost reductions; hence, the price-cap regime provides material incentives for firms to reduce their costs.
204. In summary, our proposed approach is to estimate an X-factor to be subtracted from the annual change in the GDP-PI to determine the annual change,
205. In the past, the Commission has relied on staff studies of the historical total factor productivity (or TFP) growth rate of incumbent LECs to estimate future productivity growth. TFP is the relationship between the output of goods and services to inputs, and is commonly used to measure productivity in the economy as a whole. TFP studies typically measure productivity using the ratio of an index of the outputs of a firm, industry, or group of industries to an index of corresponding inputs. Productivity growth is measured by changes in this ratio over time. In a TFP model, output is typically measured in terms of physical units (
206. In the
207. Having settled on a methodology for calculating the X-factor, we need to identify an appropriate data source. Upon review of the record, we find that KLEMS (Broadcasting and Telecommunications) is the only reliable and internally consistent dataset in the record for measuring incumbent LEC productivity and input prices. We select that dataset for our X-factor calculations.
208. The KLEMS (Broadcasting and Telecommunications) database was one of three datasets on which the Commission invited comment. The other two consist of: (a) Data from the peer review process in connection with the development of the Connect America Cost Model (CACM); and (b) those data in combination with cost data that TDS Metrocom (TDS) submitted in this proceeding (CACM-TDS). All three datasets are described more fully in Appendix B to the Report and Order. The Commission asked whether these datasets would provide a reasonable basis for estimating business data services productivity growth relative to growth in the general economy.
209. The Commission also asked the parties to suggest adjustments to these datasets that might improve their utility as a measure of business data services productivity growth and requested that the parties suggest additional datasets that might better balance precision with administrative feasibility. Only one party, Sprint, suggests an additional dataset—a version of KLEMS (Broadcasting and Telecommunications)
210.
211. The parties dispute the effect of this broad scope on BDS productivity growth estimates that are derived from the KLEMS (Broadcasting and Telecommunications) dataset. Ad Hoc and Sprint contend that this broad scope creates a downward bias in those estimates. AT&T and CenturyLink maintain, however, that any bias would overstate BDS productivity growth relative to productivity growth in the overall economy. AT&T argues that “wireless services, broadband Ethernet services, and cable and wireline Internet access services” supply are more productive than legacy DSn and that the KLEMS (Broadcasting and Telecommunications) dataset therefore may overstate productivity growth for the TDM-based services to which the X-factor will apply. CenturyLink asserts that growth in labor productivity has been significantly higher in broadcasting and wireless telecommunications than in wireline telecommunications, and that it is therefore unlikely that broadcasting and wireless telecommunications have experienced lower overall productivity growth than wireline telecommunications. Although the record falls short of providing the information we would need to resolve whether the KLEMS (Broadcasting and Telecommunications) dataset overstates or understates BDS productivity growth, we find that this dataset provides the best available information under the circumstances.
212.
213. The CACM-TDS dataset adds historical cost data from TDS's incumbent LEC operations to the CACM dataset. While the addition of the TDS data further tightens the focus on business data services, those data do “not address or eliminate any of the fundamental shortcomings with the CACM data” because they are “proprietary, unvalidated data from a single competitor that is seeking regulation.” We therefore reject the CACM-TDS dataset as a potential data source for our X-factor calculations.
214.
215. Even if it does exclude broadcasting, the KLEMS (Telecommunications) dataset is problematic for at least two additional reasons. First, that dataset only provides a price index for energy, non-energy materials, and purchased services inputs, and omits critical input prices for capital and labor, which means that it provides only an incomplete picture of the industries within its scope. Second, the KLEMS (Telecommunications) dataset also provides a value-added, rather than a gross output, measure of productivity growth, which precludes an apples to apples comparison of that growth to input prices, which are based on gross input. Each of these problems—lack of transparency, omission of critical inputs, and employing a value-added methodology—provides an independent basis for not using KLEMS (Telecommunications) in our X-factor calculations. We therefore reject this dataset as a potential data source for those calculations.
216. None of the datasets before us allow us to estimate with precision business data services productivity growth relative to growth in the general economy, and indeed of those datasets
[W]hen an agency makes rational choices from among alternatives all of which are to some extent infirm because of a lack of concrete data, and has gone to great lengths to assemble the available facts, reveal its own doubts, refine its approach, and reach a temporary conclusion, it has not acted arbitrarily or capriciously.
Here, where our X-factor decision provides only our “ `tentative opinion' about the dividing line between reasonable and unreasonable rates for the limited purpose of exercising [our] suspension power” under section 204 of the Act, we believe that we may properly rely on the KLEMS (Broadcasting and Telecommunications) dataset in our X-factor calculations. We now turn to those calculations.
217. We determine the productivity-based X-factor as follows. First, we use KLEMS (Broadcasting and Telecommunications) data to develop a range of X-factors for four periods: 1987 to 2014; 1997 to 2014; 2005 to 2014; and 2009 to 2014. Second, from this range of X-factors we develop a zone of reasonableness from which it would be appropriate to select an X-factor. Third, we decide not to adjust that zone to compensate for KLEMS (Broadcasting and Telecommunications)'s overbreadth. Finally, we select the X-factor from within this zone.
218.
219.
220. This period also includes a significant amount of time before and after the two business cycles. Using a timeframe that includes the maximum period for which data are available minimizes the likelihood of an arbitrary choice among many possible shorter periods within the longer period, given that there is no obviously correct choice. The disadvantage of this time period is that the data from the earliest years in the period may be stale or otherwise reflect economic conditions that are unlikely to persist into the future. The value of the most recent and most relevant data within this time period might not be apparent if combined with older data that are stale and irrelevant.
221.
222.
223.
224. Table 2 provides, for each of these four periods, X-factors calculated using Equation 2 and KLEMS (Broadcasting and Telecommunications) data. [“Table 2. KLEMS (Broadcasting and Telecommunications) X-factors” omitted].
225. The four data periods reflected in Table 2 establish a zone of productivity-based X-factor estimates of between 1.7 and 2.3 percent. This zone is relatively narrow, as the data period does not have a very large impact on the value of the X-factor. For example, the difference between the lowest and the highest percentages is 0.6 percentage points. The arithmetic average and the mid-point of the four X-factors are both 2.0 percent. The average implicitly weights the most-recent observations the most and the earliest observations the least because the most recent observations are in the most periods and the earliest observations are in the fewest periods.
226. We find that it would be unreasonable to adjust this zone either upward or downward to account for the broad scope of the KLEMS (Broadcasting and Telecommunications) dataset from which this zone was derived. Any such adjustment would necessarily reflect our determination that this overbreadth creates either a downward bias in our productivity growth estimates (which could lead to our adjusting the range upward) or an upward bias (which could lead to our
227. Cost-reducing growth is clearly occurring in price cap LECs' overall business data services operations. A significant portion of the assets, particularly outside plant, used to provide DS1s and DS3s, are also used to provide higher bandwidth circuit-based services or packet-based services, and
228. Growth in providing higher bandwidth circuit-based services and packet-based services is outpacing declining DS1 and DS3 services, a trend that strongly suggests that overall unit costs will continue decreasing into the foreseeable future. Price cap LECs are investing aggressively in modern packet-based telecommunications networks and services. AT&T, for example, announced that by the year 2020, 75 percent of its network will be controlled by software. AT&T disclosed in an annual report that it was “focused on building a modern network architecture that will provide the highest efficiency and productivity in the industry” and “[t]o make that happen” the “biggest [front] by far is transforming [AT&T's] network from hardware to software-centric” which allows AT&T to “deliver the most network traffic at the lowest marginal cost in the industry.” Verizon announced a software-defined networking-based strategy “to introduce new operational efficiencies and allow for the enablement of rapid and flexible service delivery to Verizon's customers.”
229. The record does not make clear, however, to what extent, if any, these decreasing unit costs and overall productivity gains will apply to the services that will remain under price caps, which for practical purposes consist of DS1 and DS3 channel terminations. Indeed, it is possible that, for DS1 and DS3 services in general, declining utilization of incumbent LEC plant and rising service-specific costs will more than offset any overall gains in business data services productivity. As AT&T points out, “demand for DSn services has been in rapid decline in recent years, as price cap LECs retire their legacy TDM networks.” As a result, price cap LECs are likely experiencing “very low utilization on [their] legacy TDM switches” and the “accompanying loss of scale economies suggests that it is unlikely that price cap LECs have achieved productivity gains that are in excess of inflation” for DS1 and DS3 services. This declining utilization of DSn-specific plant means that providers must amortize shared costs among fewer customers (
230. Nor does the record make clear whether any overall trend in DS1 and DS3 productivity growth extends to the areas that will remain under price caps. These non-competitive areas have significantly less demand density than the competitive areas that will no longer be subject to the price cap regime. The price cap LECs therefore may be less likely to achieve the same gains in economies of scale in non-competitive areas than in competitive areas. Whether these gains would be higher or lower than elsewhere cannot be determined from the record. The price cap LECs' initial price cap indices (and consequently all changes to those indices) reflected the costs of serving all areas within those LECs' service territories. CenturyLink argues adjustments to those indices should account for the higher costs of serving the areas that will remain under prices caps “[w]hether due to unique geographic difficulties, insufficient population density to generate economies of scale, or an array of other possible rationales.” However, the X-factor is determined by the rate of change of costs, not by whether the absolute level of costs is higher or lower in a given location.
231. While the record does not enable us to resolve the disputes over price cap LECs' productivity growth and ability to recover the costs of serving non-competitive areas with absolute certainty, we find that our KLEMS (Broadcasting and Telecommunications)-based calculations likely overstates, rather than understates, business data services productivity growth in those areas. The price cap LECs have not submitted the company-specific input price and output data that we would need to quantify this overstatement (and adjust the zone of reasonableness downward). We therefore make no such adjustment.
232. We reject Sprint's argument that we should adjust the zone of reasonableness upward to bring it into line with prior X-factor prescriptions, which were based on relatively narrow sets of data related almost exclusively to price cap LEC operations rather than broad datasets such as KLEMS (Broadcasting and Telecommunications). Sprint points out that in the
233. We conclude that we should select an X-factor below the top of the zone of reasonableness, 2.3 percent, in order to recognize the diminishing share DS1 and DS3 services have had, and will continue to have, of the overall business data services market. Indeed, over the longer term, these services will be replaced by Ethernet services or other more advanced business data services made possible by the transition to IP-based services transmitted over fiber. As demand for DS1 and DS3 services continues to fall, the costs directly attributable to (in contrast to the costs for assets shared between those services and packet-based services) maintaining this legacy technology, will begin to rise. For example, over time the volume of TDM equipment sales will fall to levels that deny manufacturers economies of scale. Similarly, there will likely be additional costs associated with warehousing, work programs, and
234. Requiring DS1 and DS3 rates to be reduced by percentages that ignore the transition from a legacy, TDM technology to an advanced technology could require the incumbent LECs to supply DS1s and DS3s at rates that do not recover their costs, and that inefficiently incentivize businesses to rely on DS1 and DS3 services, rather than more advanced business data services. Presumably, there are customers that will wish to continue to rely on a legacy technology at least for a period of time even though a new technology is readily available because it is less expensive on a net present basis for them to do so. In a competitive market, customers that continued to rely on a legacy technology as a new technology begins to dominate the market would be charged higher prices if costs directly attributable to the old technology were rising. Our X-factor decision should incorporate this aspect of competitive markets.
235. The lower-bound of the zone of reasonableness is 1.7 percent, a percentage based on data from 2009 to 2014. While this percentage provides insight into the most-recent trends in productivity and input prices, it reflects only a period of unusual macroeconomic expansion, as explained above. We find this period too short and too unrepresentative by itself to provide reliable insight into future business data services productivity growth. No party has submitted an X-factor study or similar data-based analysis purporting to show that the X-factor should be lower than 2.0 percent. AT&T's proposed X-factor, like our X-factors, reflect KLEMS (Broadcasting and Telecommunications) data. AT&T used data for 2005 to 2014 in calculating its X-factor, a period for which the X-factor is 2.0 percent. In these circumstances, we find that the X-factor we select should be above the lower bound of reasonableness.
236. As mentioned, the KLEMS (Broadcasting and Telecommunications) data on which this zone of reasonableness is based is overly broad; and, although we think an upward bias more likely, we are unable to resolve the dispute among the parties as to whether this broad scope creates a downward or upward bias. Our inability on the record before us to quantify either the magnitude or the direction of this bias supports selection of the average or the mid-point of the four X-factors, both of which are 2.0 percent. Taking all of these factors into account, we prescribe an X-factor of 2.0 percent. This X-factor reasonably assigns weight to the four different X-factors and accounts to the extent possible for the uncertain effects of bias in the overly-broad data.
237. We retain the U.S. Department of Commerce's Bureau of Economic Analysis's (BEA's) chain-weighted GDP-PI as the measure of inflation that price cap LECs will use in their price cap index calculations. As a chain-weighted index, GDP-PI captures economy-wide inflation over the medium-term and long-term comprehensively and “significantly more accurate[ly]” than fixed-weighted indexes, which become unrepresentative after a few years of change. We find no alternative measure of inflation that is as accurate as GDP-PI in the medium and long-term and that is not susceptible to carrier influence or manipulation. Accordingly, we retain GDP-PI as the inflation measure in our price cap formula.
238. The price cap indices have been effectively frozen since the CALLS plan expired on June 30, 2005. We conclude that no catch-up adjustment to those indices is warranted.
239.
240. The Commission prescribed X-factors in 1991, 1995, 1997, and 2000. The 1991 and 1995 prescribed X-factors were productivity-based and judicially upheld. The 1997 X-factor of 6.5 percent, while productivity-based, was reversed and remanded by the D.C. Circuit. Including 1997 to 2000 in the assessment period reflects that judicial action as well as the fact that the Commission never addressed the remanded X-factor on its merits. Instead, in the
241.
242. We use KLEMS (Broadcasting and Telecommunications) data for three data periods—1997 to 2014, 2000 to 2014 and 2005 to 2014—to estimate historical changes in levels of productivity and input prices for purposes of the catch-up calculations. The year 2014 is the most recent year for which KLEMS (Broadcasting and Telecommunications) data are available, and data are published only for calendar years. As we explain below, we adopt December 1, 2017 as the effective date for the going-forward X-factor. As we have no data for 2015 to November 30, 2017, we extrapolate annual growth rates based on the data periods that end in 2014 for an additional 35 months beyond the end of the data (
243. Table 3, below, sets forth the KLEMS (Broadcasting and Telecommunications) compound annual rates of growth in productivity and input prices for 1997 to 2017, 2000 to 2017 and 2005 to 2017, and the annual difference between the two rates of growth,
244.
245. Second, the results for the assessment periods that begin in 1997 and 2000 suggest that the 6.5 percent X-factor that the Commission prescribed in 1997 as well as the X-factors that were in effect during the CALLS plan were unreasonably high and therefore that the price cap indices were unreasonably low. This could help explain the extent to which certain price cap incumbent LECs have priced at the top of the price caps. The 1997 to 2017 assessment period results show a difference between industry price index and productivity of −0.35 percent annually, which when compounded over a 20-year, five-month period would have reduced the price cap index by 6.84 percent. Adjusting this figure by the −26.31 percent historical change in the price cap index produces a catch-up adjustment that would increase price cap levels by 19.47 percent. The 2000 to 2017 assessment period results show a difference between industry price index and productivity of −0.34 percent annually, which when compounded over a 17-year, five-month period would have reduced the price cap index by 5.81 percent. Adjusting this figure by the −13.94 percent historical change in the price cap index produces a catch-up adjustment that would increase the price cap index by 8.13 percent.
246. We decline to require price cap LECs to implement a catch-up adjustment to the price cap index. An adjustment based on the period since the CALLS plan expired would result in only a modest decrease in price cap levels and would likely overstate productivity growth for the business data services that will remain under price caps. Such an adjustment also would ignore the facts that the X-factors used during the CALLS plan itself were not productivity-based and that the X-factor adopted before CALLS was struck down by the D.C. Circuit. Adjustments based on periods when those X-factors were in effect would increase price cap levels, a result that no party has urged. In these circumstances, we believe it more prudent to rely on existing price caps levels, which at least have the benefit of minimizing potential rate shock to consumers.
247. Finally, we recognize that carriers have entered price-cap regulation at different points over the last 20 years, and so any catch-up adjustments would need to reflect that fact. It would make no sense, for example, to impose a catch-up adjustment calculated to reflect productivity over the last 12 or 20 years to a carrier that converted to price cap regulation just five years ago. And weighing the uncertain benefit of such adjustments to consumers against the cost to carriers (and ultimately consumers) of applying these differing adjustments as well as the cost to the Commission to monitor compliance, we conclude that not imposing a catch-up adjustment serves the public interest.
248. We consider several potential features of the price cap regime whose implementation could affect price cap rates. We retain the low-end adjustment mechanism for price cap LECs that meet certain conditions. We, however, decline to incorporate into our price cap regime three mechanisms that would affect the X-factor—a consumer productivity dividend, a growth or “g” factor, and earnings sharing between ratepayers and carriers, or to subdivide the special access price cap basket into different categories or subcategories.
249.
250. Historically, the low-end adjustment permitted price cap LECs that earn a rate of return 100 basis points or more below the prescribed rate of return for rate-of-return carriers to temporarily increase their price cap indices in the next year to a level that would allow them to earn 100 basis points below the prescribed rate of return. Unusually low earnings may be attributable to an error in the productivity factor, the application of an industry-wide factor to a particular LEC, or unforeseen circumstances in a particular area of the country. Failure to include any adjustment for such
251. The low-end adjustment mechanism permits a one-time PCI adjustment to a single year's rates to avoid back-to-back earnings below a benchmark. If a price cap LECs' earnings fall below the low-end adjustment mark in a base year period, it is entitled to adjust its rates upward to target earnings to an amount not to exceed the low-end mark, using the period as a baseline. In the past, the Commission used 100 basis points below the authorized rate of return for rate-of-return carriers as the low-end adjustment mark. The authorized rate of return for rate-of-return carriers is presently 9.75 percent, and 8.75 percent is 100 basis points below that percentage. The latter percentage is above the embedded cost of debt the Commission determined for each price cap LEC in March 2016. An 8.75 percent rate of return should provide each eligible price cap LEC with the opportunity to meet its existing obligations to debtholders and attract sufficient capital while continuing to provide services.
252. We reject Sprint's argument that we should not base our low-end mark on the authorized rate of return for rate-of-return carriers because that rate does not reflect the large price cap LECs' cost of capital. The rate reflects a weighted average cost of capital that was calculated using data from a proxy group that included large price cap LECs (
253.
254.
255.
256.
257. Having adopted a new X-factor for use in the price cap index for price cap LECs in non-competitive areas, we now set forth the path for implementing that new approach. We require revised tariff review plans (TRPs) implementing the X-factor to be filed with the Commission to become effective on December 1, 2017.
258. Incumbent LECs that file tariffs under the price cap ratemaking methodology are required to file revised annual access charge tariffs every year, which become effective on July 1. The annual filings include submission of TRPs that are used to support revisions to the rates, including revisions that pertain to the X-factor. To ease the burden on the industry, and because base period demand and the value of GDP-PI reflected in the price cap indices typically are not updated during a tariff year, we permit incumbent LECs to use the same base period demand and value of GDP-PI in their December 1, 2017 filings as in their July 1, 2017 annual filings.
259. Consistent with that approach, each price cap incumbent LECs must file, for business data services, revised TRPs and rates to reflect the newly revised X-factor. The X-factor adopted in this Order only applies prospectively, and each price cap incumbent LEC must recalculate its price cap index based on the December 1, 2017, effective date of this X-factor. In particular, the new X-factor should be reflected in the calculation of the price cap index for the special access basket and the pricing bands for each service category and subcategory within this basket. Rates must be established at levels where the actual price index does not exceed the price cap index and the service band index for each service category and subcategory does not exceed its upper limit. For purposes of this filing, the price cap incumbent LECs must base the calculation of these indices on our rules for an annual filing, other than for the periods used to measure base period demand and the value of GDP-PI. Further specific direction on the material required to be filed in the TRPs will be provided in a public notice or order preceding the December 1, 2017 effective date of the 2.0 percent X-factor, which will address compliance with price cap tariff filing procedures (including required certifications).
260. We decline to adopt ex ante rules governing the relationship between wholesale and retail rates for business data services, or to otherwise intervene in the marketplace for wholesale business data services.
261. The Communications Act and Commission precedent provide ample guidance regarding the pricing of wholesale business data services.
262. In response to requests for comments on the issue in the
263. In reaching this conclusion, we also reject requests that we mandate that, as a general matter, wholesale business data services rates must be lower than the retail rates for like services. Certain parties argue that because it costs business data services providers less to provide wholesale services than to provide like retail services wholesale rates should reflect these lower costs. However, any such mandate could have the unintended effect of preventing providers from reducing retail rates to competitive levels, as the provider would then have to reduce its wholesale rates to below those levels.
264. Three commenters suggest potential methods and amounts for an industry-wide discount. Advocates of action on wholesale pricing share an underlying premise, that wholesale services pricing should exclude avoided retail sales expenses. We do not find it necessary to make a finding concerning the accuracy of this premise and decline to set an industry-wide wholesale discount. Incumbent LECs are not required to tailor prices based solely on costs, although rates must be just and reasonable and not unreasonably discriminatory. We expect that continued growth in competition as a result of this Order will have a positive effect on the marketplace without the need for a wholesale discount. Additionally, our section 208 complaint procedures remain available to remedy any claimed anticompetitive or discriminatory behavior.
265. Sections 201(b) and 202(a) do not explicitly require rates to correspond to costs—only that such rates be just and reasonable and not unreasonably discriminatory. Indeed, with any generally available offering, it is unlikely that the costs to provide service to any two customers would be exactly the same, and we do not require carriers to price their offerings based on the myriad of different costs imposed by various customers. In fact, we prohibit carriers from discriminating against similarly-situated customers. The same analysis is true in this situation.
266. Additionally, Sprint and Windstream ask that we “confirm that carriers cannot avoid [their] resale obligations merely by bundling non-Internet telecommunications services with Internet access or with add-on information services.” LARIAT asks that we establish rules to prohibit “refusal to deal.” We find that these practices do not lend themselves to blanket rules or detailed pricing methodologies, and we therefore reject these requests.
267. A number of commenters dispute the accuracy of a seemingly-categorical statement in the
268. Under the analytical framework for distinguishing between services offered on a common carriage or private carriage basis—commonly known as the `
269. In the 1996 Act, Congress added new statutory categories of “telecommunications,” “telecommunications services,” and “telecommunications carriers” to the Communications Act. Telecommunications is defined in relevant part as “the transmission . . . of information of the user's choosing,” echoing the second prong of the traditional
270. Against the backdrop of the Commission's established approach to addressing private carriage, common carriage, and telecommunications service classification issues, we agree with commenters that statements in the
271.
272. Comcast and Charter each further explain that they make highly-individualized decisions regarding any rates and terms they do offer for the relevant categories of services in order to meet the particular needs of a given customer. The plausibility of these descriptions is reinforced by the fact that the customers for these services typically include large wireless carriers, other large service providers, or enterprises. The record reveals that such entities are likely to have the size and sophistication to demand uniquely-tailored wholesale or retail offerings that enable them to meet particularized needs. Although a few commenters dispute the private carriage claims in the record, for the reasons described below in our response to those arguments, we are not persuaded that they require a different conclusion with respect to the services we classify as private carriage here. Thus, considering the totality of the circumstances, we conclude that the Comcast and Charter services identified above, when offered in the manner described in the record, constitute private carriage services—not common carrier services or telecommunications services.
273. As other examples, Mediacom, ACS, and BT Americas also argue that services they each provide constitute private carriage. Although the information they submitted is not quite as detailed or specific as that of Comcast and Charter, we nonetheless agree that, as described, these services reflect private carriage offerings. Notably, each of these providers explains with respect to its relevant services that, rather than offering service to all potential customers and offering rates and terms indifferently, they instead make individualized decisions about whether and on what terms to offer service. There also is little indication in the record of any disagreement that these particular providers are offering service on a private carriage basis, as they contend. Building on our analysis for Comcast and Charter above, under our evaluation of the totality of the evidence here, we likewise conclude that the services described by Mediacom, ACS, and BT Americas are private carriage when offered as these providers describe.
274.
275. First, generalized statements about marketplace trends broadly, or Comcast's or Charter's networks or services generally—but which do not purport to address more specifically the particular services we discuss above—do not provide a basis to reject the evidence put forward by Comcast, Charter or the other providers addressed above that is specific to those providers' services. Even assuming
276. Second, we are unpersuaded by arguments that particular aspects of how these providers offer service do not inherently require a classification of private carriage as to the offering of the relevant services, or can be consistent with common carriage. We do not base our decision on any single aspect of the manner in which Comcast, Charter, Mediacom, ACS, or BT Americas offer the specified services. Rather, we confirm those providers' claims of private carriage based on the totality of the evidence before us describing the manner in which the relevant services are offered. Under that analysis we find sufficient evidence of individualized determinations whether to offer service to given customers and, when services are offered, individualization on a sufficient range of key terms of the offering to warrant a finding of private carriage. Thus, whether any subset of actions taken by those providers would or would not be sufficient to support a private carriage classification is not an issue we confront or address here.
277. We also find a variety of those claims overstated, even on their own terms. For example, some commenters
278. Also overstated are commenters' claims regarding common technical characteristics or terms of agreements, whether in marketing materials, “rate sheets,” or from practical interactions with Comcast, Charter, Mediacom, ACS, or BT Americas. These claims do not dissuade us from the private carriage determination we make as to those providers. Such considerations can be relevant to the classification analysis, but the evidence before us in that regard does not require a common carrier classification here. Even to the extent that such evidence here directly applies to the particular providers' services addressed above, we are persuaded that, in significant part, they do not reflect a formal offer of service at particular rates and terms that these providers genuinely anticipate potential customers accepting, but merely serve a starting point for negotiations of relevant rates and terms. In addition, to the extent that Verizon identifies certain similarities in its interactions with a variety of different service providers (when acting as a customer) and with its own operation (when acting as a service provider), that is distinct from the relevant question of whether a single provider treats all potential customers similarly and thus should be classified as a common carrier. Further, some uniformity in technical characteristics in a given provider's service offering appears largely inevitable given the need to conform to industry standards, common equipment, and the like, and if that were enough to warrant a finding of common carriage, the notion of private carriage could be rendered a nullity. Additionally, issues regarding the rates and terms of any offering are distinct from the question of whether any offering (whatever the rates and terms) is made to all potential users of the service—a “critical” issue under
279. Third, we reject common carriage claims based on asserted similarities between particular aspects of these providers' offering of service and the manner in which incumbent LECs or others offer service. We are not persuaded that comparisons or analogies to how other providers such as incumbent LECs or others have offered service necessarily are illuminating. Although there are a variety of prior decisions where the Commission has suggested that business data services are telecommunications services, those decisions are best understood as descriptive of the agency's general sense of how providers—and particularly incumbent LECs—were, in practice, offering such services at the time. They do not expressly claim (or justify) any formal, comprehensive classification of business data services under our longstanding classification approaches. Those prior decisions thus also do not prejudge the classification of services being offered in the marketplace today or in the future—whether by competitive providers or incumbent LECs—which potentially could be appropriately classified as private carriage, as well. We need not and do not resolve such broader classification issues here.
280. The record also does not demonstrate that the Commission has any statutory authority to compel common carriage offerings of what otherwise are private carriage business data services—to compel a provider to “offer[]” business data services “for a fee directly to the public” if the provider has not voluntarily done so. The precedent cited by commenters advocating such a compulsion arose where the Commission was exercising licensing authority. By contrast, the providers that are the focus of private carriage arguments in the record here—particularly cable operators—do not require any Commission license or authorization before introducing domestic, private carriage business data services, so those orders do not demonstrate Commission authority as relevant here. Instead, commenters merely assert their view that doing so would be desirable as a way to advance various policy goals. Absent any statutory authority, we cannot compel common carriage for what otherwise are private carriage offerings.
281.
282. In addition, we also find insufficient the policy grounds cited by commenters advocating compelled common carriage here. As a number of commenters recognize, our precedent generally has identified market power as a prerequisite for potentially compelling common carriage, but the record here
283. For similar reasons, we decline to adopt a new approach to classification here that departs from our longstanding reliance on the
284. Independently, we are not persuaded by policy arguments that we should depart from our longstanding classification approach even if we could do so as a matter of statutory interpretation. The arguments in favor of such action are, like the arguments commenters raised in favor of compelled common carriage, generalized assertions about providing perceived benefits or remedying perceived risk of harms that are divorced from any specific circumstances where application of our longstanding classification approach would yield private carriage classifications. As we explained when rejecting proposals to compel common carriage, such arguments do not demonstrate what public benefits would flow if the specific services of certain providers that we find to be offered on a private carriage basis—or those of other providers not addressed here—were instead classified as common carriage. That shortcoming is even more problematic for any argument to revisit the Commission's classification approach, because absent some theory for limiting the interpretation just to this context, increasing the reach of the telecommunications service definition would also result in regulatory burdens for providers of other communications services that would be classified as common carrier telecommunication services under that interpretive approach. We thus find no grounds for adopting an approach to service classification here that departs from our longstanding reliance on the
285. Given that we do not depart here from our longstanding approach to evaluating private carriage and common carriage classification, we also continue to adhere to our precedent under which shared use arrangements typically were classified as private carriage. Consequently, this addresses the concerns of some commenters that research and education (R&E) networks that historically had been treated as private carriage under that framework might newly be classified as common carrier telecommunications services under a new approach to classification.
286. By this Order, the Commission “identifies a set of rules and/or policies that will ensure rates, terms, and conditions for special access services [business data services] are just and reasonable.” As a result, the interim wholesale access rule for discontinued TDM-based business data services and unbundled network element platform (UNE-P) replacement services (also called commercial wholesale platform services) established in the
287.
288.
289. We find arguments raised by proponents of extending the UNE-P replacement rule today to be highly similar to arguments that the Commission rejected in 2015 when declining to set a further end date for the interim rule. Granite and others have known since the interim rule's adoption that the Commission intended the condition “to be interim and short-term in nature”; indeed, the Commission emphasized that “consistent with that goal we have adopted a specific and foreseeable endpoint.” In the
290. We are not persuaded that competition will be harmed by the termination of the interim rule. Proponents of the interim rule ask us to ensure that the specific wholesale inputs on which they depend are available at “reasonably comparable” rates, terms, and conditions if and when incumbent LECs transition those inputs fully to Internet Protocol (IP). But “[o]ur statutory duty is to protect efficient competition, not competitors.” Companies that offer multilocation enterprise voice service—such as Granite and the members of the Wholesale Voice Coalition—contend that their service is difficult to provide without access to regulated inputs due to the high cost of serving some individual customer locations, the typically low number of lines per customer location, and the need to serve numerous locations per customer. Given these companies' multilocation business model, it is plausible that they could absorb a loss to serve some customer locations yet still find serving that customer worthwhile. However, neither Granite nor any other party has linked the challenges of serving some individual customer locations to competitive or customer impact. For instance, Granite has not quantified how many of its customers would become uneconomical to serve without the interim rule, shown how it would choose among constructing its own facilities, reselling cable, and reselling incumbent LEC services in the absence of the rule, nor shown how these issues would adversely affect overall competition in the market. Instead, supporters of extending the interim rule focus on how it would adversely impact them as individual competitors and call for
291. We find the remainder of the arguments in the record in support of extending the condition similarly unpersuasive. Granite has argued that its overall costs would increase 159 percent if it were required to convert from purchasing UNE-P replacement services to resold incumbent LEC voice lines, but it has not demonstrated that absent the interim rule such a conversion would be necessary, nor supported that assertion beyond submitting a generalized declaration. We are equally unpersuaded by a June 2015 study that purports to find that loss of wholesale access to incumbents' voice services would result in customer harm of between $4.443 billion and $10.168 billion per year. This calculation is based on Granite's estimate that competitive carriers provide $30 per line of value to their customers, a remarkable assertion for which the study provides no particularized or verifiable support. Moreover, proponents of extending the interim rule continue to rely on the same data submitted in support of the initial adoption of the interim rule.
292. Finally, we note that arguments in favor of extending the interim rule are premised on the expectation that wholesale voice arrangements will not occur absent regulatory action. We disagree. Our view is informed significantly by developments subsequent to the
293. While our predictive judgment regarding the availability of wholesale voice inputs from incumbent LECs in IP influences our decision, it alone is not dispositive. Our overarching goal here is to increase incentives for and remove barriers to facilities investment and the IP transition. We therefore allow the interim rule to terminate as scheduled. We also reject the request to prohibit non-disclosure agreements with respect to UNE-P replacement services as unsupported by the record, inconsistent with our decision to reduce regulatory intervention, and beyond the scope of the
294. The Commission delegated authority to the Bureau to implement the
295. On September 18, 2013, the Bureau released the
296. On October 22, 2013, CenturyLink filed an AFR, seeking reversal of the Bureau's decision in the
297. Following the release of the
298. On October 24, 2014, USTelecom filed an application seeking Commission review of the Bureau's modification of the collection, in the
299. We first deny the CenturyLink AFR as moot in light of the reforms adopted in this Order. CenturyLink's concern was that the Bureau's decision would result in the Commission's failing to take into account the growing cable competition present in the business data services market. By using Form 477 data in addition to the
300. We also deny the US Telecom AFR. In the
301. On June 17, 2016, CenturyLink et al. filed a motion seeking to strike from the record the analysis contained in the Rysman Paper that was attached to the
302. CenturyLink et al.'s motion to strike is in response to various cable reporting errors contained in the
303. Commission staff have already accounted for the supplemented cable information in the context of the rulemaking proceeding and updated its analysis accordingly. Moreover, the competitive market test relies heavily on data from the Form 477 to determine where cable competition is present in the business data services market and has based significant regulatory relief on the presence of a single cable provider located in 75 percent of the census blocks in a county. The arguments from CenturyLink et al. are based on the concern that the Commission would not have the appropriate evidence of cable competition in evaluating the business data services market. Because we have included the Form 477 data in our analysis and based significant regulatory relief on the presence of cable competition, we conclude that the motion to strike has been rendered moot and is therefore denied.
304. The Bureau on September 18, 2015, released an order clarifying and modifying the Protective Order initially adopted for the
305. On March 17, 2016, AT&T filed a motion seeking access to the highly confidential fiber route maps submitted by competitive providers in response to the
306. At the time AT&T filed its motion, the Commission staff had only made available a data file identifying the census blocks in which fiber routes reported by competitive providers were present. On March 30, 2016, the Bureau made available an additional data file providing the distances from each unique reported location to each competitive provider's fiber network. AT&T, its economists, and other commenters have relied on this information in advocating their positions in this proceeding. We find the alternative data file that Commission staff provided addresses AT&T's identified concerns, and we therefore deny the motion.
307. All of the rules and policies that are adopted in this Order are designed to work in unison to ensure that rates for business data services are just and reasonable while also encouraging facilities-based competition and facilitating technology transitions. However, each of the separate reforms we undertake in this Order serves a particular function toward these goals. Therefore, it is our intent that each of the rules and policies adopted herein shall be severable. If any of the rules or policies is declared invalid or unenforceable for any reason, it is our intent that the remaining rules shall remain in full force and effect.
308. Given the complexities associated with modifying existing rules as well as other reforms adopted in this Order, we direct the Wireline Competition Bureau to make any further rule revisions extending only to technical and conforming edits to ensure that the reforms adopted in this Order are properly reflected in the rules. If any such rule changes are warranted, the Bureau shall be responsible for such changes. We note that any entity that disagrees with a rule change made by the Bureau will have the opportunity to file an Application for Review by the full Commission.
309. This Order will require price cap incumbent LECs and their customers to make operational changes that will raise technical issues, many of which will only come to light as the Order begins to be implemented. We direct that, in resolving these issues, the Bureau shall make sure that the operational changes properly reflect the reforms adopted in the Order.
310. In addition, we take this opportunity to make several non-substantive rule amendments. We find that notice and comment is unnecessary for rule amendments to ensure consistency in terminology and cross references across various rules, correct inadvertent failures to make conforming changes when prior rule amendments occurred, and to delete references to rules governing past time periods that no longer are applicable.
311. This document contains new information collection requirements subject to the PRA. It will be submitted to OMB for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies will be invited to comment on the new information collection requirements contained in this proceeding. In addition, we note that pursuant to the Small Business Paperwork Relief Act of 2002, we previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees. We describe impacts that might affect small businesses, which includes most businesses with fewer than 25 employees, in the Final Regulatory Flexibility Analysis.
312. The Commission will send a copy of this Report and Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act,
313. As required by the Regulatory by the Regulatory Flexibility Act of 1980, as amended (RFA) an Initial Regulatory Flexibility Analysis (IRFA) was incorporated into the Further Notice of Proposed Rulemaking (
314. In the
315. Based on the
316. For counties that do not meet the competitive market test, the Commission will retain price cap regulation for incumbent LEC provision of DS1 and DS3 end user channel terminations, and certain other business data services, and apply the principles of Phase I pricing flexibility to these counties, which will permit the carriers to offer volume and term discounts, as well as contract tariffs. These services will also be subject to a productivity-based X-factor of 2.0 percent and restrictions on the incumbent LEC's use of non-disclosure agreements.
317. The Commission did not receive comments specifically addressing the rules and policies proposed in the IRFA.
318. The Chief Counsel did not file any comments in response to this proceeding.
319. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. 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. 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).
320. Our proposed action, if implemented, 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. First, as of 2013, the SBA estimates there are an estimated 28.8 million small businesses nationwide—comprising some 99.9% of all businesses. In addition, 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, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2012 indicate that there were 90,056 local governmental jurisdictions in the United States. We estimate that, of this total, as many as 89,195 entities may qualify as “small governmental jurisdictions.” Thus, we estimate that most governmental jurisdictions are small.
321.
322. We have included small incumbent LECs in this present RFA analysis. As noted above, a “small business” under the RFA is one that,
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329.
330.
331. The rules adopted in the Report and Order may affect wireless providers. As a general matter, the number of winning bidders that claim to qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Also, the Commission does not generally track subsequent business size unless, in the context of assignments and transfers or reportable eligibility events, unjust enrichment issues are implicated.
332.
333.
334.
335.
336.
337.
338.
339. On January 26, 2001, the Commission completed the auction of 422 C and F Block Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders in that auction, 29 claimed small business status. Subsequent events concerning Auction 35, including judicial and agency determinations, resulted in a total of 163
340.
341. The auction of the 1,053 800 MHz SMR geographic area licenses for the General Category channels began on August 16, 2000, and was completed on September 1, 2000. Eleven bidders won 108 geographic area licenses for the General Category channels in the 800 MHz SMR band and qualified as small businesses under the $15 million size standard. In an auction completed on December 5, 2000, a total of 2,800 Economic Area licenses in the lower 80 channels of the 800 MHz SMR service were awarded. Of the 22 winning bidders, 19 claimed small business status and won 129 licenses. Thus, combining all four auctions, 41 winning bidders for geographic licenses in the 800 MHz SMR band claimed status as small businesses.
342. In addition, there are numerous incumbent site-by-site SMR licenses and licensees with extended implementation authorizations in the 800 and 900 MHz bands. We do not know how many firms provide 800 MHz or 900 MHz geographic area SMR service pursuant to extended implementation authorizations, nor how many of these providers have annual revenues of no more than $15 million. One firm has over $15 million in revenues. In addition, we do not know how many of these firms have 1,500 or fewer employees, which is the SBA-determined size standard. We assume, for purposes of this analysis, that all of the remaining extended implementation authorizations are held by small entities, as defined by the SBA.
343.
344. In 2007, the Commission reexamined its rules governing the 700 MHz band in the
345.
346.
347.
348.
349. As of March 2010, there were 424,162 PLMR licensees operating 921,909 transmitters in the PLMR bands below 512 MHz. 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.
350.
351.
352.
353.
354.
355.
356.
357.
358.
359. In 2009, the Commission conducted Auction 86, the sale of 78 licenses in the BRS areas. The Commission offered three levels of bidding credits: (i) A bidder with attributed average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years (small business) received a 15 percent discount on its winning bid; (ii) a bidder with attributed average annual gross revenues that exceed $3 million and do not exceed $15 million for the preceding three years (very small business) received a 25 percent discount on its winning bid; and (iii) a bidder with attributed average annual gross revenues that do not exceed $3 million for the preceding three years (entrepreneur) received a 35 percent discount on its winning bid. Auction 86 concluded in 2009 with the sale of 61 licenses. Of the ten winning bidders, two bidders that claimed small business status won 4 licenses; one bidder that claimed very small business status won three licenses; and two bidders that claimed entrepreneur status won six licenses.
360. In addition, the SBA's Cable Television Distribution Services small business size standard is applicable to EBS. There are presently 2,436 EBS licensees. All but 100 of these licenses are held by educational institutions. Educational institutions are included in this analysis as small entities. Thus, we estimate that at least 2,336 licensees are
361.
362.
363.
364.
365.
366. The first category comprises firms “primarily engaged in providing telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite
367. The second category of Other Telecommunications comprises,
368. The description above of wireline providers should encompass cable service providers that also provide business data services. Out of an abundance of caution, we describe cable service providers below as well as other types of firms that may provide broadband services, including MDS providers and utilities, among others.
369.
370.
371. The open video system (OVS) framework was established in 1996, and is one of four statutorily recognized options for the provision of video programming services by local exchange carriers. The OVS framework provides opportunities for the distribution of video programming other than through cable systems. Because OVS operators provide subscription services, OVS falls within the SBA small business size standard covering cable services, which is “Wired Telecommunications Carriers.” The SBA has developed a small business size standard for this category, which is: all such firms having 1,500 or fewer employees. According to Census Bureau data for 2007, there were a total of 955 firms in this previous category that operated for the entire year. Of this total, 939 firms had employment of 999 or fewer employees, and 16 firms had employment of 1,000 employees or more. Thus, under this second size standard, most cable systems are small and may be affected by rules adopted pursuant to the Order. In addition, we note that the Commission has certified some OVS operators, with some now providing service. Broadband service providers (BSPs) are currently the only significant holders of OVS certifications or local OVS franchises. The Commission does not have financial or employment information regarding the entities authorized to provide OVS, some of which may not yet be operational. Thus, again, at least some of the OVS operators may qualify as small entities.
372.
373.
374. In addition, the Commission amends the price cap rules to allow all price cap LECs in non-competitive counties to lower their rates through contract tariffs and volume and term discounts in a manner consistent with the Commission's current Phase I pricing flexibility rules. These incumbent LECs will be required to maintain generally available tariffed price cap regulated rates available to all subscribers. For the small number of counties that had received Phase II pricing flexibility that are now treated as non-competitive by the Order's competitive market test, those price cap carriers will be permitted to retain Phase II relief for those counties but will be required to offer generally available rates for those services as long as those services remain under tariff.
375. The Commission also incorporates a productivity-based X-factor of 2.0 percent for DS1 and DS3 end user channel terminations, and certain other business data services, subject to price cap regulation on a going-forward basis. Affected LECs will be required to revise their rates and tariff review plans, including adjustments to price cap indices, for business data services in filings with the Commission to reflect the new X-factor. These revisions are required of all affected carriers, regardless of entity size. The adopted rule revisions will facilitate Commission and public access to the most accurate and up-to-date tariffs as well as lower rates paid by the public for the affected services.
376. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include (among others) the following four alternatives: (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 or reporting requirements under the rule for 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 small entities.
377.
378. In the Order, the Commission explains why it adopts a test that departs from the proposals in the
379.
380.
381.
382.
383.
384.
385.
386.
387. The Commission will send a copy of the Report and Order, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the Order and FRFA (or summaries thereof) will also be published in the
388. The Commission certifies that it has complied with the Office of Management and Budget Final Information Quality Bulletin for Peer Review, 70 FR 2664 (2005), and the Data Quality Act, Public Law 106-554 (2001), codified at 44 U.S.C. 3516 note, with regard to its reliance on influential scientific information in the Report and Order in WC Docket Nos. 16-143, 15-247, 05-25, and RM-10593.
389.
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396.
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398.
Classified information, Freedom of information, Government publications, infants and children, Organization of functions (Government agencies), Postal Service, Privacy, Reporting and Recordkeeping requirements, Sunshine Act.
Administrative practice and procedure, Civil rights, Communications common carriers, Cuba, Drug abuse, Environmental impact statements, Equal access to justice, Equal employment opportunity, Federal buildings and facilities, Government employees, Income taxes, Indemnity payments, Individuals with disabilities, Investigations, Lawyers, Metric system, Penalties, Radio, Reporting and recordkeeping requirements, Telecommunications, Television, Wages.
Communications common carriers, Radio, Reporting and recordkeeping requirements, Telegraph, Telephone.
Cable television, Communications common carriers, Radio, Reporting and Recordkeeping requirements, Telegraph, Telephone.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 0, 1, 61, 63, and 69 as follows:
Secs. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155, unless otherwise noted.
15 U.S.C. 79
Special access contract-based tariffs that were in effect on or before August 1, 2017 are grandfathered. Such contract-based tariffs may not be extended, renewed or revised, except that any extension or renewal expressly provided for by the contract-based tariff may be exercised pursuant to the terms thereof. During the period between August 1, 2017 and the deadline to institute mandatory detariffing under § 61.201(b), upon mutual agreement, parties to a grandfathered contract-based tariff may replace it at any time with a new contract-based tariff or with a new or amended contract that is not filed as a contract-based tariff.
Secs. 1, 4(i), 4(j), 201-205 and 403 of the Communications Act of 1934, as amended; 47 U.S.C. 151, 154(i), 154(j), 201-205 and 403, unless otherwise noted.
(b) * * *
(1) * * *
(iv) For the special access basket specified in § 61.42(d)(5), the value of X shall be 2.0% beginning December 1, 2017, notwithstanding any language in § 61.45(b)(1)(i).
(a) This section shall apply to price cap local exchange carriers permitted to offer contract-based tariffs under § 1.776 or § 69.805 of this chapter.
(a) Price cap local exchange carriers shall remove from their interstate tariffs:
(1) Any packet-based business data service;
(2) Any circuit-based business data service above the DS3 bandwidth level;
(3) Transport services as defined in § 69.801 of this chapter;
(4) DS1 and DS3 end user channel terminations, and all other tariffed special access services, in any market deemed competitive as defined in § 69.801; and
(5) DS1 and DS3 end user channel terminations, and all other tariffed special access services, in any grandfathered market as defined in § 69.801 for which the price cap local exchange carrier was granted Phase II pricing flexibility prior to June 2017.
(b) The detariffing must be completed thirty-six months after August 1, 2017, but detariffing can take place at any time before the thirty-six months is completed.
(a) Competitive local exchange carriers shall remove all business data services from their interstate tariffs.
(b) The detariffing must be completed thirty-six months August 1, 2017.
Sections 1, 4(i), 4(j), 10, 11, 201-205, 214, 218, 403 and 651 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 160, 201-205, 214, 218, 403, and 571, unless otherwise noted.
47 U.S.C. 154, 201, 202, 203, 204, 218, 220, 254, 403.
The rules in this subpart apply to all incumbent LECs subject to price cap regulation, as defined in § 61.3(bb) of this chapter, seeking pricing flexibility on the basis of the development of competition in parts of its service area for switched access services only.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(a) The competitive market test is used to determine which counties served by a price cap local exchange carrier, as defined in § 61.3(bb) of this chapter, are deemed competitive and therefore warrant relief from price cap regulation and detariffing of DS1 and DS3 end user channel terminations, and certain other business data services, sold by such carriers.
(b)
(1) Either 50 percent of the locations with business data services demand within the county are within one half mile of a location served by a competitive provider based on data from the special access data collection, or 75 percent of the census blocks within the county are reported to have broadband connection availability by a cable operator based on Form 477 data as of December 2016. Lists of counties deemed competitive, non-competitive or grandfathered by the initial competitive market test are published on the Commission's Web site.
(2) The DS1 and DS3 end user channel terminations sold by price cap local exchange carriers in counties deemed competitive are no longer subject to price cap regulation and are detariffed according to § 61.201.
(c)
(1) A county will be deemed competitive in a subsequent competitive market test if 75 percent of the census blocks within the county are reported to have broadband connection availability by a cable operator based on Form 477 data as of the date of the most recent collection.
(2) No later than three years following the effective date of the previous test, the Wireline Competition Bureau will conclude a subsequent test and will publish a revised list of counties deemed competitive at the conclusion of the test.
(3) A county deemed competitive in the competitive market test will retain its status in subsequent tests.
(a) In markets deemed non-competitive, buyers and sellers of business data services shall not enter into a tariff, contract-based tariff, or commercial agreement, including but not limited to master service agreement, that contains a non-disclosure agreement as defined in § 69.801(g), that restricts or prohibits disclosure of information to the Commission, or requires a prior request or legal compulsion by the Commission to effect such disclosure.
(b) Confidential information subject to a protective order as defined in § 0.461 of this chapter in effect as of the effective date of a tariff, contract-based tariff, or commercial agreement must be submitted pursuant to the terms of that protective order or otherwise pursuant to the Commission's rules regarding submission of confidential data in §§ 0.457(d) and 0.459.
(a) Price cap local exchange carrier transport and end user channel terminations in markets deemed competitive and in grandfathered markets for a price cap carrier that was granted Phase II pricing flexibility prior to June 2017 are granted the following regulatory relief:
(1) Elimination of the rate structure requirements in subpart B of this part;
(2) Elimination of price cap regulation; and
(3) Elimination of tariffing requirements as specified in § 61.201 of this chapter.
(b) Price cap local exchange carrier end user channel terminations in markets deemed non-competitive are granted the following regulatory relief:
(1) Ability to offer volume and term discounts;
(2) Ability to enter into contract-based tariffs, provided that:
(i) Contract-based tariff services are made generally available to all similarly situated customers;
(ii) The price cap local exchange carrier excludes all contract-based tariff offerings from price cap regulation pursuant to § 61.42(f) of this chapter;
(3) Ability to file tariff revisions on at least one day's notice, notwithstanding the notice requirements for tariff filings specified in § 61.58 of this chapter.
(c) A price cap local exchange carrier that was granted Phase II pricing flexibility prior to June 2017 in a grandfathered market must retain its business data services rates at levels no higher than those in effect as of April 20, 2017, pending the detariffing of those services pursuant to § 61.201 of this chapter.
(a) Any price cap local exchange carrier or any affiliate of any price cap local exchange carrier that had obtained Phase II pricing flexibility under § 69.709 or § 69.711 for any service in any MSA in its service region, or for the non-MSA portion of any study area in its service region, shall be prohibited from making any low-end adjustment pursuant to § 61.45(d)(1)(vii) of this
(b) Any price cap local exchange carrier or any affiliate of any price cap local exchange carrier that exercises the regulatory relief pursuant to § 69.807 in any part of its service region shall be prohibited from making any low-end adjustment pursuant to § 61.45(d)(1)(vii) of this chapter in all or part of its service region.
(c) Any price cap local exchange carrier or any affiliate of any price cap local exchange carrier that exercises the option to use generally accepted accounting principles rather than the uniform system of accounts pursuant to § 32.11(g) of this chapter shall be prohibited from making any low-end adjustment pursuant to § 61.45(d)(1)(vii) of this chapter in all or part of its service region.
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration |